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McHaNey, J.
On February 12, 1927, appellant secured a decree of divorce from appellee. That part of the decree relating to the settlement of the property rights and the alimony reads as follows: “And it further appearing to the court that there were no children born of said union, and that the parties hereto have agreed upon a settlement of the property rights, it is ordered under said agreement that the defendant herein pay to the plaintiff herein by way of alimony the sum of one hundred fifty dollars ($150) at this time and one hundred fifty dollars ($150) on the first day of each and every month hereafter. # # * The court doth retain control of this cause for such further orders and proceedings as may he necessary to enforce the rights of the parties hereto.”
In 1931 appellee filed a petition in the chancery court to modify the above-mentioned decree by striking therefrom the provision relative to the payment of alimony, and that the court determine the amount of delinquent alimony which had accrued and extend the time for paying same upon such terms as the court might deem just and proper under the circumstances. The petition for this purpose was based on the ground that his income as a physician and surgeon had been greatly reduced both on account of his physical condition and the depressed business conditions generally prevailing throughout the country. A hearing was had on this petition on March 14, 1932, and the court made an order finding that appellee was delinquent in alimony installments as provided in the original decree in the sum of $4,650, and that he thereafter pay appellant $60 per month beginning March 15, and a like sum on or before the fifteenth of each succeeding’ month until the total amount found to be delinquent had been paid. It was further provided that, if he failed to pay as therein provided, the amount to be paid should be increased $60, but if he pay in the manner provided at the time when due, same should constitute full and complete settlement of the claims for alimony provided in the original decree. The order further provided that the original decree should be set aside in so far as future alimony is concerned, save and except that, if he fails to make the payments as therein provided, then the sum shall be increased $60 per month.
From this decree modifying the original decree as above stated this appeal is prosecuted.
The principal ground urged for a reversal of the judgment is that the court did not have the power to set aside a former decree based on an agreement of the parties. Appellant relies npon the cases of Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, and Erwin v. Erwin, 179 Ark. 192, 14 S. W. (2d) 1100, and cases therein cited to support this contention. We cannot agree with appellant that the cases relied npon go to the extent now contended for. It must be remembered that the statute (§ 3510, Crawford & Moses’ Digest) provides: “The court, upon application of either party, may make such alterations from time to time as to the allowance of alimony and maintenance, as may be proper, and may order any reasonable sum to be paid for the support of the wife during the pending of her bill for divorce.” It has been held by this court that an allowance of alimony is subject to modification by the court to meet changed conditions. Kurtz v. Kurtz, 38 Ark. 119; Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700; McConnell v. McConnell, 98 Ark. 193, 136 S. W. 931. It is true in the Pryor case the court held that, where, in contemplation of divorce, the husband and wife entered into a contract by which he agreed to pay her certain sums of money at stated times and they caused this contract to be made a part of the decree for divorce, the decree cannot subsequently be modified in so far as it is based on the contract. But even then the court said that, if the court should subsequently find the allowance excessive, it might decline to permit its extraordinary process to be used to collect more than a just and reasonable allowance for alimony. In that case the. agreement was incorporated in the decree by the voluntary consent of the parties, and the court in construing the above statute said: “Does the fact that the allowance is based on an agreement entered into between the parties hamper the power of the court to subsequently alter it? We think not, so far as the dependence of the allowance on the decree of the court is concerned. The statute gives the court the power to alter any of its decrees allowing alimony. The court is not, in the first instance, bound by the agreement of the Dailies concerning the amount of alimony to be allowed to the wife (2 Nelson on Divorce and Separation, § 915, Calame v. Calame, 25 N. J. Eq. 548); and, a fortiori, the agreement cannot, in the face of the statute, hinder the court in altering its own decree of allowance. The decree is not entirely dependent upon the agreement, and therefore the power to subsequently alter cannot be controlled by it. Parsons v. Parsons, (Ky.) 80 S. W. 1187. The agreement of these parties was not merely one as to the amount the court by. its decree should fix as alimony, but it was manifestly intended to be an independent agreement, in contemplation of divorce, for the payment of alimony.”
The language of the decree in this case is “that the parties hereto have agreed upon a settlement of the property rights, it is ordered, under said agreement, that the defendant herein pay to the plaintiff herein,” etc. It will be seen therefore that the agreement of the parties was “merely one as to the amount the court by its decree should fix as alimony,” and was not intended as an independent agreement for the payment of alimony. So in Meffert v. Meffert, 118 Ark. 582, 177 S. W. 1, this court again said: “Section 2683 of Kirby’s Digest (now § 3510, Crawford & Moses’ Digest) provides that upon the application of either party, the court may make such alterations from time to time as to the allowance of alimony and maintenance as may be proper. Under this clause of our statute, the court has the power to alter the allowance of alimony at any time when the changed conditions of the parties justify such action. Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700.” The decision in the other case relied upon, Erwin v. Erwin, 179 Ark. 192, 14 S. W. (2d) 1100, is distinguishable from this case in the same way.
It is suggested that the testimony of the appellee as to his present condition was not sufficient to justify the court in setting aside the order for alimony, and that there is no assurance that he will carry out the last order. We think the evidence was sufficient to support the chancellor’s finding, and that the matter of carrying out the last decree, the one appealed from, rests in the power of the court to compel performance by the extraordinary remedies provided by law, and it is not such a debt as may be avoided by proceeding in bankruptcy as debts for alimony due or to become due are not dischargeable under the bankruptcy act. TJSCA, title 11, § 35. We find no error, and the decree is accordingly affirmed. | [
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Humpheets, J.
Appellant brought suit in the circuit court of Miller County against appellee to recover $796.54 income tax which he paid appellee under protest, and which was assessed by appellee, in his official capacity, against the dividend received by appellant on three thousand shares of capital stock of the Southern Pine Lumber Company, a Texas corporation. The cause was tried by the court, sitting as a jury, upon tbe pleadings and an agreed statement of facts, which, resulted in a dismissal of appellant’s complaint, from which is this appeal.
The agreed statement of facts is, in substance, as follows:
That at all times hereinafter mentioned plaintiff was and now is a resident of the State of Arkansas. That at all such times the Southern Pine Lumber Company, hereinafter called “Company,” was and now is a corporation duly incorporated, organized, and existing under the laws of the State of Texas, and that at all such times, said Company owned and operated sawmills and planing mills, all located in the State of Texas, and sold and manufactured products of said mill in many States, including the State of Arkansas, and that said Company also purchased lumber in the State of Texas and sold the same in other States, including the State of Arkansas, and that the principal executive offices of said Company were and now are located in the Texarkana National Bank Building in the city of Texarkana, Texas.
That said Company sells the manufactured products and its lumber in the State of Arkansas by and through its duly appointed and acting agent, Southern Lumber & Supply Company, a corporation duly organized and existing under the laws of the State of Arkansas. That said Company furnishes to its said agent its stock sheets, price lists, and other selling information, and the officers and agents and employees of its said agent, Southern Lumber & Supply Company, acting for and on behalf of the Company, call upon the retail lumber dealers and other prospective purchasers of lumber in the State of Arkansas and personally solicit and obtain orders for lumber from them, and its said agent transmits the orders received by it to the Company at its principal office in the city of Texarkana, Texas, and the Company passes upon the credit of the purchaser of the lumber, and if the credit of the purchaser is approved by the Company, the lumber is shipped from the State of Texas to the purchaser in the State of Arkansas on the order so placed; the said agent of the Company having full authority to bind the Company on all orders taken by the agent under the terms and according to the stock sheets, price lists, and other selling information furnished by the Company to its said agent, except the Company reserves the right to pass upon the credit and business methods of the purchaser of the lumber.
That 99 per cent, of the sales in Arkansas are handled by shipping the lumber on open bill of lading from the mill in Texas to the customer in Arkansas. That prices are quoted by the Southern Lumber & Supply Company to the purchaser, which includes the list price of the lumber plus the freight from mill to purchaser.
That payment is usually made by the buyer by sending its personal check to the Company at Texarkana, Texas, said check being deposited by the Company in a Texas bank for collection. That in some instances, when accounts become past due, the Arkansas agent corporation aids the company in pressing payment of the account.
. That the Southern Lumber & Supply Company, in its advertising, holds itself out to be the agent of the Company.
That for several years it has been the custom of the Company to send one of its office staff to the retail lumber dealers’ convention in Arkansas to meet the retail lumber dealers and work with the agent corporation for the furtherance of their joint interest.
That said Southern Lumber & Supply Company has been the agent for the Company in Arkansas for five years before the filing of this complaint.
That the Company has not filed its articles of incorporation with the Secretary of State of the State of Arkansas under § 1826 of Crawford & Moses’ Digest, and that, other than hereinbefore stated, the Company has no place of 'business in the State of Arkansas, owns no property in the State, and that the business done by the Company with Arkansas customers was and is interstate commerce.
That in 1928 the total gross sales of the company amounted to $4,954,166.10, and the gross sales of the company in Arkansas amounted to $23,577.36.
That on September 5, 1929, the Company, under advice of counsel and believing that same was required by law, filed its corporation tax return with the Commissioner of Revenues of the State of Arkansas, and paid said Commissioner the sum of $30.48, the same being tax due on net income of the company derived from sales in the State of Arkansas during the year 1928. Said Commissioner accepted such sum subject to any readjustment that might thereafter in due course be made.
That on December 31, 1928, the Company duly declared a cash dividend of 8 per cent, on its common stock, said dividend being held by the Company payable on demand to said stockholders.
That the dividend of $24,000 on the three thousand shares of common stock owned by plaintiff herein was not included in plaintiff’s income tax return for the year 1928, but that later, plaintiff paid the Commissioner of Revenues of the State of Arkansas, under written protest, the sum of $796.54, the same being the income tax on the said $24.000 as computed by the Commissioner of Revenues of the State of Arkansas in his statement of differences mailed to plaintiff on January 17, 1930.
Appellant contends that the trial court erred in including, in his gross income, dividends received by him on his stock in the Southern Pine Lumber Companv because said Company, itself, was properly assessable for income tax in Arkansas. He bases this contention on § 3, (b) of the Arkansas Income Tax Act, which provides that, in computing the gross income, from which deductions are to be made in arriving at the net income assessable under said act, there shall be exempted dividends payable to the taxnaver which have been received from stock in any corporation, the income of which was assessable for the preceding year under the provisions _of the act. In order to determine whether the conrt erred in so doing, it is necessary to ascertain whether the Southern Pine Lumber Company itself was subject to the assessment and payment of an income tax in this State. If it was, then the dividend derived from the stock owned 'by appellant was exempt from the imposition of an income tax under subdivision'(b) of § 3 of the Income Tax Act. The agreed statement of facts reflects that the Southern Pine Lumber Company is a foreign corporation organized and doing- business under the laws of the State of Texas. The Arkansas Income Tax Act imposes an income tax on the net income of foreign corporations doing- business in Arkansas. Subdivision (c) of § 3 of the Income Tax Act is, in part, as follows:
i£A like tax is hereby imposed ■* * * with respect to the entire net income as herein defined except as hereinafter provided * * * from every bflsiness, trade, or occupation carried on in this State by * * * corporations * * * not residents of the State of Arkanesas.”
This statute means that if a foreign corporation conducts a business in this State, it must pay an income tax fixed upon its entire net income. The statute has no relation whatever to profits gained from interstate transactions by a corporation conducting a business in another State. In order to subject a foreign corporation to the payment of the income tax imposed by the statute in question, the business transacted by it in this State “must be of such nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction.” Gillen v. Hessig-Ellis Drug Company, 181 Ark. 386, 26 S. W. (2d) 122. The substance of the agreed statement of facts warrants no such inference in the instant case. The agreed statement of facts shows that the Southern Pine Lumber Company was organized under the laws of, and has its business situs in Texas, where it conducts its business. It has never qualified to do business in this State in ac cordance with onr statute. The transactions between it and the citizens of this State were interstate in nature and character.
The judgment is therefore affirmed. | [
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Kjrby, J.,
(after stating the facts). Appellants insist that they appeal only from the judgment of the circuit court overruling their demurrers, and denying their motions to dismiss the complaints because of the lack of jurisdiction of the court to hear and determine the contests, since it was shown no legal list of the qualified electors had been furnished the officials for use in holding the primary election as the law required, nor had any special list of the voters been made by the judges and clerks of those voting whose names did not appear upon a legal list of voters.
The court erroneously held that the printed list furnished the officials holding the primary election was a substantial compliance with the law relating thereto, but, if no official list had been furnished, or even if no list had been furnished at all for use by the officials in the conduct of the election, it would not have invalidated such election, otherwise regularly held, nor destroyed the jurisdiction of the court to hear and determine contests arising out of such election. Morrow v. Strait, ante p. 384.
The court’s latest pronouncement on the subject appears in Morrow v. Strait, supra, wherein it is held that the official returns of the election are prima facie correct, are quasi records standing with all the force of presumptive regularity until overcome by competent evidence, and the burden of showing that they are not correct rests upon the person who alleges that fact, as was held in Tucker v. Meroney, 182 Ark. 681, 32 S. W. (2d) 631.
In Morrow v. Strait, supra, it was further said:
“The official list of voters, which § 3740, Crawford & Moses’ Digest, as amended by the act of 1921, supra, requires the collector and county clerk to prepare, is not evidence of an elector’s right to vote unless the list has been authenticated by the affidavit of the collector in person. The list of voters which the county clerk is required by § 3740, Crawford & Moses ’ Digest, to have printed can be made only from a list verified by the affidavit of the collector and thereafter filed with the county clerk. But it must be first authenticated by the affidavit of the collector, and the county clerk has no authority to copy the printed list unless and until it is so authenticated. Cain v. McGregor, 182 Ark. 633, 32 S. W. (2d) 319.
“Therefore any list of voters, not based upon an authenticated list filed with the county clerk by the collector, furnishes no evidence of the possession of a poll tax receipt, although the list has been certified by the clerk. ’ ’
The court did not err in overruling the motion to dismiss the complaint, and, since the official returns of the election are quasi records and stand with all the force of presumptive regularity until overcome by competent evidence, all the ballots cast by the voters and returned by the proper officials are presumptively regular, in order to succeed, the contestant must prove that he received a majority of all the legal ballots cast at the election, and the court’s action in declaring the appellee regularly noruinated is not here for review, not being appealed from.
The judgment is accordingly affirméd. | [
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Smith, J.
The Arkansas National Bank sued W. L. Stuckey, and attached certain property belonging to him. The Mcllroy Banking Company and a Doctor Welch, to whom Stuckey was also indebted, were made parties defendant, and there was a prayer, as against them, that they be required to sell the property against which they had liens, to secure their respective debts, and that any excess be impounded and applied to the payment of the debt due the plaintiff bank. Stuckey answered, admitting the indebtedness sued on, but claimed a credit for an attorney’s fee, which the bank refused to pay, on the ground that it was excessive. Stuckey also denied the existence of grounds for attachment, and prayed judgment for damages which he claimed he had sustained from its issuance and levy on his property. The court below reserved its decision in the matter of requiring the Mcllroy Banking Company to foreclose its lien, but ordered the foreclosure of the deed of trust held by Doctor Welch, with directions that, in satisfaction of the deed of trust, the portion of the land which did not include the homestead be first sold, and that the excess, if any, be brought into court for distribution under the orders of the court. The court allowed Stuckey the attorney’s fee claimed by him, and assessed certain damages in his favor on account of the wrongful levy of the attachment, but credited the sums of money thus allowed against the debt due by Stuckey to the bank, and gave judgment against Stuckey for the balance. Both parties appealed to this court, and the opinion was rendered in the case on November 29, 1915, which is found in 121 Ark., at page 302.
It was there said: “We have held that the decision of the chancellor dissolving the attachment is not against the weight of the evidence, and that his decree in that respect should not be reversed. Therefore, the property of the defendant Stuckey is released from any lien under the attachment. The chancellor rendered judgment against Stuckey for the amount due by him to the bank. His decision in this respect was correct, and under section 4438, of Kirby’s Digest, the judgment was a lien on the lands of the defendant in Washington County from the date of the rendition of the decree. * * * The result of our views is that the court correctly found the amount due the plaintiff bank and the amount due Doctor Welch. The defendant (Stuckey) was only entitled to recover $250 and the accrued interest as damages, and $150 and the accrued interest as attorney’s fees for services rendered, as indicated in the opinion.”
The cause was reversed, with directions to the court below to enter a decree in accordance with the opinion, which, as appears from the above statement of facts, resulted in increasing the amount of the judgment in favor of the bank against Stuckey. A decree was rendered on .this mandate, which was sent down to the court below on June 5,1916.
In the meantime, however, a judgment had been rendered in favor of the Mcllroy Banking Company for the amount of the debt due it, and, proceeding under this decree, property upon which if had a lien was sold, together with other property upon which there was no lien except that fixed by the judgment in its favor. Independent litigation grew out of that judgment, which forms the sub j eel-matter of another appeal to this court, which will be disposed of in the opinion in that case.
(1) In the decree on the mandate, the court adjudged the indebtedness between the parties in accordance with our former opinion, except that it allowed Stuckey $113.40 as stenographer’s fees for taking depositions in the original cause, and entered a decree for the balance as if the cause had been tried anew, to which action the bank, at the time, excepted, “for the reason, among others, that this decree, in effect, releases, destroys and supersedes the former judgment and decree which was awarded plaintiff in the original decree, and is not in conformity with the mandate of the Supreme Court, and for the reason that it destroys plaintiff’s former judgment and lien, and fails to affirm the judgment and lien against Stuckey and his laud.” It is conceded that the decree upon the mandate displaces the judgment lien which the bank had prior to the former appeal, and subordinates the judgment lien which it now has to the lien of the Mcllroy Banking Company, acquired under its judgment rendered during the pendency of the former appeal. In other words, the question is, whether or not the reversal of the former decree displaces the lien of that judgment and held it in abeyance until the decree upon the mandate was entered, during which time the decree of the Mcllroy Banking Company was rendered.
It will be borne in mind that it was not questioned, in the former opinion, that the bank was entitled to a judgment against Stuckey. The only question considered was the amount for which judgment was to be rendered, and the effect of our opinion was to increase this amount, and the cause was remanded with directions to the court below to enter a decree which increased the amount of the judgment against Stuckey. This decree could have been rendered here, but the cause was remanded because of the directions there contained in regard to the enforcement of the lien of Doctor Welch.
The former opinion called attention to the fact that the bank had a lien upon the lands in Washington County under section 4438, of Kirby’s Digest, which dated from the date of the rendition of the decree. It would be an anomalous result if, after so deciding, and the statute expressly so provides, we should further adjudge that the error of the court below consisted in not awarding judgment for the amount actually due, and should remand, with directions to increase the amount of the judgment, that this lien, given by the statute, should be displaced by a judgment which had been recovered while the orders of this court were being executed. A very similar question was involved in the case of Gaines v. Rugg, 148 U. S. 228, in which case it was said:
“It (Supreme Court of the United States) did not disturb the findings and decree of the circuit court in regard to the title and possession, but only its disposition in the matter of accounting. The mandate'and the opinion, taken together, although they used the word ‘reversed,’ amount to a reversal only in respect to the accounting, and to a modification of the decree in respect of the accounting, and to an affirmance in all other respects.”
The action of the court below is defended upon the authority of the case of Millington v. Hill, 54 Ark. 239. That case, however, is not authority for the position. The opinion there points out the fact that the contention was there made that the judgment of this court in that cause on the first appeal was not a judgment of reversal, but was a modification only. The court said, however, that the language of the decree did not warrant such a conclusion. The court had held that the judicial sale under which a party claimed was void, and had ordered that it be “vacated and set aside.” Such an order, of course, was not a mere modification.
The record in the instant case does not present the question of the effect of a decision of this court holding that error had been committed in the determination of the question of liability of the appealing party, and the remand of the cause to ascertain and adjudge that question pursuant to principles announced by us. Both the question of liability, and the amount of that liability, were determined in the former decision, and the cause was remanded with directions to the court below to enter a decree accordingly.
Under such conditions it can not be held that the prevailing party, by winning his case here, lost the security which he would have had, had he not been successful in the prosecution of his appeal.
(2) We are of opinion, also, that the court erred in allowing Stuckey as damages upon the dissolution of the attachment, the stenographer’s fee. Any question of this kind should have been raised at the first trial, when the court was adjudging the' damages upon the dissolution of the attachment, and upon this first appeal we undertook, upon the trial here da novo, to adjudge all those questions, and we did so, insofar as they were presented by the record before us at that time, and we remanded the cause with specific directions to the court to enter a decree in accordance with the directions there given, and the court below should not have reopened the case for the consideration of any question which was, or should have been, adjudicated upon the first appeal.
It follows, therefore, that the decree of the court below must be reversed, and the credit allowed Stuckey, on account of the expenditure for stenographic services, will be disallowed, and the cause will be remanded with directions to the court below to enter a decree in accordance with this opinion.
Humphreys, J., disqualified below, did not participate here. | [
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Smith, J.
The parties to this litigation entered into a contract wherein Selig, who was the plaintiff below, and is the appellant here, agreed to drill a rice well for Botts, who was the defendant below and is the appellee here, with a flow of water of 800 gallons per minute, when tested, and to install a centrifugal pump, to be completed and tested on or before May 15,1914, for a total consideration of $1,650, of which $1,200 was to be paid upon completion of the well, and a note given for the balance, bearing 8 per cent, interest from date, and maturing December 1, 1914. There was a written contract in which Selig guaranteed that the well would produce the stipulated amount of water at the time of test, if pumped with proper power and speed, and Selig also agreed that, after the test and acceptance, he would furnish, free of cost to Botts, during the pumping season of 1914, “any defective parts of pump, or parts that should become worn out, same having been properly lubricated, for above stated period.” The parties agree that a test was made, and Selig says it was satisfactory to Botts, except that it appeared that sufficient engine power had not been provided. Certain notes were given after the test, and a $500 payment was made on June 1, and on July 14 an additional cash payment of $286 was made. In addition to the $786 paid in cash, Botts incurred expenses amounting to $39 in the attempt to operate the pump, making a total expenditure of $825. Botts testified that the pump did not work satisfactorily, and, after Selig had attempted several times to adjust it, he abandoned that pump and purchased another at a cost of $525. Thereafter there was no further trouble, and Botts admitted that he got a pipe full of water, amounting to 800 gallons per minute. Botts denied any liability, and filed a cross-complaint, in which he prayed judgment for damages to compensate the partial loss of the crop of rice, which he says was occasioned by the insufficient supply of water during the time he was attempting to operate the Selig pump. The case, however, was submited to the jury upon the question of the performance of the contract to drill the well and furnish the pump.
A large number of instructions were given, which we will not set out. One, given at the request of Selig, told the jury, in effect, that, if the failure to fulfill the guaranty of the contract was not due to Botts’ failure to furnish proper power, but to the defective pump, the liability of Selig on this account would be $525.
An instruction, given at the request of Botts, however, told the jury that “If you find that plaintiff has failed to comply with said contract, as above stated, then plaintiff is indebted to defendant in the sum of $825, and you should so find.”
The jury returned the following verdict: “We, the jury, find for the defendant judgment in the sum of $825, and relieve defendant from any further payment on said well, and notes are to become void.”
Notwithstanding the evidence of Selig that the pump was tested and accepted, and needed only proper propelling power, which he was under no duty to furnish, and certain small repairs and adjustments which he made, and offered to make, we must assume, from the verdict of the jury, that the pump was worthless. It does not follow, however, that the judgment must be affirmed on that account. The new pump was installed the last of July, 1914, and its installation completed the contract. Had Selig put this last pump in, instead of the one he did put in, he would have been entitled, under the contract, to a payment, either in cash or interest-bearing notes, of $1,650. But as Botts was required to expend $525 to get the thing which he had contracted for, that sum must be deducted from the contract price. It follows, therefore, that Selig should have had judgment for $300, and judgment will be entered here in his favor for that amount, with interest from July 31,1914.
It is strongly insisted by learned counsel that no judgment should be rendered against Botts, because the jury has found that the contract'was not performed, and we are cited to cases holding that there can be no recovery, quantum meruit, on the partial performance of an indivisible contract. But this is not that kind of a contract. The well is there, and is now in use, and meets the contract specifications. Only a proper pump was needed to comply with the provisions of the contract, and only its cost should be deducted from the contract price. Thomas v. Jackson, 105 Ark. 353, and cases cited. Ensign v. Coffelt, 119 Ark. 1.
The judgment is reversed, and judgment will be rendered here in favor of Selig for $300 with interest. | [
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Hughes, J.,
(after stating the facts.) We find no reversible error in the decree of the court. The debt became due. and payable upon default in payment of the insurance. There was evidence tending to show that lot 1, block 9, was not incorporated in the deed of trust by mistake or fraud; at least, it is not clear that the chancellor was not right as to this. Unle.ss Hie findings of the chancellor was against the clear pre ponderance of the evidence, we should not reverse. Gaty v. Holcomb, 44 Ark. 216.
There was no issue as to usury in the ease. Under the circumstances of this case, it seems to us that it was within the sound judicial discretion of the chancellor to permit or refuse to permit the amendment setting up usury at the time it was offered, as it, if admitted, would probably have caused delay in the trial of the cause. There does noh'appear to be an abuse of judicial disei’etion in this, and we do not feel wari’anted in interfering with the chancellor’s discretion in the matter. Thompson v. McHenry, 18 Ark, 537; Mandel v. Peet, 18 Ark. 236; Ford v. Ward, 26 Ark. 360; Clayton v. State, 24 Ark. 16; Mohr v. Sherman, 25 Ark. 7; Campbell v. Garven, 5 Ark. 485.
Decree affixuned.
Bunn, C. J., and Battle, J., not participating. | [
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McIIaNey, J.
At the annual school election in Tru-mann Consolidated School District No. '2, Poinsett County, Arkansas, held Maj{ 16, 1931, no person qualified as a candidate for school director, and no names appeared on the ballot sent out ifor use in the election by the board of education. Tlife ballots sent out to :i^e used in the election were provided with blank spaces ior the insertion of the names cóf the persons fir whoun an elector wished to vote for directors. Appellants anid ap-pellees were candidates at'\ said election for directors. Appellants prepared or cauised to be prepared sticfkers or pasters with their names ^printed thereon which ithey caused to.be distributed to voders at the polls on election day and 700 of the electors f took said stickers, pastees] them on the official ballot and úbnrnby voted for the ap- ' pellants. Appellants received a majority of the votes polled at the election, their vote ranging from 614 for McMahan to 757 for Sullens; whereas the votes for ap-pellees ranged from 81 for Smith to 326 for Miller. The judges of election certified that appellants had therefore been elected. Thereafter appellees filed a petition with the county board of education as provided by § 30 of act 169 of 1931, seeking to have thrown out all ballots on which stickers appeared as illegal, and that the county board recount the legal ballots and the result declared by the county board. The county board, on its own mo tion, dismissed the petition! for contest, and the appel-lees appealed to the circuit; court. There the case was tried on a stipulation substantially as above set out, where the cause was dismissed as to appellees Miller, Watkins and Smith on thejir motion. The court held that all ballots on which stickers were pasted were void, should not be counted, and, [after casting them out ap-pellees Pennington, Houston and Clark were elected.
There is no allegation of fraud in this election. The electors were neither misled oír coerced into.voting for any particular candidates. On the contrary they freely expressed their choice of candidates. Mr. Miller, originally a contestant, was one of the judges of election. He made no complaint as to the. form of ballot or that stickers were used by some of tho electors in voting. We think it makes no difference hov^ the electors placed the names of the persons they desiired to vote for on the ballots, in the absence of frauck'. They might have been writte^i with pen and ink, ■ pencil, typewritten, or by sticker's and the result would £ be the same, as in either case t.t expressed the wish of the individual elector. We find -ho directions in the statutes regulating school elections prescribing exactly hdw the elector shall put on the [ballot the lame of the [person for whom he wishes to jTOte. Sectioi 3803, Crawford & Moses’ Digest, relating to elections generally, -.provides that the elector shall /scratch off the nimes of fill candidates except those for whom he wishes to vt/ce, “and write the name of any person for whom he may wish to vote whose name is not printed * * é on the ballot at all.” We do not think the word “write” is there used in a technical sense, but that such name might be placed on the ballot in any convenient way, such as the use of a rubber stamp or a sticker as was done in this case. As said by this court in Ashby v. Patrick, 181 Ark. 859, 28 S. W. (2d) 55: “If the ballot voted on was such as not to mislead the electors but to give them an opportunity to express their will, it was sufficient.” So here the ballot did not have the names of any persons who were candidates for directors. It was left to the electors to vote for whom they pleased by “writing” their names on the ballots. If they chose 'to use stickers with the names of the persons they desired to vote for printed thereon we can see no valid objection thereto, and there is no provision of statute violated. ■
The judgment will he reversed, and the contest dismissed. It is so ordered, | [
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Smith, J.
This appeal is prosecuted to reverse a judgment sentencing appellant to the penitentiary for the period of one year, for the crime of grand larceny, alleged to have been committed by stealing certain hogs, the property of one Abe Brown; and we discuss the assignments of error in the order in which they are presented in appellant’s brief.
(1) It is first said that error was committed in refusing to grant a continuance for the purpose of securing the attendance of one Frank Pickard, who, according to the recitals of the motion for a continuance, would have given material evidence in support of appellant’s plea of not guilty. It appears, however, that appellant was indicted January 21,1916, and that the ease was not called for trial until January 16,1917, and there is no intimation that appellant did not have practically all this time to prepare for his defense, and the subpoena for this witness was issued in this case only two days before the trial. A subpoena, however, had been issued in the case of Barley Starnes, who was also indicted for the larceny of the same hogs, but this subpoena was only placed in the hands of the sheriff of the county five or six days before the trial, and, from recitals in the motion for a continuance, it appears that appellant knew the witness had departed for another county, but it was alleged that he was then only temporarily absent, and would return in about four days, as the affiant was informed and believed. We can not say, under these circumstances, that the court abused its discretion in holding that appellant had not made a sufficient showing of diligence to entitle him to a continuance. Baldwin v. State, 119 Ark. 518.
(2) Appellant complains of the action of the court in giving an instruction numbered 7. But he has failed to incorporate in his motion for a new trial an objection to this instruction; and we can not now consider this assignment of error. Mabry v. State, 80 Ark. 345; Burris v. State, 73 Ark. 453; Ince v. State, 77 Ark. 418.
It was shown at the .trial that witnesses Tyler and Catt had helped appellant drive certain hogs, which Brown claimed to own, to appellant’s house, it being the theory of the State that the appellant got the hogs to his house in this manner. Appellant requested the following instruction:
‘ ‘ If, after a full consideration of all the evidence, you have a reasonabe doubt that the hogs which the witnesses, Quinn Tyler and Oliver Catt, say they helped the defendant drive from the field of Abe Brown, were the property of Abe Brown, then you should find the defendant not guilty.” . ■
(3) The refusal to give this instruction is assigned as error. We think, however, that this was not prejudicial, because the State is not required to prove each circumstance tending to show guilt beyond a reasonable doubt. The evidence is legally sufficient for that purpose, if, upon a consideration of it as a whole, it is sufficient to convince, and does convince, the jury, beyond a reasonable doubt, of the guilt of the accused. Lasater v. State, 77 Ark. 468.
An instruction was given which very plainly told the jury to acquit the accused, if, upon a consideration of all the evidence in the case, a reasonable doubt was entertained as to his guilt, and no error, therefore, was com mitted in the refusal to give the instruction requested by appellant.
(4) Appellant did not testify at his trial, and, in the concluding argument, the prosecuting attorney said:
“The defendant has not denied a single allegation of the indictment. ’ ’
Whereupon objection was immmediately made to this argument, and the court was requested to rebuke counsel in the presence of the jury for having made the remark quoted. This was not done, but the court gave an additional instruction to the following effect:
“No. 12. The statute of this State confers upon one accused of crime the right to testify in his own behalf, if he so desires; but if he does not see fit to take advantage of the right given to him, you are not to infer his guilt on account of that. You will determine the question of his guilt or innocence from all the facts and circumstances in proof before you. After having determined the facts, you will then apply the instructions applicable to the facts as you may find them, and render your verdict accordingly.”
The court had previously given an instruction numbered 2, which reads as follows:
“No. 2. To this indictment the defendant pleads not guilty, and this plea puts in issue all the material allegations of the indictment. The indictment in itself raises no presumption of guilt against the defendant, but it is only an accusation for you to try. On the contrary, the defendant is presumed to be innocent until his guilt is established by the evidence, beyond a reasonable doubt, and the burden of so establishing such guilt is upon the State.”
It is, of course, improper, and presumptively prejudicial, for the prosecuting attorney to call the attention of the jury to the failure of the accused to testify. But the instructions given before this remark was made, and the instructions set out above given immediately thereafter, were sufficient, in our opinion, to remove any prejudice resulting from this remark. These instructions made it plain that the defendant was not required to deny his guilt, and that no inferences of guilt could be drawn from his failure to testify. Ingram v. State, 110 Ark. 538.
The appellant requested an instruction on this subject, which the court refused; but as it embodied substantially the idea set out in the instruction quoted, no error was committed in refusing that instruction, as the court is not required to multiply instructions upon the same issue, when the ones given fully and fairly declare the law applicable to the issue.
(5) It is finally insisted that the evidence is insufficient to sustain the verdict. But this can not be, if the testimony offered in behalf of the prosecution is accepted as true; and this we must, of course, do in testing the legal sufficiency of the evidence. Brown testified that he owned two litters of pigs, the smaller of which averaged about 100 to 125 pounds in weight. That the older ones were marked, but the younger ones were not. That, upon missing his hogs, he made inquiry for them, and went in search of them to the home of John Starnes, the father of appellant. That he found no hogs in Starnes’ pen, but found that hogs had been kept in this pen, and traces of blood were found there. He found the hogs in his field coming from the direction of Starnes’ place. All of the hogs were then marked, the mark of the older hogs having been altered to conform to the mark of the younger ones. Tyler testified that he helped drive two litters of hogs to appellant’s house, and that appellant drove the hogs to John Starnes’ house, and put them in a pen, and appellant marked them. Catt corroborated this statement, and gave a description of the hogs in respect to their size, number and color, which tended to identify them as the property of Brown. Other circumstances were testified to which tended to corroborate the testimony offered in behalf of the prosecution, and to contra-7 diet that offered by the defense, which need not be set out here. It suffices to say that the evidence is legally suffi cient to warrant the finding that appellant drove, and assisted in driving, the hogs in question to the home of his father, and there confined them in a pen, while he marked some of them and altered the marks of the remainder, and that this was done with the intention of depriving the true owner of his property. The judgment of the court below is, therefore, affirmed. | [
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Humphreys, J.
Appellant 'brought suit on October 21, 1931, against appellee in the circuit court of Pulaski County, Second Division, upon a surety bond to recover $1,18i8.40, with interest, for stone furnished by it to Mc-Williams Company, Inc., to complete certain work it had undertaken to do for Farelly Lake Levee District under written contract executed on July 21, 1926. The bond, made the basis of the action, is as follows:
“ Whereas, Geo. C. Lewis and A. Lawrence Mills, receivers for the Farelly Lake Levee District of Arkansas and Jefferson counties, Arkansas, have on this date entered into a construction contract with McWilliams Company, Inc., for the performance of certain work, as shown by the supplemental contract attached hereto, and
“Whereas, said McWilliams Company, Inc., have agreed to execute a surety bond in the sum of fifty thousand dollars to guarantee the faithful performance of said supplemental contract;
“Now therefore we, the undersigned, McWilliams Company, Inc., as principal, and the United States Fidelity & Guaranty Company, a corporation, as surety, hereby acknowledge ourselves indebted to the State of Arkansas for the use and benefit of Farelly Lake Levee District of Arkansas and Jefferson counties, in the sum of $50,000 that the said McWilliams Company, Inc., a corporation, shall well and truly perform all and singular the several respective agreements set out in the supplemental contract made on this the 20th day of October, 1928, by and between the said Geo. C. Lewis and A. Lawrence Mills, as receivers of Farelly Lake Levee District of Arkansas and Jefferson counties, a copy of which agreement is hereunto attached and made a part hereof.
“Now, if McWilliams Company, Inc., a corporation, well and truly perform said agreement, this bond to be null and void; otherwise, it is to remain in full force and effect from now and after this date.
“Witness our hands and seal of said corporation on this 20th day of October, 19'28.
“McWilliams Company, Inc., a Corporation,
“By R. H. McWilliams, Jr., President, Principal,
“United States Fidelity & Guaranty Company, a Corporation,
“By Wylie B. Miller, Surety.”
The supplemental contract attached to said bond is as follows:
‘ ‘ This agreement made and entered into on this 20th day of October, 1928, by and between Geo. O. Lewis and A. Lawrence Mills, as receivers of Farelly Late Levee District of Arkansas and Jefferson counties, Arkansas, parties of the first part, hereinafter referred to as receivers, and McWilliams Company, Inc., , second parties, hereinafter referred to as contractor, witnesseth:
“1. That contractor hereby agrees with said receivers to complete the floodgates, point up the walls, and clean off floors as provided by a certain contract now existing between said Levee District and second parties, on or before November 15, 1928.
“2. That contractor hereby agrees with said receivers to reconstruct or repair Fin Wall No. 2, which is now cracked, so as to make it meet with the requirements of the plans and specifications governing said work under the original contract, which work is to be performed and completed on or before December 1,1928.
“3. That contractor hereby agrees with said receivers to install and complete the rip rap stone work in accordance with the requirements of the plans and specifications governing said work under the original contract on or before December 15, 1928.
“4. That contractor hereby agrees with said receivers to construct the inlet and outlet channels to the floodgates in accordance with the plans and specifications governing said work under the original contract, which inlet and outlet are to he completed on or before December 31, 1928.
“5. Contractor hereby agrees to execute and deliver surety bond executed by a reputable surety company in the sum of $50,000 to guarantee the faithful performance of the above conditions, which bond is to be delivered in five days.
“6. Receivers hereby agree that upon receipt of said bond they will execute and deliver necessary papers accompanying engineers ’ estimate covering all work performed to date, in order to obtain voucher for said estimate out of the Federal court-at Little Rock, Arkansas.
£ ‘ 7. Receivers hereby agree that hereafter they will cause semimonthly estimates to be made on or before the 5th or 20th of each month, which estimates are to be paid in cash as the work progresses, until the cash is exhausted and then to make suitable arrangements for the payment of any balance, which arrangement is to be agreed upon mutually between the parties, the parties now contemplating the use of receivers’ certificates, if permissible.
“8. This agreement and contract is intended to operate as a supplemental contract to the original contract, dated July 21, 1926, between Farelly Lake Levee District of Arkansas and Jefferson counties, Arkansas, and McWilliams Company, Inc., and is not intended to cancel, set aside or modify said contract in any manner except as herein set forth.
“Witness our hands on this the 20th day of October, 1928.
“Geo. C. Lewis,
‘ ‘ A. Lawrence Mills, receivers,
“ Parties of First Part,
“McWilliams Company, Inc.,
“Party of Second Part.”
In defense to the action, appellee pleaded a settlement and complete release from liability under the bond by tbe receivers of tbe Farelly Lake Levee District and tbe statute of limitations as a bar to appellant’s right to recover on tbe bond.
Tbe canse was submitted to tbe court, sitting as a jury, upon tbe issues joined, testimony showing that tbe stone was furnished to McWilliams Company, Inc., and used in tbe construction of tbe work, tbe original and supplemental contracts, and tbe following stipulation and receipt:
‘ ‘ STIPULATION
“It is hereby stipulated and agreed by and between Chas. A. Walls, attorney for plaintiff, and O. E. Williams and W. M. Hall, attorneys for defendant, in tbe foregoing entitled cause of action, that:
“1. That McWilliams Company, Inc., became insolvent and went into tbe bands of receivers on tbe first day of March, 1929, and that tbe receivers for McWil-liams Company, Inc., elected not to proceed with tbe performance of tbe contract, and abandoned tbe contract that McWilliams Company, Inc., bad with Farelly Lake Levee District of Jefferson and Arkansas, for the construction of certain works, including tbe floodgates in said district.
“2. That tbe receivers of Farelly Lake Levee District, obligees on tbe bond, on or about March 10, 1929, took over tbe work and thereafter completed tbe work called for by the supplemental contract on or about December 12, 1929, at a cost exceeding tbe contract price by $15,398.04. There was included in said amount as part of tbe cost of completion additional engineering services of Ayres & Miller, engineers, amounting to $2,550, and tbe cost of leasing rails for a tramway needed in connection with the work from St. Louis Southwestern Railway Company, amounting to $858.29; and the cost of leasing right-of-way for tbe tramway from C. F. Rose, amounting’ to $50, and tbe receivers, having exhausted their available cash, requested United States Fidelity & Guaranty Company to pay those amounts to said parties pending final settlement with tbe receivers, which said guaranty company did.
“3. That the receivers thereafter made demand upon said United 'States Fidelity & Guaranty Company under its bond for payment of the balance of $11,939.35, and said guaranty company, on April 9, 1930, paid said amount, and said receivers thereupon executed the receipt exhibited with the guaranty company’s answer herein.
“4. It is further agreed that the receipt exhibited to the answer, dated April 9, 1930, is a true and exact copy of the original executed by the receivers of said district.
“5. It is further stipulated and agreed that this stipulation may be read in evidence on behalf of either party desiring to introduce same in the record.
“ (Signed) Chas. A. Walls,
“Attorney for Plaintiff,
“ (Signed) Wm. M. Hall,
“O. E. Williams,
“Attorneys for Defendant.”
“BECEIPT
“Beceived of the United States Fidelity & Guaranty Company eleven thousand nine hundred and thirty-nine dollars and seventy-five cents ($11,939.75) which with two thousand five hundred and fifty dollars ($2,-550) paid to Ayres & Miller, engineers, covering balance due them as engineering fees, eight hundred and fifty-eight dollars and twenty-nine cents ($858.29) paid to the St. Louis Southwestern Bailway Company covering amount due for lease of rails, and fifty dollars ($50) to C. F. Bose, covering amount due for lease of right-of-way is in full settlement, satisfaction and discharge of all liability of McWilliams Company and the United States Fidelity & Guaranty Company, its surety, under and by reason of a certain contract and bond executed on or about October 20, 1928, designated as supplemental contract to original contract of McWilliams Company dated July 31,1926.
“Witness onr bands tbis tbe 9tb day of April, 1930.
“G-eo. C. Lewis (s) and
“A. Lawrence Mills, receivers (s)
“Farelly Lake Levee District.”
Tbe court found against appellant and dismissed its complaint, from wbicb finding and judgment an appeal has been duly prosecuted to tbis court.
Appellant contends that tbe trial court should bave beld, and tbis court ought to bold, that the bond sued on is a special bond wbicb, in terms, guarantees tbe payment of all materials furnished and used by tbe contractor in completing tbe improvement. We are unable to discover any language in tbe bond itself wbicb would warrant any such interpretation even from inference. It cannot be gleaned from tbe language used that tbe bond was intended to be a statutory bond; so we would not be justified in reading tbe statute, § 6913 of Crawford & Moses’ Digest, into tbe bond; but, if it were possible, by a strained construction, to do so, it would and could not afford any relief to appellant because, if aided by tbe statute invoked, its right of action would be barred. Section 6914 of Crawford & Moses’ Digest bars rights of action on bonds for materials furnished if not brought within six months after tbe completion of tbe improvement. Appellant argues that it brought tbe suit for materials furnished within six months after tbe improvement was completed, but tbe agreed statement of facts and tbe receipt show otherwise. According to tbe agreed statement of facts and tbe receipt referred to, tbe work contemplated by tbe supplemental contract was completed on December 12, 1929, and this suit was not commenced until October 21, 1931.
Tbe trial court was correct in finding that tbe bond afforded no protection to appellant; hence tbe judgment is affirmed. | [
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Mehappy, J.
The appellee brought suit in the Conway Circuit Court alleging that in August, 1531, he purchased a bottle of Coca-Cola which contained a decayed or rotten cockroach; that the appellant negligently and ■carelessly caused to be sold in the regular course of trade the bottle of Coca-Cola which contained the decayed cockroach.
Appellee drank part of the contents of the bottle before he discovered the cockroach. As the result of drinking part of the contents, he became a victim of ptomaine poison, from which he suffered, and is still suffering, and will suffer to some extent the rest of his life.
Appellee further alleged that, since swallowing the contents of the bottle, he had been unable to eat and digest any normal meal, but was subject to violent vomiting, which caused him great pain and humiliation; that he was permanently injured. There were other allegations of suffering and inability to sleep.
The defendant filed answer denying all the material allegations of the complaint.
The evidence offered by appellee tended to show that he bought a bottle of Coca-Cola from the Arkansas Bottling Works on West 7th Street, Little Rock, Arkansas, and drank a part of it. It was bought from the Johnson Grocery Company. He drank part of it and swallowed something that was in the bottle, and called attention to Mrs. Johnson. She examined it and said that .there was a bug in the bottle. Appellee showed the bottle to the manager of the appellant, who examined it and said that there was a bug in the bottle. Later appellee delivered the bottle to Dr. Scoggin.
The drinking from the bottle made appellee sick. Before he drank it he weighed 207 pounds, and now weighs 35 pounds less. Mrs. Johnson testified corroborating the statement of appellee, and physicians testified as to his physical condition.
The appellant’s testimony tended to show that a cockroach in the bottle would not produce the effect testified to by appellee and his witnesses. Appellant also introduced evidence showing the manner in which the Coca-Cola was manufactured and bottled, and showed that it was impossible for anything to get into the bottle unless some of the "inspectors were negligent.
There was a verdict and judgment for $4,000, and the case is here on appeal.
Appellant insists on a reversal of the judgment because of remarks made'by appellee’s counsel in the opening statement to the jury.
Several depositions had been taken by the appellee before the trial, and immediately before the trial began the appellant’s attorney called the attention of the court to the depositions, and objected to them as incompetent and irrelevant, and objecting at that time to counsel for appellee in making his opening statement to make any reference to said depositions.
The court, at that time, overruled the objections of appellant, but did not pass on the competency or admissibility of the depositions.
In making the opening statement to the jury the ap-pellee’s attorney said: “They claim that no foreign substance gets into it. You can see what that is (here exhibits bottle). A reputable citizen of Little Rock, Mr. Bellingrath, testifies — he will just tell you it is absolutely impossible for any foreign substance to get in and remain in a bottle of Coca-Cola. We propose then to produce that.”
Appellant objected, and the attorney for appellee stated that he wanted the record to show the depositions would only be offered in rebuttal if they undertake to show that it can’t get in.
The appellee’s attorney further said in his opening statement: “The deposition of Quinn Glover, son of Congressman Glover, will tell you that he bought a Coca-Cola — bought it from these people, with foreign substance in it. I will not go much in detail about it. You understand the situation.”
The appellant’s attorney then objected and excepted to counsel’s statement. After this the evidence was introduced, and at the close of appellant’s testimony the ap-pellee offered the depositions that had been referred to before tbe beginning of the trial. The court examined the depositions and held the testimony incompetent. The court did not state why the depositions were incompetent, and it is not necessary for us to pass on the admissibility of this evidence.
Appellant cites Kansas City Sou. Ry. Co. v. Murphy, 71 Ark. 256, 85 S. W. 428, and quotes at length from the opinion in that case. The court said in that case: “The control of argument is in the sound judicial discretion of the trial judge, and it is his duty to keep it within the record and within the legitimate scope of the privilege of counsel, and this he should do on his own initiative; if he fails to restrain counsel, then it is the right of opposing counsel to object to the argument. This should be a definite objection to the alleged improper remarks, and call for a ruling of the court thereupon, and if the court then fails to properly restrain and control the argument within its proper bounds, and to instruct the jury to disregard any improper remarks and admonish the counsel making it, then an exception should be taken to the action of the court. A mere exception to argument interposed to make a record in the appellate court, and not calling for a ruling of the trial court, is insufficient. ’ ’
The court also said in that case: “However, a wide range of discretion must be allowed the circuit judges in dealing with the subject, for they can best determine at the time the effect of unwarranted argument; but that discretion is not an arbitrary one, but that sound judicial discretion the exercise of which is a matter of review.”
In the instant case objection was made before the appellee’s attorney had begun his opening statement; the attorney for appellant had objected to the depositions that had been taken, and objected to the counsel for ap-pellee in his opening statement making any reference to the depositions. The court overruled this objection, and did not at that time pass on the question of the admissibility of the depositions.
The appellee’s attorney then, in his opening statement to the jury, made the statement above set out, but the appellant did not take the steps which the case referred to by it, K. C. S. Ry. Co. v. Murphy, says must be taken.
One of the things required is that he should call for a ruling of the court upon his objection. No ruling of the court was made, and none called for. No request was made by appellant to instruct the jury to disregard the remarks of the attorney, or to admonish counsel making it. Moreover, there was nothing in the remark of the attorney that could have prejudiced the jury against the appellant. The circuit judge, not having passed on the admissibility of the depositions up to that time, probably was uncertain himself as to whether or not they were admissible. When the 'depositions were finally presented to the circuit judge, he held that they were incompetent. Certainly up to that time the appellee’s attorney had not intentionally stated anything that he expected to prove which he thought was incompetent. In making opening statements to the jury, the attorneys should confine themselves to a statement of the facts. Apparently this is what the attorney for the appellee was endeavoring to do.
Appellant then calls attention to Scripps v. Reilly, 35 Mich. 371, 24 Am. Rep. 575. In that case the court said: “The trial judge must always have a very large discretion in controlling and managing the routine proceedings at the trial, and it is not necessary to specify the matters to which such discretion extends. It applies beyond doubt to the addresses of counsel as well as to other incidents. But it must be a reasonable, a legal, discretion, and whether it be so or not must depend upon the nature of the proceeding on which it is exercised, the way it is exercised, and the special circumstances under which it is exercised. It can never he intended that a trial judge has purposely gone astray in dealing with matters within the category qf discretionary proceedings, and, unless it turns out that he has not merely misstep-ped, but has departed widely and injuriously, an appellate court will not re-examine. It will not do it when there is no better reason than its own opinion that the course actually taken was not as wise or sensible or orderly as another would have been.”
We call attention to the fact that in the Scripps v. Reilly case, supra, the attorney in making his opening statement, read at length to the jury a series of articles published in the newspaper during the course of several months. About 20 articles were read to the jury as part of the opening statement, and the court held that they were calculated from their character to influence the minds of the jurors against the plaintiff in error.
Appellant then calls attention to German-American Insurance Co. v. Harper, 70 Ark. 305, 67 S. W. 755. They quote from that case: “These remarks were gravely prejudicial. True, they were not made under the sanction of an oath as a witness. But the statement of matters of fact by counsel of high character and excellent standing in the profession might be as readily accepted and believed by the jurors, and make as profound and ineradicable impression upon their minds, as if they had been uttered under oath. ’ ’ The counsel in that case made the following statement to the jury: “Gentlemen of the jury, if you knew Marshall’s business methods, you would say, ‘God save the plaintiffs, and God save all those who deal with him’!” The court held that these remarks were prejudicial.
This court has often held that the trial court must have a very large discretion in managing, and controlling the proceedings at the trial, and, even after objection had been made, if the court had overruled the objections, and the appellant had taken exceptions, it would not be cause to reverse the case, because we are of the opinion that there was no abuse of discretion.
' Appellant next insists on reversal because the court refused to give its instructions numbers 2 and 3. They are as follows:
“No. 2. You are instructed that no presumption of negligence arises against tire defendant, and, before the plaintiff is entitled to recover against it, he must affirmatively prove by a preponderance of the evidence that his injuries, if any, arose on account of the negligence of said defendant.”
“No. 3'. You are instructed that the defendant is not a guarantor or insurer of the purity of the drink prepared by it and placed on the market for sale. It is only bound to use. ordinary care and prudence in the preparation of said drinks and in the selection of the materials from -which it is made. ’ ’
The court gave several instructions requested by appellant and several requested by appellee, and these instructions given by the court make it so plain that the plaintiff could not recover unless the preponderance of the evidence showed that the defendant was guilty of negligence, the jury could not have been misled.
They were repeatedly told that they could not find for the plaintiff unless they found from a preponderance of the evidence that the foreign or poisonous substance in the Coca-Cola was put there through, or on account of, the negligent acts of the defendant.
This court has uniformly held that a judgment will not be reversed for a refusal to give an instruction where the matter is fully covered by other instructions.
Appellant calls attention to the case of Drury v. Armour & Co., 140 Ark. 371, 216 S. W. 40. We do not think this case supports the contention of appellant. In that case the trial court directed a verdict, and the court held that this was error; that the testimony was sufficient to warrant submission of the question of negligence to the jury.
The instructions in the instant case constituted a correct guide- for the jury. There is no contention that the evidence was not sufficient in this case to justify the submission to the jury, and to sustain the verdict.
The judgment is affirmed. | [
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HuMpkitEYS, J.
E. A. Fiscus owned lots 1 and 2 in block 4, and lots 1 and 2 in block 1 in Minnie Mack addition to the city of Wynne, Ark. Thomas Day owned blocks 2 and 3 in the same addition, and Mollie Y. Garrett owned lot 12, block 1 in the same addition.
Appellant, under proper authority, constructed a sewer system in the city of Wynne, Arkansas, in accordance with planp an\d specifications furnished by an engineer, for the purpose of conveying the sewage out of the city. On the east side of the city, the sewage was discharged through a septic tank into a stream. The stream did not flow through or touch appellee’s lands. The tank was constructed in the middle of Mulberry street, which ran east and west through the addition in which the property of appellees was located; the property was in the vicinity of the tank but not adjacent thereto. Noxious and offensive odors escaped from the tank and the stream into which the effluent from the tank was deposited. These odors pass onto the lands of appellees and impregnate the atmosphere to sueh an extent as to greatly impair the lands for residence purposes to which use they were and are adapted.
Appellees brought separate suits in the Cross county circuit court against Sewer Improvement District No. 1 of Wynne and the city of Wynne, seeking to recover damages on account of constructing the sewer system in such manner as to emit noxious odors and pass them over the lands of appellees.
The city of Wynne filed a demurrer which was conceded, and said city passed out of the case.
Appellants filed separate answers denying the material allegations of the complaint and by way of further defense pleaded that the sewage mains and septic tank were constructed according to plans ■ of competent engineers, and if odors escape from the tank and stream it is the fault of defective plans.
The causes were consolidated and tried as one case, resulting in a verdict and judgment in favor of E. A. Fiscus for $315.00; Thomas Day for $225.00, and Mollie V. Garrett for $175.00.
The proper proceedings were had and an appeal embracing the three cases in one has been lodged in this court.
(1) The controlling issue presented by this appeal is whether or not there must be a physical invasion or spoliation of one’s lands before he can maintain an action for damages for taking private property for public use without compensation. Our Constitution provides that private property shall not be taken, appropriated or damaged without just compensation to the owner. Appellant strenuously insists that the placing of a septic tank in the near vicinity of one’s land from which noxious odors emanate and pass onto the land is not an injury to real estate within the meaning of section 22, art. 2 of the Constitution of Arkansas. In the cases of McLaughlin v. City of Hope, 107 Ark. 442, and City of Eldorado v. Scruggs, 113 Ark. 239, this court held that the turning of sewage into, and polluting a stream which flowed across the lands of a property owner, to his injury, was within this constitutional provision and actionable. The reason assigned was that the lower riparian owner had a right to have the water uncontaminated by sewage, and such right was a real tangible property right which could not be appropriated without just compensation.
It is just as important to the owner of land to have unpolluted air as uncontaminated water. “The eight to pure air is property, and to interfere with the right for public use is to take property.” Lewis Eminent Domain, vol. 1, 3rd ed., sec. 236.
In the same section, Mr. Lewis uses some vigorous language in emphasizing the property right to air free from “artificial impurities.” His language is so apt the writer is constrained to quote the following sentences: “The impregnation of the atmosphere with noxious mixtures that pass over my land is an invasion of a natural right, a right incident to the land itself, and essential to its beneficial enjoyment. My right to pure air is the same as my right to pure water. It is an incident to the land and necessary to and a part of it, and it is as sacred as my right to the land itself.” The text is amply supported by authority.
(2) In arriving at the damage and the amount thereof to property in this class of cases, some just limitation or rule must be enunciated. We think the rule announced in Czarnecki v. Bolen-Darnell Coal Company, 91 Ark. 58, should be applied. The substance of the rule is that the property owner must suffer a direct, substantial injury peculiar to himself and not suffered by the general public. In the instant case, the injuries were direct, substantial and peculiarly affected the lands in question.
(3) The evidence in this case tends to show that the noxious odors, escaping from the tank and stream into which the effluent passed, were caused by defective plans. C. B. Bailey, an engineer, testified that two dosage chambers should have been installed when the tank was constructed; that had some artificial chemical action been installed it would have entirely eliminated the odors. -
The evidence further shows that the system was constructed upon the whole in accordance with the plans. In the case of the City of Eldorado v. Scruggs, supra, it was held that the sewer district was responsible for damages resulting to the property owner on account of construction of the system in accordance with the plans.
It is unnecessary to discuss the instructions, given and refused by the court, more than to say that the instructions given were in accord with the law announced in this opinion and limited the recovery to damages incident to the defective construction; and that the instructions refused were based on the theory that damage resulting to the property owner on account of noxious odors was not a damage within the meaning of section 22, article 2 of the Constitution of Arkansas.
(4) It is further insisted that the injury resulting from defective construction is not a permanent injury. The placing of the tank and the general manner of construction of this system was in keeping with the plans, and so far as this record disclosed, is a permanent structure. There is no evidence tending to show that the sewer district intends to, or will, remodel the system. Damage must necessarily result to this property by reason of the construction of the septic tank in accordance with defective plans, and by reason of the close proximity of the property to the tank. The decrease of the market value of the land on this account is not speculative and conjectural, but can be reasonably ascertained and definitely estimated. The facts in the case bring it well within the test laid down in the ease of C. R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, and the eases cited therein.
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Kikbt, J.,
(after stating the facts). Appellant insists that the court erred in not sustaining its demurrer to the complaint,!since it alleges the policy limited the indemnity in any event to payment of $7 per week for 20 weeks of any one year, but, as the opinion herein shows, we have concluded that no error was committed in overruling the demurrer, this being a suit for damages for breach of the contract, rather than for indemnity under the terms of the policy.
It is undisputed that appellant company refused to comply with the provisions of the policy and denied liability thereon, alleging that such disability was occasioned by, and the result of, a venereal disease not covered by the policy; or that it had been breached by the company’s refusal to pay disability benefits in accordance with the terms thereof.
A fair construction of the terms of the policy binds appellant to pay to the insured during his lifetime and the continuation of a total disability weekly benefits of $7 per week, not exceeding, however, 20 weeks during any one period of 12 consecutive months, said policy providing :
“'* * * The total number of days for which benefits will be paid under this policy is limited to one hundred and forty (140) during any twelve consecutive months.”
A reasonable construction of this provision necessarily limits the number of days for which disability benefits may be paid to insured during any period of 12 consecutive months, but certainly not to the payment only of that amount for a continuing disability, otherwise this clause would have been omitted from the policy. It does not exclude the inference that the parties contemplated that future benefits would be paid for a disability which continued during the lifetime of the insured, such clause limiting only the liability of the insurer to the payment of the amount prescribed to 20 weeks during any consecutive 12 months. If this clause had been omitted from the policy, it would have been like the policies involved in the cases of Commercial Casualty Ins. Co. v. McCulley, 185 Ark. 468, 48 S. W. (2d) 225, and Travelers’ Protective Ass’n v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364.
Other provisions in the policy show it was intended to remain in full force and effect during the lifetime of the insured, if he paid the premiums as required therein. Policies of insurance are construed liberally in furtherance of the general scheme proposed, such policy being construed most liberally in favor of the insured and most strongly against the insurer. Mosaic Templars of America v. Crook, 170 Ark. 474, 280 S. W. 3, 32 C. J. 1152. This rule of contracts applies with equal force where the provisions of the policy involved are ones of limitation of liability. 1 C. J. 414-15.
It may be true that in case of a lapse of the policy or death of the insured no further claim could be made for a future period of disability as claimed by appellant company, but the limitation of the policy only is to the amount or liability of appellant to the payment of no more benefits in any one year than the 20 weeks as expressly provided. This suit, however, is for damages for breach of a contract, and the jury has found that the contract was wrongfully breached by appellant company, and that the disability here was from an illness or sickness covered by the terms of the policy. The policy provides that the insured must be disabled from performing-work of any nature, confined to'his bed, etc., and certainly such terms do not indicate that it was limited on this point or a policy providing indemnity for partial disability only.
The breach of the contract, the appellant company’s refusal to pay under its terms and denial of any liability thereunder, gave the insured the right to sue for gross damages for such breach of contract, and the court has held that the measure of such damages is the present cash value of the past and future installments of the weekly indemnity based on the life expectancy of the insured. Ætna Life Ins. Co. v. Pfeifer, 160 Ark. 98, 254 S. W. 335. The rule as to the measure of damages is not modified by the fact that the insured died long before the end of 'the period of his life expectancy, the rights of the parties to a contract which has been breached being fixed at the time of the breach thereof. Van Winkle v. Satterfield, 58 Ark. 617, 25 S. W. 1113, 23 L. R. A. 853; 6 Paige on Contracts, p. 5623; Roberts v. Benjamin, 124 U. S. 64, 8 Sup. Ct. Rep. 393, 31 L. ed. 334. The breach of the contract occurred in October, 1930, the suit was brought in August, 1931, and judgment rendered against the company on January 8, 1932, the death of the insured being subsequent to all of these dates, and damages being recoverable for the breach of the contract rather than acceleration of the payment of unmatured installments due under the contract. Manufacturers’ Furniture Co. v. Read, 172 Ark. 642, 290 S. W. 353; Ætna Life Ins. Co. v. Pfeifer, supra.
The testimony is ample to sustain the jury’s finding that the insured was permanently and totally disabled at the time his cause of action arose. Industrial Mutual Ins. Co. v. Hawkins, 94 Ark. 417, 127 S. W. 457, 29 L. R. A. (N. S.) 635, 21 Ann. Cas. 1029.
No error was committed by the trial court in its refusal to give instruction No. A as requested by appellant, since its effect was to limit the amount of weekly disability benefits which insured might recover in the suit to those maturing before the bringing of the suit on August 3, 1931. This, as already said, is a suit for damages for breach of the contract by denial of liability thereunder, and appellee was entitled to recover all damages resulting from such breach in the one suit, it being the breach of the contract, and not the time of its discharge or the time of the bringing of the suit, that inflicts the damages, the breach and denial of liability going to the entire contract being a repudiation of any liability thereunder. Van Winkle v. Satterfield, supra; Travelers’ Protective Ass’n v. Stephens, 185 Ark. 660, 49 S. W. (2d) 364.
Instruction No. 5 complained of was not erroneous on the measure of damages for the breach of the contract, and was approved in the case of Ætna Life Ins. Co. v. Pfeifer, supra.
Neither was error committed in the court’s refusal to take judicial knowledge of the Hunter Tables of Mortality of Disabled Lives. The policy was not an insurance of a disabled man, but provided indemnity for disability to the insured, and certainly there was no necessity for giving any notice of any further disability under the policy of insurance, if any had occurred thereafter, or payment of a premium therefor, since the policy was breached and liability repudiated by the refusal to pay for the disability that resulted and for which indemnity was claimed as arising from a disease excepted from the provisions of the policy, a risk not covered thereby.
No error was committed in not instructing the jury otherwise, as appellant claims, by the giving of plaintiff’s requested instruction No. 4.
We find no error in the record, and the judgment is affirmed. | [
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Kirby, J.
This appeal is prosecuted from a judgment against appellant company as surety on a bond guaranteeing the construction and installation of a gas system for furnishing gas to the people of the city of Harrison within 12 months from the date of the ordinance granting the franchise therefor.
The city of Harrison, by its council, passed an ordinance granting C. W. Murchison, trustee, a franchise to construct, maintain and operate a gas system in the city of Harrison to supply the inhabitants of said city natural gas, and fixing the rates to be charged for same.
The ordinance provided that it should not become effective until a bond in the sum of $2,500 had been posted, conditioned that the system would be completed within 12 months from the date of the passage of the ordinance. Such bond was executed in said sum by C. W. Murchison and appellant company, as surety, and filed with the city council. Default was made in the construction of the gas distributing system; in fact no attempt was made to construct it, and the city brought suit on the bond. Service was not had on Murchison, and judgment was not rendered against him.
Appellant denied any liability on the bond, that the ordinance granting the franchise had been duly passed, published or accepted by the grantee, and any liability under the bond, which it claimed was a penalty, except for damages, if any at all, none of which had been shown.
Upon the evidence adduced by the plaintiff, the issues were submitted under instructions not complained of to the jury, which returned a verdict for the city against the appellant company in the sum of the face of the bond. Judgment in that sum was entered, bearing six per cent, interest from date, against the Indemnity Insurance Company of North America, which now seeks by this appeal to reverse said judgment.
Appellant insists that the bond only provided a penalty, and that it was not liable thereunder for more than actual damages, none of which was shown to have been suffered hy the city. This case is ruled by the decision in Cherokee Public Service Co. v. Helena, 184 Ark. 38, 41 S. W. (2d) 773, where a provision in a contract obligating a utility company to pay $5,000 for breach of its undertaking to supply gas to a city in a specified time was held a provision for liquidated damages.
'Section 14 of the ordinance granting the franchise provided it should take effect after its approval and publication upon the posting of a $2,500 surety bond approved by the city council, conditioned that the gas system be completed within 12 months from the date of the passage of the ordinance. The bond was conditioned as the ordinance required:
“Now, therefore, the condition of this obligation is such that, if the said C. W. Murchison, trustee, his successors, lessees and assigns, shall lay, construct, and equip a system of gas mains, pipes, conduits and feeders for the purpose of supplying and distributing natural gas for light, fuel, power and heat, and for any other purpose, to the residents and inhabitants of the city of Harrison, as provided in said franchise, within twelve months from the date of the passage of the ordinance granting said franchise, then this obligation shall be null and void; otherwise, it shall remain in full force and effect.”
The terms of the ordinance and the provisions of the bond are of such a nature that the damage caused by its breach would be uncertain and difficult of proof, and the sum named by the parties was properly held to be liquidated damages; the form and language of the instrument not being unfavorable to such construction and the magnitude of that sum nor forbidding it. The parties must have known that it was impracticable to measure the damages of any actual loss, if any was contemplated, for a breach of the contract, since the city, in its corporate capacity, could not have suffered any injury by such breach of contract, and it was only reasonable to suppose it was intended to fix in the terms of the contract the precise sum recoverable for its breach. See also 8 R. C. L., pages 575-576; Sun Printing & Publishing Ass’n v. Moore, 183 U. S. 642, 22 S. Ct. 240.
Appellant insists that the conrt erred in allowing’ parol testimony introduced to prove the ordinance granting the franchise, which it says could only he done by the production of a certified copy thereof. The city recorder testified that he was the custodian of the records of the city, was present when the ordinance granting the franchise was passed by the council, and made a copy thereof, and recorded it; that it had been attested ¡by the signatures of the mayor and the recorder, and duly published. This testimony was admitted over objection, and later a printed copy of the ordinance was introduced with a certificate of publication. No error was committed in the proof of the ordinance in such manner without the production of a certified copy thereof made by the clerk or recorder. Sections 7497 and 7499’, Crawford & Moses’ Digest; Heno v. Fayetteville, 90 Ark. 292, 119 S. W. 287.
It is also claimed that the surety company was not bound to the payment of the bond, since it was not proved that the signature of the principal, Murchison, was genuine ; but the city recorder stated he had written to Murchison at Dallas, Texas, after the passage of the ordinance calling for the posting of the bond in accordance with its terms, and that the bond sued on, signed by Murchison, as principal, was returned to the city with the signature of appellant as surety thereon, and by it accepted, in accordance with the terms of the contract. There was no statutory denial of the execution of the bond, and no claim whatever by appellant company that it had not executed the same regularly as surety.
We find no error in the record, and the judgment is affirmed. | [
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Hart, J.
This is an action of ejectment instituted in the circuit court by J. T. Abraham against Doc Hatchett, Jr., and Doc Hatchett, Sr., to recover two hundred acres of land.
The defendants admitted that the plaintiff had title to the land but they claimed to be in possession of it under “color of title” by virtue of a homestead certificate and claimed judgment for improvements to the amount of $479.50. On the trial of the case it was shown that the defendants filed their homestead application in the United States Land Office at Li/ttle Eock, Arkansas, on February 1, 1911, and paid the fees therefor. A certificate of homestead entry by the United States Government was issued to them. Af terwa) d, it was ascertained that the lands had been previously granted to the State of Arkansas, for the benefit of the Little Eock and Fort Smith Eailroad Company, and the United States Land Department having discovered this fact, held that the lands were not within its jurisdiction at the time of the homestead entry of the defendant'.- and the same was canceled.
The defendants made certain improvements on the lands during the time they were in possession of them and testified to the value of these improvements.
Judgment was rendered in favor of the plaintiff for the possession of the land, but it was further adjudged that no writ of possession be issued in his favor until he should pay to the defendants the sum of $300, the value of the improvements in excess of the rental value of the land as found by the jury. It was further provided that the defendants should have a lien on the land for said amount. The plaintiff has appealed.
(1-2) It is first contended that the certificate of homestead entry was not sufficient to constitute ‘ ‘ color of title” in the defendants. “Color of title,” as well as good faith, is made necessary to entitle an occupant of lands to compensation for improvements made by him. Beasley v. Equitable Securities Co., 72 Ark. 601; Bloom v. Strauss, 70 Ark. 483; White v. Stokes, 67 Ark. 184; Beard v. Dansby, 48 Ark. 183; Nunn v. Lynch, 89 Ark. 41. It is also apparent from those authorities that the words, ‘ ‘ color of title, ’ ’ had received a judicial interpretation at the time our Betterment Act was passed. They have been generally defined as “that which in appearance is title, but which in reality is not title.”
In Whitcomb v. Provost, 78 N. W. 432, the Supreme Court of Wisconsin decided that a holding under an invalid certificate of homestead entry is not “ color of title” so as to entitle the defendant in ejectment to recover for improvements. We do not think that case and others of similar character are authority for so holding in this State. Under our statute a plaintiff claiming possession of land under an entry made with the register and receiver of the proper land office of the United States may maintain an action for the recovery of the lands. Kirby’s Digest, Sec. 2738.
The certificate issued by the agents of the proper land office to an applicant for a homestead entry entitles the holder of the certificate to take possession of the land and make improvements upon it. It is true the certificate of entry only gives him an inchoate equitable title subject to be defeated by noncompliance with the provisions of the act of Congress or to be canceled for cause, but under the liberal provisions of our statutes, the person holding the certificate may maintain ejectment for possession of the land against one having no better title or right of possession. Gaither v. Lawson, 31 Ark. 279.
(3) While our Betterment Act was passed many years after our ejectment statute, yet the former wa.s passed with a knowledge of the existence of the latter statute and with reference to its provisions. While the certificate of homestead entry did not invest the holder with the legal title, it was sufficient, under our statute, to enable him to maintain or resist ejectment. The receiver’s receipt and the certificate of entry gives to the holder the immediate right to the possession of the land with the power to oust any intruder by an action of ejectment. When the applicant has paid his money and taken the receipt, he has done all in his power, and the land from that time is reserved from entry. It is true the certificate is liable to be canceled by the government in case the sale was improperly made, but such would be the case if a patent had been issued. Either a certificate or patent may be recalled or canceled in case the' government has previously sold the land. But we think that when our ejectment and betterment statutes are construed together, it was the evident intention of the Legislature to make a certificate of homestead entry ‘ ‘ color of title” and the circuit court property so held. As bearing on the question, see Cawley v. Johnson, 21 Fed. Rep. 492, and Hannibal & St. Joe Railroad Co. v. Clark, 68 Mo. 371.
The court, however, erred in allowing the defendants the cost of the improvements placed by them on the land. In considering the question of how the value of improvements are determined, in McDonald v. Rankin, 92 Ark. 173, the court said:
‘ ‘ The value thereof is based upon the enhanced value which these improvements at the time of recovery impart to the land. But such enhanced value of the land should arise solely by reason of the improvements themselves, and should be determined only by the ordinary considerations that would apply to lands that are similarly situated. The condition of the improvements at the time of the recovery should be taken into consideration. The difference between the value of the land without the improvements and the value of the land with the improvements in their then condition would be a just sum to allow therefor. In any event, no value that the land might impart to the improvements should be considered in estimating the value of such improvements. The reasonable cost in making the improvements, their deterioration, if any, or the reasonable cost of making them at the time of the recovery in their then condition, may well be taken into consideration in arriving at the value of such improvements.”
For the error in determining the measure of the value of the improvements, the judgment will be reversed and the cause remanded for a new trial. | [
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Smith, J.
This suit was commenced in the court of a justice of the peace upon a promissory note, upon which, after allowing certain credits, there was a balance alleged to be due, with the interest thereon, of $77.67. Ancillary to this suit, there was an attachment against appellee, who was the defendant below, upon the ground that he was a nonresident of the State. It is admitted that appellee was then and is now a Nonresident of the State., But the attachment was resisted upon the ground that appellee was not the owner of the horse, bridle and saddle which constituted the attached property. An interplea was filed by appellee’s son, who claimed to be the owner of the property. The cause was tried in the court below' before a jury, and, when the evidence was all in, appellant, who was the plaintiff below, asked the court to direct the jury to return a verdict in his favor for the amount sued for, and to sustain the attachment.
The defendant requested the court to give two instructions, the first of which related to the debt, and the second to the attachment, but both were refused. Thereupon the court charged the jury as follows: ‘ ‘ Gentlemen of the Jury: After listening to this case as carefully as1 the court could, and taking into consideration all the evidence in this case, and all the facts surrounding the case,’ I feel it is the duty of this court to direct a verdict in this case. The court does not do it to invade the province of the jury, but I think it absolutely just and fair, under the facts in this case, for the court to direct a verdict in, favor of the plaintiff, and against the defendant, upon this note sued on, for the balance, whatever it is. I think it is equally true and just for the court to direct the jury to dissolve this attachment. I do not believe the attachment could be sustained. I think the father gave this mare to his boy, just like he said, to encourage the boy and get him to be a better boy at home. He did that when he went home, I think. He did not know at that time there would be any trouble about this note. I say I think the attachment should be dissolved, and I direct you to dissolve the attachment, and direct you to find a verdict against the endorsers here for the balance you find due upon the note.”
This record does not present the question of the trial of an attachment alone, but of the right of the inter-pleader to the attached property. It was held in the case of VonBerg v. Goodman, 85 Ark. 605, that the court, and, not the jury, should pass upon an attachment, although it was there said that the court might submit the question to the jury and that it was not error so to do. But this; practice does not obtain in the trial of an interplea. That is triable before the jury, and is usually tried as an issue independent of the attachment, in the trial of which the interpleader is given the right to open and close the argument, as having the burden of proof. Excelsior Mfg. Co. v. Owens, 58 Ark. 556.
The interpleader was a boy sixteen or seventeen years old, and testified that, with his own earnings, he had purchased the attached bridle and saddle, and that his father had given him the horse to induce him to remain at home and assist him in making and gathering his crop. The defendant corroborated this statement. It was contended, however, by appellant that the attached property belonged to the defendant, who was not only a nonresident, but that he was also insolvent, and that any gift of property by him to his son was presumptively fraudulent. Defendant admitted that he was a nonresident, and the proof is sufficient to sustain a finding that, he was also insolvent.
It is not denied that the record presents such a state of facts as that a jury might have found for the plaintiff upon the interplea; hut it is said that, inasmuch as he requested the court to direct a verdict in his favor, and did not request the court to give any. other instruction, he thereby consented to the submission of the trial of this question of fact to the court, and that the finding of the court will be treated as would have been the verdict of the jury, and that, inasmuch as there was evidence which would have sustained a verdict in favor of the interpleader, we must now affirm the court’s direction to that effect. It is said that this is the effect of the decision of this court in the case of St. Louis Sw. Ry. Co. v. Mulkey, 100 Ark. 71, as applied to the facts of this case. In ■that case it was said: “ It is also true that the parties had the right to waive a jury and submit the matter to the court for trial in the first instance, and, each having requested the court to direct a verdict in his favor, and not having requested any other instruction, they in effect agreed that the question at issue should be decided by the court, and waived the right to the decision of a jury, and the court’s decision and direction has the same effect as would have been given to the verdict of the jury upon the question at issue, without such direction.”
A' number of cases are cited in that opinion to support that declaration of the law. Among the cases so' cited is the case of Love v. Scatcherd, 77 C. C. A. 1, to Avhich case there is appended a note collecting the cases upon this subject. This note cites a number of cases which support this declaration of the law. Chief among these are cases in the Federal courts and in the State of NeAv' York. It appears from this note, however, that the courts are not unanimous in so holding, and that courts of the highest authority hold that, though both parties move for a directed verdict, neither, as against the motion of the other, waives the right of submission to a jury. However, we are committed to the contrary view, and we reaffirm the doctrine of our own case. This case has been approved in the following later decisions: St. L., I. M. & S. Ry. Co. v. McMillan, 105 Ark. 25; Belding v. Vaughan, 108 Ark. 69, 72; Home Fire Ins. Co. v. Wilson, 109 Ark. 324, 326; Sims v. Everett, 113 Ark. 198, 201; Gee v. Hatley, 114 Ark. 376, 380; Supreme Tribe of Ben Hur v. Gailey, 117 Ark. 145, 151; Ozark Diamond Mines Corporation v. Townes and Garanfio, 117 Ark. 552, 554; Hill v. Kavanaugh, 118 Ark. 134, 136; St. L., I. M. & S. Ry. Co. v. Ingram, 118 Ark. 377, 388; Nutt v. Fry, 119 Ark. 450, 454.
In each of these cases it will be observed that attention was called to the fact that both parties requested the court to direct a verdict each in his own favor, and neither requested any other instruction. This condition obtained in all of the cases cited by the court in the Mulkey case, supra, and in all of the cases quoted in the note to the ease in 77 C. C. A., supra, and so far as we are advised no court has ever applied this rule except where the request was made by both parties to the litigation. We are' not impairing the authority of our Mulkey case, supra. We are only declining to extend the doctrine of that case.The courts which approve this practice do so upon the theory that the request for ap directed verdict, unaccompanied by any request for other instructions, or for the submission of any issue of fact to the jury is tantamount to a request that the court find the facts, or to an agreement that there are no disputed questions of fact to be found. But, so far as we are advised, no appellate court; has held that the trial court may withdraw the submission of a case from the jury, and decide controverted questions of fact, simply because one of the litigants requests the,, court to direct a verdict in his favor. To so hold would either deny the right of trial by jury, on the one hand, or •would prevent a litigant from asking a directed verdict, on the other, and would tend to prevent litigants from ever siibmitting the question of the legal sufficiency of evidence to the court. This practice would encourage litigants, in all cases, to go to the jury and obtain a verdict' there, and would, consequently, lengthen the time of trials; and it does not appear to he a practice to he approved.
For the error of the court in refusing to submit the contention of the appellant upon the right of the inter-pleader to the attached property, the judgment must be reversed, and the cause will be remanded for a trial upon that issue.
McCulloch, C. J., dissenting. The rule established by the decision of this court in St. L. Sw. Ry. Co. v. Mulkey, 100 Ark. 71, is that a request for a peremptory instruction, unaccompanied by a request for other instructions of law upon which the issues are to be submitted to the jury, is tantamount to an agreement for the court to decide the issues and constitutes a waiver of the right to go to the. jury on-the issues of fact. The waiver results, if at all, from the act of the party himself in asking for a directed verdict, and not from what his adversary does or fails to do. There need not be mutuality in the waiver. It is not based on the mutual agreement of the parties, but on the separate acts of each, and when one party moves the court to direct a verdict he thereby waives the right to go to the jury whether the other party joins in the waiver or not. Such is the effect of the rule laid down in the Mulkey case. I think the rule there laid down was wrong, and that it isl against the very great weight of authority, but the case has been followed many times by this court and the practice under it has become firmly established. It seems tome to be thoroughly illogical to say that the waiver must be joint in order to be effectual. It is true, as stated in' the opinion of the majority, that no court has ever held that the request of only one of the parties for a directedt verdict constitutes a waiver of the submission of the issues to the jury, but it is equally true that the point has never been raised in any of the reported cases. | [
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McCulloch, C. J.
J. M. Glass, one of the appellees, owned 3,000 acres of timber land in Arkansas, and on April 9, 1904, conveyed the white oak timber by deed, absolute in its terms, to the H. D. Williams Cooperage Company, a corporation, the deed reciting a consideration of $10,000, receipt of which was acknowledged in the deed. No time was specified in the deed for removal cf the timber, but the chancellor found on hearing the cause, and it is now conceded in the briefs, that four years was not an unreasonable time within which to remove the timber. Simultaneously with the execution of the deed the parties entered into a contract in writing, which, after reciting the aforesaid sale and conveyance cf the timber and that the H. D. Williams Cooperage Company had “loaned and advanced” to J. M. Glass the sum of $10,000, stipulated that Glass was to cut the timber into stave bolts and to haul the same and load on cars as directed by the cooperage company for $9 per cord, of which sum $3 per cord was to be credited on the amount loaned and advanced aforesaid by tbe company to Glass. The contract further provided that in the event Glass should be unable to cut and haul the stave bolts as directed' by the cooperage company then said company should proceed to have the cutting and hauling done at the expense of Glass. Said contract concluded with the following clause:
“7. It is understood between the parties hereto that the performance of the obligations of this contract assumed by the party of the first part (J. M. Glass) is not divisible, and that a refusal on his part to perform any of the duties devolving upon him by the terms hereof shall be deemed by the parties hereto as a refusal on his part to perform all and singular the terms of the contract devolving upon him.”
J. M. Glass commenced work under the contract in the summer of 1904, but after continuing a short while stopped on account of labor troubles, and there was no further attempt made to cut or remove the timber. Correspondence took place between the parties year after year concerning the cutting of the timber, in which correspondence the cooperage company made requests of Glass that he proceed with the cutting and delivery of the timber, but it was agreed from time to time that on account of the years being wet ones it was impossible to cut the timber out. In the year 1908 the cooperage company moved its mill off the line of railroad to which the timber was accessible and notified Glass that because of that fact it would not be convenient for it to handle the timber, and it was orally agreed between the parties that Glass could sell the land and repay the sum advanced but of the proceeds of the sale. There was no further correspondence until February 7, 1912, when the cooperage company addressed a letter to Glass reciting the transactions of the past concerning the agreement for Glass to sell the property and repay the loan, and the letter concluded as follows:
“We have been disposed to meet your wishes in the matter of handling this contract during all these years, and our desire to help you has resulted in more than a little inconvenience and loss to us, and if you have no immediate prospects of disposing of the property in such a way that our advancement will be repaid to us, it seems to me that during this year, or as soon as the weather will permit, that we should disregard any further selling negotiations and proceed with the v orking of the timbei; under the contract as originally contemplated; and especially is this true as we understand you arranged for a sale of a portion of this land recently and reserved eighteen months to remove the timber. With this end in view, I am going to ask you to see that we are notified just as soon as the condition of the country will permit you operating on this land.
“If in the meantime you should have any proposition for the sale of the property, which will enable you to make us a firm offer for the release of our contract, we will, of course, consider it.”
The reply of Glass to this letter is not in the record. He testified, however, that he replied to the letter, but fails to give the substance of his reply. Nothing further transpired between the parties, and nothing has ever been paid on the $10,000 advanced by the cooperage company to Glass.
Glass mortgaged the land to J. E. Franklin in July, 1913, to secure a loan of $17,500, and this mortgage was subsequently foreclosed by a decree of the chancery court. Appellant, First National Bank, became purchaser, deed being executed by commissioner with the approval of the court on February 10, 1915. On September 4, 1915. H. D. Williams Cooperage Company was adjudged a bankrupt, and H. A. Dinsmore was appointed trustee in bankruptcy. The H. D. Williams Cooperage Company had previously executed to the Mercantile Trust Company a mortgage embracing the timber in con troversy, and the mortgage was foreclosed under a decree in the chancery court, a sale of the timber was made by a commissioner to the Export Cooperage Company, conveyance being executed to the latter under order of the court.
This action was instituted by appellants on July 8, 1916, praying for cancellation of the timber deed to H. D. "Williams Cooperage Company as a cloud on their title, alleging as a ground for the removal of the cloud that a reasonable time for the removal of the timber had expired. The Export Cooperage Company intervened as the successor of the title to the H. D. Williams Cooperage Company, and prayed that the timber deed be construed as a mortgage, and that it be foreclosed. The chancellor on final hearing dismissed the complaint of the appellants for want of equity, and rendered a decree in favor of the Export Cooperage Company on its cross-complaint, declaring that the timber deed from Glass to the H. D. Williams Cooperage Company, and the aforesaid contract between those two parties, constituted an equitable mortgage, and a decree to foreclose the same was rendered fixing four years from the date of the commissioner’s deed as a reasonable time for the purchaser at the sale to remove the timber.
It is contended on behalf of appellants that the two instruments of writing between Glass and the H. D. Williams Cooperage Company should be construed together as one instrument, and that when so construed they constituted either an absolute and unconditional sale of the timber or a legal mortgage, and that in either event the rights of the grantee had been barred by lapse of time. The contention is that if the instrument be .construed as an unconditional sale of the timber, the rights are barred because of the timber not being removed within a reasonable time; and that if the instrument be construed to be a legal mortgage, the debt secured is barred by the statute of limitation. We do not think that either of the contentions of learned counsel is sound. It is correct to say that the two instruments being executed contemporaneously and covering the same subject matter should be construed together as one contract. Dicken v. Simpson, 117 Ark. 304. When thus construed, it is evident that the writing does not constitute an unconditional sale and delivery of the timber so as to require the purchaser to remove the timber within a reasonable time. To so construe the contract would be to ignore entirely the provisions of the second instrument whereby Glass undertook for the consideration named to cut the timber into stave bolts and to haul it to the railroad and load it on cars, a part of the price to be credited on the sum advanced. On the other hand, the two instruments construed together do not constitute a legal mortgage, for the second instrument does not contain an unconditional defeasance. The grantee was, under the contract, to have the timber in any event, and the right to take the timber was not to be cut off by a payment of the debt.
(1) We think that the instruments constituted in effect an executory contract for the sale and delivery of the timber, and an equitable mortgage on the timber for the repayment of the advanced purchase price. The deed was not intended as a completed sale and delivery of the timber, for it is evident that the delivery was to be postponed to some future date, and the failure of the grantor to complete the sale created a lien in the nature of an equitable mortgage to secure the repayment of the advanced purchase price. 3 Pomeroy’s Equity Jurisprudence, § 1263.
(2) No time was specified in the contract for the delivery of the timber or the repayment of the purchase price, so the running of the statute of limitation must necessarily have begun upon a demand and refusal to perform the contract. According to the evidence in the case there never was an unqualified demand or refusal. Performance was postponed by mutual agreement from year to year, and it was agreed that the matter should be settled by Glass procuring a purchaser of the land and timber, and repaying the purchase money out of the sum received. The last communication between the parties was the letter of February 7, 1912, written by the H. D. Williams Cooperage Company to Glass and the latter’s reply some time later. It is doubtful if that incident can be treated as a demand and refusal so as to put the statute of limitation in motion, but, at any rate, it can be definitely said that the statute did not begin to run at an earlier date.
(3-4) There was an express undertaking on the part of Glass in the contract to repay the price by a delivery of the timber. Therefore, the promise to pay being in writing, five years is the statute of limitation applicable to the case. Coleman v. Fisher, 67 Ark. 27. This litigation was begun and concluded in the court below within that period, so it follows that the rights under the timber deed are not barred. The court was correct, we think, in reaching the conclusion that the instruments of writing constituted an equitable mortgage; that the same was not barred by limitation, and in decreeing a foreclosure. The timber deed was duly recorded and constituted constructive notice to subsequent purchasers not only as to existence of the conveyance but also as to extension of time for removing the timber (Mullins v. Wilcox, 124 Ark. 17), therefore appellants can not be treated as innocent purchasers and the facts related concerning the agreements between the parties for postponement of the removal of the timber permit^ the application of the doctrine of laches, which appellants invoke.
Decree affirmed. | [
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Mehaeey, J.
The appellants and appellees were candidates for members of the Crittenden County Board of Education. The appellees were declared elected, and the appellants began this suit to contest the election of appel-lees before the Crittenden County Board of Education on March 25,1932. The county board of education met on April 21, 1932, to hear the contest. The appellees filed a motion to dismiss on two grounds: 1. That the county board of education had no jurisdiction, and that such jurisdiction was in the county court. 2. That the contest had been prematurely instituted as no certification of the result bad been filed with the county court clerk at the time of the institution of the contest, March 25,1932. The motion of contestees was granted by the county board of education and the action dismissed. An appeal was prosecuted to the circuit court of Crittenden County, and the contestees filed motion to dismiss in the circuit court upon the same grounds as were stated in the motion filed with the county board of education. The circuit court held that the jurisdiction was vested in the county board of education, but that the contest had been prematurely instituted, and granted the motion and dismissed the complaint. The returns as made to the county board of education showed that M. L. Aldridge had received 464 votes; W. A. Koser, 483 votes; R. L. McElroy, 489 votes, and A. C. Oliver, 493 votes, and the county board of education adopted a motion to certify the election of A. C. Oliver and R. L. McElroy as members of the board. The contestants alleged fraud, and depositions had been taken tending to show that Koser and Aldridge had received many more votes than the contestees. This evidence was not considered, however, because the court held that the action must be dismissed because it had been prematurely brought. Section 30, act 169 of the Acts of 1931, among other things, provides: “Any contest of any results of any election in any school district shall be brought within 15 days after such election, if the results thereof shall have been certified to the county clerk 5 days previously, or within 5 days after such results have been certified and not thereafter.”
It was manifestly the intention of the Legislature to limit the time in which a contest might be brought and not to prevent the contest from being brought sooner than that time, if the contestant desired to bring it sooner. It was evidently the intention of the Legislature that a contest might be brought any time after the election, not later than fifteen days after the election, unless the result was certified to the county court 5 days previous to the time of beginning the contest. In other words, it was the intention of the Legislature to give persons desiring to contest the election 15 days after the election in which to bring his snit, or 5 days after the result had been certified to the county court. This is not a contest of the certification of the nominee or election of a candidate, but it is a contest of the result of the election. The result of that election, as shown by the face of the returns, was known and certified on March 24. The certificate of the board of education shows that a meeting was held on March '24, and the result of the election declared by the board, and certification made, but it is contended by the appellee that, because the certification of the result had not been filed with the county clerk, the suit could not be maintained. The record shows that the board of education met on March 11 and adjourned until March 24, at which time it declared the result. The board, however, did not file the certification with the county clerk until April 12.
The primary rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature, and the true meaning of the Legislature must be ascertained from a consideration of the whole act, and, when the intention is thus manifested, the court will not permit punctuation to control, but will disregard punctuation or will repunctuate, if necessary, to give effect to what otherwise appears to be the purpose and true meaning of the statute. 25 R. C. L., p. 960 and p. 965; 59 C. J., p. 948 and p. 989; Berry v. Cousart Bayou Drainage District, 181 Ark. 974, 28 S. W. (2d) 1060.
We said in a recent case: “Such a construction ought to be put upon the statute as may best answer the intention which the lawmakers have in view, and this intention is sometimes to be collected from the cause or necessity of making the statute, and sometimes from other considerations; and, whenever such intention can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construction seems contradictory to the letter of the statute. And such construction ought to be put upon it as will not suffer it to be eluded.” Gill v. Sanders, 182 Ark. 453, 31 S. W. (2d) 748; Turner v. Edrington, 170 Ark. 1155, 282 S. W. 1000; Casey v. Smith, 185 Ark. 149, 46 S. W. (2d) 38; Manley v. Moon, 177 Ark. 260, 6 S. W. (2d) 281; Indian Bayou Drainage District v. Dickie, 177 Ark. 728, 7 S. W. (2d) 794.
We recently quoted with approval the following: “But, while the courts cannot add to, take from or change the language of a statute to give effect to any supposed intention of the Legislature, words and phrases may he altered and supplied, when that is necessary to obviate repugnancy and inconsistency and to give effect to the manifest intention of the Legislature.” Hazelrigg v. Board of Penitentiary Com., 184 Ark. 156, 40 S. W. (2d) 998.
Act 169, which provides for the contest, also provides that the persons elected members of the county board .of education shall qualify within 30 days. The county board of education in this case did not file the certification with the county clerk until more than 30 days after the election, so that the persons certified by them were already serving before this certification was filed.
It should be kept in mind that this is a contest of a result of the election, and not a contest of the certification of a candidate or officer. There appears to be no reason why one might not begin a contest immediately after the election, and there is nothing in the act that either prohibits this or indicates that one'must wait until after the certification is filed with the clerk. The purpose of the statute is to require the contest to be filed within a certain number of days, and to prohibit its filing thereafter. It is similar to a suit of any other character where there is a statute of limitations. One is prohibited from bringing a suit on an open account after three years, on a written instrument after five years, but that does not mean that the action cannot be begun immediately after the cause of action accrues. So here, the Legislature has fixed a time within which a contest must be begun, and it cannot be begun thereafter, hut it may be begun at any time after the election within the time limited by the statute.
Appellant insists that the case should be tried here on the evidence introduced, but this evidence was not passed on by the circuit court, and since the circuit court dismissed the complaint, holding that the action had been prematurely brought, the judgment is reversed, and the cause remanded with directions to overrule the motion and proceed with the trial of the cause.
Smith, J., disqualified and not participating. | [
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Butler, J.
Independence County was the owner of a common claim for deposits it bad on hand in an insolvent bank amounting to the sum of $28,882.42. This bank has been in the course of liquidation since its failure in 1930, and no dividends have been paid on this claim, or any other of its class, except by special trade-out by -conveyance or by assignment by the Bank Commissioner of lands or personal property other than money in satisfaction of such claim.
With this condition existing, the county court, on September 5, 1932, entered into a contract with the ap-pellee by which it undertook to sell to him the aforesaid claim at the rate of twenty-five cents on the dollar, aggregating the sum of $7,220.60, and on that date entered an order directing the manner in which said contract should be carried into effect by the clerk and treasurer of said county. These officers questioned the power of the court to make the contract and order, and refused to -comply therewith.
A petition for mandamus was filed in the circuit court, replies were filed by the appellants, and, upon consideration of the pleadings and testimony, the court found “that said order made by the county court was fair and just in its terms and without collusion, and that the price obtained for the deposits was fair and reasonable and as good as can be obtained at this time, and that the other deposits in said bank, both State and individual, have been sold for no greater sum. And that, on account of the uncertainty as to the time of liquidation of said bank, and the date when the county and its various agencies would receive any dividend therefrom, that it is to the best interest of the county that said deposit claim be sold and the proceeds made available now for the county, and therefore the court finds that the petition for mandamus of plaintiff should be,' and it is, hereby granted. It is therefore considered,” etc.
On appeal the appellants do not question the good faith of the county court in making the order or its beneficial effect. Indeed, the evidence is not in conflict, and fully warrants the findings of fact made by the court. The question presented is one of power in the county court to make the sale to afppellee, it being the contention of the appellants that no express authority is to be found in the Constitution or statutes, and that, as a county court could not pay a claim of the county in any greater amount than the value of the claim in lawful money of the United States, they reason that a demand of the county could not be sold for less than its face value. The county court is a creature of the Constitution, and it is not to be doubted that it has only such power as is expressly granted by the Constitution and statutes in aid thereof, or which are necessarily implied from the authority conferred.
The question before us is not the allowance and payment of a claim against the county, but the sale by the county of a demand it has for money due it. Therefore, § 2088, Crawford & Moses’ Digest, quoted by the appellants to sustain their contention, does not apply. Section 28 of article 7 of the Constitution prescribes the jurisdiction of county courts, and § 2279 of Crawford & Moses’ Digest is the statute passed in aid of the constitutional provision. The applicable part of the sections of the Constitution and Digest is as follows:
Section 28, article 7, Constitution: “The county courts shall have exclusive original jurisdiction in all matters relating’ to county taxes, etc., * * * and in every other case that may be necessary to the internal improvements and local concerns of the respective counties.”
Section 22791, Digest: “The county court of each county shall have the following powers and jurisdictions: * * * to have the control and management of all the property, real and personal, for the use of the county; * * * to sell and cause to be conveyed any real estate or personal property belonging to the county and appropriate the proceeds of such sale for the use of the county. ’ ’
We have held that the above provisions of the law authorize the county court, in the exercise of a sound discretion and acting in good faith, to sell real estate in the manner prescribed by statute. State v. Baxter, 50 Ark. 447, 8 S. W. 188; Little Rock Chamber of Commerce v. Pulaski County, 113 Ark. 439, 168 S. W. 848; Ivy v. Edwards, 174 Ark. 1167, 298 S. W. 1006. Indubitably, the power to sell personal property exists, as does the power to sell and convey real property. Section 9736 of 'Crawford & Moses’ Digest, cited by the appellee, defines “personal property” as including “money, goods, chattels, things in action and evidences of debt”; so, the demand of the county for the deposit in the insolvent bank is personal property within the meaning of the statute, and, under the express provisions of the Constitution and statutes quoted, supra, we are of the opinion that the county court was authorized to make the order, and the circuit court was correct in awarding the mandamus, and its action in so- doing is affirmed.
Kirby, J., dissents. | [
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Hughes, J.,
(after stating the facts.) The defendant offered to prove on the trial that the cotton was being withheld by him from being ginned at the instance and request of Gray, one of the appellees, at the time it was stolen, and at the time of the burning of the gin; and this was not allowed by the court, to which he excepted, and made this the first ground of his motion for a new trial. Appellant contends this should have been allowed, because the appellees requested that the ginning should be delayed until they could gather a certain field of cotton, that it might all be ginned at the same time; that, having withheld the ginning thus’ at the request and for the accommodation of appellees, a less degree of care was required of him to keep the cotton safely. While we would not reverse the ease for failure to allow this testimony, we think it should have been allowed, that the jury might be in possession of all the facts that might bear upon the case.
There was prejudicial error in the court’s instruction to the jury as to the burden of proof. It told the jury that, “the loss of the cotton being admitted, the burden is upon the defendant to show that such loss was not caused by the negligence of him or his servants; and, unless you find by a preponderance of the evidence that the loss .was not caused by such negligence, your verdict will be for the plaintiff.” This is error, for which the judgment must be reversed. Judge Story in his work on Bailments (8th Ed.), § 410, says: ‘With certain exceptions, which will thereafter be taken notice of, as to innkeepers and common carriers, it would seem that the burden of the proof of negligence is on the bailor, and proof merely of the loss is not sufficient to put the bailee on his defence. This has been ruled in a case against a depositary for hire, where the goods bailed were stolen by his servant.” “Properly understood, it seems to be clear that the burden of proof must always be upon the plaintiff to make out all the facts upon which his case rests; and,as negligence is the foundation of the action between bailor and bailee, that the duty of proving such negligence is on the former, rather than that of disproving it on the latter. That the burden is on the plaintiff in other cases founded on negligence is now quite generally agreed. * * * Negligence is no more to be presumed in such cases than in any other.” There is some discrepancy in the cases, but “the best considered modern authorities, in which the question has been most directly discussed and decided, support the views above expressed.” Id. §§ 410a, 213, 278, 339, 454 and authorities, note 3 and 4.
“All bailees, with or without a special contract, are prima facie excused when they show loss or injury by act of God, or of public enemies; and ordinary bailees in a variety of lesser instances', such as fire, loss by mobs or robbery.” Wilson v. Southern Pacific R. Co. 62 Cal. 164, as to loss by fire. 3 Am. & Eng. Enc. Law, pp. 750, 751 and cases.
Negligence is an affirmative fact, to be established by proof. Rutledge v. Ry. Co. 24 S. W. 1053. The burden of sustaining the affirmative of an issue involved in an action is upon the party alleging the facts constituting the issue. Heinemann v. Heard, 62 N. Y. 448.
The appellant asked the court to instruct the jury that the burden as to negligence was on the plaintiff, which he refused to do. This was error. For the errors indicated the judgment is reversed, and the cause remanded for a new trial.
Bunn, C. J., and Battle, J., not participating. | [
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Wood, J.
(after stating the facts). In the case of Comes v. Cruce, 85 Ark. 79, we held that a publication reflecting upon a class of people is not libelous if theré is nothing in the article that by proper inducement and colloquium can be shown to be personal to one who sets up such publication in a suit against the publisher for the libel. In that case the article of which complaint was made referred to a certain killing as the result of “wine joints that are now in operation in the city of Morrilton ’ ’; and stated, that the wine sold was adulterated and calculated to inflame the passions of negroes and cause them to commit any crime. The plaintiff in that case was engaged in the growing of grapes and making wine therefrom and legally selling the wine thus made to the citizens of Morrilton and vicinity. He brought suit for libel against the newspaper that published the article referring to “wine joints” and it was upon these facts that we held that the complaint did not state a cause of action, because there was nothing in the article by way of inducement or colloquium that applied personally to the plaintiff.
In the case at bar, however, the facts alleged in the complaint were entirely different. The article designated “The Knocker’s Prayer,” containing the libelous matter, refers to a class, and if the complaint had only alleged that the article was intended to and did refer to the plaintiff, then the case at bar would have been like the case of Comes v. Cruce, supra. But the complaint under review here goes further and alleges not only that the defendant, by the word “Knocker” meant to refer to the plaintiff, but it also alleges that the defendant “directly referred to this plaintiff in the same issue of his paper as a ‘knocker’ and stated that this plaintiff had knocked on every enterprise that came along; that wherever the word ‘ I ’ is used in said article, as-above set out, they refer to this plaintiff; that the meaning and intent of said article was that it-called the plaintiff a liar, a coward and a thief.”
These latter allegations expressly put the plaintiff in the class designated as “knocker,” and furnish the necessary colloquium, showing that the libelous words in the article were intended to and did apply to the plaintiff.
In Comes v. Cruce, supra, we said: “The publication, as a whole, affects only a class, and no malice or ill will of any kind could be legitimately construed to be indulged toward any individual of that class and directed toward him.” But here the allegations of the complaint show that the plaintiff was referred to as a “knocker” and thus put in a class designated in the article as “knocker,” which, if proved as alleged, con tains matter that if false constituted a libel on the plaintiff.
The complaint therefore stated a cause of action, and the demurrer should have been overruled. The judgment is therefore reversed and the cause is remanded with directions to overrule the demurrer. | [
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Wood, J. I.
This suit was instituted by the appellee against the appellant to recover damages for an alleged breach of a verbal contract. The appellee alleged, in substance, that appellant had employed him to haul logs, at varying prices according to varying distances, from February 15, 1915, during the balance of that year; that appellee entered upon the performance of the contract and delivered logs thereunder until the 13th day of May, 1915, when the appellant, without cause, refused to permit him to continue further in the performance of his contract and thereby broke the contract, to the damage of the appellee in the sum of $12,000, for which he asked judgment.
The answer denied all the material allegations of the complaint, and alleged that the appellant had paid plaintiff for all services that the latter had rendered in hauling logs, and that the appellee’s services were unsatisfactory.
This is the second appeal in the case. The case, on the first appeal, is reported in 124 Ark. 354.
(1) On the second trial it was contended that according to the undisputed testimony of the appellee there was no binding contract entered into between the parties. On the former appeal we said: £ ‘ It is a general principle in the law of contracts that an agreement entered into between parties to a contract in order to be binding must be mutual; and. this is especially so when the consideration consists of mutual promises. In such cases, if it appears that the one party never was bound on his part to do the act which forms the consideration for the promise of the other, the agreement is void for want of mutuality.”
The appellee testified that he entered iní’c a contract with appellant through its local manager, I ¿rry, for the hauling of logs. His testimony concerning this is as follows : “In February, 1915, Terry came to me at the Kim-ball mill yard down here, and asked me to put my teams to help log the mill, and I told him that I would not put the teams in the mud and water and ice unless he guaranteed me work for the balance of the year, and he guaranteed to give me work, and then I went ahead and moved my teams out, with the understanding that I would not go unless he did give me the work for the balance of the year. Terry said that he would pay me the same prices that he did in 1914.” Here witness specified the prices to be paid, showing varying prices for the varying distances that the logs were to be hauled.
Appellee stated that he moved his outfit, consisting of forty mules, eight wagons, and the balance of the equipment, and began work. Appellee was asked: ‘ ‘ When you went on this work, was there any understanding or agreement that you could quit at any time that you saw fit before the first of the year?” and answered, “No, sir.” He was then asked: '.“What was your understanding of the agreement with reference to that?” and answered, “My understanding was that I was under contract to go out there and help log the mill, and if I failed I was obligated as much as the Grayling Lumber Company was to fulfill this contract. ’ ’ Appellee was asked: “Did you know what would happen if you failed to fulfill your contract?” and answered, “Yes, sir; I'would be liable to suit—to be sued for damages.” He was then asked: ‘ ‘ Suppose they had gotten judgment against you, what would that have meant tó you?” and answered, “Well, at times we had from one hundred to two hundred, and sometimes three hundred thousand feet of logs on the yards unpaid for as a hold-back between pay days. ’ ’
In addition to appellee’s own testimony, other witnesses testified in his behalf to declarations of Terry, the manager, in conversations with, them which tended to prove the contract as alleged in the complaint.
Terry testified that he made no contract with the appellee ; that he made an agreement with appellee’s father, but there was no agreement that the father or any one under him should work for any stated time.
Giving this testimony its highest probative value in favor of the appellee, it tended to show that there was a contract between the appellant and the appellee, as alleged in appellee’s complaint. The testimony of appellee tends to show what the terms of the contract were, and that these terms were mutually binding upon the parties. At least, the testimony was sufficient to justify the court in submitting that issue to the jury, which it did under correct instructions.
II. Among others, the court gave the following instruction: (4) “If you find from a preponderance of the evidence that plaintiff did leave some logs in the woods, but that he afterwards hauled and delivered those logs to defendant’s agent, and that they scaled and accepted and paid for same, that this act alone would not constitute a breach on the part of the plaintiff.”
A witness for the appellant testified that he was appellant’s woods foreman, and as such laid out the strips of timber for the appellee to log on during the year 1915. It was wet when appellee commenced in February, and there were lots of logs left on the strips by appellee which had to be hauled off the strips, whereas, the rule was that the hauler should clear each strip as he went. Witness, as the woods foreman, directed the haulers to begin at the back end and haul the logs clean and when a strip was completed, the hauler was to notify him, and then he ■would lay off another strip. Witness had to send appellee back lots of times to haul logs off of the strips which he had left there. Sometimes appellee would report that he had a strip completed, and witness would go back and see if they were clean, and he would find logs on them and, have to send them back. On one occasion witness had to send them back a third time for the purpose of taking off logs, and they got more logs tha,n he had really found that had not been hauled; and witness had to employ a man extra in order to haul some of those logs, and there were some logs still upon the last strip from which appellee hauled.- Witness had trouble with the appellee about stacking the logs along the track. The appellee’s services and labor were not satisfactory. The logs were usually culled in the yards. Sometimes when a cull was found in the woods, witness would write “Cull” on it, if it was a cull. Some were culled in the woods and some were culled on the track. Witness was asked why all the culling was not done at one place, and answered: “Well, the simple fact is that you put as many teams as I had to look after out there, the scaling and the laying out of those strips, I could not see the logs as fast as they laid them out. I had to get extra men to help me do that. The land was covered by very heavy undergrowth. ’ ’
The answer does not specifically set up a breach of contract on appellee’s part, but it does allege that the services which appellee rendered were unsatisfactory. And the appellant was permitted to introduce, without objection on the part of the appellee, the above testimony tending to prove that the appellee performed the services in such a careless and negligent manner as to warrant the submission of the issue to the jury as to whether or not he had breached his contract, and the court did submit that issue in an instruction given at the instance of the appellant, and without objection on the part of the appellee, as follows:
“The court instructs the jury that if they find that there was a contract between the parties, as alleged, and they further find from the testimony that the plaintiff performed his contract in an unskillful, careless and negligent manner, then the court instructs you that the defendant had the legal right to discharge the plaintiff and annul the contract, and if you so find, then your verdict should be for the defendant.”
(2) If there was a contract, its obligations were mutual, and if the appellee failed to comply with the contract on his part, he could not hold appellant to a compliance on its part. As was said in Mo. Pac. Ry. Co. v. Yarnell, 65 Ark. 320, “The failure of one party to a contract to comply with its terms releases the other party from compliance with it.” See, also, Berman v. Shelby, 93 Ark. 478, and cases there cited.
This testimony, tending to prove that the appellee left logs in the woods which under his contract he was required to haul, and that he failed to stack the logs along the track as the contract required, was sufficient to justify the court in submitting to the jury the issue as to whether or not there was a breach of contract on the part of appellee.
The evidence discloses that the work was done in strips. After one strip was completed by appellee, appellant assigned him another strip. If appellant, after discovering that appellee had left logs in the woods scaled, acceptedj and paid for same, and then assigned appellee another strip to work, this would tend to prove that appellant had waived or condoned appellee’s breach of contract to that time. But if appellant, after certain strips had been completed by appellee, refused to assign another strip and refused to further continue appellee after discovering the breach, this would tend to prove that there was no waiver or condonation.
The court, in connection with the last instruction set out above, should have presented also the theory and contention of appellee, that if there was a breach of contract on his part such breach was waived or condoned by the appellant. There was testimony to warrant the submission of this issue to the jury. One of the witnesses testified that when the appellee was dumping the logs behind the trees more than sixty feet from the track, in violation of the contract, that he called appellee’s attention to it, and that appellee would sometimes go and get them, but' would let them go for several days; that these logs were finally scaled by the witness and turned in and paid for. When appellee left logs in the woods and witness told Mm to go back p,nd get them, and he did so and brought them in, witness scaled them up and accepted them.
(3) The strict performance of a contract according tp its terms may be waived.
But while the testimony was sufficient to warrant the court in submitting the issue of waiver on the part of appellant of a breach of contract, if any, on the part of the appellee, the court did not correctly submit that issue in instruction No. 4, supra. That instruction was calculated to confuse and mislead the jury. It was perhaps intended to cover the question of waiver, but really did not do so. It only directed attention to the single fact of leaving logs in the woods, and told the jury that if appellee did leave logs in the woods, but afterward hauled and delivered these logs, and that same were scaled, accepted and paid for, that this fact would not constitute a breach of contract on the part of appellee. The testimony disclosed other facts than the matter of leaving logs in the woods which appellant contended constituted a breach by appellee of his contract.
(4-5) Any instruction on the question of waiver should be couched in general terms and so framed as to submit the question to the jury to determine whether or not the appellant, by Jits conduct, as shown by the testimony, had waived any alleged breach of contract on the part of the appellee!' The instruction was objectionable and prejudicial because it gave undue prominence to one particular fact and assumed as a matter of law that there was no breach of contract under the facts, stated when this was an issue to be determined by the jury. Western Coal & M. Co. v. Jones, 75 Ark. 76. The instruction invaded the province of the jury.
III. We pretermit any discussion of the contention on the part of the appellant that the evidence was not sufficient to show the amount of damages on account of loss of profits, and that the verdict is excessive. These are not necessary for the determination of the issues on a new trial.
For the error in giving instruction No. 4, the judgment is reversed and the cause remanded for a new trial. | [
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Frauenti-ial, J.
This is an action by J. M. Sheppard, the plaintiff below, to recover a balance which he claims was due him for the purchase money of a body of timber sold by him to defendant. On October 25, 1902-, plaintiff executed a timber deed whereby he did “grant, sell, convey and deliver” to defendant all of the merchantable pine timber of specified dimensions standing and growing upon certain described lands in Union County. The written contract of sale or conveyance contained the following provision: “Party of the second part agrees to pay on the 10th of each month one dollar per thousand feet on the timber cut on said lands during the previous month, as shown by the log scale. And further, if at the expiration of five years from this date any of said timber included herein has not been cut from said lands, then the said party of the second part, or their successors and assigns, shall pay to the party of the first part, their heirs, executors, administrators or assigns,, the balance due on said timber as shown by estimate of remaining said timber. The said party of the second part to have one year longer to remove said timber under this contract remaining at the end of five years.”
By virtue of said contract of purchase, the defendant began to cut and remove the timber from said lands at the date of the execution thereof, and continued until in October, 1907, when it ceased cutting same. The testimony on the part of the plaintiff tended to prove that when defendant ceased cutting there remained standing on said land a body of timber of the kind and dimensions mentioned in said contract. After October, 1908, plaintiff had said standing timber inspected, measured and estimated, and according to the testimony of the party inspecting same the timber thus left standing on the land amounted to 235,000 feet. It appears that during the time defendant was cutting the timber from the land it made payments for the timber actually cut in compliance with the terms of said contract, but it did not make any further payments to plaintiff therefor nor any payment for the timber left standing on the land. Thereafter, plaintiff demanded from defendant the sum of $235, being the amount of the timber which he claimed was left standing on the land, at one dollar per thousand feet.
The case was tried by the court sitting as a jury, who made finding for the plaintiff for the amount sued for, and rendered judgment in his favor therefor.
There are several assignments of error made by defendant in its motion for a new trial, but only one of these is urged by its counsel upon this appeal as a ground for reversing the judgment. The defense urged is that there is no method provided for in the contract of ascertaining the price to be paid for the timber left standing on said land, and for this reason the provision in the contract relative to said standing timber is not binding and enforecable.
The principles of law that are applicable to ordinary sales of chattels are, we think, applicable to the contract of sale of the timber involved in this case. One of the essential elements of a contract of sale is the price; and, in order to constitute a binding sale, the price must be agreed upon. In Tiedeman on Sales, § 45, it is said: “So important an eleme'nt in the sale is the price that a failure to stipulate or agree upon the price would always prevent the completion of the sale.” 1 Mechem on Sales, § 209; Benjamin on Sales, § 69; Cage v. Black, 97 Ark. 613.
While there can be no completed contract of sale if the price to be paid is not certain and agreed upon, yet if some guide or method is agreed upon by which such price can be found with certainty, then this will be sufficient to make a binding contract. A contract of sale is binding and valid, although it does not in terms fix the exact price, if it furnishes a criterion for determining same and leaves nothing to be determined by future agreement or negotiation between the parties in relation thereto. 1 Mechem on Sales, § § 209, 210.
In determining whether or not a binding contract of sale has been made, the primary consideration is the intention of the parties. If it appears from the contract or the plain intention of the parties that there remains something to be done relative to the property as between the vendor and the vendee — as, for example, to ascertain the amount, quantity or price thereof — before the title thereto shall pass, then the sale would not be complete and binding. In such event the title to the property would not pass, and therefore no corresponding obligation to pay therefor would be assumed. On the other hand, if from the contract it clearly appears that it was the intention of the parties that the title to the property was actually passed and the ownership thereof transferred by the seller to the purchaser, then the contract of sale will be mutually binding and effective, although there remains something to be done in order to determine the total quantity of the property sold, or the total price thereof. Chamblee v. McKenzie, 31 Ark. 155; Gansv. Holland, 37 Ark. 483; Shaul v. Harrington, 54 Ark. 305; Lynch v. Daggett, 62 Ark. 592; Priest v. Hodges, 90 Ark. 131.
Where the property sold is identified, and a method is agreed upon for determining its price, then the mere fact that the total amount of such price is not definitely fixed in the contract will not render the sale incomplete or ineffective. In the case of Adams Mining Co. v. Senter, 26 Mich. 73, it was claimed that a contract for the sale of lumber was not binding because the total price thereof was not definitely fixed therein. In that case it was said: “The whole property being identified and sold at a fixed price per foot, the process of ascertaining the amount was not essential to passing title, as it might have been if less than the whole amount delivered was to be sold and separated by measurement. In that case the measurement might be necessary to fix the property sold; but where all is sold no such process is needed to pass title. The ascertainment of the price was a mere mathematical computation, involving no further action to bring the minds of the parties together.” Ober v. Carson, 62 Mo. 209; McConnell v. Hughes, 29 Wis. 537.
In the case at bar, the plaintiff sold to defendant all the merchantable pine timber located on specified land, and by the written contract conveyed and delivered same to it. By virtue of this contract, the defendant obtained a title to or an estate in the timber, which it could assert and enforce, including the right to enter on the land for the purpose of removing it. Liston v. Chapman & Dewey Land Co., 77 Ark. 117; Earl v. Harris, 99 Ark. 112.
A definite method was fixed for ascertaining the price to be paid for the timber. The contract price was one dollar per thousand feet on all the timber. The amount of the timber which was actually cut was to be determined by measurement according to log scale. The amount of the timber left standing after five years from the date of the contract was to be determined by estimate — that is, by a measurement made by' some one sufficiently experienced to ascertain the number of feet in standing timber. The total price of all the timber became, from such measurement, a mere matter of computation, and could easily be made definite. We think that the plain meaning of this contract is that the defendant was to pay one dollar per thousand feet for all the timber; that the timber cut by it should be measured by the log scale, and that, by the use of the word “estimate” relative to the standing timber, was meant that the amount of such timber should be ascertained by one able to measure standing timber. The contract therefore fixed a criterion for making certain the price which was to be paid for the standing timber, and contained every essential ingredient of a sale to make it binding upon both parties.
Counsel for defendant rely upon the case of Louis Werner Sawmill Co. v. O’Shee, 35 So. Rep. 919, to sustain its contention that the price was not certain. But we do not think that the terms of the contract involved in that case are similar to the provisions of the contract in the case at bar relative to the price. In that case the contract was in effect only an offer to sell certain land at a price which was to be fixed or agreed upon in the future by estimators or agents of the contracting parties. The contract was by its terms only optional; but, in addition to that, there was no guide named in the contract by which the price was to be fixed. The amount thereof was to be determined by the quantity of timber upon the land at $1.50 per thousand feet. The amount of the timber was to be arrived at, according to the contract, by two estimators, one to be chosen by each party. That was a contract in which the price in effect was afterwards to be fixed by appraisers or valuers. In such case, if the valuers representing the parties failed to fix the price, the sale would be incomplete; and this is what resulted in the case cited. In that case the price was to be fixed in the future, by the agreement of the parties, represented by these estimators; and they did not agree. In the case at bar, there was to be no agreement or negotiation in the future between the parties as to the price. According to the contract in this case, defendant was to pay one dollar per thousand feet for the timber left standing; and the amount thereof was to be determined by measurement. The amount of the standing timber was not to be determined by any future agreement between the parties, but by an actual measurement made by them. If both made measurements and they differed as to the amount of the timber, then a jury would be required to decide which measurement was correct. The price would thus be made certain without any further negotiation between the parties; and this was the effect of the provision relative to the price contained in the contract involved in this case.
Finding no error in the judgment of the court, it is accordingly affirmed. | [
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Frauenthal, J.
This is an action brought by the Chicago Crayon Company to recover a balance alleged to be due upon an account. The plaintiff is a corporation, domiciled in the State of Illinois, and is engaged in the business of enlarging portraits and selling frames. The defendant, J. J. Choate, was employed by it to deliver the portraits and frames to purchasers, and to collect for the same. The suit was commenced before a justice of the peace by filing a complaint in which it was alleged that said defendant had entered into a written contract with plaintiff, under the terms of which he agreed to deliver said portraits and frames and collect for same, and to receive as his compensation therefor the difference between the invoice prices of the frames and the amount for which they were sold, and to make remittances to the company for collections so made, and account for all portraits and frames received; that the defendant had also executed to plaintiff a bond, with the defendant J. L. Choate as surety thereon, whereby they obligated themselves to pay all moneys not remitted and for all goods not accounted for at said invoice prices. It was further alleged that the defendant had become indebted to the plaintiff in the sum of $185.31 upon an account for goods sold and delivered to him in pursuance of said contract. An itemized statement of this account was attached to the complaint and filed with the suit. The complaint was duly verified, and the affidavit of the plaintiff was attached to the account, stating that it was just and correct.
The defendants filed separate answers, in which they denied that they were indebted to the plaintiff in any sum, but alleged that plaintiff had employed said defendant to work for it, and was indebted to him in the sum of $283.30, for which they asked judgment. Neither of these answers was verified, nor was there any affidavit or oath made by either of the defendants denying the correctness of the account of plaintiff, either in whole or in part.
The case was taken by appeal to the circuit court. Upon the trial in that court, the plaintiff offered in evidence the testimony of three witnesses, taken by deposition. Upon motion of defendants, one of these depositions was suppressed, and it does not appear that any objection was made or exception saved to this ruling of the court. The other depositions were of the plaintiff’s bookkeeper and auditor, and they were admitted in evidence. They testified to the correctness of the account, which was attached to the complaint, as shown by plaintiff’s books, and this verified account was presented in evidence; but they also stated that they knew nothing of their own personal knowledge as to whether or not the items of the account had been shipped to the defendant, or as to the payments made by him thereon. Other testimony was adduced by plaintiff proving the execution of the written contract and bond referred to in the complaint.
This was in substance the case which was presented by the plaintiff; and when the introduction of this testimony was concluded, the court, upon motion of defendants, directed the jury to return a verdict in their favor, which was done. It does not appear that any objection was made or exception saved to this ruling of the court directing the verdict in defendant’s favor.
It is urged by counsel for defendants that no alleged error committed in the trial of this case is subject to review upon appeal, because no objection was made, and no exception saved, to any ruling made by the trial court. But plaintiff, in its motion for a new trial, has assigned as one of the grounds why the judgment should be reversed that the verdict was contrary to the evidence adduced upon the trial.
The action of the court in directing the verdict was in effect to take the case from the jury and declare that under the law the plaintiff had not adduced sufficient evidence to sustain its cause of action; in other words, that, under the instructions which it would give to the jury, the defendants were entitled to a verdict. Inasmuch as the plaintiff did not make any objection or save any exception to this ruling, we must indulge the- presumption that any instruction which the court would have given .and the declaration of law which it did make were correct.- Therefore, if there was any testimony adduced upon the trial of this case which would support the verdict rendered, under any view of the law as applicable to this ease, then the verdict must be sustained. The effect of giving a directed ver diet, with no objection made or exception saved thereto, is the same as if the court has given proper and correct instructions on every phase of the case, and thereupon the jury has returned a verdict in favor of the party for whom it is directed. If there is any evidence to sustain the verdict under any view of the law applicable to the case, then it should not be disturbed. If, however, the verdict thus returned is not sustained by any legal evidence, or is contrary to the uncontroverted evidence, then the plaintiff has still the right to ask that it be set aside for that reason; and in the case at bar this has been done in the motion for a new trial.
This suit is founded upon an account. It is true that the plaintiff alleged that the defendant and it had entered into a written contract under the terms of which the items of the account were furnished to the defendant. But, under whatever kind of contract, whether in parol or writing, the items of the account are claimed to have been furnished, the suit brought is for the recovery of this account. The action is therefore one based upon an account. If the account is properly controverted, then the burden rests with the plaintiff to prove by evidence the correctness of each item of the account.
By section 3151 of Kirby’s Digest, it is provided: “In suits upon accounts, the affidavit of the plaintiff, duly taken and certified according to law, that such account is just and correct shall be sufficient to establish the same unless the defendant shall under oath deny the correctness of the account, either in whole or-in part; in which case the plaintiff shall be held to prove such part of his account as is thus denied by other evidence.” The effect of this statute is to make such verified account, when undenied, prima facie proof of its correctness. In event the defendant does not under oath deny the correctness of the verified account which is made the basis of the suit, then it is not incumbent upon the plaintiff to introduce other evidence of its correctness; and such an account, thus verified, is proof itself of its correctness. Such verified account, however, is only prima facie evidence of its correctness. . It may be denied by defendant by an affidavit filed in the case, or by, a verified answer. Its correctness may also be denied by the defendant under oath, when he testifies as a witness in the case. When such denial of the correctness of the account is made by the defendant under oath in either of these ways, then the burden rests with the plaintiff to prove by other evidence the correctness of the account thus denied. Boone v. Goodlett, 71 Ark. 577; St. Louis, I. M. & S. Ry. Co. v. Smith, 82 Ark. 105. But the verified account upon which the action is founded constitutes evidence of the correctness thereof, and continues as such evidence thereof until denied under oath; and if it is not denied under oath in any of the ways above mentioned, then it becomes conclusive proof of its correctness.
This suit is based upon an account which was duly verified by the affidavit of the plaintiff. Defendant did not deny the correctness of this account under oath, either by affidavit or by verification of his answer. He did not himself testify, nor did he introduce any witness in the case. The correctness of the account was not denied under oath, either by the defendant or any other person. We have examined the testimony of the witnesses who were introduced by the plaintiff, and we find nothing therein impeaching the correctness of this verified account. The account of the plaintiff, duly verified-by it by affidavit, was, by virtue of the above statute, evidence of its correctness, and it did not devolve upon plaintiff to introduce any other evidence until it was' denied under oath by the defendant or by the testimony of some witness. When that was not done, it became conclusive evidence of its correctness. The verdict which was rendered was therefore, under any view of the law applicable to this case, contrary to the uncontroverted evidence which was adduced upon the trial thereof.
The judgment is accordingly reversed, and the cause remanded for new trial. | [
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Hart, J.,
(after stating the facts). It is first contended by counsel for the defendant that the plaintiff is precluded from a recovery in this case by the principles announced in the case of Memphis & Little Rock Ry. v. Salinger, 46 Ark. 528; but we do not think so. There Salinger had a seat in the car, and went out on the platform to smoke, and was warned by the conductor that it was dangerous to ride there, but replied that he would go inside as soon as he finished his cigar. The court said: “It is contributory negligence for a passenger to remain on the platform of a car propelled by steam when there is no reasonable excuse for his so doing and after he has been specifically warned of his danger; and if an injury happens to him under such circumstances through the negligence of the company, yet, if it also appears that the injury would not have fallen on him but for his being in that particular position, the company may successfully defend an action for such injuries.”
Here the facts are essentially different, and were not such that it would be said as a matter of law that plaintiff had no reasonable excuse for riding on the platform.
It is next contended by counsel for defendant that the fact that there are no vacant seats in railroad cars does not justify a passenger in riding on a platform while the train is in motion, and that he is guilty of contributory negligence in standing upon the platform when he can obtain standing room inside, though the train is crowded and ther are no vacant seats. On this question, the authorities are divided, one line holding with the contention of defendant and the other holding that, as the question of contributory negilgence of plaintiff depends upon circumstances, it should be left for the determination of the jury. Many authorities on both sides have been cited by counsel in their respective briefs, and they may also be found in the case note of Norvell v. Kanawha & Mich. Ry. Co. (W. Va.) 29 L. R. A. (N. S.) 325, and Rolette v. G. N. Ry. Co., 91 Minn. 16 (1 Am. & Eng. Ann. Cases 313).
The railway company had notice in advance that an unusual number of people would ride on its cars to and from Hot Springs during the State fair, and it was its duty to have used reasonable efforts to prepare for them. It does not appear that the crowd was so unexpected and unusual that provision reasonably could not have been made to afford seats to passengers and to prevent overcrowding the car. The passengers who had tickets to entitle them to go by that train were entitled to seats. Plaintiff held such a ticket — the return coupon of a round trip ticket. These facts are undisputed.
In addition to this, it appears from the testimony of the plaintiff that he walked into one car, and could not find a seat there; he then walked out on the platform of the car, and looked through the door of the other car, and saw he could not obtain a seat there. He then remained on the platform, and was jostled to one side by the crowd going from one car to the other. • He said that when he got back on the car after alighting at the water tank the plaftorm was so crowded that he could not have re-entered the car without jostling and shoving the other passengers around. It is true that his testimony in this respect is contradicted by the evidence adduced on behalf of the defendant; but, when the surrounding facts and circumstances are considered, we are of the opinion that the negligence of the defendant and the contributory negligence of the plaintiff were questions for the. jury.
The instructions on this question were somewhat loosely drawn, but instructions are always given with reference to the particular facts of the case; and, when so considered, we think the instructions fairly submitted to the jury the contributory negligence to the plaintiff and also the negligence of the defendant, and that the judgment should not be reversed because the language used in the instructions was not aptly chosen and might in some respects be open to criticism. 6 Cyc. 654; Trumbull v. Erickson, 38 C. C. A. 536; Werle v. Long Island Rd. Co., 98 N. Y. 650; Bonner v. Glenn, 79 Tex. 531; Hutchinson on Carriers, (3 ed.), § 1198; Graham v. McNeill, 20 Wash. 466, 72 Am. St. Rep. 121.
It is next urged by counsel for defendant that the court erred in permitting counsel for the plaintiff .to argue to the jury that in determining the question of plaintiff’s contributory negligence they might take into consideration the boy’s age. There was no error in this. Even if it be conceded that it was not proper to instruct the jury that it might take into con sideration the plaintiff’s age and inexperience in determining the question of his contributory negligence in the' absence of proof that he was less able than an ordinary person to look out for his safety, still, in determining the question of contributory negligence, the jury had a right to consider the age of the plaintiff in connection with all the other surrounding facts and circumstances, and it was not error for plaintiff’s counsel to argue that fact to them, for it was the duty of the jury to consider all fates and circumstances adduced in evidence.
Judgment will be affirmed. | [
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McHahey, J.
Appellant and appellee were married in April, 1925, but their marital life was of brief duration, being separated in September, 1927, and later the same year, December 20, 1927, being divorced. In the decree of divorce appellant was ordered to pay appellee $15 per month beginning December 20, 1927, and a like sum thereafter on the 20th day of each month, and an attorney’s fee of $15. Appellant failed to comply with the order of the^ court, and failed to make the payments of alimony so ordered to be paid, as well as the fee allowed the attorney.
By deed dated March 9, 1923, appellant conveyed to Laura E. Massengale, his former wife, his homestead, containing 160 acres, and described as the west half of the northeast quarter and east half of the northwest quarter in section 26, in township 17 north, range 21 west, Newton County, together with certain other lands in said county, but which was not delivered by the grantor to the grantee until after the separation above mentioned. Thereafter appellee brought suit against appellant and his then wife, Laura E. (he in the meantime having been married to his former wife), to cancel said deed and to subject same to her alleged lien for accrued alimony. On April 15,1930, decree was entered canceling said deed as prayed, and judgment was rendered in her favor against appellant for accrued alimony in the sum of $450. Said deed was canceled because the court found it was executed for the fraudulent purpose of cheating and defrauding the appellee out of her dower rights and to prevent her from realizing any sums of money for attorney’s fees, alimony and suit money in the divorce action, and from obtaining her portion of said lands in the divorce action. Decree was also entered in appellee’s favor for a one-third interest in the lands described in said deed (the homestead lands included) for her life, and that same he sold, subject to said interest, as might he necessary to pay the judgment rendered. A commissioner was appointed to sell said lands as ordered, sale was had, and appellee became the purchaser. Writ of possession was thereafter issued and delivered to the sheriff. Whereupon appellant filed his amended complaint, setting up the foregoing facts, claiming his homestead to he exempt from said sale, and praying that said writ of possession be quashed in so far as it relates to his homestead. Appellee demurred to the complaint, which was sustained, the complaint dismissed, and this appeal followed.
The learned court erred in so holding.
The statute, § 3511, Crawford & Moses’ Digest, provides that in every final judgment for divorce granted the wife against the husband the court shall make an order that each party shall be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other during the marriage and in consideration or by reason thereof ; “and the wife so granted a divorce * * * shall be entitled to * * * one-third of 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 relinquished by her in legal form, and every such final order or judgment shall designate the specific property, both real and personal, to which such wife is entitled.” The statute provides for sale of the property if same is not susceptible to division without great prejudice to the parties, and a proper division of the proceeds. It is then provided that “such order, judgment or decree shall be a bar to all claim of dower in and to any lands or personalty of the husband then owned or thereafter acquired on the part of said wife divorced by the decree of the court. ’ ’
This court has several times held that a decree or order for future payments of alimony does not constitute a lien upon real estate: that only sums ordered to be paid at once and for which execution may then issue con stitute a lien npon lands as other judgments. Kurtz v. Kurtz, 38 Ark. 119; Casteel v. Casteel, 38 Ark. 477; Whitmore v. Brown, 147 Ark. 147, 227 S. W. 34; Warren v. Moore, 162 Ark. 564, 258 S. W. 361. The reason given for the rule denying liens for future alimony is that it would likely embarrass alienation.
At the time appellant delivered the deed to the land in controversy and other land to Laura E. Massengale, there was no judgment for accrued alimony or otherwise against him. The land here involved was his homestead. The decree of divorce granted in December, 1927, awarded alimony of $15 per month to appellee, but failed to designate any real or personal property to which appellee was entitled. It is not necessary to decide whether she acquired any title to the land other than the homestead by her purchase at the commissioner’s sale, but certainly she did not acquire any interest in his homestead. He had previously conveyed it to Laura E. Massengale, at a time when it was free from any lien in appellee’s favor, and, being a homestead, could be conveyed without regard to general judgment creditors.
Appellant made no defense to appellee’s suit to cancel said deed, nor to the sale of his land, but when his possession of his homestead was sought to be interfered with, and he be ousted therefrom, he brought this action. His action was in time as provided by statute and many decisions of this court. Section 5543, Crawford & Moses ’ Digest, reads as follows: “A debtor’s right of homestead shall not be lost or forfeited by his omission to select and claim it as exempt before the sale thereof on execution, nor by his failure to file a description or schedule of the same in the recorder’s or clerk’s office; but he may select and claim his homestead after or before its sale on execution, and may set up his right of homestead when suit is brought against him for possession, and, if the husband neglects or refuses to make such claim, his wife may intervene and set it up; provided, if the debtor does not reside on his homestead, and is the owner of more land than he is entitled to hold as a home stead, he or his wife, as the case may be, shall select the same before sale.” See cases there cited and numerous others since decided. Appellee’s judgment for accrued alimony in the sum of $450 was of no more force than any other judgment, and had no more validity against the homestead than any other judgment. Since appellee had no lien on the homéstead and no decree for any interest therein when her divorce decree was granted, she had no cause to complain of any disposition appellant made of it, whether to his ex-wife or to any other person, and no matter with what intent he conveyed it.
Decree reversed and cause remanded, with directions to overrule the demurrer, and for further proceedings in accordance with this opinion. | [
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Mehaeey, J.
This is the second appeal in this case. When the case was here before, we held that act 195 of the Acts of 1927 authorized administrators, executors and guardians to borrow money for certain purposes and secure the same by mortgage upon the real estate belonging to the estate represented by them. We held, however, that there was no authority granted by the act to borrow money and secure the same by mortgage or deed of trust except for the purposes specified in the act, and that, if money was borrowed and a mortgage executed for any other purpose than that expressed in the act, the order authorizing it and the mortgage executed in pursuance thereof were void. The decree of the chancery court was reversed, and the cause remanded with directions to enter a decree in accordance with the opinion of this court. Rose v. W. B. Worthen Co., 184 Ark. 550, 42 S. W. (2d) 1002.
After tlie case was remanded, it was again tried in the Pulaski Chancery Court, and that court held that the mortgage was valid as to the following items: Recording fees, $5.25; continuation of abstract, $22.50; State and county taxes, $228.40 ; street improvement taxes, $160; sewer improvement taxes, $21.95; fire insurance premiums, $53; brokerage on loan, $5.77. Interest was allowed on these items at 7 per cent., amounting to $85.02. There was another item of $85 allowed for money paid to minors under the order of court, but there was no appeal from the allowance of $85, and it is not involved here.
This appeal is prosecuted to reverse the decree of the chancery court holding that the above items are secured by the mortgage, and that they are authorized under act 195 of the Acts of 1927.
Appellants insist, first, that the word “obligation” used in the statute means an obligation created by a contract which is a lien on the land, but that the word ‘1 obligation” does not include taxes. It is said by appellant that taxes are liens but not obligations secured by liens. Numerous authorities are referred to defining “obligation.” Originally, the term was limited to instruments under seal of a certain kind, such as a bond, and the obligation could at that time be created only by a written instrument. The word “obligation” now, however, is not so limited, but in the act of 1927 it is used in the sense of liability either created by contract or by operation of law. 46 C. J. 447-448; Elasser v. Haines, 52 N. J. L. 10, 18 Atl. 1095. In order to arrive at the meaning as used in the statute, we must consider the connection in which it is used and the evident purpose of the Legislature in permitting mortgages and deeds of trust to be executed as prescribed by the statute. When we consider the whole act, there seems to be no doubt that the Legislature intended to authorize administrators, executors and guardians to borrow money to protect the interest of the minors, and the words used by the Legislature are broad enough to include all obligations or liabilities which are liens on land.
Appellants contend that taxes are liens, but that they are not obligations secured by liens. Our statute providing for lien for taxes is as follows: “Taxes assessed on real and personal property shall bind the same and be entitled to preference over all judgments, executions, incumbrances or liens whensoever created, and all taxes assessed shall be a lien upon and bind the property assessed from the first Monday in June of the year in which the assessment shall be made, and shall continue until such taxes, with any penalty that may accrue thereon, shall be paid; provided, as between grantor and grantee said lien shall not attach until the first Monday in January in each year after the tax lien attaches.”’ Section 10,023, Crawford & Moses’ Digest.
There can be no doubt that the taxes create an obligation or duty, and that they are a lien on the land. But it is claimed that, while the taxes are obligations, they are not obligations secured by lien. We do not agree with appellant in this contention. They are not only secured by the very terms of the statute, but they are entitled to preference over all judgments, executions, incumbrances or liens whensoever created. If the act did not include taxes and assessments, then it would be impossible for minors in the circumstances ■ of these minors to prevent a sale of the land for taxes .and assessments. If taxes are not included in the act, and the guardian or executor or administrator had no money in his hands with which to pay the taxes, the lands would be sold, and we think that the intention of the Legislature was to permit borrowing money and executing mortgages for liens of this character as well as liens created by contract.
It is next contended that a mortgage cannot be given on a part of an infant’s estate to take care of liens not covering the particular property. The intention of the Legislature seems to be plain, and that the act authorizes borrowing money and executing a mortgage for the purpose of paying obligations secured by liens on any property except tbe homestead. There is a proviso, reading as follows: “Provided, that the homestead shall not be incumbered by mortgage or trust deed except for the purpose of satisfying existing liens against the homestead.” Therefore the homestead cannot be mortgaged to raise money to pay obligations that are liens on any other lands except the homestead. The other items were expenses necessarily incurred in order to enable the guardian to borrow money. It is a matter of common knowledge that persons would not lend money on a house or building unless the property was insured, and it is also true that the other expenses are necessary, and, if not allowed, would prevent the borrowing of money to discharge liens. No person would lend money on a house without its being insured, and no one would lend money on property without an abstract showing title, and the recording fees are, of course, a necessary part of the expense. To hold that these items could not be paid would defeat the very purpose of the act. There is nothing in the record tending to show that any of the items of expense were created after the mortgage was made. We find no error, and the decree is affirmed. | [
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McHaNey, J.
This is a suit to quiet title to certain real property in the city of Yan Burén, Arkansas. It involves the construction of paragraph 6 of the last will and testament of William Bowlin, deceased, admitted to probate in Crawford County, Arkansas, January 3, 1916. We think it unnecessary to set out the whole will, as it is lengthy and as only paragraph 6 is involved in this lawsuit. It reads as follows: “I give, devise and bequeath unto my beloved wife, Julia Bowlin, all of my household furniture and effects of every character and kind in and about the dwelling house occupied by me in Yan Burén, Arkansas, including all silver -plate, pictures and other personal property and effects of every character in and about the said dwelling house and premises. I also fur ther give and devise unto my said wife, Julia, for and during her natural life, the use, occupancy of my dwelling and home in Van Burén, Arkansas, with the lots and land inclosed and adjoining thereto, and at her death, or should my wife not survive me, I give and bequeath the said personal property herein set forth, or so much as may be undisposed of by my said wife, not in any manner intending to limit my wife in the disposition of said personal property, unto my daughter, Gertrude Vinsant, and I give and devise the said dwelling house and premises devised unto my wife during her life, at her death, or should my said wife not survive me, unto my daughter, Gertrude Vinsant, and unto the heirs of her body.”
Julia Bowlin survived her husband, the testator, and held the real estate mentioned above during her lifetime. She died in the year 1916, at which time the appellee entered into possession and has had continuous possession thereof since said time. The question to be determined is, what title the appellee took on the death of her mother, whether a life estate or a fee simple title? The trial court held that she took the fee and entered a decree quieting the title in her.
We think the case is ruled by the recent case of Pletner v. Southern Lumber Co., 173 Ark. 277, 292 S. W. 370, and cases there cited, and that the trial court correctly held that appellee acquired the fee to the real property devised in paragraph 6 of the will. In the Pletner case we said: “This court has often ruled that where land is conveyed, or devised, to a person and the heirs, of the body, children, or issue of such person, such conveyance or devise creates an estate tail in the grantee or devisee, which, under our statute (§ 1499, Crawford & Moses’ Digest) becomes an estate for life only in the grantee or devisee, and a fee simple absolute in the person to whom the estate tail would first pass, according to the course of the common law, by virtue of such devise, grant or conveyance.” A number of our cases are there collected, so holding. Continuing the court said: “But this familiar doctrine cannot have applica tion here, for the reason that the estate is not devised to Mrs. Mary Elmira Godfrey and her bodily heirs, creating a life estate in her and a fee simple estate in her bodily heirs under the statute supra. The life estate as we have seen was previously devised to Mrs. Artemus F. Gil-lis, and the remainder of the estate, after such life estate, was deyised to Mary Elmira Godfrey and her bodily heirs.” The court then held that Mary Elmira Godfrey took the fee, and not a life estate.
In the instant case the testator devised the real property mentioned in paragraph 6 to his wife during her life, with the remainder to his daughter, the appellee, and the heirs of her body. While the testator did not use the word “remainder” in this connection as was the case of Pletner v. Southern Lumber Co., supra, it was in fact the remainder conveyed. If it had been the intention of the testator to devise only a life estate to Gertrude Yinsant, to take effect immediately upon the death of Mrs. Bowlin, he doubtless would have used similar language as he did concerning his wife, “during her life,” or some similar expression showing a clear intention to convey a life estate. The testator was providing for two contingencies, first, if his wife survived him, and, second, if she did not survive him. In either event it was to go to the appellee and unto the heirs of her body. It is not necessary to determine what estate the appellee would have taken had Mrs. Bowlin not survived her husband. The fact is she did survive him and took a life estate in the real property devised. We think the real intention of the testator was that, if appellee were living at the time of his wife’s death, she should take the fee, but, if she were not living then, the heirs of .her body would take the fee. In other words, it was his intention that this particular, piece of property should descend through the Gertrude Yinsant line of heirs to her first, if she were living at the death of the life tenant, but, if not, then unto her bodily heirs. Other cases holding to the same effect as the Pletner case are: Gregory v. Welch, 90 Ark. 152, 118 S. W. 404; Harrington v. Coop er, 126 Ark. 53, 189 S. W. 667; Bell v. Gentry, 141 Ark. 484, 218 S. W. 194.
It necessarily follows from what we lave said that tie decree of tie clancery court is correct, and must be affirmed. It is so ordered. | [
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Robinson, J.
The issue here is whether the owner of a city lot has acquired a portion of an adjoining lot by adverse possession. Appellants, J. C. and Joyce Walker, filed this suit alleging that they are the owners of Lot 3 in Block 5, Gresham’s No. 2 addition to the city of Arkadelphia; that the defendants, W. C. and Melva Gaslcin, are claiming the ownership of a strip of land of about six feet on the west side of Lot 3. The Gaskins filed an answer alleging that, regardless of where the true line may be, they had acquired the disputed strip by adverse possession. The court made a finding that the appellees, the Gaskins, had acquired the strip as alleged. The Walkers have appealed.
Appellee, W. C. Gaskin, bought Lot 4 from Edgar 0. and Elinor Ruth Diggs on May 28, 1947. Appellants, the Walkers, bought the adjoining Lot 3 from J. B. and Doris Wright on April 1, 1950. The size of the lots is 25 feet east and west by 142 feet north and south. This suit was filed on June 9, 1954.
Appellants introduced as a witness John Oliver, county surveyor, and attempted to establish the true property lines, but the testimony of this witness falls short of serving that purpose. Although no plat was introduced as evidence, the surveyor claims that the strip of land in dispute is a part of Lot 3. However, he arrived at that conclusion merely by guessing at an accurate starting point.
Walker states that he did not know Gaskin was claiming the land in question until shortly before this suit was filed when Gaskin constructed a small levee. A portion of this levee extended on to Lot 3 in such a manner as to shed water thereon. Previously, Gaskin had constructed a sidewalk in front of his property but did not extend it across the part involved in this litigation. About the year 1949, Gaskin constructed a garage, a portion of which, according to the testimony of the surveyor, extends over onto Lot 3.
J. B. Wright, who sold Lot 3 to Walker, was called as a witness by appellants. He testified that there is a gum tree which is considered to be on the line between Lots 3 and 4, and when he bought Lot 3 the gum tree was pointed out as being on the line; that a fence extended from the center of the tree to the rear of the lot; that he never claimed anything past the gum tree; that between the gum tree and the front of the lot, and on a line with the gum tree, there was an old crape myrtle hush that was considered to he on the property line. Wright said that he planted two small trees on that same line and that there is only 45 feet from the gum tree to the front of the lot, hence the fence from the gum tree to the rear of the lot extended over the greater portion of the property. Wright also testified that he bought to the gum tree and sold to the gum tree; that at all times Gaskin had possession and control of the property west of the gum tree; that Gaskin has lived there since 1947 and built the garage in 1949 and the driveway extending from the garage to the street. Wright further testified:
“Q. Who mowed the lawn on that land up to the street from the gum tree?
“A. We did; split it.
“Q. When you mowed your lawn you mowed your lawn up to the gum tree and on straight to the street?
“A. Yes, sir, that is right.
“Q. Then from the gum tree over, he mowed it? He kept that land mowed from that point of the gum tree where the old fence ran back, and on straight out to the street? He kept that land mowed continuously? You never did do that?
“A. No, sir.”
Wright also said that he and Gaskin had talked over the subject of the property line and had agreed that the line was the gum tree, and when he sold the property to Walker he explained that the gum tree was on the line. Mrs. Wright corroborated the testimony of her husband. Edgar Diggs, who sold Lot 4 to Gaskin, testified that when he bought the property the gum tree was pointed out as the line, and that when he sold the property he pointed out the gum tree as the line.
The Chancellor made a finding that the Gaskins had acquired by adverse possession any portion of Lot 3 that may lie west of the center of the gum tree, and we cannot say that the Chancellor’s finding is contrary to the preponderance of the evidence. The decree is therefore affirmed. | [
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George Rose Smith, J.
This is the second suit that has been brought by the appellant, Anson Mark, Jr., for the purpose of enforcing a mortgage executed by Springs Investment Company. In this case the chancellor dismissed Mark’s complaint upon the ground that the decision in the first case was res judicata of the issues now presented.
In connection with the purchase of certain hotel property Springs Investment Company executed two mortgages, one to the appellant Mark and the other to Cecil Maberry. In Mark’s first foreclosure suit a principal issue was that of priority as between the two mortgages. The decision was in Maberry’s favor, Mark v. Maberry, 222 Ark. 357, 260 S. W. 2d 455, and the decree ordered the foreclosure of Maberry’s first lien. Mark obtained judgment only for the accrued interest upon his second mortgage, since the debt was not due and there was no acceleration clause.
At the foreclosure sale, which was held on July 28, 1953, Maberry purchased the property for less than the amount of his judgment against the mortgagor. The sale was confirmed during the July, 1953, term of court. The exact date of confirmation is not shown, but it was necessarily before the term expired in January of 1954. Ark. Stats. 1947, § 22-406.
It was not until September 14, 1954, that Mark filed 'the present suit against Springs Investment Company, Cecil Maberry, and the purchasers to whom Maberry had sold the property. This proceeding is primarily an attack upon the validity of the 1953 foreclosure sale, it being alleged that proper notice of sale was not given, that the purchase price was inadequate, that Maberry was an officer of the defendant corporation and was therefore ineligible to bid at the sale, that the court’s commissioner reported the sale of certain personal property which he had in fact neglected to sell, etc. All these asserted irregularities in the conduct of the sale could have been interposed as objections to the order of confirmation. The chancellor was therefore correct in holding that the confirmation order is res judicata of these matters. Bank of Pine Bluff v. Levi, 90 Ark. 166, 118 S. W. 250.
The plea of res judicata is also a defense to the appellant’s present attempt to impose personal liability upon Cecil Maberry, since the issue of such liability was involved in the earlier case, supra, and is concluded by that decision. In one respect, however, Mark’s complaint should not have been dismissed upon the plea of prior adjudication. He asserts in his present complaint that the first note in the series executed by Springs Investment Company became due, in the sum of $500, on July 1, 1954, and is unpaid. By amendment to the complaint Mark states that he is entitled to judgment upon this $500 note. The defendants’ plea of res judicata does not reach this issue, since the principal of the debt had not yet matured when the first case was decided and was not involved in that litigation. It may be true that Springs Investment Company no longer bias any assets from which a judgment might be collected, but the plaintiff is nevertheless entitled to he heard upon his claim against the corporation. On this issue the decree is reversed and the cause remanded. Whether a receiver should be appointed for the corporation is a matter to he determined by the chancellor upon remand. | [
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Ed. F. McFaddin, Justice.
From a decree quieting appellees’ title, there is this appeal; and the question is whether appellant’s judgment is a lien on appellees’ property.
Mr. and Mrs. Nunez, who owned their homestead in Pulaski County as tenants by entirety, decided in 1954 to transfer the title to Mrs. Nunez. Their attorney advised them to deed the property to a third person, who would then convey the title to Mrs. Nunez. For such third person the attorney selected his friend, Mr. Kelly, who was not even acquainted with Mr. and Mrs. Nunez. Mr. Kelly signed and acknowledged a deed with grantee and date left blank; and this was exhibited to Mr. and Mrs. Nunez before they executed to Kelly their entirety deed, which was promptly recorded. Later it was learned that the appellant, United Loan and Investment Company (hereinafter called “United’’), had an unsatisfied judgment rendered against Kelly in 1953. When this ivas discovered, the Kelly deed previously signed and acknowledged, as aforesaid, was dated and Mr. and Mrs. Nunez were named as grantees and the deed was recorded.
Thereupon Mr. and Mrs. Nunez brought this suit to remove the judgment of United as a cloud on the title of the Nunez homestead. United claimed its judgment to be a valid lien, since the record showed that the deed from Nunez to Kelly was dated and recorded in August, 1954, and the deed from Kelly to Nunez was dated and recorded in October, 1954. The Chancery Court held that United’s judgment was only a cloud on the Nunez title and cancelled such cloud. This appeal ensued.
I. Evidence as to Consideration. Appellant claims that the Nunez evidence was designed to show the entire absence of any consideration paid by Kelly to Nunez and was inadmissible, since evidence may show real consideration but not entire absence of consideration; and appellant cites such cases as Leake v. Garrett, 167 Ark. 415, 268 S. W. 608; Tandy v. Smith, 173 Ark. 828, 293 S. W. 735; Hampton v. Haneline, 125 Ark. 441, 189 S. W. 40; and Moncrief v. Miller, 178 Ark. 1069, 14 S. W. 2d 227. The holding of these cases is not applicable. Here, it was not attempted to show entire absence of consideration; rather, the offered evidence was designed to show what the actual consideration was — i. e., that Kelly was a conduit of title or a mere trustee and never a bona fide or beneficial owner of the property. The recital of consideration in a deed may be varied by parol for every purpose except to show that the deed was without consideration. Davis v. Jernigan, 71 Ark. 494, 76 S. W. 554; Mewes v. Mewes, 116 Ark. 155, 172 S. W. 853; and other cases collected in West’s Ark. Digest, “Evidence,” § 419 (2).
Our judgment lien statute is § 29-130, Ark. Stats.; and says that a judgment is a lien on the land “owned by the defendant.” In Howes v. King, 127 Ark. 511, 192 S. W. 883, property had been deeded to F. R. LaCroix, against whom there was a judgment lien; but it was shown that LaCroix was a mere conduit in the title, just as Kelly was in the case at bar. In holding that the judgment against LaCroix was not a lien on the land conveyed to and by him, Mr. Justice Hart, speaking for this Court, said:
£ £ There was no moment of time when LaCroix owned or held the lands free from the condition, nor when he could have voluntarily conveyed them except subject to the condition. This rule is based on principles of justice and public policy and can work no hardship to the judgment-creditor ; for as we have already seen the lien of the judgment is in all cases limited to the actual interest which the judgment-debtor has in the estate. The judgment-creditor having parted with nothing on the strength of these conveyances, it would be highly inequitable to permit his judgment to be satisfied out of what in fact was the property of Howes. In support of the rule, see Kent’s Commentaries, 14 Ed. vol. 4, star pages 173 and 174; Thornton v. Findley, 97 Ark. 432; Murray Co. v. Satterfield, 125 Ark. 85; Western Tie & Timber Co. v. Campbell, 113 Ark. 570, Ann. Cas. 1916C, 943, and case note at 949.”
In accordance with the foregoing case, we hold that the judgment of United against Kelly was not a lien on the Nunez property under the circumstances here existing.
II. Fraudulent Conveyance. Appellant says that Mr. and Mrs. Nunez were conveying their property to Kelly to discourage a possible lawsuit against Mr. Nunez; and therefore they were not entitled to any aid from equity to remove a cloud from their title. The evidence did not show the Nunez deed of the homestead was a “fraudulent conveyance,” as such words are used in our cases. Furthermore, Mr. Nunez could have made direct conveyance to his wife. See Ark. Stats., § 50-413. The fact, that their attorney chose to use Kelly as the conduit of title, cannot give a lien to United. Such is the effect of our holding in Howes v. King, supra.
Affirmed.
Two comparatively recent cases involving this Statute are Tolley v. Wilson, 212 Ark. 163, 205 S. W. 2d 177; and Fears v. Futrell, 216 Ark. 122, 224 S. W. 2d 362.
Some oí the cases, citing Howes v. King, are Snow Bros. et al. v. Ellis, 180 Ark. 238, 21 S. W. 2d 162; 1st National Bank v. Meriwether, 188 Ark. 642, 67 S. W. 2d 599; Carroll v. Evans, 190 Ark. 511, 79 S. W. 2d 425; and Citizens Bank & Trust Co. v. Garrott, 192 Ark. 599, 93 S. W. 2d 319.
For cases on fraudulent conveyances and the validity of the transaction between the parties, see those collected in West’s Arkansas Digest, “Fraudulent Conveyances,” Key No. 172. | [
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Hart, J.,
(after stating the facts). It is insisted by counsel for. the plaintiff that the mere fact that lands are owned by a railroad corporation does not impress them with a public use; and that a railroad company can not simply, by running a preliminary line, or by a horseback survey, and purchasing lands over which such survey has been extended, so impress such lands with a public use as to pre-empt them as against another railroad company which subsequently institutes condemnation proceedings against such lands.
This is true as an abstract principle of law, but we do not consider that it is applicable to the facts of this case. Section 6569 of Kirby’s Digest provides that every such company (railroad companies), before proceeding to construct a part of their road through any county named in their certificate of association, shall make a map and profile of the route intended to be adopted by such company which shall be certified by a majority of the directors and filed in the office of the clerk of the county court of such county for the inspection and examination of all parties interested therein.
Section 2947 provides, in substance, that a railroad company, after having surveyed and located its line of railroad, shall, in all cases where such company fails to obtain by agreement with the owner of the property through which said line of road may be located, the right-of-way over the same, have the right to institute condemnation proceedings.
Thus it will be seen that the map and profile is only required to be filed before actual construction of the road in the county is begun, and is not required to precede condemnation. This is the plain letter of the statute. Condemnation proceedings may be instituted after the line is located, and before the map and profile is required to be filed. The map and profile may be filed after the condemnation proceedings are instituted. The object of locating the line before condemnation is to fix in some public and definite manner the exact route of the proposed road so that the damages to property owners may be properly assessed.
It is obvious that, if the line was not definitely located, there could be no guide by which to determine the measure of damages to property owners. So it may be said that, under our statutes, a railroad company can not institute proceedings to condemn property before it has located its lines of road; but it by no means follows that as to property owned by a railroad company a rival company may institute condemnation proceedings in every instance before the company owning the property has caused its lines to be surveyed and its location fixed by stakes or other monuments placed in the ground. Cases of this kind must be determined according to the particular facts of each case.
In the case of Fayetteville Street Railway v. Aberdeen & Rockfish Railroad Company, 142 N. C. 423, 9 A. & E. Ann. Cas. 683, the Supreme Court of North Carolina held (quoting from syllabus):
“Ordinarily, one of the requisites of a valid location of a railroad, as to third persons and rival corporations, is a preliminary survey by engineers and surveyors who run and mark the lines and report them to the company claiming the prior location; but where the lines are clearly defined, as by the existence of an old roadbed which is entered on and staked out by the agent of the locating company, and the route so marked is approved by the directors as the permanent location of their railroad, a survey by engineers is not of the substance, and should not be considered as being essential.”
Under section 6574 of Kirby’s Digest, railroad companies have the right to locate and erect all necessary and convenient stations, and to obtain and hold the lands necessary therefor.
Here the defendant had a line of road in actual operation practically to the city of Arkadelphia. Its terminus was across the river, only a mile away from the proposed station site. It contemplated connecting two parts of its road already in operation and of extending them both east and west. It had contracted with the citizens of Arkadelphia to construct its road into the city by a designated date. It had selected the most available bridge site, and on the Arkadelphia side of the river there was but one practical route from the bridge site selected, and that led up a valley to the ground in question. Bluffs were on either side, so that no other route was practicable. This was evident to the engineers of the company without making a survey with instruments. Hence, to all intents and purposes, it was as good and sufficient survey as if-made by instruments. The engineers reported that the ground in question was the only available site for a station. The defendant then purchased the ground for that purpose. It afterwards filed its map and profile as required by the statute preparatory to commencing the work of construction. As above stated, the defendant’s line of road was in actual operation practically to the city of Arkadelphia, and, under the facts and circumstances before us, we are of the opinion that the defendant made an inchoate appropriation of the block of ground in question before the plaintiff filed its petition to condemn. We do not regard the cases cited by counsel for the plaintiff as being applicable to the facts before us. For instance, in the case of Southern Indiana R. Co. v. Indianapolis & L. R. Co. (Ind.) reported in 13 L. R. A. (N. S.) 197, the facts were that a railroad company in process of construction acquired by purchase certain lands through which its proposed road was located, but its map and profile, intended to show the route it had adopted, did not show that all of the proposed right-of-way purchased was necessary for the use of the road, and gave no idea of the width of the right-of-way; and the court held that, under such circumstances, there was no appropriation for right-of-way purposes. Here the proof shows that the ground purchased was for a station, and that all of it was necessary for that purpose.
We do not think the case of White River Ry. Co. v. B. & W. Tel Co., 81 Ark. 195, has any application to the facts of this case. That case only decided that the railroad had no right to commence the construction of its road until it filed the map and profile required by the statute, and that it had no exclusive right to its right-of-way prior to the time it acquired it.
It is next contended that the circuit court had the power to determine whether or not the lands were subject to condemnation; and that the court erred in transferring the cause to the chancery court. This question has already been decided adversely to the contention of counsel by this court. Mountain Park Terminal Ry. Co. v. Field, 76 Ark. 239; Gilbert v. Shaver, 91 Ark. 231, and later cases.
It follows that the decree will be affirmed. | [
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Frauenthal, J.
This is an action instituted by J. E. Blackburn to recover the balance which he claimed was due him for drilling a well for the defendant. In the complaint it was alleged that the well was drilled and completed in compliance with the terms of a written contract, and that defendant had accepted same and made a partial payment thereon; that thereafter a verbal agreement was made, whereby the plaintiff was to drill the well to a greater depth, and that defendant agreed to pay the cost of the labor for such additional drilling, and of certain appliances which were furnished. He claimed that there was under the written contract payable to him the sum of $840, upon which he had received $400, leaving a balance of $440 thereon still due; that for the work and cost of certain appliances in drilling the well beyond the contract depth there was due $277.50; thus making a total of $717.50 due, for which he sought judgment.
The defendant denied that plaintiff had completed the well in compliance with the terms of the written contract, or that it had made any verbal contract for additional drilling, and claimed that it was not due the plaintiff anything for the drilling of the well. It also pleaded as a counterclaim the amount of $400 which it had paid to plaintiff, alleging that the same was paid 'upon condition that the well was or would be completed in full compliance with the terms of the written contract, which was not done; and it sought a recovery of the said counterclaim.
The case was tried by a jury, and the court gave a peremptory instruction by which it directed them to return a verdict in favor of defendant for the amount of such counterclaim, less a small cost of some appliances for which defendant admitted it had agreed to pay. The jury returned a verdict in accordance with said instruction.
The defendant owned a plant run by steam, and desired a well drilled which would supply it with a sufficient quantity of water for its boilers in the operation of its engines. Considering the evidence adduced upon the trial of the case most favorably to the contention of plaintiff, it established the following facts:
On November 17, 1909, the parties entered into a written contract for the drilling of a well, which is as follows:
“At a price of $4 per foot complete for all work, material and superintendence I propose to drill upon the premises occupied by your electric light plant, south of the Cotton Belt tracks at some point designated by your general manager, a well for water, same to be encased with the standard 8-inch well casing and to be equipped with one or more strainers as the necessities of the case may demand for getting the water from the different strata. I agree that at a depth not to exceed 145 feet that this will produce a minimum flow of 40,000 gallons of water per day of 24 hours. Should you decide to go beyond 145 feet, we guarantee to you that at a depth not exceeding 210 feet that the minimum flow of water will be 60,000 gallons per day of 24 hours. You to make no payment on this contract at all until it is shown to the satisfaction of your general manager that the well will furnish the amount of water stated as per above. We further agree that if we find it necessary to drill to any greater depth than 145 feet to obtain 40,000 gallons per day or 210 feet to obtain 60,000 gallons per day that we will make no charge for material beyond a depth of 145 feet for 40,000 gallons or 210 feet for 60,000 gallons. We are to commence immediately upon receipt of notice from you and work to be completed with all possible dispatch. You to furnish steam and water for drilling said well. ”
At the time this contract was entered into, plaintiff was actually a member of a partnership composed of himself and J. H. Schley, which firm was engaged in the well-drilling business; and the contract, though signed alone by plaintiff, was really made for the partnership. But it appears that subsequently the partnership was dissolved, or by mutual consent said Schley withdrew from it, and that Blackburn continued as its owner and representative. In the lower court no objection was made to Blackburn proceeding as the sole plaintiff, or to the counterclaim being asserted solely against him; no objection was made on account of any defect of parties, either as to the cause of action prosecuted solely by said Blackburn or as to the action on the counterclaim against him individually; nor is any such question raised here. We only note that Schley was a partner of Blackburn at the execution of the contract in order to explain the use of some terms in the contract indicating that the drilling was to be done by more than one person.
The plaintiff proceeded under said written contract to drill the well until December 11, 1909, when he claimed he had drilled it to a depth of 210 feet. He then requested defendant’s manager to measure the depth of the well, which he did and found that it had been drilled to the depth claimed. The water was then running out of the top of the well, and the plaintiff claimed that it would produce the quantity of water per day guaranteed by said contract. He asked for a payment upon the work in order to satisfy some indebtedness incurred by him during the drilling. It appears that the defendant’s manager then made a payment to him of $400; but we think that the undisputed evidence shows that defendant’s manager did not then accept the well or any work done thereon. The plaintiff testified that he told the manager that he had drilled the well to a depth of 210 feet, and that the manager then measured its depth and found his statement correct; that the manager then paid him $400 and said: “I don’t want to pay anymore until I let Mr. Markley know about the well.” He said that he did not want to take all the responsibility on himself in accepting the well. He further testified that no test had been made of the quantity of water which the well would produce, and that he did not know what amount of water it would furnish at the depth of 210 feet.
W. L. Wood, the defendant’s manager, testified that the plaintiff told him that he had the well down 210 feet, with full capacity as required by the contract, and that he desired him to measure it, which he did. He stated that the plaintiff represented that the well was all right, and that it would furnish the amount of water per day as guaranteed by the contract, and that this would be shown when the test thereof was made; that he paid the $400 relying upon this representation made by plaintiff, and with the understanding that the test which would thereafter be made would show that the well would produce the quantity of water guaranteed by the contract.
Neither of the parties testified that the defendant’s manager accepted the well, or any work that was done thereon; and it clearly appears from the undisputed evidence that the payment was only made pending the test that should be thereafter made of the capacity of the well.
About that time, or shortly thereafter, a question arose between the parties as to whether the plaintiff should encase the well for its entire depth. It appears that the plaintiff had drilled the well with a diameter of 10-5-8 inches from its top .to the depth of 75 feet, and for that depth had encased it with eight-inch well casing. At that depth he claimed that he had struck hard rock formation, and for that reason it was not necessary to encase the well to a further depth. The defendant, however, insisted that the well should be encased for its entire depth, and, the plaintiff objecting thereto, defendant on January 8, 1910, agreed that it would pay for the casing material from the depth of 75 feet down, although it still claimed that under the contract plaintiff should pay therefor. In other words, the uncontroverted testimony shows that the defendant agreed to waive its right in that particular, and acceded to the demand of the defendant that it pay for such casing in order to get plaintiff to complete the well under the contract. Thereupon, plaintiff put in the additional casing, and the defendant paid for such material.
It appears that the defendant then secured pumps and tested the capacity of the well. The undisputed evidence shows that the well did not produce the quantity of water guaranteed by the contract. The largest quantity that any of the testimony shows that the well would produce was 36,000 gallons per day; and the preponderance of the evidence tends' to prove that it would furnish from 12,000 to 20,000 gallons per day. The plaintiff then proceeded to drill the well beyond the depth of 210 feet, and went down for a further distance of 61.4 feet; but the uncontroverted testimony shows that the well at that depth did not produce a greater quantity than above stated, and therefore did not produce the quantity of water required by the contract. The plaintiff also insisted that the defendant was liable for and should pay him for the work of drilling the well beyond the depth of 210 feet, and made demand for payment of such work at the rate of $10 per day. The defendant refused to make such payment, contending that under the contract it was required to pay no greater sum than $840 for the well, no matter how deep the well was required to be drilled in order to obtain the quantity of water guaranteed by the contract. It would appear also that the water obtained at the depth greater than 210 feet became impregnated with for eign substances, making it unfit to be used in the boilers at defendant’s plant, and that defendant raised objection to the quality of the water which was furnished. The plaintiff then ceased the drilling, and made demand for the payment of the balance which he claimed was due him under the contract and for the work of the additional drilling.
The right of plaintiff to recover herein must be determined by the written contract upon which his cause of action is primarily baj§d. That contract is entire, with a stipulated price named for the performance of the whole contract. If, therefore, the entire contract was not performed, and the work done in drilling the well was not accepted, then plaintiff can not recover upon the written contract nor for the value of the work that he actually has done. There can be no recovery where there is an entire contract, with a stipulated price for the whole, and only part thereof is performed, and such part is not accepted. Under such circumstances, the price is not payable until the whole work is completed in accordance with the terms of the entire contract. Manuel v. Campbell, 3 Ark. 324; Walworth v. Finnegan, 33 Ark. 751; Hibbard v. Kirby, 38 Ark. 102; Little Rock Well & Pump Co. v. Ferguson Lumber Co., 74 Ark. 24.
It is true that where one of the parties to a contract puts it out of the power of the other to comply therewith, or refuses to abide by its terms and breaches it, the other party may bring suit for a recovery thereon, before final completion; but this right is founded upon the doctrine that the contract has been complied with by the party seeking relief thereunder, and that the other party has breached it. Price v. Thomas, 15 Ark. 378; Miller v. Thompson, 22 Ark. 258; Wiegel v. Boone, 64 Ark. 228.
Before the plaintiff is entitled to a recovery in this case, therefore, it must appear that there was some evidence adduced that he complied with the terms of said written contract upon his part, and that the defendant breached it, or that the defendant accepted the work that was done. To determine this question, it is necessary to construe the written contract and consider it in the light of the testimony which was introduced. We are of the opinion that, by the terms of said written contract, the plaintiff obligated himself, first, to encase the well with, standard eight-inch well casing for the entire depth thereof; and, second, that he guaranteed that the well would produce 60,000 gallons of water per day at a depth of not exceeding 210 feet, and'that if it did not produce that quantity of water at that depth he would drill to any greater depth necessary to produce that quantity at his own expense. In other words, under the terms of the above contract, the defendant was not to pay a greater sum than $840 for the well at a depth of 210 feet or more, and with a guaranteed capacity of 60,000 gallons of water per day.
The plaintiff claims that he was to encase the well only to a depth that was necessary, and not for its entire depth; that when he reached the rock formations it was not necessary to encase it through those strata. But the contract does not provide that the plaintiff shall encase the well only as the necessities thereof might require. It prescribes that the well shall be encased, and names the character of the casing; and this, we think, necessarily means that the entire well should be encased. The contract provides that strainers shall be furnished, and in the provision relative to the strainers it states that the strainers shall be furnished as the necessities of the case might require. The strainers were for the purpose of permitting the water to flow into the well; and the provision for the strainers, we think, manifestly indicates that the well should be entirely encased with the specified casing except in the places where the strainers were needed to permit the water to flow into the well between the various strata where it might be found. The fact that in the provision relative to the strainers the contract provides that they should be furnished only where necessary, and that there is no such provision relative to the casing, excludes the intention that the casing was only to be furnished when the necessities of the case required it.
Considered in its entirety, we think that the contract clearly shows that the parties intended and agreed that the plaintiff was to drill a well which should furnish 60,000 gallons of water per day at a depth of not exceeding 210 feet, and that plaintiff was to be paid therefor $840; that this was the capacity which the defendant desired the well to have, and that $840 was the total sum that it was to pay therefor. Therefore, if it was necessary to go any deeper to obtain that capacity, the defendant should be at no further cost or expense.
The uneontroverted evidence shows that the plaintiff did not drill a well which produced the quantity of water guaranteed by him in said written contract, and that he refused to drill the well deeper in order to obtain that guaranteed capacity at his own expense, but demanded, before drilling deeper, that the defendant should pay for the work in doing the drilling beyond that depth. The plaintiff therefore did not perform or comply with the terms of the written contract, and is not entitled to recover thereon. We do not think that there is any evidence indicating that any new or different contract was made, verbally or otherwise. At the most, the defendant only agreed to bear the cost of the additional casing that would be required to go beyond the depth of 75 feet; but there is no testimony indicating that the written contract was abandoned, or that plaintiff was relieved from any other obligation which he assumed thereunder. 'By the terms of the written contract, plaintiff was not entitled to recover for any work done by him beyond the depth of 210 feet, and there is no testimony showing that the defendant, verbally or otherwise, agreed to pay for such work. Under The undisputed testimony, therefore, plaintiff was not entitled to recover for the work done by him below the depth of 210 feet. As before stated, there is no testimony indicating that the defendant accepted the well or any work done thereon. The undisputed evidence shows that the payment of $400 was made, either upon the representation of the plaintiff that the well was completed and would produce the quantity of water guaranteed by the contract, and the capacity of which defendant was entirely ignorant of, or that the payment was made with the understanding and upon condition that the well would, upon the test thereafter to be made, produce the guaranteed quantity of water.
Where one voluntarily makes a payment upon a claim with knowledge of the facts, or under such circumstances that he is affected with such knowledge, then he can not recover back such payment upon the ground that the asserted claim was unenforceable. Rector v. Collins, 46 Ark. 167; Vick v. Shinn, 49 Ark. 70; Crenshaw v. Collier, 70 Ark. 5; Lorimer v. Murphy, 72 Ark. 552. But we think the rule is also well settled that money paid by one person to another in mutual ignorance of the facts which, if known, would have prevented such payment, may be recovered back, although such mistake was not caused by any wrongful act of the party receiving such payment. United States v. Barlow, 132 U. S. 271; Wate v. Leggett, 8 Cowan 195; Burr v. Veeder, 3 Wend. 412; Billings v. McCoy, 5 Neb. 187.
In the case at bar, the uncontroverted testimony shows that the $400 was paid to the plaintiff, either upon the representation made by him that the well was of the required capacity, or with the understanding that it would thereafter be tested and that from such test it would be shown that it would produce such required capacity, and that if it did not the plaintiff would fully comply with the provisions of the written contract in drilling the well deeper until it did produce the quantity of water guaranteed in the contract. Under this undisputed evidence, the payment was not made upon any acceptance of the work done, nor was the defendant under any legal or contractual obligation to ascertain the capacity of the' well before making the payment. The payment was made only to assist the plaintiff, and without any definite knowledge possessed by either party as to the capacity of the well, but with the understanding of both that the well should thereafter be tested in order to determine whether it was finally completed in accordance with and of the capacity guaranteed by the contract.
We are of the opinion, therefore, that under these circumstances the payment was made by defendant, in effect, upon consideration which failed, and therefore can be recovered back. The court did not commit any error which was prejudicial to the rights of the plaintiff by the instruction which it gave to the jury. The judgment is accordingly affirmed. | [
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Frauenthal, J.
This is an appeal from a conviction of the defendant, St. Louis, Iron Mountain & Southern Railway Company, for the violation of the provisions of an act of the General Assembly approved May 1, 1905, entitled, “An act to provide for the protection of mechanics, laborers and other persons employed in the construction and repair of railroad equipment, and providing a punishment for violation thereof. ” The section of the act which defines the offense of which the defendant was convicted is as follows:
“Section 1. It shall be unlawful for any railroad company or corporation, or other persons who own, control or operate any lines of railroad in the State of Arkansas, to build, construct or repair railroad equipment, without first erecting and maintaining at every division point a building or shed over the repair tracks, same to be provided with a floor, where such construction or repair [work] is permanently done, so as to provide that all men permanently employed in the construction and repair cars, trucks and other railroad equipment, shall be under shelter during snows, sleet, rain and other inclement weather. ” Acts 1905, p. 593.
The prosecution was instituted before a justice of the peace upon an information which in effect charged that the defendant had on June 15, 1910, repair tracks at Gurdon, which was alleged to be a division point on its line of railroad where repair work was permanently done and men permanently employed in the construction and repair of cars and other railroad equipment, and that it did not have a building or shed over the repair track so as to shelter such employees during snow, sleet, rain and other inclement weather. ' The trial resulted in a conviction, both before the justice of the peace and in the circuit court, to which an appeal was taken.
It is contended by counsel for defendant that the act is invalid because the term “divisionpoint,” used therein for the purpose of specifying the place where the building or shed should be erected and maintained, has no well-understood meaning, rendering the act indefinite and uncertain. In this connection, it is urged that the lower court erred in failing to declare to the jury what a division point was and in leaving it for them to decide its meaning by instructing them in effect that they should take into consideration everything in connection with the transaction in order to determine whether or not Gurdon was a division point as contemplated by said act. The interpretation of the language used by the Legislature in its enactments is a matter exclusively for the court, and not for the jury. It is the duty of the court to construe and expound the law, and to instruct the jury definitely as to the interpretation of the statute, for the law must be certain and applied alike to all persons and by all juries. The sole province of the jury is to determine the facts in each particular case, and therefrom to decide whether the law, as announced to them by the court, has been violated. Kansas City, Ft. S. & M. Ry. Co. v. Becker, 63 Ark. 484. It therefore became the duty of the trial court in this case to definitely declare what a division point is as used in this statute. But the failure to so instruct the jury was not prejudicial if, under the undisputed evidence, Gurdon was such a division point.- We are of the opinion that this term “division point, ” as used in this statute, has a certain and definite meaning. In determining what the meaning of these words is, we must look to see what is the usual and ordinary interpretation given to them by those using them, and also to consider them in reference to the subject-matter in the mind of the Legislature, as shown by this statute. “The true sense in which words are used in a statute is to be ascertained generally bv taking them in their ordinary and popular signification, or, if they be terms of art, in their technical meaning. But it is also a cardinal rule of exposition that the intention is to be deduced from the whole, and every part of the statute, taken and compared together — from the words and context, and such construction adopted as will effectuate the intention of the lawmakers. ” Green v. Weller, 32 Miss. 650; Potter's Dwarris on Stat. 197, 201. The court is presumed to know whether or not these words have a definite signification and what is their exact meaning. It may seek every source for information as to such meaning, and is not confined to the testimony of any witness who may have given testimony as to his knowledge relative thereto. For the purpose of considering and advising itself as to the true interpretation of this term, the court may call to its assistance persons who may have information relative thereto, or may apply to any other available source to obtain this information, But the testimony of any person called to its aid is simply for the purpose of advising the court, and not to give evidence before the jury. Such testimony or information is solely for the court in aiding it in declaring what the term means and thus to announce what the law is. Thus in the case of Louisiana & Ark. Ry. Co. v. State, 85 Ark. 12, it became necessary to determine whether or not a statute requiring a station to be erected at a particular place along the line of railroad was reasonable. It was there held that the question of the reasonableness of such statute was one of law for the court to determine. It was determined in that case that the court was not bound by the facts presented or agreed upon by the parties relative to the reasonableness of having such station erected, but should possess itself of all information obtainable upon the subject, and, for that purpose, might apply to any source which it deemed proper. And so in the case at bar the court must determine whether the term “division point” has a certain and definite meaning, and what that meaning.is. In order to possess itself of information, it may seek all such available means and sources as it deems proper and, from the information thus acquired, declare what is really within common knowledge. Proceeding in this manner, we know that railroad corporations have departments, officials and employees for the management of their affairs and properties. A railroad corporation has organized departments to which are intrusted certain duties; amongst these is the duty to provide and keep in proper repair and to operate the equipment which its passenger and freight traffic may require. In order to effectively conduct and operate its trains, its line of railroad is separated into divisions. The division is the longest undivided part of its line, and within such division the operation of its trains is managed and supervised by separate and distinct officials, who are known as division officers, with different titles, according to their varied duties. Within such division, there.is a place or point where these officials are located, and such place is known as division headquarters. This is the place where the division officials who manage, control and superintend the operation and repair of trains and equipments which are employed within such division are located. Such a place is á division point. But, in considering the' use of this term relative to the subject-matter of this statute, we think that it has an additional meaning. Each division has its beginning and end fixed upon the line of railroad. At these limits of the divisions, trains are made up and employees operating such trains take charge thereof to make their runs from one end of the division to the other. At these places, upon the end or beginning of a division, the trains end their runs. Here engines and cars are inspected and repaired, or taken out of the train altogether, and the train is in effect made up again and either returned upon its trip on the same division or sent on to another division in the course of its run. Here the employees or crews operating the trains leave them and take their rest preparatory for another run, or the crews of the trains are here changed. At the place where this is done regularly and constantly, or substantially so, it is usual that the engines and cars are repaired or new ones constructed. Such work is also ordinarily done at the place where the division headquarters are located. These places, then, are division points. There are also places along the line where incidentally and occasionally local trains end their runs and crews lay over and are changed. But such places where this is only occasionally and incidentally done do not, we think, constitute division points within the purview of this statute. Local trains may end their runs, or crews may be incidentally or occasionally changed, at a great many places along the line where there is no permanency or constancy or regularity in such course of operating the trains, but we think it may be inferred from the statute, which provides that the work done must be permanent and the employment of the men permanent at such places, that the Legislature also intended that the places where the trains end their runs and the crews lay over and are changed should be those where this is regularly and constantly done, or substantially so. The fact that a train is occasionally or incidentally changed at a place, or a local train ends its run at a place on the line, and crews are there occasionally changed, would not constitute such place a division point. Nor would the fact that at such place a few trains do not change or a few .crews do not lay over determine that such a place is not a division point. The features characterizing the place along the line as a division point, within the meaning of this statute, are determined either by the fact that the point is a place where the division officials are located, or by the fact that the place is one where trains are regularly changed and made up, and crews are regularly changed, or substantially so.
It is urged that the act is invalid because it deprives the defendant of the equal protection of the law and thereby contravenes the Fourteenth Amendment of the Constitution of the United States. This contention is made upon the ground that the act only applies to persons and corporations owning and operating railroads, and thereby makes a classification that is unreasonable and arbitrary. It is urged that there are other persons and corporations in the State who do not own and operate railroads, but who are engaged in the business of construct ing and repairing railroad equipments in the State, and at the trial of this case testimony was introduced proving this fact. The defendant urges that there is no distinction between the character of business done by these other persons and corporations and that which is done by railroad corporations in the repair and construction of railroad equipments, and therefore that there is no reason for excluding these other persons and corporations engaged in a like character of business from the operation of this act while visiting the persons and corporations owning and operating railroads with its exactions and penalties. But we think there is a distinction between the two classes. In the case of the St. Louis, Iron Mountain & Southern Ry. Co. v. State, 86 Ark. 518, this act was construed to mean that the work must be done at division points constantly, and the men must be there regularly employed. Those who own and operate railroads are not only engaged in constructing and repairing railroad equipments, but they are also engaged in operating trains and transporting property and persons intrusted to their care. The repairs upon or the construction of equipments which they make may be called for quickly while such property is in transit, and the safety of their employees may be better subserved by the protection afforded them in inclement weather which might not apply to those engaged in a like character of business and making similar repairs who have a longer time in which to make them and an opportunity to await better weather in which to make them. In the case of Ex parte Byles, 93 Ark. 612, it is said: “Unless the classification be clearly unreasonable and arbitrary and without just distinction as a foundation, the Legislature being primarily the judges of that, it is the duty of the courts to respect and uphold the legislative determination.” We think there are other reasons for making the classification, but we do not deem it necessary to further discuss them because we are of the opinion that the constitutionality of this act in this particular has been upheld in the case of the St. Louis, I. M. & S. Ry. Co. v. State, supra. In that case the prosecution for a violation of this act was before the court, and it was contended that the act was unconstitutional because it made an arbitrary classification and thus violated the equality clause of the Fourteenth Amendment. The court in that case held that the act was not unconstitutional upon that ground, and said: “The court is unable to find the classification here made offensive to the equality clause of the Constitution as construed by the Supreme Court of the United States, whose decisions are binding on this subject.” It is true, the court in that case, in discussing the constitutionality of the act, stated that it was not shown that, as a matter of fact, the law operated only upon one corporation, although others in like and similar condition were not affected by it. But the court also stated that the condition then existing in the State as found by the Legislature was that no other corporations or persons were engaged in such business in the State. That was the condition which existed in the State at that time, and if, since then, the condition is changed, that would not invalidate the law. The statute was passed to meet conditions existing at the time of its enactment; and if the statute was then valid, its validity continued. If conditions have actually changed since this enactment, the Legislature may, in its wisdom, extend the provisions of the statute to other corporations. As was said by this court relative to a somewhat similar contention made in the case of Ex parte Byles, supra: “Moreover, the Legislature doubtless made investigation and found that lightning rods, steel stove ranges, clocks, pumps, buggies and carriages are the articles which constitute the stock of peddlers of this day in the State, and the present legislation was designed to meet the conditions-which were found to exist. This it was proper and right for the Legislature to do, and the fact that the precise conditions are found not to be met will not invalidate what the Legislature has done. ” If the act in question was valid when passed upon in 1908, when the opinion was rendered in the case of St. Louis, I. M. & S. Ry. Co. v. State, supra, it has not been invalidated by reason of any change in conditions which may have occurred since then. The act was then declared to be constitutional, and we see no reason to overrule that decision.
The remaining question to be determined is whether or not the evidence is sufficient to show that Gurdon is a division point. The testimony shows that Gurdon is a station on defendant’s line, and that it is not a place where the division headquarters or the division officials are located. The division in which Gurdon is situated is known as the Natchez division, and its headquarters, where the division officials are located, is at Ferriday, Louisiana. The testimony tended to prove that local trains from Felsenthal and Womble ended their runs at Gurdon, and that there was a day and night crew of these trains thex-e all the time; that the engineer and fireman on the south end “ tied up” at this place for the night. But there was no testimony tending to prove that this was a place where the trains were regularly changed or the train crews regularly changed, or substantially so. Local trains only ended their runs at this place, and no train running on the main line in this division ended its run there. The evidence at the most only shows that Gurdon is a place where some local trains end their runs, and where crews only on such trains lay over to make their return trips. This, we think, does not constitute Gurdon a division point, within the, purview of this act. This act is penal in its nature, and must therefore be strictly construed. Before a conviction can be had thereunder, it is not only necessary to prove that construction and repair work is constantly done and men regularly employed at this place, but it is also necessary to show that the place is a division point. The evidence does not show this. We are of the opinion that the evidence relative to this question has been fully developed upon the trial in the lower court; and, such evidence failing to show that Gurdon is a division point, it would serve no useful purpose to remand this case for a new trial. The judgment is accordingly reversed, and the case is dismissed. | [
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Kirby, J.,
(after stating the facts). It is contended here that the court erred in refusing to declare unconstitutional the proviso defining the term “agent” in the second section of the acts of 1907.
The proof conclusively shows that appellant was a licensed liquor dealer at Dermott, and that the order for the liquor was given to his brother Fay at Warren, in prohibition territory, with two dollars in money, to pay for the whisky. That Givens gave the order to the said Fay Van Valkinburgh, without solicitation from him, but understanding at the time that he and his brother were engaged in the sale of liquor at Dermott. The order was by him in person transmitted to appellant at Dermott, and filled and the money received in payment, the whisky being shipped in accordance with the direction of the person ordering it.
Within the definition given in said act, and under its terms, which were all given to the jury as instructions in this case, there can be no doubt but that appellant was guilty of a violation of it. Fay Van Valkinburgh, who was his employee for the sale of whisky, and who was known by the person ordering to be engaged with his brother in the sale of whisky at Dermott, was in prohibition territory, received the order for the whisky, transmitted and in person delivered it to the appellant at the saloon, who accepted and filled it.
It is true that appellant said that Fay had no authority to solicit and receive orders for whisky, and was only employed as a night bartender, for the sale of whisky over the bar in the saloon, but it could have reasonably been inferred that he was acting as agent for appellant in receiving and transmitting the order, as he unquestionably was his agent within the meaning of the term as defined in said act and also guilty of a violation of it. The object of the statute was to prevent the advertisement of liquor for sale and the soliciting and receiving orders from any person therein for the sale thereof, within prohibition territory, and to prevent the presence of liquor dealers, through agent or otherwise, in such territory, soliciting or receiving orders from persons therein, and it broadly defines the term “agent” to “mean any person who receives an order from another for intoxicating liquors in prohibition territory and transmits the same in person, by letter, telegraph or telephone, or in any other manner, to some dealer in intoxicating liquors, who accepts and fills the same.” (Actsl907,e. 135,§2.)
In State v. Earles, 84 Ark. 479, this court said:
“The statute in question makes both the liquor dealer and his agent who solicits orders in prohibition territory guilty of an offense, and it defines an “agent” to be one “who receives an order from another for intoxicating liquors in prohibition territory, and transmits the same in person, by letter, tele graph or telephone, or in any other manner, to some dealer in intoxicating liquors who accepts and fills the same.
“It is not intended by this statute to punish a licensed dealer for merely selling liquor directly to a person who has solicited orders in prohibition'territory; but it is unlawful for a licensed dealer to accept and fill an order which has been solicited and received by another person in prohibition territory and transmitted to him. Such an acceptance of the order is, under the statute, tantamount to soliciting the order in prohibition territory.”
No error was committed in giving the instructions in the language of the statute.
If appellant had desired an instruction submitting a different view from that expressed as to the meaning of agency, he should have asked a correct instruction embodying it. Not having done so, he will not be heard to complain of the failure of the court to so instruct the jury. This act is a police regulation, intended to protect the wishes of the citizenship of the prohibition districts of the State and suppress the receiving and solicitation of orders and advertisements for the sale of liquor therein, and was well within the power of the Legislature to enact. Zinn v. State, 88 Ark. 275.
The judgment is affirmed. | [
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Hart, J.,
(after stating the facts). The instrument or lease copied in the statment of facts is general and comprehensive, and expressly purports to be in full settlement of all matters and differences between the parties. It was broad enough to cover the present 'cause of action. The parties, in order to avoid the evils 'of litigation, made a compromise and settlement of all matters and differences between them. The lease or instrument in question was something more than a mere receipt. It was the final embodiment in writing of the agreement between the parties. It is a comprehensive discharge, not only of the differences between the parties, but of all matters between them. The natural meaning of the language used is broad enough to cover everything connected with the first lease. To permit the plaintiff to show by parol proof that it was not so intended would be to contradict or explain away the instrument, which is contrary to the established rule of law as established by the previous decisions of this court. Cache Valley Lbr. Co. v. Culver Lbr. Co., 93 Ark. 383; Cleveland-McLeod Lbr. Co. v. McLeod, 96 Ark. 405; Kahn v. Metz, 88 Ark. 383.
The judgment will be affirmed. | [
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Ed. F. McFaddin, Justice.
The Chancery Court sustained the defendants’ demurrer to the complaint and the intervention, and dismissed the case; and the question on appeal is whether the complaint and intervention stated a cause of action.
The plaintiff, W. B. Isgrig, is a resident of Pulaski County and a taxpayer of the County and of the City of Little Rock; the intervener, Greorge Spann, is a taxpayer and a resident of Little Rock; the defendants are the City of Little Rock and the Little Rock Municipal Airport Commissioners; and the purpose of the suit was to obtain an injunction against certain activities that the Little Rock Municipal Airport was undertaking.
The complaint alleged that Isgrig was the owner of 250 acres of land immediately East of the City limits of Little Rock; that in traveling from his land to the City of Little Rock (where he owned other property) Isgrig necessarily had to travel either over East 10th Street or East 26th Street (sometimes called Roosevelt Road Extension) ; that in 1934 the City of Little Rock, in order to close East 17th Street, made an agreement with property owners like Isgrig that the City would construct and maintain a road on East 10th Street and on East 26th Street; that the right-of-way of the East 26th road was to be 160 feet; and that the City was about to violate its agreement by closing said streets, with no provision for payment of damages therefor. The complaint further alleged:
“10. The Defendants are attempting to eliminate and settle their obligation to some of the property owners in the plaintiff’s vicinity by buying their lands but the Defendants are not treating all of the residents and property owners in a similar manner and do not have sufficient funds to pay to all of the property owners the damages they will suffer. Defendants’ failure to pay all damages while paying for some damages is completely arbitrary and an abuse' of their discretion.
“11. The area occupied by said airport is not capable of being expanded to fit the needs for airport facilities in the Little Bock area and by devoting all available money to making improvements on this present property, which is and will continue to be obsolete for airport purposes, for the Little Bock area the Commissioners are not exercising reasonable judgment and are arbitrarily wasting the funds of Plaintiff and other taxpayers of the City of Little Bock.”
The intervention of Spann adopted all the allegations in the Isgrig complaint, and also contained this paragraph as to specific instances:
“The defendants, Airport Commissioners,' have recently paid out funds to some of the property owners in this area in satisfaction of damages caused by the defendants and have filed suits to condemn other properties in this area among them the property of Addie Browning and Edgar Lovelace, under which defendants are proposing to pay for some of the damages caused by them; but said defendants are not paying or making any provisions to pay the damages suffered by other property owners, including intervener, and do not have sufficient funds to pay the damages which will be suffered by all of the property owners in this area if the defendants are permitted to proceed to wrongfully close, block and obstruct the streets and roads serving the area. ’ ’
The defendants demurred to the complaint and the intervention on three grounds:
“1. That the plaintiff and the intervener do not have the legal capacity to sue and are not proper parties to this action.
“2. That there is another action pending between the same parties for the same cause, to-wit: E. H. Bisser, Plaintiff vs. The City of Little Rock, et ah, Gr. B. Oliver, Intervener, bearing the Clerk’s filing number 98223 in the Pulaski County Chancery Court.
“3. That the Complaint and the Intervention do not state facts sufficient to constitute a cause of action. ’ ’
At the outset it is well to mention some of the elementary rules concerning the place and scope of a demurrer. As stated in 41 Am. Jur. 436 et seq.:
“A demurrer is the method of raising an objection to the sufficiency in law of a pleading. It may be filed either by the plaintiff or the defendant to test the other’s pleadings for defects therein apparent on the face of such pleadings. ... A demurrer does not raise any question of fact or a mixed question of law and fact, but questions of law only; and it is erroneous for the Court, in passing on the demurrer, to determine a disputed question of fact.”
In the case at bar the defendants’ first point in the demurrer was that neither the plaintiff nor the intervener had legal capacity to sue. Isgrig recited that he was a property owner in the area affected and also a taxpayer in the City of Little Rock, and that the Airport Commissioners were not exercising reasonable judgment li. . . and are arbitrarily wasting the funds of Plaintiff and other taxpayers of the City of Little Rock.” Spann, as intervener, made similar and more detailed allegations. These are sufficient as against a demurrer. The right of any citizen and taxpayer to have equity restrain the misapplication or misappropriation of public funds has been recognized in a number of cases: Town of Jacksonport v. Watson, 33 Ark. 704; Russell v. Tate, 52 Ark. 541, 13 S. W. 130; Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901; Seitz v. Meriwether, 114 Ark. 289, 169 S. W. 1175; Rose v. Brickhouse, 182 Ark. 1105, 34 S. W. 2d 472; Brookfield v. Harahan Viaduct Imp. Dist., 186 Ark. 599, 54 S. W. 2d 689; Sitton v. Burnett, 216 Ark. 574, 226 S. W. 2d 544; Revis v. Harris, 217 Ark. 25, 228 S. W. 2d 624; and City of Stuttgart v. McCuing, 218 Ark. 34, 234 S. W. 2d 209. We conclude that the plaintiff and intervener, as citizens and taxpayers, had the capacity to maintain the suit.
The third point in the demurrer was, that the complaint and intervention did not state facts sufficient to constitute a cause of action. The cases previously cited are full authority for the holding that any taxpayer may invoke the aid of equity to prevent an unlawful expenditure of the public funds. Here there were the allegations as previously copied; and these were sufficient to state a cause of action.
Finally, we consider the second point in the demurrer, which alleged the pendency of another action. In Kastor v. Elliott, 77 Ark. 148, 91 S. W. 8, in discussing the Statute that is now § 27-1115 (3rd subdivision) of Ark. Stats., we said:
“The Statutes of this State provide what shall be done in such cases. They provide that when it appears in the complaint that there is another action pending between the same parties for the same cause, the objection may be taken advantage of by demurrer; and if it does not appear in the complaint, it may be taken by answer; . . .”
In Sims v. Miller, 151 Ark. 377, 236 S. W. 828, we said that it is only when the pendency of another action appears on the face of the complaint that the question may be raised by demurrer. See also Keenan v. Strait, 221 Ark. 83, 252 S. W. 2d 76. There was not a word or a line in the complaint or intervention about any other pending cause of action; and the defendants could not supply such information by a demurrer. To so attempt constituted a ‘ ‘ speaking demurrer. ’ ’ In 41 Am. Jur. 440, the text states:
“A demurrer which sets up a ground dehors the record, or a ground which to be sustained requires reference to facts not appearing on the face of the pleading thus attacked, is said to be a ‘speaking demurrer’ and is bad. The demurrer should be overruled, since extrinsic facts, can be made available only by plea or answer. ’ ’
We have many cases in this jurisdiction recognizing the above quoted rules as to “speaking demurrers.” See Rider v. McElroy, 194 Ark. 1106, 110 S. W. 2d 492.
It is true that when the Chancellor sustained the demurrer in the case at bar on January 5, 1955, he knew that on November 15, 1954 he had decided the case of Risser v. City of Little Rock (which is now No. 724 in this Court). The Chancellor evidently saw no need to hear evidence in this case which he thought involved the same issues: therefore he sustained the demurrer. But in so doing he considered matters dehors the complaint. The demurrer, insofar as the other cause of action was concerned, was a “speaking demurrer” and should have been overruled. In view of our decision this day rendered in the case of Risser v. City of Little Rock (No. 724 herein), the defendants possibly will file other.pleadings in the Chancery Court in this case. But, in order to “keep the law straight” as regards the force and effect of a demurrer, it is necessary that the decree be reversed in the present case.
Reversed.
The Chief Justice and Justice Millwee not participating.
The prayer of the complaint was: “Wherefore, Plaintiff prays that defendants be enjoined and restrained from closing East 10th Street and East 26th Street; that defendants be enjoined and restrained from spending any of the funds in their possession for improvements upon the airport until provision be made by said defendants for the payment of damages to the Plaintiff and others entitled thereto if said streets be closed, obstructed or blocked; and, that Defendants be enjoined and restrained from spending any of the funds in their possession for improvements upon the airport in its present location; for his costs herein and all appropriate relief.”
Our own cases are to like efiect and may be iound collected under proper topics in West’s Ark. Digest, “Pleadings,” § 187 to § 218 (inc.). | [
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Lee Seamster, Chief Justice.
During the pendency of a divorce action by appellant, Holman Johnson, against appellee, Aline Johnson, the appellee petitioned the Clark Chancery Court for temporary attorney fees, costs, custody of the couples nineteen-month-old daughter, Ruby Jene, and, the sum of $25 per month for the support of said child. On November 2, 1953, the chancellor issued an order awarding temporary custody of the child to appellee and directed the appellant to pay $25 per month for the support of said minor child.
On December 8, 1954, a final decree was rendered granting appellant a divorce and awarding custody of the minor child to the appellee. The decree ordered and directed the appellant to pay $25 per month to the appellee for the support of the minor child.
A petition was filed by appellee in January of 1955, for the purpose of citing appellant into court for failure to pay maintenance and support as directed by the decree. The court granted this petition on January 10, 1955, and the appellant was ordered cited to appear before the court on February 14, 1955. On this date a hearing was held and the chancellor found that appellant was in arrears for two monthly payments (January and February of 1955), and ordered the appellant to pay the appellee the sum of $50. On Febiuuny 24, 1955, the appellant filed a motion to vacate and modify the judgment and decree. The court, after hearing the additional testimony, overruled the appellants’ motion on April 4, 1955. This appeal follows.
The appellant contends that he has made all payments that are due the appellee. He admits that no payments were made direct to the appellee, but earnestly insists that all payments were delivered to the office of his attorney, to deliver to the attorney for the appellee. The appellant testified that he could account for sixteen payments that he had delivered to the office of his attorney. The attorney for the appellant admitted that his office had received all sixteen payments and insisted that his secretary, in turn, delivered these payments to the attorney for the appellee. The secretary- testified that she did not recall any specific payments in which she did not procure a receipt at the time of delivery. The record reveals that there should have been sixteen payments to appellee, but appellant was able to establish only fourteen receipts from the attorney for the appellee.
The trial court did not attempt to blame anyone for. the failure to deliver these two payments, but merely said ‘ ‘ This boils down to a bookkeeping transaction. This money passed through several hands and through two law offices. Somewhere along the line it looks like either the girl got the money and did not give a receipt or either the money is in transit somewhere. Any way you figure it I doubt that Holman is responsible for it. . . . He (appellant) has been under the $25 payment since 1953, he should have made sixteen payments and he can account for fourteen, but has been unable tb account for the other two, and the burden is on him to show those payments, and I couldn’t do anything under this record but to render judgment against him (appellant) for $50 and direct that henceforth he make these payments to the clerk (Clark Chancery) and let the clerk keep up Avith them.”
Finding no error, the decree is affirmed. | [
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George Rose Smith, J.
This suit for the partition of eighty acres of land was originally filed by four of the appellants. The complaint alleged that the plaintiffs owned an undivided five-eighths interest in the land and that the defendants owned the other three-eighths. By answer the defendants denied the plaintiffs’ assertion of co-ownership, interposed a plea of adverse possession, and asked that the defendants ’ own title be quieted.
A substantial amount of testimony was taken, which seems to have indicated that other members of the plaintiffs ’ family have an interest in the land. About thirteen months after the suit was filed some 177 persons intervened and asked to be made parties plaintiff. Later on the original plaintiffs, by an amendment to their complaint, alleged that the five-eighths interest originally claimed by them is owned by specified branches of the Spikes family and the Stubblefield family. At this point the chancellor sustained a demurrer to the amended complaint, primarily upon the ground that equity is without jurisdiction to partition land that is in the possession of the defendants. The court also remarked that all necessary parties have not yet been brought into the case. Upon sustaining the demurrer the court dismissed the case.
It is our view that the court should have retained jurisdiction of the suit. Even if the complaint failed to state a ground for equitable relief the appellees supplied the defect by asking that their title be quieted. It is a familiar rule that one who has invoked the assistance of equity-cannot later object to that jurisdiction unless the subject matter of tbe litigation is wholly beyond equitable cognizance. State use Arkansas County v. Pollard, 171 Ark. 607, 286 S. W. 811. Nor, as the appellees now contend, could the point be raised upon the chancellor’s own motion. An adequate basis for chancery jurisdiction having been pleaded, the case should have proceeded to trial in that court. As we said in Marks v. F. G. Barton Cotton Co., 170 Ark. 637, 280 S. W. 674: “Their cross-bill was founded on matters clearly cognizable in equity, and this supplied any defect of jurisdiction. The original complaint and cross-bill were but one cause of action, and imposed upon the court the duty of granting relief to the party entitled to it.”
It is argued by the appellees that the plaintiffs’ amendment to their complaint stated a new cause of action, so that by demurring thereto the defendants raised the issue of jurisdiction at the first opportunity. The amendment did not assert a new cause of action; to the contrary, it adhered to the original prayer for a partition of the land. A pleading which merely brings in a new party having an interest in the same cause of action does not amount to the filing of a different suit. H. B. Deal & Co. v. Bolding, 225 Ark. 579, 283 S. W. 2d 855.
With respect to the suggested defect of parties it cannot be said with certainty at this stage, of the litigation that the plaintiffs have failed to join all persons having an interest in the land. The plaintiffs’ pleadings, which must be construed liberally on demurrer, sufficiently allege the existence of a tenancy in common and adequately state a cause of action for partition. The amended complaint is not as clear as it might be in describing the exact interests claimed by the various plaintiffs and intervenors, but such a want of clarity should be reached by a motion to make more definite rather than by a demurrer.
Reversed.
Holt, J., not participating. | [
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Kirby, J.,
(after stating the facts). The question for decision is whether territory already organized and established into a rural special school district, under the provisions of the act of May 31,1909, as amended by act approved April 7,1911, may be cut off and included within another rural special school district under its provisions.
Our school system has long comprised two methods of organization of territory into school districts for the purpose of maintaining free public schools for the promotion of education and the general welfare of the State, the one, the single or special school district, including only the territory within the limits of incorporated cities and towns in the State and the territory annexed thereto for school purposes, and the other including all the other territory within the county organized into common school districts, the county court having the power to form new school districts of such territory and change the boundaries of existing districts and adjust the indebtedness of the districts divided and equitably apportion the surplus fund upon such division.
The Legislature provided for the organization of such districts under different methods and also different laws for the government thereof, the directors within the single or special school districts in the cities and towns and the territory annexed thereto being given greater power for the management and promotion of the school interests than those of the common school districts, whose powers are limited and dependent largely upon the will of the electors as expressed at the annual school meetings.
It soon became apparent that the cause of education flourished and better schools were established and maintained in the single school districts where the directors were given more power in the control and management of the schools, and where they had more means for their maintenance, because of the wealth of the territory, and different communities and localities, desiring to improve their school facilities, sought relief of the Legislature in the enactment of divers special acts creating single or special school districts out of territory that could not be included within such districts under the general law and giving the directors thereof increased powers. To meet this insistent demand and avoid so much troublesome special legislation, the general law was made, authorizing the organization and establishment of rural special school districts. Acts 1909, c. 321, approved May 31, amended by Acts 1911, c. 169, approved April 7, 1911; § § 7591a—7591i, Castle’s Supplement to Kirby’s Digest.
Section 1 of said act provides: “That when the people of any given territory in any county in this State, other than incorporated cities and towns, desire to avail themselves of the benefits of all the laws of this State for the regulation of public schools in incorporated cities and towns, they may be organized into and established as a single school district in the manner and with powers therein provided with such modifications of such laws as are herein provided.”
It is contended by appellants that since the law provides that any given territory in any county “other than incorporated cities and towns” may be organized into and established as a single school district and the method therefor, any territory not included in such cities and towns may be organized into a proposed rural special school district, without regard to whether such territory may, at the time of its proposed organization, be included within a rural special school district, already organized under the provisions of the law or a special school district made by special act of the Legislature.
We do not agree with this contention. If there were no other law but said section, there would appear to be some ground for it, the exception being made as indicated, but we have the two systems of organization of school districts, with the different laws relating to the management thereof, all of which whs in the mind of the Legislature at the time of this enactment.
Nowhere is the county court or the county judge, or any other agency of the State expressly given power by the Legislature to change the boundaries of single or special school districts, except in the annexation of territory adjoining cities and towns for school purposes, and no power is given for the division or dismemberment of any such special school districts unless by the acts under consideration. They provide for the organization of territory outside cities and towns and the government thereof after it is established in rural special school districts. The directors are given certain enlarged power; they may borrow money as provided under the law for the government of single special school districts, and may provide for a building fund, if authorized by the electors at the annual election, and the amount thereof; and if a majority vote is cast for a building fund, “it shall be equivalent to voting a building tax of the amount or rate as determined * * * for each succeeding year, until the money borrowed by the board of directors pursuant to such vote, together with the interest thereon, shall have been fully paid.”
When the building fund has been voted, they may borrow money and mortgage the property of the district as security therefor, giving a certain certificate, the form of which is prescribed, the latter part of which reads, “which amount with interest at the rate of........per cent, per annum from this date until paid, is to be paid from the funds arising from a tax o'........mills, to be levied annually upon the property in said district.”
The certificate must be executed in triplicate, and one copy retained by the board; another delivered to the lender, and the third shall be filed by the board of directors with the clerk of the county court, and “upon the filing of said certificate it shall be the duty of the county clerk to levy each succeeding year a building tax of the amount or rate called for against the property in said district until the amount thus borrowed, with the interest thereon, has been fully paid. ”
The county treasurer is required to pay the holder of the certificate upon demand any funds to the credit of the building fund of said district, applying the same first to payment of the interest due. It is true, this method of borrowing is not exclusive, but it indicates the legislative intent. The necessity existed for the borrowing of money by the school districts of the State for the improvement and maintenance of its schools, and the Legislature recognized it, and gave the authority to mortgage property of the district and in effect pledge certain revenues thereof for the payment of the loan. If the construction of the statute contended for by appellants is correct, a special school district could borrow a large sum of money and thereafter be so cut up and dismembered by the formation of new rural special school districts, including part of its territory, that there would be little, if any, of the property mortgaged remaining within the old district and little of its revenue-producing property, thus defeating the probability of the success of procuring a loan at all by such district when created and one of the purposes of the Legislature in authorizing the creation thereof.
It is apparent that it had no such intention, and the whole act, construed together, bearing in mind our system of the organization of territory into school districts for the maintenance of schools and the law for the control and management thereof, shows conclusively that it was not intended that any part of the territory, once organized into a rural special school district, could thereafter be taken and organized into another district of like kind, under the provisions of said act. Common School District No. 13 v. Oak Grove Special School District, post p. 411; Scott v. McCollough, 75 N. E. 52; Fulks v. Wright, 75 N. E. 55.
The decree is affirmed. | [
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McCulloch, C. J.
Appellee sued appellant in the circuit court of Garland County to recover damages on account of personal injuries resulting from alleged negligence on the part of appellant in driving an automobile, or causing it to be driven, along Central Avenue in the city of Hot Springs. Appellant and his wife were in the machine at the time, the latter driving. Appellee alighted from a street car, at the front end of it, which was customary, and started across the track in front of the car to go to the opposite side of the street. He hesitated at first, but the motorman told him to go ahead, and he proceeded to cross. As he stepped beyond the end of the car, the automobile, which was running at a speed of ten or twelve miles per hour struck him and knocked him down. He was just stepping on the other track, about four feet from the street car, when the automobile struck him. It was a rainy day, and he had his umbrella raised and was walking rapidly. He testified that the street car obstructed the view down the street, and that as he passed the car he looked down the street but didn’t see the automobile approaching, and- failed to see it until too late to get out of the way. There was a space of sixty feet between the street car and the other side of the street.
Appellant testified that he purchased the machine, and gave it to his wife for her own use — that she drove it herself, and that he never attempted to drive and knew nothing about handling a machine of that kind. There was testimony to the effect that appellant paid the city vehicle license fee for operating the machine.
The verdict was in appellee’s favor for recovery of damages.
It is insisted that the evidence fails to establish negligence on the part of appellant, and that the undisputed evidence shows negligence on the part of appellee which bars recovery. We think that on both of those issues the verdict is sustained by sufficient evidence.
The machine was being operated at a rapid rate of speed, unnecessarily near the street car, though there was abundant space further out in the street for the machine to pass along. It was customary for passengers to alight from the front end of street cars, and it was reasonably to be anticipated that they might pass in front of a car going to the other side of the street. The jury was warranted in finding that it constituted negligence for an automobile driver to run the machine at a rapid speed so near a street car which had stopped for passengers to alight.
/ Automobilists and the drivers of other vehicles have the right to share the street with pedestrians, but they must anticipate the presence of the latter and exercise reasonable care to avoid injuring them. Care must be exercised commensurate with the danger reasonably to be anticipated. Gregory v. Slaughter, (Ky.) 99 S. W. 247, 8 L. R. A. (N. S.) 1228.
The question of contributory negligence on the part of appellee was one for the jury, and was properly submitted. It can not be held that the failure of a pedestrian upon a public street to look up and down the street before crossing constitutes, under all circumstances, negligence as a matter of law. There is no statute or rule of law which raises a presumption of negligence from the failure of a pedestrian, on a public street, not at a railroad crossing, to look. The rule is, that a pedestrian, having equal rights with others to the use of the streets, must exercise ordinary care for his own safety, and this is generally a question for the jury to say whether such care has been exercised. Millsaps v. Brogdon, 97 Ark. 469.
It is next insisted that, according to the undisputed evidence, appellant did not own the machine nor control it, but was merely riding therein with his wife, who was driving, and that for that reason no liability on his part is established. It is contended, in other words, that, it being shown affirmatively that the wife was not acting under the compulsion of the husband, he is not responsible for negligence on her part which caused the injury. In this contention learned counsel are mistaken as to the law on the subject. At common law the husband was liable for torts committed by the wife, whether committed in or out of his presence, or whether committed at his command or not. Such is the law in this State now. Kosminsky v. Goldberg, 44 Ark. 401; Jackson v. Williams, 92 Ark. 486. The only difference is that where the tortious act is committed in the immediate presence and under the direct compulsion of the husband, the wife is not liable, and the husband alone is liable. In other instances, where the tort is committed in the absence of her husband or, if in his presence, without any control or compulsion on his part, the husband and wife are jointly liable and must be joined in the action, the liability of the husband ceasing upon the dissolution of the marriage relation. Kosminsky v. Goldberg, supra. No question was raised below as to the failure to join the wife as defendant in the action, and that question must be deemed as waived, and can not be raised here for the first time. Townsley v. Yentsch, 98 Ark. 312. But, aside from the question of the husband’s common-law liability for torts of the wife, we are of the opinion that the evidence was sufficient to warrant the jury in finding .negligence on the part of appellant. The rule is, that where one rides in a public conveyance, or merely upon the invitation of some third party, and exercises no control over the driver, and is not guilty of any positive act of negligence, the negligence of the driver can not be imputed to him so as to render him liable for injuries to another person. St. Louis & S. F. Rd. Co. v. McFall, 75 Ark. 30; 1 Thompson on Negligence, 502; Little v. Hackett, 116 U. S. 366; New York, L. E. & W. Rd. Co. v. Steinbrenner, 47 N. J. Law 161, 23 A. & E. Rd. Cases, 330. This rule can not however, be extended so as to afford an avenue for the husband’s escape from liability on account of negligent act of his wife or minor child with whom he is driving in an automobile or other vehicle. He is presumed to exercise some control over them under those circumstances, at least to the extent of preventing an act of negligence which is calculated to result in injury to other persons, and it is his positive duty to do so. In this instance the husband was sitting beside his wife, who was driving the machine, and whatever danger there was in driving too near the street car was as obvious to him as it was to her. He needed no knowledge or experience in the operation of the machine in order to apprise him of such danger. To say that the husband was not liable for the negligent act of the wife committed under those circumstances would be to absolve him entirely from any duty to fellow-travellers.
The court gave an instruction which is in conflict with some of the views we here express, but as it was in appellant’s own favor and the verdict, notwithstanding that, was against him, he can not complain of it.
We are of the opinion that the verdict was supported by the evidence, and it is not contrary to any rule of law applicable to the facts of the case. The judgment is therefore affirmed. | [
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Lee Seamster, Chief Justice.
This is a Petition for Writ of Error Coram Nobis. Petitioner was the appellant in the case of Turner v. State, 224 Ark. 505, 275 S. W. 2d 24; and our opinion was delivered on January 24, 1955.
The appellant in due time filed a petition for a rehearing in the case and the petition was denied on the 28th day of February, 1955. The appellant now complains of the action of the Circuit Court in this; that before the trial of the case the appellant on May 17th, 1954, filed a motion in the trial court that he be sent to the State Hospital for Nervous Diseases for a mental examination; that the trial court appointed two doctors to examine the appellant and report to the court their findings as to the sanity of the appellant at that time and on April 14th, 1954, the day the deceased was shot. The two doctors examined appellant and found him to be sane on both occasions. A Motion was filed in the trial court by Turner’s lawyers asking permission to cross-examine the doctors making the report. Their report does not go to the merits of the case and was never presented to the jury. The trial court appointed the doctors to examine the appellant as provided by law for the purpose of ascertaining whether the appellant had any symptoms of insanity at that time or at the time of the shooting, so that the court might determine the advisability of lending him to the State Hospital to have a psychiatric examination of the prisoner.
This same question was before the court on appeal. The opinion in this case takes up most of four closely printed pages discussing this very point. The last sentence is as follows: “But no rule of law requires that cross-examination be allowed of the doctors who make the examination in the first instance merely for the purpose of determining whether there are grounds for sending the defendant to the State Hospital for a mental examination. ’ ’ The appellant now complains that the order placed on the record of the trial court would indicate that the appellant or his attorneys selected the two doctors to examine the prisoner — The majority opinion clearly indicates that the two doctors were selected by the trial court and that they examined the prisoner, reported, their findings to the court for the court’s information, and for its action on appellant’s motion to be sent to the State Hospital for a sanity test.
The State has filed a response to the petition herein, and has attached to the response a detailed certified report from the State Hospital, covering the period from March 28th to May 11th, 1955 — The report finds that the prisoner is now and was at the time of the shooting and at the time of the trial sane.
The question raised here has been determined by this court on the appeal of the case from the Circuit Court.
The sworn affidavit of Dr. Rowland R. Robins is attached to the petition. He states, in substance that he has been Turner’s family doctor for 10 years. Has treated him for peptic ulcer and on a few occasions opiates were required to relieve him from severe pain; that he is emotionally frustrated and quick tempered from the slightest provocation. This behavior pattern suggests that there must be some psychotic tendencies. The record further reflects that Dr. Robins was in the court room and appellant’s attorney offered his testimony at the preliminary hearing when the court had before it the motion to send the prisoner to the State Hospital. The court refused to hear his testimony then, but did call two other doctors of the court’s choosing. Dr. Robins was present again at the trial (Tr. P. 544-548). He testified in chambers about the prisoner’s condition with reference to his ability to testify at that trial. He had administered medicine to him on the morning of the day he was to testify. Also gave him a nimbutal to make him sleep — The effects of which would be gone in about 3 hours. He thought because the prisoner had not slept the night before that he would be stronger mentally and physically, and his mind would be clearer after a night’s sleep. Dr. Robins was not used as a witness before the jury to testify as to the sanity of the appellant and did not question his sanity while testifying in chambers — It was his physical condition in question then, together with the mental dullness that goes with pain and lack of sleep.
In the recent case of Jenkins v. State, 223 Ark. 245, 265 S. W. 2d 512, we had occasion to consider and discuss the writ of error coram nobis; and what was there said applies here:
"We have also held that where there is a suggestion of the present insanity of the accused at the time of his trial, the failure of the trial court to then institute an inquiry into that question must be corrected, if erroneous, by appeal or writ of error and not by writ of error coram nobis. Kelley v. State, 156 Ark. 188, 246 S. W. 4; Sease v. State, 157 Ark. 217, 247 S. W. 1036.”
The appellant had a trial which was affirmed on appeal and a rehearing was denied — all the facts now alleged were set out in the transcript and fully discussed by the court in its opinion in this case. We hold that no error of fact has been shown to exist in this case. The Writ is denied. | [
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J. Seaborn Holt, Associate Justice.
Appellee, Manhattan Credit Corporation, brought this suit to -recover $1,200 aiid interest alleged to be due on a note which was secured by a mortgage on an automobile. Material facts appear not to be in dispute and were stipulated as follows : “On March 15, 1955, the defendant, Mrs. Earnest Hughes, purchased from the defendants, Searcy Truck and Tractor Company, at their place of business at Searcy, Arkansas, the vehicle involved herein. Said purchase was completed about 4:00 p. m. on said date and Mrs. Hughes gave defendants a check upon the First National Bank of Little Bock, Arkansas, in the amount of $3,058.50 in full payment of the purchase price of said vehicle and including the sales tax and cost of the 1955 license. The defendants gave to Mrs. Hughes on the same afternoon the customary dealer’s bill of sale,” . . . which contained this provision, “And we hereby covenant that we are lawful owners of the above described motor vehicle, that the same is free from all incumbrances except None. That we have good right to sell same, and that we will warrant and defend the same against all lawful claims and demands whatsoever except None.”
“Defendants, on the same afternoon, accompanied the said Mrs. Hughes to the license bureau at Searcy, Arkansas, and assisted her in making application for an Arkansas registration certificate and title certificate and giving their check for the sales tax and license tax; said application being attached hereto. . . . That said check was twice deposited for collection by the defendants, first, on March 19,1955, and next on March 25,1955, and was returned by the First National Bank of Little Rock, marked: ‘Unable to locate account.’ That the said Mrs. Earnest Hughes, Jr., had no account at said bank at said time. That on March 21,1955, the said Mrs. Earnest E. Hughes applied to the plaintiffs, Manhattan Credit Corporation, for a loan on said automobile' and on the 23rd day of March, 1955, the same was granted and she thereupon executed the note and mortgage described in plaintiff’s complaint, the original of which are hereto attached. . . . That at the time said loan was made the said Mrs. Hughes had in her possession, and delivered to plaintiffs an Arkansas Registration Certificate and an Arkansas Certificate of Title in her name as the owner of the vehicle, showing no liens or encumbrances. That plaintiff advanced to the said Mrs. Hughes the sum of $1,200.00 and took her said note in the amount of $1,694.40, which included interest in the sum of $159.13, insurance premiums as follows: Collision and Comprehensive, $224.00, Liability, $43.50, Life Insurance, $67.77. That no amount has been paid upon plaintiff’s note or mortgage and there is now due the plaintiffs the amount of $1,200.00, plus accrued interest of $38.00. That on or about April 1, 1955, the defendants, Searcy Truck and Tractor Company, repossessed the vehicle at the home of Mrs. Earnest E. Hughes, Jr., in Lonoke County. That the plaintiff, Manhattan Credit Corporation, after execution of said note and mortgage, obtained a certificate of title to said vehicle showing a lien in their favor; the same being attached hereto. . . .”
The trial court, sitting without a jury, found that Mrs. Hughes had obtained possession of the automobile by fraudulent means amounting to larceny but that ‘ ‘ The issuance of a certificate of title to said vehicle (by the Arkansas Revenue Department) pursuant to the bill of sale, and the application for title showing no liens there on, gave to Mrs. Hughes, sufficient title to said vehicle to convey the same to innocent third parties. The plaintiff, the Manhattan Credit Corporation, was entitled to rely upon the certificate of title, issued by the State of Arkansas, in making said loan to the defendant, Mrs. Earnest Hughes, as against the defendant, the Searcy Truck and Tractor Company. By the mortgage upon said vehicle they obtained a superior title thereto as against the defendant, the Searcy. Truck and Tractor Company, ’ ’ . . . and rendered judgment for appellee in amount of $1,200 plus $38 interest. This appeal followed.
Appellant says: “. . . the issues presented by this appeal seem to narrow down to the question of whether the issuance of an Arkansas Certificate of Title is sufficient to give title to one who has secured possession of an automobile by larceny. ’ ’
Here the dealer, appellant, not only gave Mrs. Hughes possession of the car and a bill of sale, in which there was a covenant and warranty that the dealer, appellant, was the lawful owner of the automobile and same was free from all incumbrances, but in addition helped her to obtain a certificate of title under the provisions of our ‘ ‘ Motor Vehicles- — -Certificate of Title Act,” §§ 75-101 — 75-191, Ark. Stats. (Supp.) 1947. Section 75-133, Par. 4 (b) provides that every owner who applies for a certificate of title must, among other things, “when such application refers to a new vehicle [as here] purchased from a dealer the application shall be accompanied by a statement by the dealer or a bill of sale showing any lien retained by the dealer.” As indicated, the bill of sale, showing no incumbrances was presented to the State Revenue Department and a certificate of title was duly issued to Mrs. Hughes based upon the bill of sale. In the circumstances, we hold that appellee had a right to rely upon the certificate of title and in good faith made the loan to Mrs. Hughes and was in the position of an innocent third party. The applicable rule is announced in 18 A. L. R. 2d 813 where it is stated: “A situation frequently arises where the seller of an automobile, in taking a check in payment, delivers the motor vehicle and certificate of title to the purchaser, and the latter transfers it to an innocent purchaser for value before the dealer learns that the payment check is forged or otherwise bad. In such circumstances a preliminary issue is raised as to whether the original purchaser receives any title at all which he can convey to an innocent purchaser. If it is found that he received even a voidable title, it is generally held that the innocent purchaser, relying upon the possession of the vehicle and the certificate of title, will be protected against the claims of the original seller.” While Mrs. Hughes’ title was voidable, it does not change the situation here. Our holding in the ease of Pingleton v. Shepherd, 219 Ark. 473, 242 S. W. 2d 971, applies with equal force here: “Section 68-1424, Ark. Stats., provides: ‘Where the seller of goods has a voidable title thereto, but his title has not been avoided at the time of the sale, the buyer acquires a good title to the goods, provided he buys them in good faith, for value, and without notice of the seller’s defect of title.’
‘ ‘ This section of the statute is a part of the uniform sales act (§ 24), and is applicable to the situation presented here. The seller, Wortham, had a voidable title to the automobile by reason of having obtained it by falsely representing the check he gave for the purchase price to be good. But, his title had not been avoided at the time he sold the car to Shepherd, who bought the automobile in good faith, for value, having paid $1,455 for it, and without notice of the seller’s defect of title. Shepherd, therefore, according to the statute, acquired good title to the automobile.”
Finding no error, the judgment is affirmed. | [
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Kirby, J.,
.(after stating the facts). It is claimed by the State- that the election of 1911, at which appellants were elected to the offices held by them, was illegal and void, being held at a time other than that prescribed by law for the holding of elections in cities of the second class, and conferred no right to the offices to which they were elected.
Section 5589 of Kirby’s Digest provides: That the electors of cities of the second class “shall on the first Tuesday in April, 1888, and on the same day every two years thereafter elect one mayor,” and the various other city officers, naming them.
El Dorado, an incorporated town, was raised to the grade of a city of the second class in June, 1908, and at the next regular annual period thereafter for the election of municipal officers in incorporated towns, the first Tuesday in April, 1909, it elected all its officers as a city of the second class, to which grade it had been raised, having, after notice of its elevation to such class of cities, duly made provision for its organization into such a city by by-laws and ordinances necessary to perfect such organization, as authorized under section 5428 of Kirby’s Digest.
It is contended for appellees that by virtue of said section 5589 of Kirby’s Digest, providing for elections in cities of the second class “on the first Tuesday in April, 1888, and on the same day every two years thereafter, the term of office of the officers elected for said city in 1909, at the next regular annual period for election of municipal officers of incorporated towns, was extended to two years, and that the election held in said city at the end-of said term, at which appellants were elected to the city offices on the first Tuesday in April, 1911, was therefore a legal and valid election and entitled them to hold said offices. Said election of 1911 certainly was not held on said first Tuesday in April, 1888, nor on the same day any two years thereafter.
The act of 1887, of which said section 5589 is a part, expressly repealed all laws in conflict with it, and, being later than all other acts providing for election of officers of cities of the second class, necessarily repealed all former conflicting laws. If the officers elected at the annual period for election in incorporated towns in 1909 could hold for a term of two years in order that the next election should thereafter occur at the time prescribed by said section 5589, it must be held in 1912, thus, in effect, permitting a tenure of office of three years. While, if the officers elected at said next annual period for election after the raising of the grade of the city, notwithstanding they were officers of a city of the second class and some other and different from officers of an incorporated town, were only entitled by such election to hold for a term of one year, the length of term for the officers of the town before its change of grade, their successors should have been elected in 1910, in an even year and at the time prescribed in said section 5589.
The evident purpose of said statute was to fix a uniform date for the holding of elections in all cities of the second class, providing that it shall be “on the first Tuesday in April, 1888, and on the same day every two years thereafter,” and its meaning is so plain as to admit of no construction.
No violence is done to any provision of either law in thus holding that when an incorporated town is raised to a city of the second class and its next annual period for the election of officers of incorporated towns falls in an odd year, other than at the time fixed by said section 5589, the term of office of the officers elected thereat is but one year, as before the grade of the city was raised that the officers thereafter shall be elected at said uniform date as fixed for the election of officers in all cities of the second class.
The election under which appellants claim the right to hold the offices in question, having occurred in 1911 at a time other than that prescribed by law, was void, and they acquired no right by having been then elected to the officers which they claim to hold thereunder.
It is next contended that the curative act of April 23,1909, had effect to validate the said election. This contention, however, is not sound, since that act, by its own terms, does not reach to such extent, although it declares: “that all ordinances, resolutions and acts of the council of such cities, based upon their authority as cities of the second class, passed since the said action of the board of municipal corporations, are hereby cured and ratified and declared to be legal, binding and valid.” It was only intended to cure the informalities, irregularities, defects and errors committed in the organization of the city and to make valid all acts, resolutions and ordinances of the council of such cities as are within the authority of a city of the second class to pass. Certainly, it can not be extended to cover and cure an ordinance made by such council fixing a date for the election of city officers different from the uniform date prescribed by statute for such election, a thing entirely beyond the power of a city of the second class to do. Such being the case, the judgment of ouster was right, and is affirmed. | [
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Minor W. Millwee, Justice.
Appellee, J. Hendricks Alphin, brought this suit against appellant, Sam D. Alphin, individually and as executor of the last will of James A. Alphin, deceased, seeking specific performance of an alleged oral contract between appellee and the said James A. Alphin whereby the latter agreed to execute a will leaving to appellee one-half of the property received by James A. from his father J. S. Alphin, who was also the father of appellee and appellant. In the decree appealed from, the chancellor found that a valid oral contract was made and a will executed pursuant thereto; and that appellee was entitled to specific performance of the contract which had been fully performed on his part.
Appellee is the son of J. S. Alphin by his first wife who died in 1909. Sam D. and James A. Alphin are the sons of J. S. Alphin by a second marriage to Mary Armstrong who died in 1929 leaving a sizable separate estate to her two sons. The three sons are the sole heirs of J. S. Alphin who died in 1943. Appellee is 28 years older than appellant and 30 years older than James A. who died suddenly of polio in 1952.
J. S. Alphin was a successful businessman in El Dorado, Arkansas, for many years and owned considerable real property in and around that city. Because of his age and poor state of health he transferred all his property to his three sons by gift deed in 1937. Although appellee and appellant had previously been made trustees of the estate, appellant and James executed power of attorney to appellee who assumed the primary responsibility of managing and directing the estate which was left intact and operated under the name of “Alphin Properties.” At the time of the transfer J. S. Alphin was indebted to appellee in the sum of approximately $41,000 and owed the other two sons jointly about ■ $50,000. There was other indebtedness of about $12,500 against properties valued at more than $400,000. The loan by appellee was from funds realized from an investment in oil producing land and the joint loan by the other two sons was from funds inherited from their mother. Appellee also inherited from his mother a block in the city of El Dorado which he deeded to his father in 1912. This block subsequently became the most valuable single tract of Alphin Properties. In discharging the family indebtedness appellee was paid interest on his loan to his father but no interest was paid to Sam and James on their loan.
Appellant and James were in school and military service much of the time from 1937 to 1945. During this period appellee had exclusive management of Alphin Properties for the three owners and also directed management of the household of their father until his death in 1943. Sam married and after 1945 lived in El Dorado and assisted in the operation of the properties. In addition he was interested in the ownership and operation of a cold storage plant and a well drilling outfit. After his discharge from the military service James continued in school for a time. In the spring of 1948 he and appellant became the owners of a soft drink bottling company in Monterrey, Mexico, where James spent most of the time in managing and operating the plant until his death in 1952. He was never married.
In operating Alphin Properties appellee disposed of approximately 5,000 acres of rural lands and reinvested the proceeds in business and residential properties in El Dorado. The residential units were then sold and more business buildings constructed, and the subsequent operation of the propérties consisted primarily of collection of rentals and sale of oil and gas leases on the rural lands, the minerals under which had been reserved.
Alphin Properties maintained offices in El Dorado at all times after 1937 and had regular employees who collected rentals and kept the books and records of the business. These employees also kept appellee’s personal books without pay from him and he transacted his personal business from the offices rent free. The office phone was listed in his name bnt paid for by Alphin Properties. In addition to management of the properties appellee was local manager of Anderson Clayton Cotton Company until 1945 at a salary of $500 per month. He was also vice-president of an oil company and director of a bank. He also spent from 3 to 6 months each year from 1938 to 1951 in New Mexico in the management and operation of his 48,000-acre cattle ranch. He was active in state and local politics every two years and would postpone his trips to New Mexico until after the second primary election. He would occasionally return to El Dorado to look after some business of Alphin Properties but the expenses of these trips were paid out of personal funds. At the time of the trial Alphin Properties had a value in excess of a million dollars.
James A. Alphin made three wills. The first was executed in March, 1948, in which the bulk of his estate was left to appellant. The second was made April 14, 1948, in which, after specific bequests to relatives and churches, the Armstrong estate properties inherited by James from his mother were left to Sam and the residual estate was divided equally between Sam and appellee. The third will was made in February, 1950, in Monterrey, Mexico. After specific bequests similar to those in the second will, including a bequest of $1,000 to appellee, the bulk of the estate was left to appellant as in the first will.
After the death of James in June, 1952, the 1950 will was offered for probate in August, 1952. Appellee first filed a petition in the Union Probate Court on December 15, 1952, contesting probation of the will. No hearing was ever held on the petition which was dismissed following the decree in the instant case. In the latter part of 1953 appellee filed suit in the Union Circuit Court, Second Division, to enforce the alleged oral contract to make a will. The filing in circuit court was apparently by mistake and there was a transfer to Union Chancery Court, Second Division, and a subsequent voluntary dismissal in that court. The instant suit was then filed in the first division of Union Chancery Court on February 25, 1954.
It is undisputed that there was never any agreement or claim for compensation of any kind by appellee for services rendered in connection with his management of Alphin Properties prior to April, 1948. It is also admitted that appellee never sought nor expected compensation for services to Sam which were practically identical to those rendered to James. The instant suit is based on an alleged agreement between appellee and James shortly prior to the making of the second will on April 14, 1948. Appellee was permitted to testify, over appellant’s objections, that he had several conversations with James at that time when only the two were present; that James told him of violent quarrels with Sam because the latter charged him room and board; that Sam had “high-pressured” him into making the March will; and that when appellee expressed a desire to get away from their quarrels and suggested a division of the Alphin Properties by arbitration, James said: “I will tell you what I will do, I need you here. While I love Sam dearly, I don’t want to turn my part of the business over to him, and I am gone away from here quite a bit; I will will you half of the stuff that comes from papa if you will stay on and look after this business.” Appellee agreed and a few days later James handed him a copy of the April, 1948, will on the streets of El Dorado in the presence of Judge G-us W. Jones.
In corroboration of appellee’s testimony he offered the testimony of several close personal, political and business friends relative to the splendid manner in which he had managed Alphin Properties and concerning the actual execution and delivery of the April, 1948, will; also some general discussion of family arguments and a possible division of the estate about the time the will was executed. Only two of these witnesses gave any testimony bearing directly upon the making of the alleged oral contract. S. B. McCall, El Dorado postmaster and lifelong personal and political friend and associate of appellee, testified that he had a casual conversation with James in the lobby of the post office in the spring of 1948 in which the latter told him about making the will to appellee because lie had looked after and agreed to continue to look after the estate and hold it together. Witness described James as a distant and peculiar person who had little to say to anybody. He could not remember the substance of any other conversation with James and never mentioned the one in question to appellee or anyone else until he told it to appellee’s attorney after the instant suit was brought. Mr. McCall experienced difficulty recalling some of the exact provisions of the oral agreement.
Bruce Bennett testified that he and another person, now deceased, went to appellee’s office in the spring or summer of 1948 seeking appellee’s political help in obtaining certain jobs, Bennett being interested in an appointment as deputy prosecuting attorney. Sam and James were in the office but Sam left and “the atmosphere was charged.” When Bennett asked what was wrong, James said: “I have made a will leaving one-half of papa’s property that I inherited to Big Brother and I have left the other half to Sam.” Bennett then asked what was wrong with that and James replied: “I don’t know.” James then said he wanted appellee to continue taking care of the properties and had made a will under the agreement as related by appellee. Bennett attended summer school at Vanderbilt University in 1948. While he was on friendly terms with each of the Alphin brothers he admitted that he tried several times to persuade appellant to talk with counsel for appellee about probating the April, 1948, will. Appellee was a close friend and made loans and a donation to Avitness in his successful campaign for prosecuting attorney. He admitted having a conversation Avith appellant in Little Rock AAThen Burney Dumas Avas present but denied their testimony to the effect that he then stated that appellee was his friend and he Avould testify to whatever was necessary to help him.
Opposed to the foregoing is the testimony of appellant, his wife and several other close personal and business friends of James. The effect of their testimony is that the close brotherly relation and association existing at all times between Sam and James never existed between the latter and appellee; that appellee became very-angry when be learned of the March, 1948, will and threatened to have a bank loan by James called unless he changed the will which he was forced to do but with the intention to again change it in accordance with his own wishes as expressed in the 1950 will; and that James never at any time mentioned any agreement or contract with appellee to make a will to any of said witnesses. Medlock Harbison was a close friend of James and his constant companion for about 4 years in the operation of the bottling company in Mexico. He drafted and was named co-executor of the 1950 will which was in his possession when James died. He testified about ill feeling between appellee and James and the close relationship between the latter and Sam who was present when the 1950 will was made. James never said anything to Harbison about any agreement to make a will to appellee.
One reason advanced by appellee for James contracting to will his property to one who was 30 years his senior is that James was a “blue baby” and in poor health, but this was refuted by uncontradicted medical evidence and appellee admitted that James served in the armed forces for several years with distinction and apparently without any serious illness. In all fairness it máy be said that many of the material witnesses on both sides made little effort to conceal their bias or interest in favor of the party for whom each was testifying.
"We first consider the admissibility of the testimony of appellee regarding his conversations and transactions with James relative to the making of the alleged oral contract relied upon. We agree with appellant’s contention that this testimony was inadmissible under Schedule II of the Arkansas Constitution, commonly called “The Dead Man’s Statute.” Appellee is here seeking judgment against the appellant as executor for both real and personal property of the estate. In his answer appellant claimed all the personal property for the purpose of paying debts. His further assertion that it was necessary to use part of the real estate to pay debts is denied by appellee. An almost identical situation was presented in Jensen v. Housley, 207 Ark. 742, 182 S. W. 2d 758. After holding that the legal title to personal property of which a decedent died possessed vested in the administrator or executor upon his appointment, the court said: ‘ ‘ Since a judgment against the administrator for the personal property of the deceased was prayed by appellant in her complaint, it is obvious that, regardless of the situation as to the real estate, the administrator was a necessary party to this suit and that it was an action in which the testimony of a party as to transactions with the decedent was declared incompetent under the provisions of § 5154 of Pope’s Digest, supra. Therefore, appellant was not a competent witness to establish the contract relied upon by her.” See, also, Page on Wills, § 1751.
Appellee relies upon certain decisions both prior and subsequent to the Jensen case in which it is insisted that testimony similar to that in the instant case was given, apparently without objection. The privilege of the statute is waived when testimony is introduced without objection. Lisko v. Hicks, 195 Ark. 705, 114 S. W. 2d 9, Moreover, the question of admissibility was not raised or decided in those cases and we adhere to our holding in the Jensen case which is controlling here.
The principal remaining issue is the sufficiency of the evidence to support the decree for specific performance with this testimony excluded. While a valid oral contract to make a will or deed to real estate may be made, it is well settled that the testimony to establish such contract must be clear, cogent, satisfactory and convincing. Walk v. Barrett, 177 Ark. 265, 6 S. W. 2d 310; Kranz v. Kranz, 203 Ark. 1147, 158 S. W. 2d 926. In most all the cases sustaining oral contracts to devise or convey lands upon performance of the consideration therefor, the plaintiffs have performed usually at sacrifices to themselves and performed services not easily compensated in money. Crowell v. Parks, 209 Ark. 803, 193 S. W. 2d 483. Another generally accepted rule is stated in 69 A. L. R. 133, as follows: “It seems that in order for part performance to operate to take a contract of the kind under consideration out of the operation of the Statute of Frauds, the services must be exceptional and extraordinary in character, or it must appear that the promisee’s whole course of life was changed by performance of the contract. A change in the status of the promisee, or the assumption of a relation with the promisor different from that theretofore existing or which would ordinarily exist in the absence of a contract, is very highly regarded by the courts as evidence of an alleged oral contract to devise or bequeath property.” The usual type of consideration is a promise by one party to change his place of abode and support and care for another during life in consideration of the party’s agreement to devise the property. Fred v. Asbury, 105 Ark. 494, 152 S. W. 155; Offord v. Agnew, 214 Ark. 822, 218 S. W. 2d 370.
It seems doubtful there was any change in the status quo of appellee in the instant case. It is also questionable whether his services were so exceptional as not to be subject to pecuniary estimate as to value. However, it is unnecessary to determine such questions. When the testimony of appellee concerning the transactions and conversations with decedent about the alleged contract is excluded, it is our opinion that the competent evidence does not measure up to that high standard of clarity and certainty which the law requires. The decree is accordingly reversed and the cause remanded with directions to dismiss the complaint.
Seamster, C. J., and Bobinson, J., dissent. | [
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George Rose Smith, J.
This is a petition for a writ of prohibition to prevent the Greene circuit court from hearing a personal injury suit that is pending in that court. The only question is whether the Greene circuit court or the Crittenden circuit court first acquired jurisdiction of the controversy. See Healey & Roth v. Huie, Judge, 220 Ark. 16, 245 S. W. 2d 813.
On November 5, 1955, a car driven by Ralph Agee, a resident of Greene county, collided in Crittenden county with a car driven by the petitioner, Booker Rhinehardt, who lives in Crittenden county. On December 3 Agee and his wife brought suit in the Greene circuit court for their injuries. The dispute centers upon the validity of the summons issued in that case. The summons was erroneously directed to the sheriff of Greene county, but it was sent by the Agees’ attorneys to the sheriff of Crittenden county and was there served by a deputy sheriff of that county.
Thereafter Rhinehardt brought suit in Crittenden county for his personal injuries and obtained valid service of process upon the Agees. The Agees then filed a motion in the Greene county case asking that their summons be amended to show that it was directed to the sheriff of Crittenden county and that the amendment be held to relate back to the issuance of the writ. Rhinehardt appeared specially to resist this motion and to ask that the service upon him be quashed. The respondent denied the motion to quash and granted the Agees ’ request that the summons be amended with retroactive effect. This petition for prohibition was then filed by Rhinehardt.
Each party relies upon a prior decision of this court as controlling authority. The case urged by the petitioner is McIntosh v. Ponder, Judge, 222 Ark. 701, 262 S. W. 2d 277. That case, like this one, involved a competition for jurisdiction as between suits arising out of the same traffic accident. The first suit was filed in Jackson county, but the process was defective in that it failed to make any reference to the county in which the case was pending. The writ was directed to the sheriff of Greene county and required the defendant to answer “a complaint filed against him in the Circuit Court of said county. ’ ’ Before any effort was made to correct the defect the defendant brought an action of his own in Greene county and obtained valid service. Upon an application for prohibition it was argued that the error in the Jackson county writ rendered the process defective but not void. This contention was rejected, the court holding that the writ could not be retrospectively corrected so as to cut off the intervening rights that had arisen from the filing of the second suit.
The respondent’s principal authority is Chicago Mill & Lbr. Co. v. Lamb, 174 Ark. 258, 295 S. W. 27. That case did not involve a conflict of jurisdiction. There the suit was filed in Prairie county and the summons was directed to the sheriff of that county. But, as in the case at bar, the writ was sent to another county for service. In sustaining the trial court’s refusal to quash the service we held that the mistake was a mere clerical error which could be corrected despite the defendant’s objection.
There is manifestly no conflict between the two decisions that are cited. In the Lamb case the defect of directing the writ to the sheriff of the wrong county was regarded as a clerical error that could be retroactively amended, in spite of the intervening motion to quash. In the McIntosh case the total failure to identify the court which issued the writ was held to render the summons void, so that it could not be retrospectively corrected to defeat jurisdiction in the rival case filed by the defendant.
Here the petitioner, whose rights undoubtedly intervened between the issuance of the Greene county summons and its subsequent correction, relies strongly upon this sentence in the McIntosh opinion: “But in the case at bar the right of McIntosh to litigate the issues in Greene county had intervened, and the court erred in overruling the petitioner’s motions to quash. ’ ’ The petitioner contends that it is the existence of an intervening right which should control the decision in each instance. This argument does not reach the heart of the contro versy. The mere presence of an intervening right can never in itself be decisive, for it is obvious that whether an amendment is to be permitted to relate back is completely immaterial unless a right of some kind has arisen in the meantime.
The real issue is whether the Greene county writ was void or merely defective. In our opinion it was not void. The defect in the McIntosh summons was far more serious than that now complained of. There the summons failed to inform the defendant in which of the seventy-five counties he had been sued. The writ was actually misleading, as it was addressed to the sheriff of Greene county and referred only to the circuit court “of said county.” That summons failed to accomplish its basic purpose, for it did not tell the defendant where he was expected to present his defense.
No similar objection can be made to the summons in this case. In spite of the irregularity in its address, it accomplished every purpose that the writ is meant to achieve. The defect, characterized in the Lamb case as a clerical error, cannot fairly be said to have adversely affected any substantive right of the petitioner. Since the adoption of the Civil Code our practice has been liberal in permitting amendments in furtherance of justice. “The court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party.” Ark. Stats. 1947, § 27-1160. It would be a step backward to deny the privilege of amendment in this instance.
Writ denied.
McFaddin, Millwee and Ward, JJ., dissent. | [
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Minor W. Millwee, Associate Justice.
Appellant, Clarence J. Roth, rented about 250 acres of land in Drew County from appellee, T. A. Prewitt, for the production of rice and soy beans in 1948 under a written rent contract executed by the parties on April 17, 1948.
On March 18, 1949, appellant brought this suit seeking damages for an alleged breach of the rent contract by appellee in failing to furnish sufficient water to make a full rice crop. Damages were also sought on account of appellee’s alleged illegal seizure of certain farm equipment upon which he held a mortgage to secure certain advancements made to appellant under the rent contract. Appellee denied any breach of the contract on his part and asked for foreclosure of the chattel mortgage. Pending a long drawn out trial by depositions taken over a period of several years, the chancellor appointed a receiver who sold the mortgaged property at public sale to appellee under an order requiring retention of the sale proceeds until final determination of the suit. This appeal is from a decree dismissing appellant’s complaint and entering judgment for appellee on his cross-complaint in the amount of the balance due on the mortgage indebtedness after deducting the proceeds of the foreclosure sale.
The primary issue here is whether, under the terms of the written rent contract, appellee was obligated to furnish sufficient water to make a full rice crop in any event and regardless of the source of such water supply, or, whether he was only obligated to furnish the pumps, power unit and fuel necessary to pump water from a certain brake to the extent that it was available for the purpose of irrigating the rice. The only provision of the contract bearing directly on this question is set forth under the heading “Obligations of Lessor,” and reads: “B. Water: The Lessor will provide pump, pipe, and power unit sufficient to lift water from the Brake sur rounding said land to be farmed and will furnish fuel and oil to operate said power unit.” Under another provision of the contract, appellant, as Lessee, agreed “to operate the pump which will furnish water for said rice lands.”
An unusual and severe local drouth in the summer of 1948 caused a scarcity of water in the brake surrounding the rice lands which the parties thought would afford an ample supply for irrigation purposes. Appellee installed a second pump and power unit to get more water from the brake and built a dam to impound the water. The brake dried up, resulting in an insufficient supply of water to produce a full rice crop and a substantial loss to both parties. As the learned chancellor pointed out in his findings, it seems to be admitted that the severe drouth caused the scarcity of water in the brake and there is no contention that the damages were caused by any failure on the part of appellee to furnish sufficient pumps, pipe, power units and fuel to lift the water from the brake for irrigation purposes.
In determining the issues in favor of appellee, the chancellor held that the rent contract was clear and unambiguous concerning appellee’s obligation relating to water, which was to provide pump, pipe, power and fuel sufficient to lift the water from the brake and make it available for irrigation purposes. In short, that the proviso in the contract relating to water meant exactly what it said, and did not mean that appellee guaranteed a sufficient supply of water to make a full rice crop, regardless of the source of such supply.
Appellant earnestly insists that the trial court erred in his interpretation of the contract. In making the contention that the contract obligated appellee to furnish a sufficient supply of water to make a full rice crop, appellant concedes that the contract is clear and unambiguous but he relies upon the case of Gibson v. Lee Wilson & Co., 211 Ark. 300, 200 S. W. 2d 497. The contract in that case required the lessor to furnish “a suitable irrigation plant” with “sufficient capacity to properly irrigate” the rice acreage, which he failed to do in time to save the rice crop according to the overwhelming evidence in the case. In affirming a judgment for the lessee, we referred to the lessor’s “positive agreement to furnish sufficient irrigation” as required by the contract. In the case at bar it is undisputed that appellee furnished adequate pumping equipment and fuel in a timely manner to lift all available water from the adjacent brake for use in irrigating the rice land and this was the extent of his obligation under the plain language of the contract.
It is elementary law that courts do not make contracts for the parties but only construe them; and where parties make a contract in clear and unambiguous language, it is the duty of the court to construe it according to the plain meaning of the language employed. St. L. S. W. Ry. Co. v. Cook-Bahlau Feed Co., 187 Ark. 106, 58 S. W. 2d 428. It is also well settled that contemporaneous oral evidence is inadmissible to vary the terms of an unambiguous written contract. Hoffman v. Late, 222 Ark. 395, 260 S. W. 2d 446. In Stoops v. Bank of Brinkley, 146 Ark. 127, 225 S. W. 593, the court said: “The first rule of interpretation is to give to the language employed by the parties to a contract the meaning they intended. It is the duty of the court to do this from the language used where it is plain and unambiguous. Where the language is clearly susceptible of hut one meaning, parol evidence to vary the terms of a written contract is not admissible. Where the meaning of the language of the contract is doubtful, or is susceptible of more than one meaning, parol evidence may be resorted to show the real nature of the agreement. The admission of such testimony is, within the meaning of the terms employed in the written contract, to render certain that which is uncertain and to determine just what in fact the writing was intended to express.” See also, Love v. Couch, 181 Ark. 994, 28 S. W. 2d 1067; Lee Wilson & Co. v. Fleming, 203 Ark. 417, 156 S. W. 2d 893.
As an alternative argument appellant contends that the rent contract is ambiguous and that parol evidence of prior negotiations, acts of the parties and custom and usage should have been considered by the chancellor as showing an intention of the parties to require appellee to furnish a sufficient supply of water to make a full rice crop after the brake dried up. Since we have concluded that the chancellor correctly held the contract clear and unambiguous, it is unnecessary to consider the interesting arguments by counsel for both parties on these extraneous matters.
The decree is affirmed. | [
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George Rose Smith, J.
This is a suit brought by the appellee to quiet her title to a small tract of land in Washington County. The case turns upon the construction of this language in the will of W. G. Taylor, who is the parties’ common source of title: “I will and bequeath to my beloved wife, Ida Taylor, all the rest and residue of my estate, both real and personal, to have and enjoy during her lifetime, and at her death I will and bequeath that all my property go to and become the absolute property of my adopted daughter, Dorothy Taylor, now Dorothy Wilson, of Fort Smith, Arkansas, and the children of her body born, to have and enjoy forever.”
At Taylor’s death in 1934 Dorothy Wilson, who later became Dorothy Eubanks, was the mother of three children. The testator’s widow, Ida Taylor, died some years after her husband’s death, and thereafter Mrs. Eubanks and her three children conveyed their interest in the property to the appellee. In 1949 there was born to Mrs. Eubanks a fourth child, the appellant in this case.
The trial court construed Taylor’s will as being in substance a devise to Ida Taylor for life with remainder to Dorothy Eubanks and her bodily heirs. Upon this premise the chancellor held that Mrs. Eubanks, who is still living, received only a life estate under Taylor’s will and that the appellant is a remainderman having an undivided future interest in the land. On direct appeal it is argued that Taylor’s devise was simply to Dorothy Eubanks and her children and that the appellant holds a present possessory interest as a tenant in common with the appellee. On cross-appeal the appellee contends that the appellant has no estate whatever in the property.
The first step is to determine the meaning of the devise to Dorothy Eubanks ‘ ‘ and the children of her body horn.” We agree with the chancellor’s view that this question is controlled by the decision in Dempsey v. Davis, 98 Ark. 570, 136 S. W. 975, where the conveyance was to the grantors’ daughter “and her children, the natural offspring of her body.” It was held that the quoted words are synonymous with ‘ ‘ bodily heirs. ’ ’ The phrases used in the two cases are so similar in fundamental meaning that to draw a somewhat artificial distinction between the two would only create needless uncertainty for the future.
Thus we have what amounts to a devise to Ida Taylor for life and at her death to Dorothy Eubanks and her bodily heirs. It is settled by five decisions of this court that the effect of this language was to vest the fee simple in Dorothy Eubanks upon the death of Ida Taylor. Bell v. Gentry, 141 Ark. 484, 218 S. W. 194; Pletner v. Southern Lbr. Co., 173 Ark. 277, 292 S. W. 370; Bowlin v. Vinsant, 186 Ark. 740, 55 S. W. 2d 927; Adams v. Eagle, 194 Ark. 171, 106 S. W. 2d 192; Cox v. Danehower, 211 Ark. 696, 202 S. W. 2d 200. By the doctrine of these cases the appellant has no interest in the land now in dispute, since his mother received the fee and later conveyed it to the appellee.
The chancellor recognized the force of the precedents cited; bnt, aware that the case was to be appealed in any event, he explained in detail his reasons for thinking that the earlier decisions should be overruled. Other learned writers have also questioned the technical soundness of the established rule: Sadler, The Construction of the Arkansas Fee-Tail Statute, 4 Ark. L. S. Bull. 29; Meriwether, A Survey of Recent Arkansas Real Property Cases, 3 Ark. L. Rev. 62, 66; Core, Transmissibility of Certain Contingent Future Interests, 5 Ark. L. Rev. 111, 122.
We shall not restate the various persuasive arguments for and against the rule adopted in Bell v. Gentry, for the doctrine of that case and those that have followed it has become a rule of property. To repudiate the rule by judicial decision would have the effect of invalidating titles that were acquired in reliance upon the rule in question. If a change in the law is really desirable it should be brought about by legislation, which operates with prospective effect only and does not upset titles already vested.
Affirmed on direct appeal, reversed on cross-appeal.
Mr. Justice Ward dissents. | [
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Minor W. Millwee, Justice.
The parties to this suit are neighbors who reside on adjacent properties in the city of Clarksville, Arkansas. Appellant shot and killed appellee’s registered pointer bird dog on the night of Jnne 27, 1954. In an action by appellee for damages appellant admitted killing the dog bnt asserted that it was done to protect his cattle from attack by the dog after due notice to appellee of prior trespasses and a request that the dog be kept away from appellant’s property. The jury found for appellee and fixed the market value of the dog at $20. In response to a special interrogatory the jury also found the killing to be willful, malicious and wanton as alleged by appellee. The trial court entered judgment for treble damages in the sum of $60.00.
For reversal appellant challe,nges the sufficiency of the evidence to support the verdict, and asserts that he had a legal right to kill the dog under the undisputed evidence.
Each of the parties maintains a pasture on his premises in which he keeps several head of cattle. According to the testimony of appellant he talked to appellee’s wife by telephone about 2 or 3 months prior to the killing and told her appellee’s dog was running his cattle and asked that it be kept up. In response to a telephone call from Mrs. Fletcher Thompson, another neighbor, on the night in question, appellant stated that he secured his gun and a flashlight and proceeded to his pasture where he found appellee’s bird dog and a German Shepherd chasing his cattle. He ran the dogs away and waited a few minutes when they returned and again started chasing and snapping at the cattle. After backing the dogs off he intentionally shot and killed appellee’s dog bnt was unable to get a shot at the other dog because it was between appellant and a calf until it ran away. Appellant also stated that he noticed an insignificant bite on the tail of a calf the next morning; also a gash about 3 inches long on the left front leg of a steer which he first thought was a simple cut but which required treatment by a veterinarian about 2 months later when it failed to heal properly. Although appellee’s dog had chased his cattle and had been a regular nuisance around his place for 6 or 7 months, appellant admitted that he had never talked to appellee about it personally and only talked to appellee’s wife the one time. Mrs. McDaniel testified that she had seen appellee’s dog in their pasture running cattle “a number of times” previously but did not see it on the night in question.
Mrs. Fletcher Thompson, who telephoned appellant on the night in question, testified that she had heard dogs running appellant’s cattle previously. Although she had seen appellee’s dog in her yard and in appellant’s yard often, she had never seen it running appellant’s cattle.
Appellee testified that appellant had never notified him that the dog was running his cattle nor asked that it be kept up. Appellee and others who frequently hunted with the dog testified they never knew of it running cattle and that it was afraid of, and would run from, a cow. Appellant had the dead dog hauled to the “city dump” without informing appellee that he had killed it. Appellee learned of the dog’s death when municipal authorities objected to it being placed on the dump. Appellee stated that he kept the dog up most of the time and that -it had never chased the cattle he kept in his own pasture. On cross-examination appellee further testified : “ Q. I will ask you this. Wasn’t that dog awfully hard to keep up? A. Yes. Q. He would chew the wire into on the pen? A. Yes. Q. And get out? A. Yes. Q. Did you know that he ate the wire into on Charlie’s [appellant’s] pen and got in there with a little registered screw tail bull dog of his, and that they had to have her operated on, to take the pups from her? A. I think that is the reason that Charlie killed my dog was on that account, instead of him running his cattle. Q. That would be a good reason wouldn’t it? A. That is not for me to decide.”
Appellee’s wife testified that 6 months prior to the killing appellant told her over the telephone that some dogs were running his cattle and that he thought one of them might be appellee’s dog but he was not sure. Appellant promised to call back and let them know if he found out for sure that appellee’s' dog was involved but he never did so. She informed appellee of this conversation.
Appellant says the undisputed evidence shows that ho had a right to kill the dog in defense of his cattle. It is insisted there is no evidence to dispute the fact that the dog had been running his cattle for several months with appellee’s knowledge and was attacking the cattle at the time of the shooting. The evidence as a whole shows a sharp factual dispute as to whether the dog had been molesting appellant’s cattle or would chase cattle at all; also as to whether appellee permitted the dog to run at large with knowledge of any vicious tendency. While it may be true that appellant was the only person present at the time of the killing, we have repeatedly held that the testimony of a party to a suit, or even one interested in the result of litigation, is not to be treated as undisputed in testing the legal sufficiency of the evidence. Phelps v. Partee, 208 Ark. 212, 185 S. W. 2d 705; Elliot v. Foster, 216 Ark. 104, 224 S. W. 2d 353.
Since appellant admitted that he killed the dog intentionally, it devolved upon him to show that he acted in good, faith in order to protect his property, and not negligently or wantonly. Kanis v. Rogers, 119 Ark. 120, 177 S. W. 413. This issue together with the questions whether appellee permitted his dog to run at large with knowledge that it would injure cattle, and whether appellant acted in good faith or willfully, maliciously and wantonly in killing the dog were submitted to the jury under instructions to which no objection was made by either side. In our opinion the evidence was sufficient to sustain the verdict. The fact that we might have reached- a different conclusion if we had been the triers of fact would not justify us in invading the province of a Johnson county jury.
Affirmed.
Chief Justice Seamster not participating. | [
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Robinson, J.
This is an appeal from tbe allowance of a $5,000.00 executor’s fee and an $8,500.00 attorneys’ fee in tbe administration of tbe estate of DiMitry G. Saad.
Saad died testate about the first of January, 1952, and appellee, Ai’kansas Trust Company, was named executor. Appellees, Wootton, Land and Matthews, were employed as attorneys for the executor.
The deceased had operated a department store in the city of Hot Springs. An inventory filed shows personal property valued at $77,977.98 and real estate valued at $66,000.00. Claims against the estate were allowed to the extent of, about $50,000.00; the widow elected to take against the will. The homestead valued at $18,-000.00 was part of the real property.
After everything was considered, it was decided advisable to operate the store. The executor did so under orders of the court for about a year, during which time about $158,000.00 passed through the hands of the executor.
Appellant claims that the personal property amounted to $73,720.98 and, based on this figure, the executor is entitled to a fee of only $2,502.87 and that the attorneys’ fee should not be more than $1,500.00.
Ark. Stats., § 62-2208, paragraph (a), provides: “The personal representative shall be allowed such compensation for his services when and as earned, as the court shall deem just and reasonable, not to exceed, except as provided in sub-section b hereof, ten percentum of the first one thousand dollars, and five percentum of the next four thousand dollars, and three percentum of the balance of the value of the personal property passing through the hands of the personal representative, provided that compensation shall be allowed only on the value of such property as shall have been fully administered.”
Paragraph (b) provides that the executor may be allowed an additional sum for work done in connection with the real property.
At first glance, the fees allowed by the Probate Court may appear to be a little high. It is realized, however, that the Probate Court is in a much better posi tion to properly evaluate the services rendered than is this court, and when the work done by the executor and attorneys, as revealed by the record, is studied, we cannot say that the Chancellor abused his discretion in the allowance of fees.
In Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12, the court said:
“Being familiar with the services rendered, the judge, in fixing the allowance, could act upon his own knowledge of their value and we would not overturn his findings thereon unless clearly erroneous.”
In Lilly v. Robinson Mercantile Company, 106 Ark. 571, 153 S. W. 820, it is said:
“The court was sitting as a jury in the determination of the matter and took into consideration the facts of the service performed, as well as the interested attorney’s opinion of the value thereof, but he was not required to lay aside his own general knowledge and ideas of such service and the value thereof and should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be given to the opinion expressed and in no .other way could he have arrived at a just conclusion.”
Appellant contends that the executor’s fee should be limited to the original personal property inventory as adjusted as a basis for computing the fee, and that a proper construction of the statute fixing the executor’s fee would so limit it. They further contend that if the fee can be based on the amount of money passing through the executor’s hands when a business is being operated and merchandise is being bought and sold, it would be entirely possible for the whole estate to be consumed in fees. It will be recalled that the court is not required to allow thé executor a minimum sum; only the maximum is limited and it cannot be anticipated that the court would allow an unreasonable fee or one not earned in' good faith.
In this instance, the executor actually operated the store for about a year. About $158,000 passed through its hands. It is .true that an accountant was employed at a salary of $75.00 per month plus a fee of $1,000.00, but his work consisted principally of bookkeeping. Of course a business of this kind would not operate satisfactorily without a bookkeeper. There were also other employees.
In so far as the executor is concerned, it appears that $5,000.00 is not too much to be paid for the management and operation of a store the size of the one involved for a period of a year, not considering the tremendous amount of other work that was also done.
It can be seen that there was hardly a day during the two year period that the executor and the attorneys did not have to perform some duty in connection with the administration of the estate. A will contest was filed and, although the cause did not actually go to trial, the Probate Judge was in a position to know the work the attorneys for the executor did in connection with preparing for the trial. It may have been due to their diligence and hard work that the contestants did not press for a trial. An alleged holographic will was also filed for probate. The record shows that the attorneys for the executor Avere prompt in looking into this matter, and after they filed a motion for an examination of the alleged will by experts it Avas withdrawn.
It is contended that the attorneys’ fee is high when the value of the estate is considered. The value of the subject of the litigation, hoAA7eAmr, is only one factor in arriving at a reasonable attorney’s fee. The actual hours spent in working on the litigation are also important, and in this particular case fifty-nine separate motions, petitions, reports and orders appear on the docket. The training, skill and diligence of an attorney should not be ignored. When all of these matters are taken into consideration, we do not believe an $8,500.00 fee is unreasonable.
In Sain v. Bogle, 122 Ark. 14, 182 S. W. 515, the court said:
“We think it fairly deducible from our own cases and from the case note above referred to that in determining what is a reasonable attorney’s fee it is competent and proper to consider the amount and character of the services rendered, the labor, time and trouble involved, the nature and importance of the litigation or business in which the services are rendered, the amount or value of the property involved in the employment, the skill or experience called for in the performance of the services, and the professional character and standing of the attorneys.” ' .
In Rachels v. Garrett, 153 Ark. 343, 240 S. W. 1071, the court said:
“The value of the plaintiff’s services in the instant case is a matter with which the chancellor must necessarily have been familiar. The whole proceedings regarding the insolvent bank were before him. When the court is informed of the nature and extent of such services, its own experience furnishes it with an important element necessary to fix their value.”
A lawyer, energetic and possessed of integrity and ability, has spent many long years preparing himself to look after his clients’ interests in the best manner possible. He is entitled to collect fees commensurate with the position of responsibility and trust which he holds, and he is entitled to fees that will enable him to live with the dignity expected of him by the public in general.
Affirmed.
Justices George Eose Smith and Ward dissent.
Seamster, C. J., not participating. | [
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Ed. F. McFaddin, Associate Justice.
Appellee, as administrator of the estate of J. C. Caruth, claimed that his intestate was negligently killed by a train of appellant. From a verdict and judgment for appellee, there is this appeal.
I. Sufficiency Of The Evidence. Appellant most vigorously insists that there was no substantial evidence to sustain the verdict; and this point requires a review of the testimony. On the afternoon of April 19, 1953 the deceased, J. C. Caruth, was sitting on the edge of a cross tie on the main line track of the Missouri Pacific Eailroad at a place north of Bald Knob in White County. He was struck and killed by a southbound train. The contention of the appellee was that if the trainmen had kept a lookout, as required by law (§ 73-1002 Ark. Stats.), they could have discovered Caruth’s peril in time to have stopped the train without striking him .
The appellant’s contention was that the trainmen did keep a proper and legal lookout, but that it was too late to stop the train when Carnth’s peril was discovered and that it was discovered as soon as possible. A considerable portion of the testimony related to: (a) the straightness and levelness of the track for a considerable distance north from Carnth’s position of peril; (b) the distance from Caruth at which the engineer and fireman could have discovered him on the track; and (c) the distance required to have stopped the train after Caruth’s position of peril could have been discovered. The appellant introduced evidence that it was impossible for the train operators to have discovered Caruth at a distance greater than 1,320 feet; that it required 2,640 feet to stop the train; and that the train did in fact stop in said last mentioned distance.
But in testing on appeal the sufficiency of the evidence to take a case to the Jury, or to support the verdict rendered, it is our duty to examine the evidence in the light most favorable to the verdict ; and when so viewing the evidence in the case at bar, we find that the witnesses for appellee made a case for the Jury. Henry Varnell, City Marshal of Bald Knob, testified that by actual test he was able to state that at a distance of 6-10ths of a mile (i. e. 3,168 feet) to the north he could see a man seated on the track at the place where Caruth was seated ; that standing in the middle of the railroad track and looking south he could, with his naked eye, see a man seated on a cross tie (as Caruth was) a distance of 3,100 feet down the track; and that the engineer in the locomotive would be elevated a few feet higher than a man merely standing. Other witnesses testified to visibility of 6-10ths of a mile (i. e. 3,168 feet); and it was shown that at the time Caruth was killed it was a sunny day and there was nothing to obstruct the vision of the train operators for 6-10ths of a mile from the place where Caruth was seated.
The witness, Fletcher Caruth, testified: that he had worked for both the Eock Island and the Missouri Pacific Eailroads as a porter and as a brakeman; that he had worked on passenger as well as freight trains, and on diesel as well as steam trains; that he knew the distance required to stop a diesel train; that he had worked as porter on the Missouri Pacific train from Poplar Bluff to Texarkana and knew the particular portion of the Missouri Pacific track where J. C. Caruth was struck by the train. After having been thus qualified the Court permitted the witness to testify that a diesel train with ten passenger and mail cars (as was the train that struck Caruth) proceeding south toward Bald Knob at 60 miles per hour on the track in question could stop within 1,200 to 1,500 feet from the point at which the train was when the brakes were applied. Fletcher Caruth also testified that at 75 miles per hour it would require something like 14 of a mile (or 1,320 feet) to stop the train after the brakes were set, if the brakes were in good condition; and on cross-examination the witness said he did not think it would require as much as 2,800 feet distance to stop the train after the brakes were set.
It is argued that Fletcher Caruth did not know what he was talking about; but his credibility was for the jury. His testimony, if believed, was sufficient, along with all the other evidence, to take the case to the Jury on the questions of (a) whether a proper lookout was kept; (b) whether the engineer and fireman exercised due care; and (c) whether the brakes were in proper condition. We do not detail all the evidence because the foregoing covers the challenged issue. We conclude that the testimony was sufficient to take the ease to the Jury on the point here concerned.
I. Erroneous Instruction. At the request of the plaintiff, and over defendant’s general and special ex ceptions, the Court gave the following instruction to the Jury:
“You are instructed that if you find from a preponderance of the evidence in this case that the deceased, Joseph C. Caruth, was injured and killed by the operation of one of the trains of the defendant company, as alleged in the complaint, then you are told and instructed by the Court that the law presumes negligence on the part of the defendant company, and it will be your duty and you are instructed to find for the plaintiff, unless the defendant has overcome that presumption by a preponderance of the evidence in this case.”
The appellee seeks to defend the above instruction by citing such cases as St. L. S. W. Ry. Co. v. Vaughan, 180 Ark. 559, 21 S. W. 2d 971; Mo. Pac. R. Co. v. Overton, 194 Ark. 754, 109 S. W. 2d 435; and Mo. Pac. R. Co. v. Thompson, 195 Ark. 665, 113 S. W. 2d 720. It is true that in some of these cases an instruction like the one here involved was sustained; but our later cases (necessitated by the decision of the U. S. Supreme Court in Western & Atlantic R. v. Henderson, 279 U. S. 639, 73 L. Ed. 884, 49 S. Ct. 445) have held fatally defective an instruction like the one here involved. Some of our later cases holding the instruction fatally defective are: Mo. Pac. R. Co. v. Beard, 198 Ark. 346, 128 S. W. 2d 697; Mo. Pac. R. Co. v. Ross, 199 Ark. 182, 133 S. W. 2d 29; St. L. S. F. Ry. v. Mangum, 199 Ark. 767, 136 S. W. 2d 158; and St. L. S. F. Ry. v. Hovley (opinion on re-hearing), 199 Ark. 853, 137 S. W. 2d 231.
In Mo. Pac. R. Co. v. Beard (supra) this Court, speaking through Chief Justice Griffin Smith, said that the questioned instruction (there as here) made the presumption continuing evidence like the Georgia cases, rather than “. . . a mere temporary inference of fact that vanished upon the introduction of opposing evi deuce,” like the Mississippi cases; and Chief Justice Griffin Smith said:
“The instruction in the case at bar told the Jury, without qualification or reservation, to find for the plaintiff unless the defendants had overcome the legal presumption of negligence by a preponderance of the evidence. ’ ’
The instruction in the case at bar uses the same fatal language as that contained in Mo. Pac. v. Beard (supra). Our cases reported after the Beard case, and cited above, have all held fatally defective an instruction like the one here.
Other questions raised need not be discussed because they may not occur on retrial. The judgment is reversed because of the instruction heretofore quoted.
Reversed and remanded.
Mr. Justice Millwee dissents as to reversal.
Some of our cases on discovered peril as applied to the Lookout Statute are: Mo. Pac. R. Co. v. Coca-Cola Bottling Co., 154 Ark. 413, 242 S. W. 813; Mo. Pac. R. Co. v. Manion, 196 Ark. 981, 120 S. W. 2d 715; Mo. Pac. R. Co. v. Taylor, 200 Ark. 1, 137 S. W. 2d 747; and St. L. S. F. Ry. v. Beasley, 205 Ark. 688, 170 S. W. 2d 667.
See Ark. P. & L. v. Connelly, 185 Ark. 693, 49 S. W. 2d 387; and Albert v. Morris, 208 Ark. 808, 187 S. W. 2d 909, and cases there cited.
It is interesting to note that this Ross case was reversed because of the giving of an instruction like the one here involved, and that on second trial in the Circuit Court the defective instruction was omitted and the judgment for the plaintiff was affirmed by this Court, as reported in 150 S. W. 2d 211, as noted in 202 Ark. 1197. | [
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Hart, J.,
(after stating the facts). The ordinance in question was passed pursuant to the authority conferred- by section 5649 of Kirby’s Digest. The statute is as follows: “Cities of the first class are hereby authorized to require residents of such city to pay a tax for the privilege of keeping and using wheeled vehicles, except bicycles, but such tax shall be appropriated and used exclusively for repairing and improving the streets of such city. ”
In the case of Fort Smith v. Scruggs, 70 Ark. 549, the act was held valid. The court said: “The act, we think, plainly shows that there was no intention to authorize a tax upon vehicles or other property. It authorizes only a tax upon the privilege of keeping and using vehicles upon the streets of the city, and it requires that this tax shall be used exclusively for repairing and improving the streets of the city. ”
It is conceded that the only question presented by this appeal is to determine whether or not section 5649 of Kirby’s Digest, in so far as it applies to automobiles, was repealed by Act No. 134 of the acts of the General Assembly of the State of Arkansas at its 1911 session. The latter act contains twenty sections, and section 13, which particularly applies to the question at issue, is in part as follows: “The owner of a motor vehicle who shall have obtained a certificate from the Secretary of State as hereinbefore provided shall not be required to obtain any other license or permits to use and operate the same. * * * Except in this section provided, no city, town or village or other municipality shall have power to make any ordinance, by-laws, or resolutions limiting or restricting the use of (or) speed of motor vehicles, and no ordinance, by-laws or resolution heretofore or hereafter made by any city, village or town or other municipal corporation within the State, by whatsoever name known or designated in respect to or limiting the speed of motor vehicles, shall have any force, effect or va lidity, and they are hereby declared to be of no validity or effect. ” The section also contains a proviso that nothing in the act contained shall be construed to affect the power of municipal corporations to make and enforce ordinances, rules and regulations affecting motor vehicles' which are used within their limits for public hire.
Section 20 defines the public highways and local officers governed by said act:
“Section 20. Public highways shall include any highway, county road, State road, public street, avenue, alley, park, parkway, driveway, or any other public road or public place in any county, city or village, incorporated town or towns. Local authorities shall include all officers of counties, cities, villages, incorporated town or towns and townships.”
There was no express repeal of section 5649 of Kirby's Digest by the statute enacted in 1911. In regard to repeals by implication, in the case of Wilson v. Massie, 70 Ark. 25, the court said: “The rule is that where the Legislature takes up a whole subject anew,_and covers the entire ground of the subject-matter of a former statute, and evidently intends it as a substitute for it, the prior act will be repealed thereby, although there may be no express words' to that effect, and there may be in the old act provisions not embraced in the new.”
The statute, enacted in 1911, is very broad in its terms. It is plain that it intended to regulate the use of automobiles throughout the entire State, and, with certain exceptions stated in the act, to prescribe the only rules in respect thereto. The act provides that the owners of motor vehicles shall obtain a license from the Secretary of State and pay a fee therefor, and, when that is done, he shall not be required to obtain any other license or permit to use and operate the same. The act further regulates the speed of motor vehicles on the public highways and the streets of cities and towns, and expressly provides no city or town shall have power to make any ordinance limiting or restricting the use of or speed of motor vehicles, and that no ordinance heretofore or hereafter made in respect to limiting the speed of motor vehicles shall have any force, effect or validity and is declared to be of no validity or effect. Cities and towns are given the power to make rules and regulations in respect to motor vehicles used for hire. In fact, authority that cities and towns may exercise with respect to the use of motor vehicles are expressly- enumerated in the act, and all other powers with regard thereto are expressly prohibited.
In discussing a precisely similar question, in the case of Buffalo v. Lewis, 192 N. Y. 193, the court held (quoting from syllabus): “The motor vehicle law (L. 1904, ch.'538) was clearly designed as a new, complete and general enactment to take the place of all the previous statutes, ordinances or rules relating to the use of motor vehicles upon the streets and highways of this State, and must be held to have repealed all former statutes relating to such subject-matter, even if such former acts are not in all respects repugnant to its provisions. The common council of the city of Buffalo had, therefore, no-power, in 1907, to enact an ordinance in pursuance of the provision of chapter 31 of the Laws of 1904, amending section 17 of the city charter (p. 1891, ch. 105), and authorizing it to enact an ordinance imposing a tax upon the owners of motor vehicles for the privilege of operating them upon the streets of such city, since the provisions of the statute in question must be considered as repealed by the subsequent enactment of the motor vehicle law, and that statute expressly provides that, with certain exceptions not applicable to the question under consideration,. local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring of any owner or operator of a motor vehicle any license, or permit, to use the public highway contrary to or inconsistent with its provisions. ” In discussing the subject the court said:
“In this case the intention of the Legislature to repeal all laws inconsistent with and contrary to it and to make the act complete and exclusive is further shown in reserving to municipalities the right to limit by ordinance, rule or regulation the speed of motor vehicles on the public highways, and to make, enforce and maintain further ordinances, rules or regulations affecting motor vehicles which are offered for public hire. ” See also State v. Thurston, 28 R. I. 265, 66 Atl. 580.
We think it plain that the two statutes are inconsistent, and that the act of 1911 was intended to supplant the prior statute with respect to the use and regulation of motor vehicles. The later act was evidently intended to cover the whole subject, and its provisions are full and complete in that respect. The provisions of the two statutes as to motor vehicles are in direct conflict, and the prior act must give way to the later statute on the subject. Statutes having for their object the regulation of the use and operation of motor vehicles in the streets, roads and highways of the State are generally upheld as a valid exercise of the police power, and are not unconstitutional as class legislation. In determining the constitutionality of a statute of this kind, the Supreme Court of Illinois in the case of Christy v. Elliott, 216 Ill. 31, said: “It is a matter of common knowledge that an automobile is likely to frighten horses. It is propelled by a power within itself, is of unusual shape and form, is capable of a high rate of speed, and produces a puffing noise when in motion. All this makes such a horseless vehicle a source of danger to pei-sons travelling upon the highway in vehicles drawn by horses. ”
Such laws as the act here in question have never been regarded as class legislation. Simply because they affect one class and not another, inasmuch as they affect all members of the same class alike, and the classification involved in the law is founded upon a reasonable basis, if these laws be otherwise unobjectionable, all that can be required in these cases is that they be general in their application to the class or locality to which they apply. They are then public in character, and of their propriety and policy the Legislature must judge. (Cooley’s Const. Lim. [16 ed.] 479-481). In Barbier v. Connolly, 113 U. S. 32, the Supreme Court of the United States said “Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment which amendment referred to by the court is the Fourteenth Amendment to the Constitution of the United States, which provides that ‘no State shall * * * deny to any person within its jurisdiction the equal protection of the laws.’ ” Christy v. Elliott, 216 Ill. 31, 3 A. & E. Ann. Cases, 487, and case note, 1 L. R. A. (N. S.) 215, and case note; State v. Swagerty, 203 Mo. 517, 11 A. & E. Ann. Cas. 725, and case note; Mahoney v. Maxfield, 102 Minn. 377, 12 A. & E. Ann. Cas. 289, and case note. Motor cars are large, powerful and capable of great speed; and, if carelessly handled, are very dangerous to the travelling public. They can be run a great distance in one day, and it is well known that the owners of automobiles do not confine the use and operation of their cars to the limits of the city or town in which they reside; but frequently drive long distances in the surrounding country and to other cities and towns. On the other hand, it is well known that vehicles drawn by horses or other animals are chiefly used in the city where their owners reside. Therefore the Legislature saw fit to leave to cities of the first class the authority to tax resident owners on the privilege of using vehicles drawn by muscular power, and to provide new and exclusive rules and regulations as to the use and operation of motor vehicles. As to the wisdom and expediency of passing the act, we have no concern. The statute is plain, and was within the power of the Legislature to enact.
The judgment will therefore be affirmed! | [
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Ed. F. McFaddin, Associate Justice.
These two cases — one from Stone Chancery and the other from Independence Chancery — have been consolidated; as the main question in each case is the custody of the three children of the parties.
In about 1945 Elmer Fulks and Martha Palmer were married in Arizona where they both were then residing; and to that marriage were born three girls, now aged nine, eight and seven years, respectively. Some time after the marriage, Mr. Fulks was sentenced to the penitentiary in North Carolina on a charge of burglary; and on August 3, 1950, Mrs. Fulks obtained a divorce from him in the Superior Court of Maricopa County, Arizona, Avhere she then lived and resided. The decree of divorce gave Mrs. Fulks the care and custody of the three children. She later married Mr. Walker and continues to live in Arizona. In 1952 Mr. Fulks, having been released from the North Carolina prison and having returned to his old home in Arkansas, went to Arizona to see his children. First he asked for, and obtained, permission to take the children on a trip of about 17 miles; and then later he brought the children to Arkansas without Court authorization and without permission of Martha Fulks Walker. She tried to have him extradited to Arizona for trial on a kidnapping charge, but extradition was refused.
Some time after reaching Arkansas Mr. Fulks filed a petition in the Stone Chancery Court to haA^e that Court award him the custody of the three children, Avhich he then had in Arkansas. Mrs. Martha Fulks Walker resisted that petition; and considerable evidence was heard, in the course of which it was discovered that Mr. Fulks actually lived in Independence County, rather than in Stone County. The Stone Chancery Court thereupon dismissed the proceedings; and from that decree Mr. Fulks has appealed to this Court in Case No. 738 herein.
Upon the dismissal of the proceedings in the Stone Chancery Court, Mrs. Martha Fulks Walker filed, in the Independence Chancery Court, a petition for a writ of habeas corpus to regain the custody of her three children. Trial resulted in a decree awarding the custody to her, and also awarding support money of $45.00 per month and a small amount for attorney’s fee. From that decree Mr. Fulks has appealed in Case No. 604 in this Court.
I. Custody Issue. The real question is the custody of the three children. We start with the decree of the Superior Court of Maricopa County, Arizona — a Court whose jurisdiction is unquestioned. Mr. Fulks entered his appearance in that case in 1950; and the Court awarded the custody of the children to their mother, the appellee here. That decree has never been changed or modified. The record herein discloses that Mr. Fulks took the children from Arizona without the consent of appellee. The fact that she tried to have him extradited to Arizona for “child stealing” indicates her attitude in the matter.
Mr. Fulks claims that conditions have changed since the rendition of the Arizona decree, and that it is for the best interest of the children that he keep them in Arkansas rather than that the mother keep them in Arizona. Apparently the Independence Chancery Court gave little weight to the evidence in regard to such claim because the decree recites:
“. . . there has been no substantial change in conditions which would warrant or authorize this Court to change the award of custody of said children made by the Arizona Courts, and that the plaintiff, Martha Fulks Walker, be awarded the immediate custody of said children . . .”
A careful reading of the entire record and study of the briefs, fails to convince us that the Chancery Court was in error. It would serve no useful purpose to review all the evidence or refer to the cited cases. Each child-custody case must rest on its own peculiar facts. That the Independence Chancery Court had the power to award support money is established by our holding in Waller v. Waller, 220 Ark. 19, 245 S. W. 2d 814.
II. Procedural Questions. When Mrs. Martha Fulks Walker filed the habeas corpu,s proceeding in the Independence Chancery Court, Mr. Fulks filed a motion that she be required to make a bond for costs, since she was a non-resident. The Court refused the motion; and Mr. Fulks claims error. Our Statute (§ 27-2301, Ark. Stats.) requires a bond for costs of a non-resident, and makes the plaintiff’s attorney liable for costs in the absence of such a bond ('§ 27-2304). It is argued that in some habeas corpus proceedings a bond for costs is not required. We need not consider that argument. Even if the Trial Court committed error in refusing to require bond for costs, nevertheless such error has become harmless, since the plaintiff prevailed in the lower Court and the decree is affirmed here.
Likewise, we need not consider whether the Chancellor assigned a correct reason for the decree in the Stone Chancery Court because, at all events, the Independence Chancery Court had jurisdiction in the habeas corpus proceedings and exercised such jurisdiction to a wise conclusion.
Affirmed.
Some jurisdictions hold that a bond for costs is not required in certain habeas corpus proceedings. See 20 C. J. S. 364; 25 Am. Jur. 255; and Annotation in 81 A. L. R. 151.
In 5 C. J. S. 893 cases are cited to sustain this statement: “Error in refusing to require security for costs is rendered harmless where judgment is for plaintiff, particularly where it is affirmed . . .” | [
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Minor ~W. Millwee, Justice.
This is an appeal from a decree denying appellant’s petition to require appel lee, her former husband, to resume weekly payments for the support of their 12-year-old son in accordance with the original decree of divorce.
On March 3,1953, appellant procured a divorce from appellee on the ground of general indignities. In the decree appellant was awarded custody of the child except that appellee was given custody one day each week and during the month of July in accordance with a written property settlement and agreement of the parties which was incorporated in and made a part of the decree. This agreement further provided that appellee should pay appellant $20 weekly for the child’s support except during the month when appellee had custody. After a finding that the written agreement should be confirmed the decree further recites:
“For the purpose of clarity, the court finds that the property settlement binds the parties as to custody of Pat, their minor child, but that said child is not bound thereby and is subject to such future orders as may be necessary for his welfare. The defendant, S. J. Reiter, father of Pat, acknowledges that the award of custody is for the purpose of fixing rights between himself and May Bell Reiter, plaintiff, and further acknowledges that in the event the child does not desire to accompany him during the period or periods which he is entitled to custody such child will not be compelled to do so.”
On July 9, 1953, a hearing was held upon appellee’s application for an order directing delivery of the child to him for a month in compliance with the original decree. This hearing resulted in an order on the same date directing that the child should spend Saturday and Sunday of each week with appellee but that the.' previous provision that appellee also have custody for one month be held in abeyance.
On July 23, 1953, a hearing was had upon appellee’s petition for contempt citation against appellant for interfering with the weekly visitation order by alienating the child from appellee so that he preferred not to comply with the court’s order respecting said weekly visits. The court found that appellant had improperly influ enced. the child and alienated him from appellee, and that the latter should he relieved of making the support payments during any week the child should fail to visit him in accordance with the court’s order. •
On October 20, 1954, appellant filed a petition alleging that circumstances were such as to require resumption of weekly support payments in accordance with the agreement of the parties incorporated in the original decree. When the parties appeared for a hearing November 9, 1953, counsel for appellant called the court’s attention to the provision in the original decree to the effect that the child would not be compelled to visit in appellee’s new home against his wishes. Appellant also offered the testimony of several witnesses, including the child, to prove the child’s present need for support. Upon being informed that the child was not then making the weekly visits permitted by previous orders, the court declined to hear any testimony- and entered the decree appealed from, which found there had been no changed conditions since the order of July 23, 1953; that the child’s refusal to visit appellee was being caused by the actions of appellant; and that the court declined “to take any action” against appellee or “permit its process to be used” to enforce payment of support money for the child in the circumstances.
Appellant contends the trial court Avas Avithout authority to modify the original decree as to the payments for child support because it was based upon an independent written contract between the parties which was incorporated in the decree and approved by the court. Appellant relies on such eases as Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700, and McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938, to the effect that the independent agreement of the parties in these circumstances does not merge into the court’s award and is not subject to modification except by consent of the parties.. As appellee points out, these eases involve agreements relating to payments of alimony Avhile we are here concerned with child support payments. It is true that the rule was also applied in Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439, where the agreement involved a monthly payment for both ali mony and child support, but it was there pointed out that the court might subsequently decline to enforce by contempt proceedings the payment of a greater sum than changed circumstances would warrant, thereby remitting plaintiff to her remedy at law to collect the balance due under the contract. In this connection courts of equity are empowered by Ark. Stats., § 34-1212 to enforce separation agreements or orders for alimony and maintenance by sequestration, equitable garnishment, contempt proceedings or other lawful means.
In a ease where only payment for child support is involved, as here, we hold that a court of equity has the power to modify an award for child support when required by changed conditions and the best interests of the child even though the award is based on an agreement of the parties. This was the effect of our recent holding in Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409, where we said: ‘ ‘ The power of a court to modify a decree for the support of minor children cannot be defeated by an agreement between the parents even when the agreement is incorporated in the decree, 27 C. J. S., Divorce, § 322a. Although the court may adopt the agreement of the parents and incorporate it in the decree, it still has the power to modify the decree when it shall be made apparent that changed conditions make a modification necessary.” (Citing cases). While this statement was in the nature of clicta we think the principle is sound and salutory. It is in harmony with the following observation of the court in Daily v. Daily, 175 Ark. 161, 298 S. W. 1012: “In this connection it may be said that, whatever the result of the agreement between the husband and wife with respect to the custody and support of their minor child, such agreement does not affect the right of a court of equity to award the custody of the child to either parent and to make reasonable provision for its support and education. The reason is that the public has an interest in the matter, and that the interest of the child is the paramount consideration of the court.” See also, Penny v. Penny, 210 Ark. 16, 193 S. W. 2d 811.
The primary issue here is' whether the trial court correctly deprived the child of the right to his father’s continued support solely because of the mother’s misconduct in alienating the child from him. We have repeatedly held that the law makes it the duty of a.father to support his minor child even though its custody is awarded to the mother. The misconduct of appellant in teaching the child to entertain feelings of hatred toward appellee, whatever may be its effect as a consideration for withdrawing custody from her, should not be allowed to prejudice the child’s right to support. 17 Am. Jur., Divorce and Separation, § 70S. The misconduct of appellant, wrong as it is, and painful as it must be to appellee, should not be visited upon the child so as to deprive him of all aid from his father. See Buckminster v. Buckminster, 38 Vt. 248, 88 Am. Dec. 652. This rule is peculiarly applicable here since appellee expressly acknowledged and the original decree stipulated that the child should not be compelled against, his wishes to visit appellee in his new home nor be bound by the agreement between the parents in fixing future custodial rights.
It should be pointed out that there is no claim of inability to make the support payments. It should also be noted to appellee’s credit that he has never sought to be relieved of making the support payments nor has he been delinquent in any manner in complying with the court’s orders. Appellant’s contention that appellee should be required to make payments accruing since July 23, 1953, is without merit since she did not appeal from the July order which became res judicata of her right to enforce the original decree as to payments accruing prior to filing the instant petition. Seaton v. Seaton, 221 Ark. 778, 255 S. W. 2d 954.
The decree is reversed and the cause remanded with directions to enter a decree for appellant for support payments accruing since October 20, 1954, and for such proceedings as may be necessary to enforce due compliance with such order. | [
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Lee Seamster, Chief Justice.
This is an appeal by the appellants, from a judgment of the Saline Circuit Court, based on the verdict of a jury denying appellants ’ recovery from appellee for claimed personal injuries and property damage, arising out of an automobile accident which occurred in Benton, Arkansas, on September 1, 1954.
This dispute arose out of a collision between appellee’s automobile and a vehicle driven by appellant, Mrs. Earl Watkins, which occurred at the intersection of South' Street and West Drive Street, in Benton. Immediately prior to the collision, Mrs. Watkins was driving her husband’s automobile in a westerly direction on South Street and the appellee, Wayne Bright, was driving a vehicle, owned by Kelly Don Chandler, in a southerly direction on West Drive Street. The vehicles collided in the intersection, whereby, the vehicle being driven by Mrs. Watkins traveled another 150 feet further west, ran off the pavement and struck a house. The evidence conflicts as to the rate of speed that each vehicle was being driven immediately prior to the time of the collision. The appellants alleged that the accident was caused by the negligence on the part of the appellee in failing to yield the right-of-way. The appellee answered denying any negligence and in turn alleged that appellant, Mrs. Earl Watkins was negligent in the operation of her vehicle and was solely responsible for the collision, thereby praying that appellants’ complaint be dismissed. The jury returned a verdict for the appellee from which the appellants appeal.
For reversal, the appellants contend the trial court erred in giving defendant’s requested instruction Number 10, over the general and specific objections of the appellants. This instruction is as follows:
“You are instructed that when two motor vehicles approach an intersection at or about the same time, that it is the duty of the car approaching on the left to yield the right-of-way to the vehicle approaching on his right, but, however, where one vehicle has already entered the intersection, and the other vehicle has not, then the former vehicle has the right-of-way over the latter.”
Appellants objected to this instruction and contend that it is not a correct declaration of the law applicable to this case, for the following reasons: (1) there is no street intersection as a street intersection is known in law in this case; (2) the undisputed testimony shows that Mrs. Watkins entered the street intersection first, therefore, the instruction would not apply even if there were a street intersection involved; and, (3) South Street at the time of the collision was a part of the highway sys tem of Arkansas, although the highway designation signs had been removed by the State Highway Department.
The purpose of instructions is to inform the jury of the legal principles applicable to the facts presented, and furnish a guide to assist in reaching a verdict. They are ordinarily read to the jury with continuity and unless contradictory as a matter of law must be considered as a whole. If, when so considered, the legal issues presented are properly explained, no prejudice results.
We hold that the trial court did not err by giving appellee’s requested instruction Number 10, as modified. See Ark. Stats. (1947), § 75-621. It was not a binding instruction since it did not exclude from the jury an opportunity to decide which vehicle entered the intersection first or whose negligence caused the collision. The facts reveal that this collision occurred at a street intersection where West Drive Street enters South Street. The undisputed facts also reveal that the State Highway Department had removed the highway designation signs some thirty days prior to the time of the collision and the Highway Department had re-routed the traffic over the new highway. There were no stop signs on either street. The question of negligence was properly submitted to the jury and the jury found for the appellee.
The appellants contend that Ark. Stats. (1947) Sec. 75-623 controls in this case because South Street is a through highway. Ark. Stats. (1947) Sec. 75-412 subsection (F) defines a through highway and Ark. Stats. (1947) Sec. 75-645 authorizes the State Highway Commission, with reference to State Highways, and local authorities, with reference to the other highways under their jurisdiction, to designate through highways and erect stop signs at specified entrances thereto. In other words, in order to have a through highway at any particular intersection there must be erected a stop sign at the entrance of the intersection on the highway approaching the through highway. It is conceded that there was no stop sign on West Drive Street, at the intersection of South Street.
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George Rose Smith, J.
This is a suit by the appellees, Newlin and Black, to obtain compensation for their services in finding a purchaser for a tourist court owned bj^ the appellant and her husband. The principal defense is that the appellees failed to produce a buyer willing to take the property on terms acceptable to the Fikes. The trial court, sitting without a jury, entered judgment for the appellees for $1,500.
In 1953 Mr. a'nd Mrs. Fike listed their property with Newlin and Black, licensed dealers in real estate. Late in July the Fikes were taken by the appellees to Bolivar, Missouri, to inspect a business building that was owned by Eugene and Louella Hinton and that was also listed for sale with Black. At that time Black understood (erroneously, as it turned out) that the Hintons’ property was subject to a $12,500 mortgage, payable $1,000 annually, and he so informed the Fikes.
On July 30 Mrs. Fikes signed a form of offer and acceptance by which the Fikes ’ equity in the tourist court was offered for the Hintons ’ equity in the Missouri property. Hinton came to Fayetteville on August 1, inspected the tourist court, discussed the proposed trade with the Fikes, and signed, the contract that Mrs. Fike had executed. August 15 was fixed as the date for the exchange of deeds. The parties promptly submitted their respective abstracts of title for examination. There is testimony by the appellees that after the meeting of August 1 the Fikes seemed happy with the deal and, in preparation for a surrender of possession, removed some personal property from the tourist court to their home.
On August 14 Mr. and Mrs. Hinton arrived in Fayetteville with the expectation of completing the exchange of lands on the following day. But when the Hintons, together with Black, called at the tourist court they were informed by Mrs. Fike that she had decided to “back out” of the transaction. The appellees later brought this action for their commission.
It is immaterial that the contract for the exchange of the properties was not signed by Mr. Fike or Mrs. Hinton, as a real estate broker earns his commission by producing a buyer ready, willing, and able to take the property on the terms fixed by the seller. It is not necessary that an enforceable contract be executed. Dillinger v. Lee, 158 Ark. 374, 250 S. W. 332; Boyles v. Knox, 211 Ark. 426, 200 S. W. 2d 966. The appellant contends, however, that she and her husband were originally given incorrect information about the Hintons’ mortgage and did not learn until the abstract was examined that the encumbrance was substantially larger than it had been represented to be. It is argued that the Fikes did not agree to assume the larger indebtedness, and therefore the appellees failed to produce a purchaser willing to take the tourist court on terms acceptable to the sellers.
There is substantial evidence to support the trial court’s rejection of this argument. It is true that when Black first showed the Missouri property to the Fikes he was mistaken in saying that the mortgage was for $12,500, payable $1,000 a year. For, unknown to Black, the Hintons had borrowed an additional $2,500, and as refinanced the debt was payable at the rate of $750 every six months. But Black and Hinton testified that the true terms of the mortgage were explained by Hinton during his discussion with the Fikes on August 1. From this testimony the court may have concluded that the appellant and her husband were fully informed on August 1 and still went ahead with preparations for the completion of the exchange. Pointing to the same conclusion is the fact that, according to the testimony of all five persons who were present when Mrs. Fike backed out of the transaction on August 14, she did not then mention the increased mortgage as her reason for withdrawing.
A secondary contention is that Black forfeited his right to compensation by giving his principals incorrect information about the Hinton mortgage. The cases relied upon, such as Bennett v. Thompson, 126 Ark. 61, 189 S. W. 363, L.R.A. 1917B, 919, and Carnahan v. Lyman Real Estate Co., 170 Ark. 519, 280 S. W. 5, are not in point. They merely state the rule that a broker who practices fraud upon his principal is not entitled to compensation. Here Black’s misstatement was apparently made in good faith, and after learning the truth the appellant indicated by her conduct that she was nevertheless willing to go forward with the exchange of lands.
Affirmed.
Seamster, C. J., not participating. | [
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Lee Seamster, Chief Justice.
This is an appeal by the appellants from a decree of the Sharp Chancery Court, Northern District, whereby the trial court refused to grant judicial approval of a contract for the private sale of the remainder interest in a ninety (90) acre tract of real estate to the life tenant, and to have the proceeds reinvested, as directed by the court in some income producing property, the fund and accruements thereto to be held in trust for those persons constituting the ultimate vested remaindermen upon the death of the life tenant.
The appellants herein, Merle E. Walker and Helen Walker Blaney, are the only children of Samuel J. Walker, Jr. The appellee, Dennis Gerald Blaney, a minor, is the only child of Helen Walker Blaney. Merle E. Walker has no children. At the time of this suit there were no other bodily heirs of Samuel J. Walker, Jr.
The record reveals that on January 5, 1905, the appellants’ father Samuel J. Walker, Jr., received a deed from his parents to the property here involved. The granting clause of the deed contained the provision that the property was to be conveyed “Unto the said Samuel J. Walker, Jr., and unto his bodily heirs and assigns forever.” Later Samuel J. Walker, Jr., conveyed the land by mesne conveyance to one David Y. Johnson, the present owner of the life estate. Thereafter, in a suit between David Y. Johnson and the appellants, Merle E. Walker and Helen Walker Blaney, the Sharp Chancery Court decreed on January 13, 1951, that Johnson only held a life estate for and during the life of Samuel J. Walker, Jr. In the suit now upon appeal, the life tenant, David V. Johnson, is the proposed purchaser of the remainder interest in the tract of land.
The appellants and the appellee are the only contingent remaindermen in esse. Samuel J. Walker, Jr., is now seventy-two (72) years of age; Merle E. Walker is forty-nine (49) years of age and Helen Walker Blaney is thirty-one (31) years of age. The appellee will be eight (8) years old on May 9, 1956.
On September 29, 1954, David Y. Johnson, the life tenant, entered into a contract with the appellants by which, he agreed to pay $1,600 for the total remainder interests in the land. The contract obligated the life tenant to pay all the costs, including attorney’s fee involved in securing the necessary judicial approval for the sale of the land to the life tenant.
The trial court rendered a decree on June 13, 1955, whereby it made a finding as follows:
“That the said Samuel J. Walker, Jr., the life tenant under the terms of said deed is still living, and the persons who will constitute his bodily heirs and therefore take the ultimate fee simple title upon the termination of the life estate, are unknown and cannot be known with certainty until the death of the said tenant, and although all of the living descendants of the said Samuel J. Walker, Jr., are parties to this action, and constitute all of the known prospective bodily heirs of him, the class of persons who will take the remainder as such bodily heirs, may be increased or diminished by births or deaths during the pendency of the said life estate.”
The trial court also found that the sum offered for the remainder interest in the land was a full and fair price; that the contract terms were fair, equitable and generous; that the actual fair market value of the land is not in excess of $15.00 per acre and the land produces an annual income of $10.00 for the entire tract. The trial court further found that said land was unsuitable for farming, unimproved and inaccessible, and what value it has consists entirely in the fact that it lies along Spring River and might be used for recreational purposes ; that the market value of the land has reached its peak and the remaindermen all live in Oklahoma, far removed from the situs of the land, and have no desire to oversee their interest in the land.
The trial court further found that a public sale of the remainder interest in the land would attract no better price than that offered by the life tenant; that the rights and interests of the ultimate remaindermen were identical with the interests of the parties to this suit, who are now possible remaindermen in esse; and, that the minor appellee in this case is sued individually and also as a representative of the ultimate vested remainder-men; in esse, and in posse.
In addition to the foregoing findings, the court found that the appellants had not shown as a matter of law that said sale was necessarily for the best interests of the minor appellee, but rather for the benefit and convenience of the appellants, and, therefore, denied the relief prayed and dismissed the complaint.
The instant case is before this court for trial de novo. Since the trial court found that all the factual contentions alleged by the appellants were true, the issue is whether the factual situation entitles the appellants to relief. The appellants earnestly submit that the fact that a minor contingent remainderman is involved is not sufficient to prohibit or justify the denial of relief to adult contingent remaindermen seeking the sale of the tract of land for the purpose of reinvestment. It is the opinion of this court that the circumstances found by the trial court to exist were sufficient, as a matter of law, to entitle appellants to have their estate sold. The record reveals that it would be to the best interest of the. parties to have the land sold and the proceeds derived therefrom, invested and preserved for the benefit of the contingent remaindermen, who would be eligible to receive the proceeds upon the death of Samuel J. Walker, Jr.
We think the trial court erred in holding that, as a matter of law, it should deny the relief prayed for in the complaint. This court has held that equity has jurisdiction and power to order or permit the sale of a contingent remainder estate even if one of the remaindermen is a minor. Bedford v. Bedford, 105 Ark. 587, 152 S. W. 129. It will be noted that the minor in the instant case is only a contingent remainderman, his interest is prospective and depends upon his survival of his mother, who in turn must pre-decease her father, Samuel J. Walker, Jr. The Bedford case, supra, has been cited with ap proval in the following cases: Hardy v. Hilton, 211 Ark. 991, 204 S. W. 2d 163; Wing v. Wing, 212 Ark. 960, 208 S. W. 2d 776; and Wigal v. Hensley, 214 Ark. 409, 216 S. W. 2d 792.
The case is reversed and remanded with directions to approve the sale of the land. The Commissioner of the Court will be directed to execute and deliver a deed conveying the land involved to David V. Johnson, conditioned upon his payment of the sum of $1,600. The trial court is directed to appoint a trustee to invest the $1,600 in securities, such investment conditioned upon the approval of the court, and to hold all of said funds and increase thereof, until the death of Samuel J. Walker, Jr. Upon Samuel J. Walker, Jr.’s death the funds will then be distributed, under an order of the court, to the parties entitled thereto. The trustee will be required to give a bond, to also be approved by the court, in an amount sufficient to cover the amount of funds involved. The trustee will be directed to file an annual report with the court, and such other reports as the court may direct.
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Minor W. Millwee, Justice.
The question for determination is the validity of a by-law of a public hospital which requires the approval and recommendation of a county medical society as a condition precedent to the right of a duly licensed physician and surgeon to practice his profession in such hospital.
Appellee, Dr. Alex Benedikt, is a native of Germany and graduated from Heidelberg University School of Medicine in 1924. After 4 years training in city and county hospitals at Stuttgart, Germany, he practiced medicine there until 1936 when he immigrated to this country and established his residence at Hot Springs, Arkansas. After passing the examination and complying with other requirements in the state of Texas he was admitted and licensed to practice medicine there. Subsequently, he was duly licensed to practice in this state by the Arkansas Medical Board on the basis of reciprocity with Texas. Since 1937 he has practiced medicine in the city of Hot Springs and is duly licensed as a qualified physician by the United States Department of Interior. During the past fifteen years appellee has applied for membership in the Garland County Medical Society 12 times and each time his application has been rejected. Officials of the society have declined to give a reason for the systematic exclusion.
Appellants are the administrator and members of the Board of Governors of the Ouachita General Hospital, a county hospital constructed under the provisions of Amendment 32 to the Arkansas Constitution and sun- ported by public funds. All of tbe appellants are businessmen. Appellee’s application to the Board of Governors for admission to practice in the hospital and to have his patients admitted for treatment therein was denied on the ground that he was not a member of the Garland County Medical Society as required by Article 5 of the hospital by-laws. Thereupon he instituted this suit to enjoin appellants from further denying him staff privileges and use of the facilities of said hospital as a duly licensed physician and surgeon. After appellants had demurred to the complaint they were advised by the attorney general that Article 5 of said by-laws was invalid and unconstitutional. An answer was then filed alleging that Article 5 had been amended so as to make the approval and recommendation of the Garland County Medical Society a prerequisite to admission to use of the hospital facilities by a physician instead of the former requirement of membership in said society.
Trial resulted in a finding in appellee’s favor and entry of a decree restraining appellants from denying staff privileges in said hospital to appellee so long as he remained a duly qualified and licensed physician in this state and abided by all reasonable hospital rules and regulations applicable alike to all physicians on the medical staff. Hence the effect of the decree was to hold the amended by-law unreasonable and invalid and this is the sole issue presented.
The general rule is that a regular licensed physician and surgeon has the right to practice in the public hospitals of the state so long as he stays within the law and conforms to all reasonable rules and regulations of such institutions. 26 Am. Jur., Hospitals and Asylums, § 9; 41 C. J. S., Hospitals, § 5. While a duly licensed practitioner has no right per se to practice his profession in a public hospital and cannot complain of his exclusion therefrom by the operation of reasonable rules and regulations, it is equally well settled that he cannot be deprived of the right or privilege to such practice by rules, regulations, or acts of the institution’s governing authorities which are unreasonable, arbitrary, capricious or discriminatory. See Findlay v. Board of Supervisors, 72 Ariz. 58, 230 P. 2d 526, 24 A. L. R. 2d 841, and authorities cited in an exhaustive annotation of said case in 24 A. L. R. 2d 850.
It is undisputed that appellee was denied the right or privilege to practice in, or have his patients admitted to, the Ouachita General Hospital on the sole grounds (1) that he was not a member of the Garland County Medical Society and (2) that he did not have the approval and recommendation of said society. In Hamilton County Hospital v. Andrews, 227 Ind. 217, 84 N. E. 2d 469, a rule of a county hospital conditioning the right of a duly licensed physician to practice therein on his being a member of a county medical society was held unreasonable and invalid. In commenting on the rule as applied to said applicant the court sáid:
‘ ‘ His admission to this society depends entirely upon the sole determination of the society. Medical Soc. of Mobile County v. Walker, 1944, 245 Ala. 135, 16 So. 2d 321; Harris v. Thomas, Tex. Civ. App. 1920, 217 S. W. 1068; McKane v. Adams, 1890, 123 N. Y. 609, 25 N. E. 1057, 20 Am. St. Rep. 785. 4 Am. Jur., Associations and Clubs, § 11, p. 462. Whether he could ever become a member depends upon conditions beyond his control. By this rule the hospital again delegates its power to determine what physicians may use its facilities. It amounts to a preference in favor of the society and a discrimination against those physicians who by choice or otherwise, are not members of same.”
Like other courts, we recognize it as a matter of general knowledge that medical societies have rendered a great and valuable public service over the years in-developing and maintaining high standards of professional conduct and practice, and no implication is intended that such organization may not adopt any reasonable methods to preserve such standards. Group Health Cooperative v. King County Medical Soc., 39 Wash. 2d 586, 237 P. 2d 737. However, we agree with the chancellor’s finding that the amended by-law in question is un reasonable and invalid. As affecting validity, we perceive no material difference between a rule that makes membership in a medical society a prerequisite to staff privileges and one that requires approval and recommendation by the membership of said society. An organization that has consistently refused a physician membership over a period of 15 years without any announced reason would hardly be expected to approve and recommend such a physician to staff privileges in the hospital. The membership of a society that would reject the application for membership in the first instance would in all probability withhold its approval in the second instance. It would be contrary to human nature to indulge in the supposition that they would do otherwise.
In holding the by-law unreasonable and discriminatory we do not mean to infer that a public hospital may not validly enact rules and regulations applicable to all physicians and surgeons alike and which bear a reasonable and fundamental relation to the safety, interest and welfare of patients and the general public. The by-law in question does not meet this test. In urging its reasonableness appellants assert the necessity of having some group to whom they can turn for advice in considering the qualifications of applicants for staff membership since appellants themselves are not medical men. But the fact that appellants are unlearned in medicine does not preclude them from procuring the assistance and advice of medical and hospital organizations and groups, including county societies, in the formulation of rules which bear a reasonable relationship to public safety and welfare. A medical society is a private organization whose membership conceivably may bestow or withhold approval of a fellow physician’s application for a valid reason, or for no reason at all, under the by-law in question. That appellee was not a member of their group might be reason enough for them to withhold approval of his application.
Appellants also argue that it was incumbent upon appellee to resubmit his application for admission to practice in the hospital after appellants amended Article 5 of the by-laws and that the instant suit is, therefore, premature. Reliance is had on the general rule to the effect that one must exhaust his administrative remedies before he is entitled to apply for injunctive relief. But it should be remembered that appellee had exhausted his administrative remedy when he filed this suit and any change in the status quo in that respect was occasioned by appellant’s action in changing the rules while the game was in progress. Thus equity had complete jurisdiction when the suit was filed and appellants should not be permitted to defeat it by a change of rules where the court could have justifiably concluded, in the circumstances, that a reassertion of the administrative remedy would have been a vain and fruitless undertaking.
The decree is affirmed. | [
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Ed. F. McFaddin, Associate Justice.
On an information charging him with first degree murder for the homicide of Edgar Thrower, the Jury convicted the appellant, Nathaniel Eddington, of second degree murder. His appeal brings before us the fifteen assignments contained in his motion for new trial.
I. Sufficiency of the Evidence. According to the appellant’s witnesses, he was entirely without fault or guilt of any kind and was acting in his own necessary self defense and also in defense of his kinsman, Buddy Smith. But the long established rule governing appeals in criminal cases is, that this Court views the evidence in the light most favorable to sustain the Jury verdict. Dowell v. State, 191 Ark. 311, 86 S. W. 2d 23; Slinkard v. State, 193 Ark. 765, 103 S. W. 2d 50; Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400; and Lamb v. State, 218 Ark. 602, 238 S. W. 2d 99. Whether to believe the State’s witnesses or the defendant’s witnesses was a decision for the Jury. King v. State, 194 Ark. 157, 106 S. W. 2d 582. The Jury elected to believe the State’s witnesses; and our duty on appeal is to see whether the evidence, so viewed in the light most favorable to the 'State, is sufficient to sustain the conviction.
According to the State’s witnesses, a party of four people — being (1) Napoleon Davis, (2) his wife, Yersie Mae Davis, (3) Buddy Smith, and (4) the appellant— drove to the Busy Bee Cafe near Bearden about midnight of February 19, 1954, and found several other people in the cafe, where food and beer were being legally served. P. L. Wright and wife operated the cafe. Shortly after the appellant’s party arrived at the cafe, a dispute arose to which appellant was not a party: Edgar Thrower, Timothy Thrower and O. D. Juniel “ganged up” on Napoleon Davis, causing him to hold his three adversaries at pistol point while he and his wife retreated to the cafe entrance and then to their car nearby. Appellant also left the cafe and entered the Davis car. Versie Mae Davis was driving, and Napoleon Davis and appellant were in the seat beside her. When the car stopped less than a block away from the cafe, appellant seized Napoleon Davis’ pistol, jumped from the car, and raced back toward the Busy Bee Cafe. He saw Edgar Thrower and Buddy Smith standing about four feet apart. Appellant, from a distance of about fifty feet, yelled: “Look out, Buddy,” and then shot Edgar Thrower in the chest, causing instant death. The testimony of P. L. Wright and Troy Lee Thompson (each claiming to have been an eye witness) was to the effect just stated.
Appellant admitted that he took the pistol from Napoleon Davis and used it in shooting Edgar Thrower. The Jury had the right to conclude that the grabbing of the pistol, the running back toward Edgar Thrower, the warning to Buddy Smith, and the shooting of Thrower, all showed sufficient malice and intention to constitute even a greater offense than second degree murder. Certainly the evidence is legally sufficient to support a conviction for second degree murder. See § 41-2206, Ark. Stats.
II. Instruction. The Court fully instructed the Jury on all applicable phases of homicide, self defense, burden of proof, presumption and all other appropriate matters; and the only assignment in the motion for new trial, relating to instructions, is the appellant’s claim that the Court should have given his requested Instruction No. 2, which is a long instruction of two printed pages. There are several reasons why this requested instruction should not have been given, but it is sufficient to mention only one such reason: and that is, because the instruction was incorrect in stating the law as to self defense. The instruction concluded with this language :
“ . . . and if, under all the circumstances, he, at the moment, believed, and had reasonable grounds to believe, that it was necessary to save his own life, or to protect himself from great bodily harm, he had the right to kill Edgar Thrower. He not only had the right to kill him but under the law it was his legal duty to slay him, and you will by your verdict acquit him; and if you have a reasonable doubt upon this proposition you will give him the benefit of the doubt and acquit him.” (Italics our own.)
The italicized language does not correctly state the law regarding the claim of self defense. See § 41-2236, Ark. Stats. There is no “duty to slay” involved in the plea of self defense. It is only an excuse for homicide and not a duty to commit it: it is a defense and not a retribution. See generally: Stoddard v. State, 169 Ark. 594, 276 S. W. 358; and Graves v. State, 155 Ark. 30, 243 S. W. 855. So, without mentioning other vices in the instruction, we conclude that it was fatally defective in the use of the italicized language. The burden is on the party asking an instruction to ask one that is a correct statement of the law; and a Trial Court commits no error in refusing a requested instruction which is erroneous. See Cellars v. State, 214 Ark. 326, 216 S. W. 2d 47; Chambers v. State, 168 Ark. 248, 270 S. W. 528; and other cases collected in West’s Arkansas Digest, “Criminal Law,” 830.
III. Absence of Weapons on the Body of Deceased. The Trial Court permitted the coroner to testify that he searched the body of the deceased and found no weapons. The appellant objected to this evidence because the coroner did not search the body of the deceased until about an hour after the killing; but it was shown that the body had not been moved and the time lapse between the killing and the arrival of the coroner was fully explained to the Jury. Under these circumstances it was for the Jury to decide the weight and credibility to give to the testimony of the coroner. Furthermore, two other witnesses — Granville Warrick and George Redding — -testified, without objection, that they made a search and found no weapons on the body of the deceased or near his body and that they were there and subsequently assisted the coroner wher he made his search. The testimony of these two witnesses was admitted without objection ; and would tend to render harmless any possible error that might have been committed in the admission of the testimony of the coroner. See Maxey v. State, 76 Ark. 276, 88 S. W. 1009; and LeGrand v. State, 88 Ark. 135, 113 S. W. 1028.
IY. Sale of Bootleg Whiskey. In several assignments in the motion for new trial, appellant claims that the Court committed error in refusing appellant the right to interrogate witnesses as to whether P. L. Wright was selling bootleg whiskey at the Busy Bee Cafe. It was shown that the sale of beer was legal at the cafe hut, of course, the sale of bootleg whiskey would have been illegal. The defense attorney asked P. L. Wright on cross-examination :
“Q. So you say you had not just sold those three Negroes bootleg whiskey back in your kitchen?
“A. No, sir.”
Again, the defense attorney asked P. L. Wright:
“Q. . . . and didn’t Napoleon Davis and some other Negroes come to your house and buy some whiskey?
“A. No, sir.”
After interrogating P. L. Wright and receiving these answers, the defense counsel sought to impeach Wright on this collateral matter by asking other witnesses if they had bought bootleg whiskey at Wright’s restaurant or home. Of course, the question of whether Wright had sold bootleg whiskey was entirely collateral to the issue of the homicide of Edgar Thrower; and when defense counsel had asked P. L. Wright the questions about the sale of bootleg whiskey and received the answers as quoted, then the defense counsel could not impeach Wright on this collateral matter which defense counsel had injected into the case. In Hawkins v. State, 223 Ark. 519, 267 S. W. 2d 1, in discussing impeaching witnesses on collateral matters, we said :
“While a Avitness may be questioned as to certain specific acts for impeachment purposes, however, if such matters are collateral to the issue, as here, such witness may not subsequently be contradicted by a witness of the party (appellant here) putting the question. The examiner is bound by the answer given. McAlister v. State, 99 Ark. 604, 139 S. W. 684, and Bevis v. State, 209 Ark. 624, 192 S. W. 2d 113.”
V. Appellant’s Attempt to Impeach the Testimony of Corene Green. Troy Lee Thompson testified that he was an eye witness to the killing of Edgar Thrower. In an effort to impeach Thompson’s testimony — -that he was an eye witness — his mother, Corene Green, was called by appellant; and it was thought that she would testify that her son, Troy Lee Thompson, was asleep at her home at the time of the killing. But when Corene Green’s testimony was not as expected on the point, appellant sought to impeach her testimony by offering certain unsworn statements it was claimed she had made to appellant’s attorney. The Trial Court refused to allow such statements, after first finding and declaring that Corene Green was not a hostile witness. The Court’s ruling is assigned as error; but we find no harmful error to have been committed. An impeaching witness may be impeached in most cases (58 Am. Jur. 370); but appellant offered no other witness to show that Troy Lee Thompson was asleep at his mother’s home at the time of the killing of Edgar Thrower. If appellant’s attorney had been allowed to testify as to the unsworn statements of Coreen Green, such testimony of the attorney would only have impeached Corene Green but would not have been any substantive evidence as to the whereabouts of Troy Lee Thompson. Our holding in Comer v. State, 222 Ark. 156, 257 S. W. 2d 564, is decisive on this point. We there said:
“We have often held that the prior inconsistent statements of a witness are admissible for impeachment but not as substantive evidence, of their truth. Minor v. State, 162 Ark. 136, 258 S. W. 121; Sisson v. State, 168 Ark. 783, 272 S. W. 674.”
In an Annotation in 82 American State Reports, 62, the holdings are summarized in this language:
“If a party cannot possibly help his case by impeaching his own witness, such impeachment will not be permitted: Largin v. State, 37 Tex. Cr. Rep. 574, 40 S. W. 280. The rule is, therefore, firmly established that a party can discredit his own witness by proof of his contradictory statements, only where such witness has testified to facts which are damaging to the party, and he has been injured by the testimony: Bailey v. State, 37 Tex. Cr. Rep. 579, 40 S. W. 280; People v. Jacobs, 49 Cal. 384; Smith v. Briscoe, 65 Md. 561, 5 Atl. 334; Erwin v. State, 32 Tex. Cr. Rep. 519, 24 S. W. 904; Chism v. State, 70 Miss. 742, 12 So. 852; People v. Mitchell, 94 Cal. 550, 29 Pac. 1106; McDaniel v. State, 53 Ga. 253. . . .
“Evidence offered solely to impeach a party’s own witness and which has no other tendency is not admissible: Nathan v. Sands, 52 Neb. 660, 72 N. W. 1030; Harlan v. Green, 31 Misc. Rep. 261; 64 N. Y. Supp. 79.”
Thus, no amount of evidence of contrary unsworn statements by Corene Green could have helped appellant’s case or provided substantive testimony on the question of whether Troy Lee Thompson was asleep at his mother’s home at the time Edgar Thrower was killed by appellant; and the trial court’s ruling on the point was not prejudicial to appellant.
YI. Other Assignments. We have carefully studied all the other assignments in the motion for new trial and find none of them to possess merit.
Affirmed.
On what is “collateral,” there is a clear statement in an Annotation in 82 American State Reports, 51: “Since collateral matters cannot be made the basis of impeaching a witness by contradicting him, the question naturally arises, What are collateral matters? What test can be applied to determine whether a question is collateral to the issues or not? The very generally approved test may be found stated in the syllabus to Saunders v. City etc. R. R. Co., 99 Tenn. 130, 41 S. W. 1031, as follows: ‘Would the cross-examining party be entitled to prove the fact as a part of, and as tending to establish, his case? If he would be allowed to do so, the matter is not collateral; but, if he would not be allowed to do so, it is collateral. Collateral matters, in this sense, are such as afford no reasonable inference as to the principal matter in dispute.’ A frequently quoted test is cited in Combs v. Winchester, 39 N. H. 13, 75 Am. Dec. 203: ‘The test whether the matter is collateral or not is this: If the answer of the witness is a matter which you would be allowed on your part to prove in evidence — if it had such a connection with the issue that you would be allowed to give it in evidence — then it is a matter on which you may contradict him.’ ” | [
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Robinson, J.
The property line between neighbors is the issue. In December, 1934, appellants M. C. Spain and his wife, Daisy Spain, acquired by purchase from the Tri-State Savings & Loan Association a lot in El Dorado, hereinafter referred to as Lot 3. At that time, the lot adjoining on the north, herein called Lot 2, was owned and occupied by people named Schaff. Lot 2 is now owned by appellees Grady Jean and his wife Sallie.
The agent for the Savings & Loan Association pointed out what he claimed was the property line between the two lots. This line extends from the door facing on the Jean’s servant’s house on the west to a large crack in the sidewalk on the east. There is a large oak tree a few feet south of the crack in the sidewalk. A straight line from the southeast corner of the servant’s house to the crack in the sidewalk would be diagonal to the true dividing line between the lots as shown by the plat; but a line from the corner of the servant’s house to the center of the oak tree would be parallel to the east and west property line. As shown by a survey, the correct line dividing the two lots is 7 feet 8 inches south of the line from the southeast corner of the servant’s house to the oak tree. According to the plat, this 7 feet 8 inch strip is part of Lot 2.
The Chancellor held that the Spains, owners of Lot 3, had acquired this strip by adverse possession. The Spains appealed, contending that they have acquired by adverse possession that part of Lot 2 up to the crack in the sidewalk which is about 4 feet north of the oak tree. The appellees, Grady Jean and his wife Sallie, have cross-appealed, contending that the evidence does not justify a finding that the Spains have acquired any part of Lot 2 by adverse possession.
According to the plat, the northeast corner of Spain’s house is on the property line, and the northwest corner is only about six inches from the line. If the plat is correct, and there is no showing to the contrary, a mistake as to the proper line must have been made at the time the Spain house was built. In the circumstances existing here, where there does not appear to be any good cause for building right up to the property line, it is unreasonable to believe that the house was intentionally constructed in that manner. No average person would suspect that a house had been built right on the line, and when the agent for the Savings & Loan Association pointed out the line as being several feet north of Spain’s house, .there was no reason to question his statement. At the time Spain made the deal for the property, there was a rose,trellis which extended east from the southeast corner of the servant’s house. This trellis appeared to indicate the line between the two lots. At that time there was also a large hedge at the rear of the west side of Lot 3 which extended north to a point about six inches past the south side of the servant’s house on Lot 2.
After Spain bought the property, he maintained it and cut the grass to the line pointed out by the Savings & Loan agent. He fertilized the yard and planted various kinds of grass as well as a rose bush and a banana fruit tree up to the line he now claims. Spain and Schaff, the former owner of Lot 2, never had a dispute over the dividing line. However, it also appears that Schaff actu ally claimed past the crack in the sidewalk up to the oak tree. L. W. McGaugh testified that he worked in the yard for Schaff and was instructed to work up to a line from the servant’s house to this oak tree.
When Jean, the present owner of Lot 2, decided to build a wall separating the two lots, the workmen he employed stretched a string from a few inches south of the servant’s house to the center of the oak tree, indicating the place Jean intended to build the wall and that he was also claiming to that point.
The Chancellor made a trip to the property and looked over the situation. After considering the entire case, he made a finding that Spain had acquired by adverse possession the south 7 feet 8 inches of Lot 2. When this strip is added to Lot 3, it appears that the dividing line would then be about where Jean intended to build the wall in the first place. We cannot say the Chancellor’s finding is contrary to a preponderance of the evidence.
Affirmed on appeal and on cross-appeal.
Mr. Justice George Rose Smith dissents as to affirmance on cross-appeal.
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J. Seaborn Holt, Associate Justice.
Appellant and appellee were married August 23, 1951. A child, Sharon Lee Martin, was born to them July 22,1952. Mrs. Martin was about 14 years younger than her husband. The parties separated December 2,1951, and on December 7,1951, appellee sned his wife for divorce alleging indignities and abuse, and later, by amendment, alleged three years separation without cohabitation. January 11, 1952, Mrs. Martin asked for temporary alimony, suit money and attorneys’ fees. On motion, January 19, 1952, Mode Gregory, who had on December 14,1951, been duly appointed guardian of appellee’s person and estate, was substituted for appellee (an incompetent), and on a hearing the same day the guardian was ordered to pay into court $200 per month alimony pendente lite. November 28, 1952, Harry R. Martin, by order of the Probate Court, was declared competent. September 17, 1952, Mrs. Martin filed answer and cross-complaint denying all allegations, except their marriage, and prayed for a divorce alleging indignities, and desertion for more than a year without cause, for custody of the little girl, and allowance for her support, for alimony and a property settlement. February 8, 1954, judgment was entered against Harry R. Martin, appellee, for $2,800 for alleged arrearages in alimony pendente lite. October 14, 1954, appellee, Harry R. Martin, filed motion to. set aside this judgment of February 8, 1954, for $2,800 and on the same day the trial court granted this motion and set the judgment aside. On March 14, 1955, a decree was entered granting Harry R. Martin a divorce on the grounds of three years separation without cohabitation, and holding that Mrs. Martin was not entitled to a divorce on the grounds of indignities or desertion and was not entitled to alimony or property settlement, but gave her the care and custody of the child with the right to appellee of visitation, and allowed $100 per month to appellant for its support. This appeal followed..
For reversal appellant first argues that the court erred in refusing her a divorce on the grounds of indignities and also on the ground of desertion. We do not agree to either contention. The trial court found, on conflicting evidence, that both parties were equally in fault; that they lived together in an illicit relationship prior to their marriage; that each was guilty, in effect,of indecent and reprehensible conduct, and that neither was entitled to divorce on the grounds of indignities. Section 34-1209, Ark. Stats., 1947; Cate v. Cate, 53 Ark. 484, 14. S. W. 675. The court also denied Mrs. Martin a. divorce on the grounds of desertion for the reason that; the evidence showed that the separation alleged was by mutual consent of the parties. “When a wife separates from her husband, and lives apart from him with his consent, this is not a wilful desertion within the meaning of the statute, nor is it necessary that such consent be expressly given. It may be implied from the words or acts of the husband which show that he consented to the separation,” Reed v. Reed, 62 Ark. 611, 37 S. W. 230.
We do not attempt to detail and analyze the testimony on these issues, to do so would serve no useful purpose. It suffices to say that we have carefully considered it all and have concluded that the findings of the Chancellor were not against the preponderance thereof.
Next it is contended that the court erred in denying alimony to Mrs. Martin, and also in denying her claim for a property settlement. The Seventh Sub-division of § 34-1202, Ark. Stats., 1947, provides: “Where either husband or wife have lived separate and apart from the other for three [3] consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties, and the question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony.” So that the trial court in determining whether the wife is entitled to alimony or a property settlement, may take into consideration the question of which spouse is the injured party or at fault. Jones v. Jones, 199 Ark. 1000, 137 S. W. 2d 238. Here the Chancellor found that the fault as between the parties appeared to be equal, that the fault of Mrs. Martin was at least equal to that of her husband, and in the exercise of the discretion accorded him, denied, as indicated, both alimony and a property settlement to Mrs. Martin. The trial court found, “At least she is as much at fault as is the plaintiff and from all the facts and circumstances, the court finds that she is not entitled to alimony or to a division of the husband’s property.” We cannot say that the preponderance of the testimony fails to support the findings of the chancellor' on these issues. It further appears that the day before appellant’s appeal was lodged in this court she married Gustave Nichols, Jr., in Las Yegas, Nevada, and that she thereafter, with her little girl, has resided in that city. On trial ele novo here, we hold that in the circumstances, by this remarriage, she has forfeited and precluded her right to claim alimony. In Erwin v. Erwin, 179 Ark. 192, 14 S. W. 2d 1100, in a case in which alimony had been granted prior to a remarriage, we held that, “A divorced wife’s remarriage entitled the husband to apply for relief from further payment of alimony except where the allowance of alimony ivas in gross, or in lieu of, or as a substitute for, all of the wife’s property rights.” As indicated, we find no error in the court’s denial of alimony and a property settlement in the circumstances here.
Appellant next contends that an allowance of $100 per month for the support of the child was insufficient. This was also a matter Avithin the sound discretion of the trial court. In fixing the amount it was the court’s duty to take into account the father’s ability to pay and their station in life. On the evidence presented aa^c are unable to say that this allowance for the support of the child, now less than 4 years of age, is inadequate at the present time. On this issue the Chancellor found, “No conduct upon the part of the defendant, however, could free the plaintiff of his obligation to support the child and he has sufficient means to provide for the child. Having denied the defendant alimony, however, it would be improper to award such an amount to her as support for the child that would indirectly amount to awarding alimony to her. The child is uoav but little over two and a half years of age and appears to be healthy in every respect. It is quite probable that the immediate needs of the child will increase as it grows older but that should not be taken into consideration at the present time as the court always retains jurisdiction to make proper orders concerning the support of the child.”
Finally, appellant contends that, “The order of February 8, 1954, awarding judgment to the appellant, Jacqueline Bolgard Martin, in the sum of $2,800.00 for unpaid support awarded in the order of January 19,1952, should not have been set aside by the trial court on October 14, 1954.” Appellant is correct in this contention. "We hold that, in the circumstances here, it makes no difference whether this $2,800 judgment was against appellee, personally, or his guardian. The preponderance of the evidence does not show that this judgment was ever paid. It appears that on February 8,1954, judgment was rendered in favor of Mrs. Martin against her husband, Harry R. Martin, for $2,800 for arrearages and alimony pendente lite. Thereafter, on October 14, 1954, the trial court granted a motion by appellee to set aside this order of February 8, 1954, which gave judgment to Mrs. Martin for $2,800. We hold that the trial court was without power to set this judgment aside after term time. Section 22-406, Ark. Stats., 1947 — Supplement, provides: "Poinsett County, 12th circuit. Terms, 1st Monday in May, August and December and 2 Monday in March.” This judgment had become final. Obviously the March term had expired and the regular May and August terms had intervened before the above order, of October 14, 1954, was made and could be set aside or vacated after the expiration of the term only on one or more of the grounds set out in § 29-506, Ark. Stats., 1947. It appears that no effect was made to proceed under this section. We, therefore, reverse that part of the decree denying appellant $2,800, the amount of the judgment in her favor of February 8, 1954; in all other respects the decree is affirmed. Costs in both courts to be paid by appellee and an additional attorney’s fee of $500 is allowed here for Mrs. Martin’s attorney, to be paid by appellee, Harry R. Martin. | [
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Paul Ward, Associate Justice.
Appellee, Rubye Johnson, sued the Wabbaseka School District No. 7, Jefferson County, for damages because of the District’s refusal to allow her to teach a term of school in accordance with an alleged contract. The Circuit Judge, sitting as a jury, found in favor of appellee, and in doing so he made several specific findings of fact. Since these findings need be supported only by substantial testimony we shall not deem it necessary to set out the voluminous testimony at any great length.
Appellee taught during the 1951-1952 term of school under a written contract, holding a Fourth grade emergency license which expired on or about the first of September, 1952. When the term of school ended the latter part of May, 1952, neither party notified the other that the contract would not be continued through the next succeeding school term as is provided for in Ark. Stats., § 80-1304(b). Appellee’s contract, which was on a regular printed form, contained a renewal' provision with practically the same wording as contained in the statute hereafter quoted.
Within ten days or two weeks after school had closed appellee enrolled at the A. M. & N. College in Pine Bluff and attended said school until August 8th or 9th, 1952, and on September 11, 1952, she was issued a five-year Junior High teacher’s license which she recorded in the County Supervisor’s office on September 22, 1952.
In answer to appellee’s complaint, appellant, in substance stated: (a) At the close of the 1951-1952 term it was understood by appellee that her selection as a teacher for the ensuing term was conditioned on a sufficient enrollment to justify retaining her as a teacher, and that it was ascertained that there was no such enrollment and that she was so notified; (b) Appellee’s contract could be and was cancelled by 30 days notice; (c) Appellee did not keep herself available to teach, and, if available, she could have secured other employment at equal compensation, and; (d) Appellee earned as much as she would have had she been allowed to teach.
Some of the above contentions may have been abandoned by appellant. At least its arguments for a reversal are based on somewhat different points which we shall examine in order, viz: 1. Appellee had no contract of employment; 2. Appellee was ineligible for employment, and; 3. Appellee was not available for employment.
1. Under the undisputed facts in this case together with the facts found by the trial judge to exist, it is our conclusion that appellee did have a contract with the school district to. teach during the 1952-1953 school term. The pertinent part of Ark. Stats., § 80-1304 (b) reads as follows:
“Every contract of employment hereafter made between a teacher and a board of school directors shall be renewed in writing on the same terms and for the same salary, unless increased or decreased under the provisions of the law, for the school year next succeeding the date of termination fixed therein; unless within ten (10) days after the date of the termination of said school term, the teacher shall be notified by the school board in writing ... or unless the teacher within ten (10) days after the close of school shall deliver or mail by registered mail to such school board his or her written resignation as such teacher, . . .”
It is not contended that appellant gave appellee notice of the kind or within the time mentioned in the above statute, nor is it contended that appellee notified appellant that she would not accept such employment. There was introduced some testimony on behalf of appellant that a member of the board attempted to give appellee notice that she would not be re-employed. It is not contended that notice was given to appellee but to her mother. Moreover the time of giving this notice does not appear to be definite and on the “whole the trial judge was justified in finding that the statutory notice had not been given. Introduced into the evidence was a letter dated May 19, 1952 [a few days before school closed] signed by the school superintendent and delivered to appellee. Portions of this letter read as follows: “The school board has asked me to inform yon that you have been re-employed . . . for the next school term (1952-1953). If you plan to leave us for work elsewhere I wish you would let me know as soon as possible; . . . ” It is not contended that appellee answered this letter. The first notice appellee actually had that she would not be allowed to teach was a telephone call she received on September the 8th or 9th before the school term -was to begin on the 15th of the same month. When these circumstances are considered in connection with the language of the above quoted statute we are forced to the conclusion that the school district cannot now be allowed to take the position that appellee had no contract to teach during the 1952-1953 term. It seems to us that the above statutory provision was intended to be a protection to teachers in the matter of employment in circumstances similar to these. As said in the case of Sirmon v. Roberts, 209 Ark. 586, 191 S. W. 2d 824, this statute tends to eliminate uncertainties and possible controversy.
There is no conflict, as contended by appellant, between the conclusion we have reached and the holding in Johnson v. Wert, 225 Ark. 91, 279 S. W. 2d 274. The cited case deals with the employment of a superintendent and that portion of Ark. Stats., § 80-1304 (b) relating to superintendents does not contain the protective language used in that portion of the statute referring to teachers.
2. Appellant ably argues that, regardless of whether or not appellee had a contract, she was ineligible to teach or contract to teach during the 1952-1953 term. This argument is based on the conceded fact that appellee had no teacher’s license from September 1, 1952, when her old license expired, until September 11, 1952, when she received a new license, and also because appellee’s new license was not filed with the county supervisor before the new term began. It will be noted that appellee secured her new license a few days before the new school term began on September 15th.
It would be a harsh rule and one to which we would not willingly subscribe to hold that appellee was ineligible to teach during the term of school beginning on September 15, 1952, merely because there was a period of ten days [from September 1st to September 11th] during which she had no valid teacher’s license. We can find nothing in the law that justifies any such interpretation and nothing that -would impose such a hardship on the teaching profession. The law does require a teacher’s license be filed with the county supervisor, and it is true that appellee’s license in this instance was not so filed until September 22, 1952, but it must be kept in mind that on September 8th or 9th appellant had notified appellee that she would not be allowed to teach. This fact may have caused appellee to delay filing her license with the county supervisor. Ark. Stats., § 80-1304, provides that warrants [issued for teaching] are void unless the teacher has a license but it clearly appears that had appellee been allowed to teach she would have had a license duly filed when the first warrant would have been issued to her.
In support of their contention on this point appellant cites Vick Consolidated School District No. 21 v. New, 208 Ark. 874, 187 S. W. 2d 948, but we do not think the cited case is in point here. The holding in that case was that a teacher could not retain the salary which he had received for teaching during the time when he held no teacher’s license.
3. The testimony does not justify appellant’s contention that appellee was not available to teach during the 1952-1953 term or that she did not attempt to secure other employment. The trial court specifically found contrary to appellant’s contention in this matter. The testimony shows that after appellee was notified on September 8th or 9th that she would not be allowed to teach, she got married on or about September 18, 1952. The trial judge was justified in finding that she did not decide to get married until after the September 8th or 9th notice. Appellee testified that she attempted to secure another teaching position in this state but that when she was unsuccessful she went with her husband to Chicago on October 10th. She stated she tried to get employment as a teacher in Chicago but was unable to do so because she did not have a college degree, and that she tried to get other employment but was successful only to a very limited degree. There is no testimony directly contradicting the above and we must conclude that there was substantial testimony to sustain the finding of the trial judge in this regard.
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J. Seaborn Holt, Associate Justice.
March 2, 1953 Appellant Wells (Seller) and Appellee Hill (Purchaser) entered into the following “Sales Agreement and Note”: “L. L. Wells does hereby sell and convey to James R. Hill the Dairy Bar store interest he now holds, and known as Jim’s Dairy Bar, located at 3601 Conway Pike, North Little ■ Rock, Arkansas, including all equipment, prepaid insurance, meter deposits and does hereby sublease said property as follows: Total price $5,647.00 to be paid as follows: Down payment of $1,400.00 is hereby acknowledged. Purchaser is to assume 14 monthly payments of $171.71 per month and will make these payments to L. L. Wells on the first day of each month commencing April 1, 1953 and terminating when paid in full foí a total of payments amounting to $2,403.94 which leaves a balance of $1,843.06 plus $110.04 interest for a total amount of $1,953.10 owed to L. L. Wells to be paid as follows: $108.50 per month commencing April 1, 1953 and each month to and including November 1, 1953 and said $108.50 payments to commence again March 1, 1954 to and "including November 1, 1954, making a total of eighteen (18) months at $108.50 and a grand total of $1,953.00.
“Rental on said building will be paid direct to M. B. Witkowski, (the owner) as follows, $100.00 per month commencing March 1, 1953 to and including November 1, 1953 and same each and every year so long as lease on said building is in effect or until March 1, 1963 if purchaser so desires.”
Operations under this instrument began March 1953 and continued until November 1953. Hill made the initial payment of $1,400.00 and in addition, seven (7) of the $171.71 installments. None of the $108.50 installments were paid. In December 1953 Hill ceased operations and Wells took charge of the business and shortly thereafter, in March 1954, Wells entered into a contract with Andrew Nahlen to sell to Nahlen the business for $5,500.00, payable $2,000.00 down and the balance at the rate of 50^ on each gallon of ice cream mix sold by Nah len, with a monthly accounting to Wells of the sales. Bent of $100.00 per month on the building, to Witkowski (owner), was to be paid direct to Wells. Subsequent to this sales contract of Wells to Nahlen, Hill brought the present suit against Wells for his equity in the business and for an accounting. Hill alleged that he had paid Wells a total of $2,953.43 under the terms of his agreement above with Wells, and further, “During the month of. March, 1954, the defendant (Wells) arranged for a sale of the business referred to in the attached contract for a consideration represented by him to be $5,500.00. This sale was made under an agreement with the plaintiff (Hill) whereby the business would be sold and the plaintiff and the defendant would share in the proceeds of.the sale in proportion to the amount that each had invested in the business. The defendant had paid the plaintiff the sum of $300.00 as a part payment of the latter’s share in the proceeds from the sale of this business. The defendant has promised to account to the plaintiff for the latter’s share of the proceeds from this sale, but he has failed and refused to do so.” Appellant’s answer was in effect a denial of every allegation in the complaint.
Trial resulted in a finding by the Court that Wells was acting as the agent of Hill when he (Wells) sold the business to Nahlen and that Hill had never surrendered any equity he might have in the business and was entitled to an accounting. Wells was credited with the purchase price stipulated in the sales contract between him and Hill and the remaining balance of the sales contract between Wells and Nahlen was ordered paid to Hill. From the decree is this Appeal.
For reversal, Appellant says: ‘‘The decision of the Trial Court is contrary to the evidence and the law.” We do not agree with either contention.
The finding of the Court that Wells was acting as Hill’s agent when he sold the business involved to Nahlen is, we- hold, not against the preponderance of the evidence. Hill testified in effect that he decided to sell the business in January 1955. When he told Wells that he wanted to sell, Wells tried to dissuade him, but when Wells saw that he (Hill) was determined to sell, Wells said: “ ‘We will go ahead and sell the store and get your equity out of it.’ It was approximately the latter part of February or a few days after we made this agreement I went out to the store and cleaned it up and painted it and gave Mr. Wells one key to the store. The latter part of February Mr. Wells sold the store to Andy Nahlen. The 5th of March I went out to the store to teach Mr. Nahlen to operate the machine and draw the product out of the syrup and the next day I went back to help Mr. Nahlen get one of the machines running that had broken down, and approximately a week later Mr. Wells came to Reb samen and gave me a check for $300.00 and said, ‘We will get together next week and settle out the rest of your equity,’ ... I never did make an agreement to terminate the first contract, (Wells-Hill).” The record reflects that Wells, in response to request for admission of facts by Hill, stated: “Defendant admits that he made a statement to the plaintiff subsequent to the sale of the business to Mr. Nahlen that defendant did not know the plaintiff’s share of the proceeds from this sale but that defendant would have his accountant determine plaintiff’s share.”
There was other evidence tending to corroborate Hill. While Wells’ testimony tended to contradict that offered by Hill, after a careful review of it all, without detailing it, we are unable to say, on trial de novo here, that the Court’s findings were against the preponderance thereof. Little v. Farm Bureau Co-Operative Mill & Supply, 224 Ark. 289, 272 S. W. 2d 818, and Lupton v. Lupton, 210 Ark. 140, 194 S. W. 2d 686.
Having concluded that the Trial Court correctly found that Wells acted as Hill’s agent in selling the business, then certainly as such agent the law required him (Wells) to account to his principal (Hill) for any funds which he received for Hill. Affirmed. | [
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JIM GUNTER, Justice.
I, Appellants appeal the grant of summary judgment in favor of Gary Green and Law Offices of Gary Green, which was granted on the basis that res judicata would not have barred appellants from pursuing an action in state court after dismissal of their federal action. Green cross-appeals the court’s denial of its motion for costs associated with the litigation. We accepted certification of this case from the court of appeals, pursuant to Ark. Sup. Ct. R. l-2(d), as an appeal involving an issue of first impression and needing clarification and development of the law. Therefore, we have jurisdiction pursuant to Ark. Sup.Ct. R. l-2(b)(l) and (5). We affirm the grant of summary judgment and dismiss the cross-appeal.
t>,On October 4, 1999, appellants filed a Title VII action in the United States District Court for the Eastern District of Arkansas, alleging that they were subjected to acts of sexual harassment by two coworkers while employed at Kroger and that Kroger delayed any action in preventing the harassment until July 17, 1999, when the co-workers were fired. On March 21, 2000, Kroger’s motion for summary judgment was granted based on ap pellants’ failure to exhaust their administrative remedies by filing charges with the Equal Employment Opportunity Commission (EEOC) and obtaining a “right-to-sue” letter. Appellants’ claim was dismissed with prejudice.
On July 17, 2000, after obtaining new counsel, appellants filed a complaint in the Pulaski County Circuit Court against their previous counsel, Diane Sexton and Kelli Cashion. The complaint alleged that Sexton and Cashion had assured appellants that there was no need to first file a charge with the EEOC before filing suit in federal court; that the legal advice given by their counsel was wrong; that counsel had been negligent; that because of counsel’s negligence, they had been barred from refiling their lawsuit; and that they had suffered and would continue to suffer personal and economic injuries as a result of counsel’s negligence. On December 8, 2000, appellants amended their complaint to add defendant Green. The amended complaint alleged that following the filing of the complaint in federal court, but prior to the dismissal of the complaint, Sexton had become an employee of Green, and that during that time, the complaint could have been amended to include causes of action under state law, such as the tort of outrage, a claim for negligent hiring and retention, and a claim |aof discrimination under the Arkansas Civil Rights Act. But, once the federal court dismissed the case, these claims became barred by the doctrine of collateral estoppel. Appellants alleged that failure to raise those claims was negligent and that Green was vicariously liable for the acts and omissions of Sexton.
On January 3, 2001, Green answered and argued that any negligence and resulting damages were proximately caused by Sexton and Cashion. Green also filed a cross-claim against Sexton and Cashion seeking judgment against them for any alleged professional negligence committed by Sexton that might be imputed to Green. Between December 2004 and February 2008, Green filed three motions for summary judgment. The latest motion was filed on February 15, 2008. In that motion, Green argued that they could not be held liable for fading to timely file a complaint with the EEOC because the time in which to file such a complaint expired pri- or to the time Sexton began working for Green. Green also argued that they did not, as a matter of law, breach the standard of care or cause any damage to Lindsey and Ellis by not amending the federal complaint or dismissing it prior to the entry of summary judgment. Green asserted that res judicata did not bar state law claims from being filed in state court, and it was the plaintiffs’ own failure to refile their action in state court before the statute of limitations expired that caused their damage.
On March 19, 2008, appellants filed a response, arguing that Green was incorrect on the law; that the dismissal of the federal action for failure to obtain a right-to-sue letter was a decision on the merits for purposes of res judicata; and that they were thus barred from |4pursuing any state causes of action. Green replied that appellants’ response was not timely and that they had failed to meet proof with proof to demonstrate the existence of a material issue of fact. Also, on July 16, 2008, Green filed a motion for costs, asserting that it had filed offers of judgment to each plaintiff that had been rejected and that it was entitled to costs in the amount of $5,955.51 under Ark. R. Civ. P. 68. Appellants responded to this motion by arguing that the offers of judgment were not made in accordance with Rule 68; that the offers were not bona fide offers; and that the costs claimed by Green were not authorized by statute.
On January 20, 2009, the court entered an order granting summary judgment to Green. The order stated
Plaintiffs cannot prove causation because the Federal District Court dismissed the Title VII action due to Plaintiffs’ failure to file charges of discrimination with the EEOC and never received a “right to sue” letter.
Had there been a final judgment on the merits, res judicata would have applied to any pendent claims. State claims, including the tort of outrage, were not barred by the statute of limitations at the time that the representation of Defendants, Gary Green and the Law Offices of Gary Green, were terminated.
On January 23, 2009, the court entered an order denying Green’s motion for costs because the offers of judgment were not bona fide offers. On January 30, 2009, appellants filed a motion to nonsuit their claims against Sexton and Cashion without prejudice, which was granted on February 5, 2009. And on February 3, 2009, the court entered an order dismissing Green’s cross-claim against Sexton and Cashion as moot. Appellants then filed a timely notice 1sof appeal from the grant of summary judgment on February 12, 2009, and Green filed a notice of cross-appeal on February 24, 2009.
The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Jackson v. Blytheville Civ. Serv. Comm’n, 345 Ark. 56, 43 S.W.3d 748 (2001). The evidence is viewed most favorably for the person resisting the motion, and any doubts or inferences are resolved against the moving party. Id. But in a case where the parties agree on the facts, this court simply determines whether the appellee was entitled to judgment as a matter of law. Id.
The concept of res judicata has two facets, one being issue preclusion and the other claim preclusion. Carwell Elevator Co. v. Leathers, 352 Ark. 381, 101 S.W.3d 211 (2003). Under claim preclusion, a valid and final judgment rendered on the merits by a court of competent jurisdiction bars another action by the plaintiff or his privies against the defendant or his privies on the same claim. Id. Res judicata bars not only the relitigation of claims which were actually litigated in the first suit, but also those that could have been litigated. Id. Where a case is based on the same events as the subject matter of a previous lawsuit, res judicata will apply even if the subsequent lawsuit raises new legal issues and seeks additional remedies. Id. However, res judicata is only applicable when the party against whom the earlier decision is being asserted had a fair and full opportunity to litigate the issue in question. Cater v. Cater, 311 Ark. 627, 846 S.W.2d 173 (1993).
[On appeal, appellants argue that Green was incorrect in its argument that the dismissal of the federal action was not a dismissal on the merits so as to trigger res judicata. In support, appellants cite Mills v. Convalescent Home, 872 F.2d 823 (8th Cir.1989), and Francis v. Francis, 343 Ark. 104, 31 S.W.3d 841 (2000). In Mills, the plaintiff was barred from pursuing a second federal complaint after the first federal complaint had been dismissed as untimely. The court stated that “disposition of a Title VII action as untimely filed is a decision on the merits for purposes of res judicata.” Mills, 872 F.2d at 826. And in Francis, this court held that the prejudicial dismissal of a father’s suit against his son, pursuant to a settlement agreement, barred a subsequent suit based on the same transaction. In that case, we noted that “[dismissal with prejudice is as conclusive of the rights of the parties as if there were an adverse judgment as to the plaintiff after a trial.” Francis, 343 Ark. at 112, 31 S.W.3d at 846. Appellants also cite a court of appeals case that discusses res judicata at length and quotes comment (e) to Section 25 of the Restatement (2d) of Judgments:
State and federal theories or grounds. A given claim may find support in theories or grounds arising from both state and federal law. When the plaintiff brings an action on the claim in a court, either state or federal, in which there is no jurisdictional obstacle to his advancing both theories or grounds, but he presents only one of them, and judgment is entered with respect to it, he may not maintain a second action in which he tenders the other theory or ground. If however, the court in the first action would clearly not have had jurisdiction to entertain the omitted theory or ground (or, having jurisdiction, would clearly have declined to exercise it as a matter of discretion), then a second action in a competent court presenting the omitted theory or ground should be held not precluded.
Coleman’s Serv. Ctr., Inc. v. Fed. Deposit Ins. Corp., 55 Ark.App. 275, 295, 935 S.W.2d 289, 300 (1996). Appellants assert that, under the above case law, the federal court clearly had jurisdiction of the Title VII claim as well as state-law causes of action under pendent jurisdiction, and because there were no state-law claims asserted and the federal suit was dismissed with prejudice, res judicata now bars the assertion of the state claims in state court. Appellants argue that Green can and should be held liable for its negligence in failing to assert or preserve those state-law claims.
Appellants also distinguish a case relied on by Green, Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001). In Semtek, a defendant removed a California state-court suit to a California federal district court based on diversity of citizenship, and then successfully moved to dismiss the case “on the merits” as barred by California’s statute of limitations. The plaintiff then brought suit in a Maryland Circuit Court, alleging the same causes of action, which were not time barred under Maryland’s statute of limitations. That court dismissed the case on the ground of res judi-cata, and the dismissal was affirmed by the Maryland Court of Special Appeals. The United States Supreme Court held that because the claim-preclusive effect of a federal court’s dismissal “upon the merits” of a diversity action on state statute-of-limitations grounds is governed by a federal rule, which in turn (in diversity cases) incorporates the claim-preclusion law that would be applied by state courts in the state in which the federal court sits, the Maryland Court of Special Appeals erred in holding that the California federal court’s dismissal “upon the merits” necessarily precluded the Maryland state-court action. | ^Appellants assert that Semtek’s applicability is debatable, since it was a diversity case and the case at bar involves a federal question, and further, Semtek did nothing more than establish that the pre-clusive effect of a federal judgment is governed by the law of the state in which the district court sits. And, under Arkansas law, res judicata would bar any claims that could have been brought in federal court.
Finally, appellants contend that the case at bar is similar to Arkansas Louisiana Gas Co. v. Taylor, 314 Ark. 62, 858 S.W.2d 88 (1993). In that case, Taylor filed suit in federal court seeking to cancel or reform a number of oil and gas leases and for other relief. The federal court found in favor of the appellant gas company, and the Eighth Circuit Court of Appeals affirmed. Three years later, Taylor was a member of the class in a class action against the gas company in state court, but the company argued that Taylor could not participate in the class action because his rights had been settled by the federal court and his claims were now barred by res judicata and collateral estoppel. The trial court disagreed, but this court reversed and held that res judicata did bar Taylor from participating as a claimant in the class-action suit, even though some of the claims in the class action were not litigated previously. This court stated, “Appellants take the position that Taylor’s present claim for relief could have been raised by him in Taylor v. Arkansas Louisiana Gas Co., 604 F.Supp. 779 (W.D.Ark.1985), and the judgment rendered against Taylor in that case constitutes a complete bar to any recovery in this case. We agree.” Taylor, 314 Ark. at 66, 858 S.W.2d at 90. In the case at bar, appellants assert that, by the same token, the state claims of outrage, negligent hiring, and | ¡discrimination could have been raised in federal court but were not, and those claims are now barred by res judicata.
In response, Green argues that the circuit court correctly determined that res judicata did not bar appellants’ state claims. Green argues that, while the federal court’s order stated it was dismissing “with prejudice,” that order only precluded further action based upon Title VII claims and not the pursuit of any state-law claims, as those claims were not raised to or adjudicated by the federal court. Green attempts to distinguish Francis by noting that in that case the parties had entered into actual litigation and the application of res judicata was “understandable due to the explicit language of the settlement and the order of dismissal.” Green similarly distinguishes Arkansas Louisiana Gas Co. by noting that Taylor’s first suit was fully litigated through the appellate level. In contrast, Green argues, the appellant in this case never had a full and fair trial at the federal level but instead had their action “kicked out” of court for failing to obtain a right-to-sue letter. Green also cites Stokes v. Lokken, 644 F.2d 779 (8th Cir.1981) for the proposition that summary judgment has “no bearing” on any state-law cause of action. In Stokes, a federal action that contained both federal statutory claims and state claims was decided on a grant of summary judgment. The order did not mention the state-law claims explicitly, but the Eighth Circuit reasoned that “jurisdiction of the state-law claims |inwas pendent only, however, and when federal claims are dismissed before trial, the normal practice is to dismiss pendent claims without prejudice, thus leaving plaintiffs free to pursue their state-law claims in the state courts, if they wish.” Id. at 785. Green contends that, based on this case, we should conclude that “any state law causes of action based upon the same facts are not impacted by the federal claim dismissal. It is irrelevant whether the state law claims were filed in the federal litigation or simply held for the state courts.”
Green emphasizes that the issues in appellants’ federal action were not “fully and fairly litigated” and that res judicata applies “only when the party against whom the earlier decision is being asserted had a fair and full opportunity to litigate the issue in question.” Cater, 311 Ark. at 632, 846 S.W.2d at 176. Green also asserts that Semtek, supra, is squarely on point because in that case a federal claim was dismissed with prejudice, but the Supreme Court still held that it was not necessarily claim-preclusive as to state-law claims. Green also cites Zhang v. Department of Labor & Immigration, 331 F.3d 1117 (9th Cir.2003), for the proposition that a dismissal on statute-of-limitations grounds does not generally bar a subsequent action in a different forum when the limitations in the second forum is longer than the first and has not yet expired. In conclusion, Green reiterates that, because the state-law claims were not barred by res judicata, appellants could have filed the state-law claims within the applicable statute of limitations after they retained new counsel, so Green is not liable for any harm to |! appellants.
We agree that appellants’ state-law claims were not barred by res judicata at the time they discharged Green. In Costello v. United States, 365 U.S. 265, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961), the Supreme Court held that a dismissal for failure to satisfy a precondition was not a decision on the merits and did not bar a subsequent action on the same claim. The prerequisites for a suit under Title VII include a timely filed administrative charge and timely institution of the suit after receipt of a right-to-sue notice. Criales v. Am. Airlines, Inc., 105 F.3d 93 (2d Cir.1997). So, it follows that the federal court dismissal for failure to file with the EEOC was not a judgment “on the merits” that would operate to bar appellants’ state law claims under res judicata. Appellants are correct that, usually, a dismissal with prejudice is as conclusive of the rights of the parties as if there had been an adverse judgment as to the plaintiff after a trial, but there are limitations to the doctrine of res judicata as recognized by our court of appeals:
A valid and final personal judgment for the defendant, which rests on the prematurity of the action or on the plaintiffs failure to satisfy a precondition to suit, does not bar another action by the plaintiff instituted after the claim has matured, or the precondition has been satisfied unless a second action is precluded by operation of the substantive law.
Cox v. Keahey, 84 Ark.App. 121, 133 S.W.3d 430 (2003) (quoting Restatement (Second) of Judgments § 20(2) (1982)). In contrast, a judgment on the merits in federal court will operate under the doctrine of res judicata to bar claims against the same defendants in state court. See Nat’l Bank of Commerce v. The Dow Chem. Co., 338 Ark. 752, 1 S.W.3d 443 (1999); Howell v. Hodap, 221 Ariz. 543, 212 P.3d 881 (2009).
We also note with approval the similar case of Andujar v. National Property & Casualty Underwriters, 659 So.2d 1214 (1995), in which the District Court of Appeal of Florida, Fourth District, reversed a summary judgment that was granted based on a finding that adjudication of an employee’s Title VII claim was res judicata as to her state-law discrimination claim. The court held
[P]laintifFs complaint in the district court alleged only claims under Title VII. She made no attempt to plead a cause of action under Florida law. Hence, the district court obviously had no occasion to decide whether to assume jurisdiction over her state law claims. Without an express decision to use pendent jurisdiction to decide state law claims, it is apparent to us that the federal court’s decision on the merits of the federal claim would be understood as lacking jurisdiction over the state claims.
Id. at 1218. Thus, under the reasoning in Andujar, even if this court considered the federal order a decision “on the merits,” appellants’ state claims were not necessarily barred. We therefore affirm the circuit court’s grant of summary judgment to Green.
On cross-appeal, Green contends that the circuit court erred in denying its motion for costs. However, we find that Green has failed to file an effective notice of appeal from the order denying costs. Whether an appellant has filed an effective notice of appeal is always an issue before the appellate court, and absent an effective notice of appeal, this court lacks jurisdiction to consider the appeal and must dismiss it. Bilyeu v. State, 342 Ark. 271, 27 S.W.3d 400 (2000).
Green’s notice of cross-appeal, filed February 24, 2009, stated that Green was appealing the “Final Order entered in this case on January 20, 2009” and that the notice was timely. 113However, Green asserts on appeal that he is appealing the court’s order denying its motion for costs, and that ruling is not contained in the January 20, 2009 order specified in Green’s notice of appeal. The denial of costs was a completely separate order filed on January 23, 2009. Rule 3(e) of the Rules of Appellate Procedure provides that a notice of appeal shall, among other things, “designate the judgment, decree, order, or part thereof appealed from.” Ark. R.App. P-Civ. 3(e) (2008). A notice of appeal must therefore designate the judgment or order appealed from, and an order not mentioned in the notice of appeal is not properly before an appellate court. See Wright v. State, 359 Ark. 418, 198 S.W.3d 537 (2004) (citing Daniel v. State, 64 Ark.App. 98, 983 S.W.2d 146 (1998)). Therefore, we find that Green has failed to file an effective notice of appeal and that the cross-appeal should be dismissed.
Affirmed on direct appeal; cross-appeal dismissed.
. Gary Green and the Law Offices of Gary Green will herein be referred to collectively as " Green.”
. This order also granted summary judgment to appellant Kristi Lindsey on a counterclaim filed against her by appellee Diane Sexton; however, this grant of summary judgment is not at issue on appeal.
. We recognize that Green raised numerous additional arguments in his brief; however, these arguments were either not raised below, were not ruled upon by the circuit court, or are otherwise irrelevant. Therefore, we will address only those arguments pertaining to the basis of the circuit court’s grant of summary judgment, namely that res judicata did not bar appellants’ state law claims at the time they terminated the services of Green.
. We note that Stokes is no longer good law for at least one point of law; the U.S. Supreme Court later rejected the "substantial factor” test for a seller of securities that was used in Stokes. See Pinter v. Dahl, 486 U.S. 622, 108 S.Ct. 2063, 100 L.Ed.2d 658 (1988).
. We also note that even if construed as a direct appeal from the January 23, 2009, order, Green's notice of appeal would have to be filed within thirty days of the order, which would be February 22, 2009. That day was a Sunday, so Green would have had until February 23 to file its notice, but notice was not filed until February 24. | [
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OPINION OF THE COURT. In this case the plaintiff sued out a writ of forcible entry and detainer against the defendants, where in it is alleged that the defendant, Elizabeth Davis, on the second and third days of November, 1823, entered in and upon a certain plantation and the dwelling-houses thereon, where Archer Brown, his tenant, resided; and the question is, whether the landlord can maintain a proceeding of this kind for a forcible entry on his tenant. It is well settled that the landlord cannot maintain trespass for an injury to his tenant, and on the same principle it has been decided in Kentucky that the tenant alone can. have a writ of forcible entry and detainer against a person who forcibly enters and expels him from the tenement. Vanhorne v. Tilley, 1 T. B. Mon. 52. It is irresistible from the statute regulating forcible entry and detainer (Gey. Dig. 202) that possession in fact, and not a constructive possession, is absolutely necessary to enable the plaintiff to maintain the action. Stewart v. Wilson, 1 A. K. Marsh. 225; Pogue v. McKee, 3 A. K. Marsh. 127.
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OPINION OP THE COURT. This is an action of debt, brought by the plaintiff against the defendant, as administrator of John English, deceased, upon an obligation executed by the intestate to the plaintiff. The defendant has pleaded in substance that the estate of which he is administrator is insolvent, and to this plea the plaintiff has demurred, and the only question presented' to the court is, whether the plea is good as a bar to the action. We are of opinion that it is not, because, according to the well-established rules of pleading, every plea must contain an answer to the whole cause of action set out in the declaration, or to some certain part of it. Steph. Pl. 215; 6 Com. Dig. “Pleader,” 3 M. 40, 41. The plea in question is not an answer to the whole declaration, for the reason, that although the estate may be insolvent and unable to discharge the full amount of debts against it, yet it may be able to pay a portion of them. It is not an answer to any certain claim of the plaintiff; because the plea does not state what part of the debt the estate is able to pay, and even then it would not be good. On these grounds, wfe think the plea insufficient But it has been argued, that unless the defendant be allowed in this action to plead the insolvency of the estate, he must be subjected personally to liability in another action brought upon this judgment. The answer to this is, that if the defendant has taken the legal steps and pursued the course pointed out by the administration law in relation to insolvent estates, he cannot be injured in his individual character, in any action which may be brought against him on the judgment which may be rendered in this case. Demurrer sustained. | [
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PAUL E. DANIELSON, Associate Justice.
| Appellants, the Arkansas State Claims Commission (“ASCC”), the General Assembly’s Claims Review Subcommittee, the General Assembly’s Joint Budget Committee, the Arkansas State Highway Commission, and the Arkansas State Highway and Transportation Department (“ASHTD”), bring this interlocutory appeal from the circuit court’s order denying in part their motions to dismiss the complaint for declaratory judgment and the first amended complaint for declaratory judgment of appellee Duit Construction Company, Inc. Their sole point on appeal is that the circuit court erred in its denial because they were entitled to sovereign immunity. Duit cross-appeals from the circuit court’s order granting in |2part the Appellants’ motions to dismiss, asserting that the circuit court erred in doing so, and the Appellants have moved to dismiss Duit’s cross-appeal. We reverse and remand on direct appeal and dismiss the cross-appeal.
In 2002, Duit entered into a contract with the Arkansas State Highway Commission to complete an improvement project on Interstate 30 in Saline and Pulaski Counties. Duit subsequently encountered what it claims were “differing site conditions,” and, in 2006, it transmitted a “Request for Equitable Adjustment for Cost Overruns” to the ASHTD, which denied Duit’s request. Duit then filed a complaint with the ASCC on May 5, 2011, and the ASCC denied and dismissed Duit’s claim “for failure to prove by a preponderance of the evidence any liability on the part of the [ASHTD].”
On January 9, 2012, the General Assembly’s Claims Review Subcommittee remanded Duit’s claim to the ASCC for further evidence or findings. The ASCC held a partial rehearing on remand, and it once again denied and dismissed Duit’s claim. Duit claims that it appealed the ASCC’s second denial and dismissal to the General Assembly and that “[b]y voice vote on March 20, 2013, a Subcommittee of the Joint Budget Committee ‘affirmed’ the ASCC’s ... decision. The Joint Budget Committee subsequently adopted the Subcommittee’s decision without a hearing or notice to Duit.”
Duit filed a “petition” and what it deemed a “notice of appeal” from the March 20, 2013 vote in the Pulaski County Circuit Court; it later amended that notice of appeal and additionally petitioned the circuit court for a writ of certiorari, as well as a declaratory judgment. In doing so, Duit challenged the constitutionality of the method by which the |sState resolves claims against it, asserting that the procedures violated the Due Process Clause by “failing to provide a fair and impartial post-deprivation procedure for the resolution of breach of contract claims against the State, and by discriminating against non-residents.”
The Arkansas State Highway Commission and the ASHTD moved to dismiss Duit’s amended notice of appeal, petition for writ.of certiorari, and complaint for declaratory judgment. In their motion, they claimed that Duit’s suit was one against the State and that they were afforded sovereign immunity from Duit’s suit pursuant to article 5, section 20, of the Arkansas Constitution. They further contended that Duit’s suit should be dismissed for failure to state facts or a claim upon which relief could be granted under Arkansas Rule of Civil Procedure 12(b)(6).
Likewise, the ASCC, the Claims Review Subcommittee, and the Joint Budget Committee also moved to dismiss Duit’s amended notice of appeal, petition for writ of certiorari, and complaint for declaratory judgment. They similarly asserted that sovereign immunity barred Duit’s suit, and they further averred that both this court and the federal courts had rejected the notion that the resolution of claims against the State by the ASCC and the General Assembly violated due process. Duit responded to the motions to dismiss, and the circuit court held a hearing on the motions. After the hearing, Duit filed a first amended complaint for declaratory judgment, in which it sought a declaration that the current method of resolving contract disputes was unconstitutional and directing the State to provide Duit with a fair, impartial, and meaningful forum in which to present its claim.
On October 21, 2013, the circuit court entered its order, in which it noted that Duit |4had withdrawn its “notice of appeal,” and it dismissed Duit’s petition for writ of certiorari. With regard to Duit’s claim for declaratory relief, the circuit court found, in relevant part:
7. The framework for deciding contract claims against the State of Arkansas is not violative of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. The Court finds that the General Assembly and the Joint Budget Committee of the General Assembly are a sufficient and constitutional remedy for Due Process Clause purposes. Thus, the Court finds the Amended Notice and Complaint and the First Amended Complaint allegations that the current framework for deciding claims against the State of Arkansas is facially unconstitutional are barred by Art. 5, § 20, Constitution of Arkansas.
8. The Amended Notice and Complaint and the First Amended Complaint, on the other hand, present sufficient factual allegations to constitute a cause of action that the Respondents have not been impartial with respect to the claims of nonresidents.
IT IS THEREFORE ORDERED that the District Court Rule 9(f) Appeal is hereby dismissed, that the Petition for Writ of Certiorari is hereby dismissed, and that the Motions to Dismiss the Complaint for Declaratory Judgment and First Amended Complaint for Declaratory Judgment are granted on the grounds that the statutory framework for deciding claims against Arkansas is constitutional and, therefore, the Petitioner’s claims of facial invalidity of the framework is dismissed on the grounds of sovereign immunity, and that the statutory framework is constitutional. The Motion to Dismiss the Complaint for Declaratory Judgment and First Amended Complaint for Declaratory Judgment, including the motion to dismiss on grounds of sovereign immunity, are denied only as to Petitioner’s due-process and equal-protection claims that in-state and out-of-state contractors were treated differently. All other claims and or requests of Petitioner are hereby dismissed with prejudice.
It is from this order that the Appellants and Duit both appeal.
I. Direct Appeal
The Appellants contend that the circuit court erroneously denied their motions to dismiss, contending that they are entitled to sovereign immunity because Duit’s claim attempts to control the actions of the State and subject it to monetary liability. They further assert that no exception to the sovereign-immunity doctrine applies because Duit’s complaint does not |fimeet the threshold showing required to apply the “unconstitutional act” exception. They urge that Duit’s complaint is devoid of any factual support for its assertion that the ASCC and the General Assembly have treated out-of-state contractors differently from in-state contractors. They further maintain that the unconstitutional-act exception has no application to claims seeking monetary relief against the State, but is limited in its application to claims seeking injunctive relief.
Duit responds that a suit to enforce rights guaranteed by the United States Constitution overcomes the bar of sovereign immunity, as does a suit for declaratory and injunctive relief involving illegal or unconstitutional acts by the State. It contends that its complaint for relief sufficiently averred facts in support of its claim that the State deprived it of its property without due process of law arid equal protection by failing to provide an impartial decision maker. Duit claims that declaratory relief is the appropriate remedy in its quest to obtain an unbiased forum for its claims against the State.
Ordinarily, an appeal may not be taken from an order denying a motion to dismiss. See University of Arkansas for Med. Scis. v. Adams, 354 Ark. 21, 117 S.W.3d 588 (2003). However, Arkansas Rule of Appellate Procedure-Civil 2(a)(10) (2013) provides for an interlocutory appeal of an order denying a motion to dismiss based on the defense of sovereign immunity. See id. The rationale justifying an interlocutory appeal is that the right to immunity from suit is effectively lost if the case is permitted to go to trial. See id.
In reviewing a circuit court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the party who filed the R,complaint. See, e.g., Arkansas Dep’t of Envtl. Quality v. Oil Producers of Arkansas, 2009 Ark. 297, 318 S.W.3d 570. In testing the sufficiency of the complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and the pleadings are to be liberally construed. See id. However, our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. See id. Our standard of review for the denial of a motion to dismiss is whether the circuit court abused its discretion. See Walker v. Arkansas State Bd. of Educ., 2010 Ark. 277, 365 S.W.3d 899.
The parties do not appear to dispute that Duit’s action is one against the State, which is ordinarily barred by the doctrine of sovereign immunity. Sov ereign immunity is jurisdictional immunity from suit. See Milberg, Weiss, Bershad, Hynes & Lerach, LLP v. State, 342 Ark. 303, 28 S.W.3d 842 (2000). This defense arises from article 5, section 20, of the Arkansas Constitution, which provides: “The State of Arkansas shall never be made defendant in any of her courts.” Id. at 320, 28 S.W.3d at 854 (quoting Ark. Const. art. 5, § 20). This court has extended the doctrine of sovereign immunity to include state agencies. See Arkansas Dep’t of Cmty. Corr. v. City of Pine Bluff, 2013 Ark. 36, 425 S.W.3d 731. Where the pleadings show that the action is, in effect, one against the State, the circuit court acquires no jurisdiction. See id. In determining whether the doctrine of sovereign immunity applies, |7the court must decide if a judgment for the plaintiff will operate to control the action of the State or subject it to liability. See Arkansas Dep’t of Envtl. Quality v. Al-Madhoun, 374 Ark. 28, 285 S.W.3d 654 (2008). If so, the suit is one against the State and is barred by the doctrine of sovereign immunity, unless an exception to sovereign immunity applies. See id.
This court has recognized three ways in which a claim of sovereign immunity may be surmounted: (1) where the State is the moving party seeking specific relief; (2) where an act of the legislature has created a specific waiver of sovereign immunity; and (3) where' the state agency is acting illegally, unconstitutionally, or if a state-agency officer refuses to do a purely ministerial action required by statute. See Board of Trustees of the Univ. of Arkansas v. Burcham, 2014 Ark. 61, 2014 WL 585981; Arkansas Dep’t of Cmty. Corr., 2013 Ark. 36, 425 S.W.3d 731; Arkansas Tech Univ. v. Link, 341 Ark. 495, 17 S.W.3d 809 (2000). At issue in the instant case is whether the last exception applies. The Appellants assert that the unconstitutional-act exception does not apply for two reasons: (1) Duit failed to plead sufficient facts to demonstrate an unconstitutional act; and (2) the exception does not apply to suits for monetary relief, which the Appellants claim is the ultimate relief sought by Duit. We need only address the former.
This court has recognized that a complaint alleging illegal and unconstitutional acts by the State as an exception to the sovereign-immunity doctrine is not exempt from complying with our rules that require fact pleading. See Link, 341 Ark. 495, 17 S.W.3d 809. In its suit, Duit alleged that the claims-commission process favors resident contractors over nonresident contractors, resulting in a -violation of equal protection under the Fourteenth Amendment to the United States Constitution. “In deciding whether an equal protection challenge is | ^warranted, there must first be a determination that there is a state action which differentiates among individuals.” Pledger v. Featherlite Precast Corp., 308 Ark. 124, 135, 823 S.W.2d 852, 859 (1992) (quoting Bosworth v. Pledger, 305 Ark. 598, 604, 810 S.W.2d 918, 920 (1991)).
A careful review of Duit’s first amended complaint for declaratory judgment, however, reveals that Duit failed to plead facts that, if proven, would demonstrate a differentiation in the treatment of in-state and out-of-state contractors. Although Duit provides a table demonstrating the alleged past awards and denials by the ASCC to nonresident contractors, its complaint lacks any facts in support of its statement that “[d]uring that same period the ASCC recommended awards of damages to Arkansas resident contractors for breach of contract against the AHTD in amounts greater than awards to non-resident contractors.” The mere statement that it is so, without factual support, simply fails to comport with our fact-pleading requirements. See, e.g., Arkansas Dep’t of Envtl. Quality v. Brighton Corp., 352 Ark. 396, 102 S.W.3d 458 (2003).
For purposes of a motion to dismiss, we treat only the facts alleged in a complaint as true, but not a party’s theories, speculation, or statutory interpretation. See Fitzgiven v. Dorey, 2013 Ark. 346, 429 S.W.3d 234. Taking only the facts alleged in Duit’s first amended complaint for declaratory judgment as true and viewing them in the light most favorable to Duit, we cannot say that the complaint states sufficient facts to support Duit’s allegation that the claims-commission process treated resident and nonresident contractors differently in violation of the Fourteenth Amendment. Accordingly, the exception to the sovereign-immunity doctrine for unconstitutional acts is not applicable, and Duit’s equal] ¡protection claim is barred by sovereign immunity. We therefore reverse the circuit court’s denial of the Appellants’ motions to dismiss Duit’s equal-protection claim and remand for entry of an order consistent with this opinion.
II. Cross-Appeal; Motion to Dismiss Cross-Appeal
Duit cross-appeals from the circuit court’s order that granted in part the Appellants’ motions to dismiss based on sovereign immunity, dismissing its due-process claim. Before we can reach the merits of the cross-appeal, however, we must first address a motion by the Appellants to dismiss Duit’s cross-appeal. In their motion, the Appellants contend that this court should dismiss the cross-appeal because Duit seeks to appeal from what is a nonfinal order. The Appellants aver that because the circuit court only dismissed Duit’s facial challenge, but allowed it to proceed on its unequal-treatment claim, the circuit court’s order adjudicated fewer than all of Duit’s claims and, therefore, the order was not final. They further point out that the appeal is not proper under Ark. R.App. P.-Civ. 2(a)(10), as theirs is, because that rule limits such an interlocutory appeal to the denial of a motion to dismiss or for summary judgment on the basis of immunity and does not permit an appeal from the grant of those motions.
We agree. In the instant case, the circuit court’s order may have dismissed Duit’s due-process claim, but it also kept alive Duit’s equal-protection claim, by virtue of its denial in part of the Appellants’ motion to dismiss. Accordingly, the order was in no way final at the time | init was entered by the circuit court. The requirement of a final judgment is the cornerstone of appellate jurisdiction, and this court reviews only final orders. See Robinson v. Villines, 2012 Ark. 211, 2012 WL 1739140. For an order to be final and appealable, it must dismiss the parties from the court, discharge them from the' action, or conclude their rights to the subject matter in controversy. See id. Stated another way, for an order to be final and appealable, the order must put the circuit court’s directive into execution, ending the litigation, or a separable branch of it. See id. According to the circuit court’s order, Duit’s claim that nonresident contractors were treated differently remained viable; it had not been dismissed, and an order that contemplates further action by a party or the court is not a final, appeal-able order. See id.
Because the circuit court’s order did not dispose of both of Duit’s claims, there is no final judgment as required by Ark. R. Civ. P. 54(b). Under Rule 54(b), an order that fails to adjudicate all of the claims as to all of the parties, whether presented as claims, counterclaims, cross-claims, or third-party claims, is not final for purposes of appeal. See Ford Motor Co. v. Washington, 2012 Ark. 325, 2012 WL 4017383. Although Rule 54(b) provides a method by which the circuit court may direct entry of a final judgment as to fewer than all of the claims, where there is no attempt to comply with Rule 54(b), the order is not final, and we must dismiss the appeal. See id. Our review of the instant record reveals no certification pursuant to Ark. R. In Civ. P. 54(b).
Nor is Duit’s cross-appeal a proper interlocutory appeal under Ark. R.App. P.-Civ. 2(a)(10). That rule permits an interlocutory appeal from “[a]n order denying a motion to dismiss or for summary judgment based on the defense of sovereign immunity,” but Duit seeks to appeal the circuit court’s grant in part of the Appellants’ motion to dismiss on sovereign immunity. Since Rule 2(a)(10) does not allow an interlocutory appeal of an order granting a motion to dismiss based on the defense of sovereign immunity, Duit’s cross-appeal is improper under that Rule as well. For all of these reasons, we lack jurisdiction over Duit’s cross-appeal and must dismiss it. Accordingly, we grant the Appellants’ motion to dismiss the cross-appeal.
Reversed and remanded for entry of an order consistent with this opinion; appellants’ motion to dismiss cross-appeal granted; cross-appeal dismissed.
Special Justice J. CARTER FAIRLEY joins.
HOOFMAN, J., not participating.
. To the extent that Duit might contest this, it is clear that a judgment in Duit’s favor would operate to control the actions of the State. Duit's first amended complaint specifically re quests that the circuit court "require the State of Arkansas to provide Duit a meaningful and fair forum in which to present its claims for breach of contract.” Accordingly, Duit’s suit is barred by the doctrine of sovereign immunity unless an exception applies. See, e.g., Arkansas Dep’t of Cmty. Corr. v. City of Pine Bluff, 2013 Ark. 36, 425 S.W.3d 731.
. In its response to the Appellants’ motion to dismiss the cross-appeal, Duit contends that there are no unresolved claims at the circuit-court level and that its cross-appeal from the dismissal of its claim should be heard in conjunction with the Appellants’ direct-appeal. Duit takes the position that its complaint consisted of only one claim — one for due process — and that the circuit court's order disposed of that single claim.
We do not agree. Although Duit argues that the complaint consisted of only one claim against the Appellants, the circuit court’s order clearly treated Duit's allegations as two separate claims — one for due process and one alleging a difference in the treatment of resident and nonresident contractors, a claim readily identifiable to this court as one alleging an equal-protection violation. | [
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PHILLIP T. WHITEAKER, Judge.
| Appellant David Van Winkle was charged by amended information with one count each of kidnapping, aggravated residential burglary, first-degree stalking, second-degree battery, aggravated assault, and terroristic threatening. A Polk County jury convicted him on all six counts (reducing the second-degree battery charge to third-degree battery), and he was sentenced to a total of fifty-two years in the Arkansas Department of Correction. On appeal, he contends that there was insufficient evidence to support four of those convictions. We find no error and affirm.
I. Standard of Review
Van Winkle argues that the trial court erred in denying his motions for directed verdict on the counts of kidnapping, first-degree stalking, third-degree battery, and aggravated residential burglary. A directed-verdict motion is a challenge to the sufficiency of the ^evidence. Populis v. State, 2011 Ark. App. 334, 2011 WL 1707288; Draper v. State, 2010 Ark. App. 628, 378 S.W.3d 191. When reviewing a challenge to the sufficiency of the evidence, the appellate court will affirm the conviction if there is substantial evidence to support it, when viewed in the light most favorable to the State. Populis, supra. Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another without resort to speculation or conjecture. Id. With these standards in mind, we now examine the evidence presented to the jury.
II. Background Facts
Van Winkle was a dentist who had a practice in Mena for twenty-six years. The victim in this case, M.O., was one of his patients. M.O. had numerous dental problems and learned that Van Winkle offered free consultations and payment plans. When she went to see him, he recommended that she have her remaining teeth extracted and get dentures. M.O. had her first tooth extraction in August 2011, and Van Winkle gave her a prescription for hydrocodone. M.O. was participating in drug court at the time, however, and was concerned about the prescription.
The day after the extraction, Van Winkle sent M.O. a text message, asking how she was doing and if she had any pain. M.O. replied that she was having a little pain. Van Winkle texted her back to inform her that she could work in his office or clean his home as part of her payment plan. M.O. thought “it was a little bit strange,” but she was interested in following up because she “really needed some work done on [her] teeth.”
IsM.O. returned for a second tooth extraction about two weeks later. She described the procedure as “a little hasty” and said that it was “quite painful.” M.O. then discussed her pain medication with Van Winkle. Van Winkle told M.O. that she could “double up” on her medication if she was in pain, but M.O. replied that she could not because she had to do a pill count with Terry Ford, her probation officer. M.O. and Van Winkle then began discussing how to hide her prescriptions from Ford. Through a series of conversations, including text messages, it was de termined that M.O. should take the pain medications as needed. Van Winkle said he would give her a refill to make sure her pill count was okay. M.O., who said she was “already under the influence of pain medication,” deceived Ford about the number of pills she was taking. M.O. even deleted her text messages from Van Winkle because Ford would check her phone.
After the second tooth extraction, Van Winkle told M.O. that Ford had come by his office to look at M.O.’s file. He also told her that Ford wanted to see Van Winkle’s ledger to know how many refills M.O. had gotten that Ford did not know about. M.O. said it was important for her and Van Winkle to “get [their] stories straight,” and so they began meeting outside of his office to go through the ledger together.
On their third visit together, M.O. went to Van Winkle’s house, and they had a “general conversation.” While she was-there, Van Winkle asked how important it was that Ford not see the real ledger; M.O. said it was “pretty damn important.” Van Winkle asked what she would be willing to do to keep Ford from finding out about the prescriptions. When M.O. asked what he meant, Van Winkle said he “just wanted a couple hours of [her] time” |4and told her that he would make sure she went to prison and would never see her husband or son again if she refused. Van Winkle then pushed her onto the couch, ripped her shirt off, and forced her to perform oral sex on him.
A week later, M.O. called Van Winkle’s office to get another prescription. The next day, Van Winkle texted her, ostensibly to ask if she was in pain. A series of text messages between M.O. and Van Winkle then ensued while M.O. was at work. The content of these communications concerned Van Winkle’s attempt to get a prescription to M.O. Eventually, they decided that Van Winkle would go to M.O.’s house early the next morning and leave a prescription for her in a Tupperware container on her front steps.
After M.O. got off work that night around midnight, she called her then-husband and spoke with him while she drove home. She was still speaking to her husband on the phone when she arrived home. She noticed that the light on her vent hood was off, although she always left it on when she went to work. As she turned the light on, she heard the bedroom door creak; she turned around and saw Van Winkle standing in front of her spare bedroom with a black pistol pointed at her. M.O. screamed. Van Winkle tackled her, wrestled her to the floor, and zip-tied her wrists behind her back. In the course of the scuffle, M.O. dropped her phone and the conversation with her husband was disconnected. Van Winkle pushed M.O. to her knees over an ottoman, but she was able to break the zip-ties and kick him “in the privates.” Van Winkle pulled a screwdriver out of his pocket and hit her over the eye with it, telling her to be still if she ever wanted to see her little boy again. M.O. said that she would do whatever he wanted, and Van Winkle replied, “I know you will.” He again threw |fiher on the ground, pinned her arms behind her and zip-tied them again, and placed a piece of duct tape over her mouth. He then pulled her to her feet and said they were “going to take a little walk.”
As soon as the door was open, M.O. was able to break free, remove the duct tape from her mouth, and run to the house of her neighbors, the Pruitts. Christy Pruitt opened the door, and M.O. ran into the house with her hands still bound. She told Christy and her parents that Van Winkle was trying to kill her. Andrew Pruitt, Christy’s father, said that M.O. was “screaming and bawling ... [and] scared to death.” Martha Pruitt, Christy’s mother, called 911.
After the 911 dispatch, law enforcement became involved. Cove Township Constable Jim Corazzo headed to the location described in the dispatch. On his way, he saw a white pickup truck parked off of the road. Corazzo saw a man walking toward the vehicle and noticed that he was swinging a gun in his left hand. Corazzo ordered the man to the ground; after three commands, the man placed the gun on the hood of the truck and complied. Corazzo released the round from the gun and slid back the chamber, which caused a round to exit. Corazzo explained that, if the trigger of the gun had been pulled, the ■ round would have been fired. Corazzo asked the man his name, and the man said it was David Van Winkle. Deputy Ronnie Richardson arrived on the scene soon after and placed Van Winkle in handcuffs. Richardson patted Van Winkle down and discovered a yellow-and-black screwdriver in his right back pocket and two pieces of white rope in his left back pocket.
| (After taking the appellant into custody, • law enforcement began processing several locations for evidence. Officer Gene Hendrix was dispatched to the Pruitts’ house, where he found M.O. with her hands still zip-tied together and her clothing in disarray. Hendrix cut the zip-ties off M.O.’s wrists and took photographs of her injuries.
Polk County Sheriff Mike Godfrey processed the crime scene at M.O.’s house. He observed that Van Winkle’s truck had been parked “a couple hundred yards” from her house. Godfrey found two "windows from which the screens had been removed, and there were pry or scratch marks on the front and rear doors. On one window, there were fresh, “really shiny” pry marks on the aluminum window sills, and the bottom trim was pried back as though a screwdriver or other prying instrument had been used to pop the window open. Inside that window, the drapes had been pulled out of place. Further inside the residence, there were signs of a scuffle, including an upended ottoman and pushed-up rugs. Sheriff Godfrey found M.O.’s phone under the couch and a plastic zip-tie on a living-room chair. He also discovered a roll of pennies wrapped in duct tape on the couch and a piece of duct tape in the yard. Sheriff Godfrey also obtained a search warrant for Van Winkle’s house and truck. He retrieved a roll of duct tape and blood-stained paper towels from the house and a pair of zip-ties and a screwdriver from the truck.
On these facts, the jury returned with the guilty verdicts described above. On appeal, Van Winkle challenges the sufficiency of the evidence supporting four of those convictions: kidnapping, first-degree stalking, third-degree battery, and aggravated residential burglary.
I7III. Kidnapping
A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with the person’s liberty with the purpose of inflicting physical injury upon the other person; engaging in sexual intercourse, deviate sexual activity, or sexual contact with the other person; or terrorizing the other person. Ark.Code Ann. § 5-ll-102(a)(4)-(6) (Repl.2006); White v. State, 801 Ark. 74, 781 S.W.2d 478 (1989). Although Van Winkle concedes that there was sufficient evidence that he restrained M.O., he asserts that there was insufficient evidence of his intent or purpose in doing so. He suggests that the jury had to speculate or guess at why he restrained her.
There is no merit to Van Winkle’s argument. The evidence was sufficient and did not leave the jury to guesswork or speculation. Van Winkle had previously coerced M.O. into having sex at his home. On the night of the kidnapping, the fact that, he tied her hands behind her back and forced her to her knees over an ottoman gives rise to an inference that he intended to engage in sexual intercourse with her again. The supreme court has held that the purpose of the restraint may be inferred from circumstantial evidence. Green v. State, 313 Ark. 87, 852 S.W.2d 110 (1993). Whether or not the assailant was able to complete the purpose of the kidnapping is irrelevant. See Cook v. State, 284 Ark. 333, 681 S.W.2d 378 (1984). Moreover, he came armed with a pistol and a screwdriver, and he threatened that she would never see her son again if she did not comply. Thus, there was also sufficient evidence of an intent to terrorize her to support Van Winkle’s kidnapping conviction.
|SIV. First-Degree Stalking
A person commits the offense of stalking in the first degree if he
purposely engages in a course of conduct that harasses another person and makes a terroristic threat with the intent of placing that person in imminent fear of death or serious bodily injury or placing that person in imminent fear of the death or serious bodily injury of his or her immediate family and the person ... is armed with a deadly weapon or represents by word or conduct that he or she is armed with a deadly weapon.
Ark.Code Ann. § 5-71-229(a)(l)(C) (Repl. 2005). A “course of conduct” means “a pattern of conduct composed of two (2) or more acts separated by at least thirty-six (36) hours, but occurring within one (1) year.” Ark.Code Ann. § 5-71-229(d)(l)(A) (Repl.2005). “Harassment” is defined in Arkansas Code Annotated section 5-71-208(a) (Repl.2005):
A person commits that offense if, with purpose to harass, annoy, or alarm another person, without good cause, he or she:
(1) Strikes, shoves, kicks, or otherwise touches a person, subjects that person to offensive physical contact or attempts or threatens to do so; [or]
(5) Engages in conduct or repeatedly commits an act that alarms or seriously annoys another person and that serves no legitimate purpose.
Van Winkle argues on appeal that there was no evidence that there was a “course of conduct” of harassment, contending that there was no evidence that he previously harassed M.O. or that he harassed her on the evening in question. The evidence, however, showed that, mere weeks before the incident in this case, Van Winkle forced her to engage in oral sex with him, threatening to tell her probation officer about her improper prescriptions if she did not. Van Winkle also threatened that she would never see her son again, both at the time of lathe previous occurrence and on the night of the instant offense. From this evidence, the jury could conclude that Van Winkle had engaged in a course of conduct of harassment; as such, there is no merit to Van Winkle’s argument on this issue.
V. Third-Degree Battery
In his third point on appeal, Van Winkle asserts that there was insufficient evidence to prove that he committed the offense of third-degree battery on M.O. A person commits battery in the third degree if, with the purpose of causing physi cal injury to another person, the person causes physical injury to any person. Ark. Code Ann. § 5-13-201(a)(l) (Repl.2006). Van Winkle argues that, while M.O. initially testified that he hit her over the eye with a screwdriver, she conceded on cross-examination that she did not know whether the injury was the result of the blow from the screwdriver or from her fall to the floor. Therefore, he contends, the jury should not have found that he purposefully caused physical injury to M.O.
Van Winkle’s argument is nothing more than a challenge to M.O.’s credibility. The credibility of witnesses, however, is an issue for the jury and not for this court. Barrett v. State, 354 Ark. 187, 119 S.W.3d 485 (2003). The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the victim’s account of the facts rather than the defendant’s. Id. Accordingly, Van Winkle’s conviction for third-degree battery is supported by substantial evidence.
ImVL Aggravated Residential Burglary
Finally, Van Winkle challenges his conviction for aggravated residential burglary. A person commits that offense if he commits the offense of residential burglary and is armed with a deadly weapon or represents by word or conduct that he or she is armed with a deadly weapon. Ark. Code Ann. § 5-39-204(a)(l) (Repl.2006). A person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment. Ark. Code Ann. § 5-39-201(a)(l) (Repl.2006).
At trial, Van Winkle moved for directed verdict as follows:
Your Honor, with regard to Count II, aggravated residential burglary, the defense would state it believes the State has failed to provide any substantial evidence that Dr. Van Winkle did enter or remain unlawfully in the house of [M.O.] as described in this case. There is no evidence that he did so armed with a deadly weapon. In addition, there is no evidence that he represented by word or conduct that he had a deadly weapon.
On appeal, however, Van Winkle concedes that the evidence was sufficient to show that he entered M.O.’s residence unlawfully and that he was armed with a deadly weapon. He argues — for the first time on appeal — that there was no evidence of what he intended to do with or to M.O. This argument was not raised below and is therefore not preserved for appellate review. Jackson v. State, 2014 Ark. App. 415, 2014 WL 2807906 (Parties cánnot change the grounds for an objection on appeal, but are bound by the scope and nature of the objections and arguments presented at trial.) (citing Tryon v. State, 371 Ark. 25, 263 S.W.3d 475 (2007)). Affirmed.
HIXSON and BROWN, JJ„ agree.
. As noted above, Van Winkle was charged with second-degree battery, but the jury convicted him of the lesser-included' offense of third-degree battery. | [
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RITA W. GRUBER, Judge.
| ,Appellant Terry Druyvestein appeals from an order of the Sebastian County Circuit Court granting summary judgment to appellee Roy Gean, Jr. Appellant filed a complaint against appellee alleging fraudulent transfer and also requesting the court to impose a constructive trust on certain funds held by appellee that were acquired from Lois Druyvestein. We hold that there were genuine issues of material fact to be decided on both claims; accordingly, we reverse the circuit court’s order and remand for further proceedings.
This case arose out of a dispute over the ownership of a bond account after the death of appellant’s uncle, H.J. “Humpy” Druyvestein. Humpy died on February 24, 2007, survived by his wife Lois Druyve-stein. It was unclear at Humpy’s death whether he intended to leave the bond account at Summit Brokerage to either Lois or appellant. Appellant filed a complaint against Lois in October 2007 seeking a constructive trust over the bond account, | gwhich the circuit court dismissed. In an opinion dated June 16, 2010, this court reversed that dismissal, and the circuit court subsequently entered judgment in favor of appellant for an amount in excess of $200,000. Druyvestein v. Summit Brokerage Servs., Inc., 2010 Ark. App. 500, 375 S.W.3d 777. Lois’s daughter, Linda Van Divner, appeared in lieu of her mother in that case and also answered post-judgment interrogatories, through which appellant learned that the funds from the bond account in the amount of $208,830.72 had been liquidated. According to a letter from Ms. Van Divner attached to appellant’s complaint in this case, Lois’s lawyer in the previous case, appellee, received a check for the entire proceeds of the account made out to Lois. He drove to Kansas to have Lois endorse the check; he placed the proceeds in his own account; then he wrote a check to Ms. Van Divner for $105,625.72 and kept the remaining $103,205, presumably for his fee. When Ms. Van Divner asked appellee for a statement for services rendered to explain the amount, appellee never provided one.
On January 11, 2012, appellant filed a complaint against Ms. Van Divner and ap-pellee for the creation of a constructive trust and for relief pursuant to the Arkansas Fraudulent Transfer Act, found in Ark. Code Ann. § 4-59-201 et seq. He filed an amended complaint on February 9, 2012. Appellant alleged that Ms. Van Divner and appellee took control of the entire funds to which he was entitled and requested the court to create a constructive trust over the funds. He alleged that Ms. Van Div-ner concealed the location of the funds for more than a year and defrauded the court by failing to reveal in requested interrogatories the location of the funds. Appellant also alleged that Ms. Van Divner and ap-pellee transferred the [(¡funds to themselves without the knowledge or consent of Lois, the court, or any guardian acting on behalf of Lois.
In addition, appellant requested relief under the Arkansas Fraudulent Transfer Act, claiming that Lois’s estate was insolvent, that this fact was known or should have been known to Ms. Van Divner and appellee, that Ms. Van Divner and appellee were aware of appellant’s claim to the funds at the time they transferred them to themselves, and that Lois did not have sufficient funds to satisfy the judgment to appellant upon her death. He claimed that the transfers to Ms. Van Divner and appellee left Lois’s estate unable to pay appellant, her creditor. He alleged that, pursuant to Ark.Code Ann. § 4-59-207, the transfers to Ms. Van Divner and appel-lee were not made for value received and thus were fraudulent under the statute. Finally, he alleged that appellee’s fee was six times the fee that his counsel charged for similar work on the same matter and was not based on value. He concluded by requesting the court to void the transactions.
I. Summary Judgment
On July 20, 2012, appellee filed a motion for summary judgment, alleging that appellant had no standing to question the payment of an attorney’s fee from Lois to him. He asserted that he had no direct relationship to appellant and that they lacked privity of contract. He alleged that it was undisputed that appellee “provided legal services for Lois Druyvestein based upon a agreement between Ms. Druyve-stein and Mr. Gean and the attorney fee was voluntarily paid by Lois Druyvestein.” Although there were no attachments to the motion, appellee did file a brief in support, which contained the following legal |4arguments: (1) appellant assumed the risk of Lois transferring the money by failing to file a supersedeas bond in the earlier case; (2) appellant could not recover under a valid contractual theory and was not a third-party beneficiary to appel-lee’s fee contract; (3) appellant could not recover under a valid tort-based theory; (4) appellant had no standing under the Declaratory Judgment Act to require ap-pellee to pay his attorney’s fee collected from a non-party to the case; (5) appellant could not collect under a fiduciary-duty theory because appellee owed appellant no fiduciary duty; and (6) appellant could not establish a constructive trust because there was no fraud or confidential relationship. Appellant filed no response to appel-lee’s motion.
On May 29, 2013, the circuit court granted appellee’s motion for summary judgment, stating that it had considered the motion, “attachments[,] and Brief.” The court found that appellee “performed legal services for Lois Druyvestein and that Mr. Gean was paid for such services based upon an agreement between him and Ms. Druyvestein. Said agreement reflected the understanding of Ms. Druyvestein and Mr. Gean as to the value of the services rendered.” The court then concluded that by failing to file a supersedeas bond in the earlier case, appellant bore the risk that Lois would no longer have the money to pay him if he obtained a favorable judgment on appeal. The court then found that appellant had no “direct relationship” with appellee and thus no viable theory of law to recoup the money paid by Lois to appellee. The court’s order then essentially parroted appellee’s brief, rejecting recovery based on a contractual theory, a tort theory, and declaratory-judgment law. Finally, the court found that there must be clear, cogent, and convincing evidence of fraud or a [ 5confidential relationship to establish a constructive trust and that there was no fraud or confidential relationship between appellant and appellee in this case. The court’s order did not mention the Arkansas Fraudulent Transfer Act.
Appellant filed a petition to set aside the order granting summary judgment, attaching billing records provided by appellee to Ms. Van Divner for services he had rendered to Lois. Ms. Van Divner provided this statement and testified regarding the statement in a deposition that was also attached to appellant’s motion to set aside the order. Appellant’s petition restated his fraudulent-transfer and constructive-trust allegations, specifically referring to appellee’s billings. There were many days on which appellee billed over 24 hours; on one day he billed over 60 hours. Sample entries included a five-hour call to a brokerage company to review disbursement arrangements and one day that included 3 three-hour calls with Ms. Van Divner (which she disputed in her deposition), eight hours to review the Reporter’s Index pertaining to Depositions, eight hours to review a file, and eight hours to review exhibits. Without further detailing the statement, we note that no entry, including entries to review a letter or make a phone call, took less than two hours.
II. Final Order
On January 28, 2014, the court entered a final order, finding that appellant was a creditor of Lois as a result of funds held by Summit Brokerage, which were “improperly paid’ over to [Lois] when they should have been paid to [appellant]” and recognizing that the court had entered a judgment in favor of appellant in the previous case. The court then found that Lois had transferred the funds to Ms. Van Divner and appellee and noted that it Lhad previously entered an order of summary judgment in favor of appellee. The court denied appellant’s motion to reconsider. The court then found that Lois had made the transfer to Ms. Van Divner “without receiving reasonably equivalent value in exchange for the transfer and [Lois] believed or reasonably should have believed that she was incurring debts beyond her ability to pay as they became due.” The court found that appellant was damaged by the transfer “in the amount of at least $60,000,” ordered Ms. Van Divner to pay that amount to the court, and granted appellant a judgment for that amount. Appellant filed a notice of appeal designating the court’s final order and order granting appellee’s motion for summary judgment. Neither appellant nor Ms. Van Divner appealed from the $60,000 judgment against her.
A circuit court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated and that the party is entitled to judgment as a matter of law. Mitchell v. Lincoln, 366 Ark. 592, 596, 237 S.W.3d 455, 458 (2006). The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. New Maumelle Harbor v. Rochelle, 338 Ark. 43, 45-46, 991 S.W.2d 552, 553 (1999). Once the moving party has established prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. at 46, 991 S.W.2d at 553. When the proof supporting a motion for summary judgment is insufficient, there is no duty on the part of the opposing party to meet proof with proof. Inge v. Walker, 70 Ark.App. 114, 120, 15 S.W.3d 348, 352 (2000). Summary judgment is not granted simply 17because the opposing party fails to respond to the motion. Id. at 119, 15 S.W.3d at 352. On appellate review, we determine if summary judgment was appropriate based on whether the evidentia-ry items presented by the moving party in support of its motion leave a material fact unanswered. Kachigian v. Marion Cnty. Abstract Co., 2011 Ark. App. 704, at 6, 2011 WL 5562777. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
III. Point on Appeal
The issue on appeal is whether summary judgment was appropriate in this case. We hold that it was not, and we reverse and remand for further proceedings.
Appellant’s complaint requested relief under two theories: constructive trust and fraudulent transfer. Thus, we note first that appellee’s arguments and the circuit court’s findings regarding contractual third-party beneficiaries, tort law, and the declaratory-judgment act are irrelevant to this case. We turn to appellant’s claim under the Arkansas Fraudulent Transfer Act. Under the Act,
a transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.
Ark.Code Ann. § 4-59-205(a) (Repl.2011).
A transfer is fraudulent as to a creditor regardless of whether the creditor’s claim arose before or after the transfer if the debtor made the transfer “without receiving a reasonably equivalent value in exchange” for the transfer and the debtor either intended to incur, or | ¿‘believed or reasonably should have believed” that she would incur, debts beyond her ability to pay as they became due. Ark.Code Ann. § 4-59-204(a) (Repl.2011). A creditor may obtain avoidance of the transfer under the Act. Ark.Code Ann. § 4-59-207 (Repl. 2011). A transfer is not voidable under the Act against a person who took in good faith and for a reasonably equivalent value. Ark.Code Ann. § 4-59-208(a) (Repl.2011).
Appellant alleged in his complaint that Lois’s estate was insolvent, that this fact was known or should have been known to Ms. Van Divner and appellee, that Ms. Van Divner and appellee were aware of appellant’s claim to the funds at the time they transferred Lois’s funds to themselves, and that Lois did not have sufficient funds to satisfy the judgment to appellant upon her death. He claimed that the transfers to Ms. Van Divner and appel-lee left Lois’s estate unable to pay appellant, .her creditor. He. alleged that the transfers to Ms. Van Divner and appellee were not made for value received and thus were fraudulent under the statute. He specifically alleged that appellee’s fee was six times the fee his counsel charged for similar work on the same matter and was not based on value.
Appellee’s motion for summary judgment mentioned the Fraudulent Transfer Act only by stating that appellant’s complaint asserted it. Appellee gave no explanation why it did not apply. He stated only that he and appellant had no “direct relationship” and lacked “privity of contract,” and that appellant lacked “standing.” He then alleged in his motion that [git was undisputed that he provided legal services for Lois “based upon an agreement” between Lois and him and that “the attorney fee was voluntarily paid” by her. He did not attach this alleged agreement to his motion or an affidavit detailing facts about the agreement. Indeed, he attached no documents at all to his motion — only a nine-page brief that did not contain any arguments about the fraudulent-transfer allegations. It did not even mention the Act; rather, appellee explained why appellant could not proceed under four theories that were not alleged — contract, tort, declaratory-judgment, and fiduciary duty.
In granting appellee’s motion for summary judgment, the court stated that it had considered the motion, attachments (of which there were none), and brief and had found good cause. The court then found that appellee “performed legal services for Lois Druyvestein and that Mr. Gean was paid for such services based upon an agreement between him and Ms. Druyve-stein. Said agreement reflected the understanding of Ms. Druyvestein and Mr. Gean as to the value of the services rendered.” We are not certain how the circuit court made this finding, as the agreement was not attached to the motion nor was there an affidavit describing the details of this agreement. Although there are summary-judgment cases in which there are no factual issues, only legal issues, this is not one of those. When there are factual issues, in deciding a motion for summary judgment, a trial court may consider “pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any.” Pyle v. Robertson, 313 Ark. 692, 695, 858 S.W.2d 662, 663 (1993) (quoting Ark. R. Civ. P. 56(c)). A trial judge may not base his or her decision whether to grant summary judgment on factual allegations made in the briefs. Id.
|1flIt is undisputed that appellant was a creditor of Lois. It is also undisputed that Lois transferred money from the Summit Brokerage bond account to appellee. Further, the circuit court found in its final order that, at the time Lois made the transfer to Ms. Van Divner — which was the same time the transfer was made to appellee — Lois believed or reasonably should have believed that she was incurring debts beyond her ability to pay as they became due. We hold that there are genuine issues of material fact regarding whether Lois received a “reasonably equivalent value” from appellee for the transfer. Because there are no documents or other evidence- to review, we cannot determine what other factual issues may arise.
Appellant’s complaint also requested the court to impose a constructive trust over the funds held by appellee. The circuit court granted appellee’s summary judgment motion, finding that, because there was no fraud or confidential relationship between appellee and appellant, there could be no’ constructive trust. Again, no evidence has been provided to the court, only allegations. Thus, there are genuine issues of material fact before the circuit court, and summary judgment was inappropriate. Moreover, the doctrine of constructive trust is not as narrow as the circuit court’s order suggests. A constructive trust is an implied trust that arises by operation of law when equity demands: “It is imposed where a person holding title to property is subject to an equitable duty to convey it to another on the ground that he would be unjustly enriched if he were permitted to retain it.” Druyvestein, 2010 Ark.App. 500, at 7, 375 S.W.3d at 781 (holding the doctrine applied in a case of mistake).
Accordingly, we reverse and remand this case for further proceedings.
WALMSLEY and HARRISON, JJ., agree.
. Lois passed away sometime before appellant filed his amended complaint.
. We note that the circuit court found in its final order that Lois made the transfer to Ms. Van Divner without receiving reasonably equivalent value in exchange for the transfer and that, at the time, she believed or reasonably should have believed that she was incurring debts beyond her ability to pay as they became due. | [
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Bobinson, J.
The point involved here is whether a widow may, for the first time since the death of her husband thirteen years ago, claim as a homestead property on which neither she nor her husband was living at the time of his death, with the evidence leading to the conclusion that she had previously elected to take other property as her homestead.
Mr. and Mrs. W. E. Cannon were married in 1932 and moved to his home on a forty acre farm, which is now the subject of this litigation. Subsequently, Cannon’s health failed and he was unable to carry on the farming operation. Mrs. Cannon bought a one acre plot of ground; they moved to it in 1936 and rented their farm. In 1941, Mr. Cannon died. Through the initiative of Mrs. Cannon, an administrator was appointed. No claim was made at that time that the forty acres constituted a homestead.
The administrator collected the rent each year and paid Mrs. Cannon one-third of the money, with the balance, less expenses, going to the children of Mr. Cannon by a former marriage. The administration was closed in 1952, but the person who had acted as administrator continued to collect the' rent- as agent of the parties. In 1954, he came to the conclusion that the rented farm property had been Cannon’s homestead, and that Mrs. Cannon was entitled to all of the rent. He therefore refused to pay any of the 1954 rent to the heirs of Cannon, and they subsequently filed this suit alleging that they were entitled to their two-thirds share. Mrs. Cannon answered and claimed the property as a homestead. The Chancellor held that her claim was barred at that late date, and she has appealed.-
Assuming that the property did constitute Cannon’s homestead, even though he was not actually living on it at the time of his death, and further that Mrs. Cannon could have claimed the property as a homestead immediately following his death, still we do not reach the conclusion that, under the circumstances existing here, she can claim the property as a homestead thirteen years after the death of her husband.
At the time of Cannon’s death, he and his wife were living on her property which she could also claim as a homestead. Gibson v. Barrett, 75 Ark. 205, 87 S. W. 435. She continued to live there for’ thirteen years without making a claim of any other place as her homestead. She cannot have two homesteads. Grimes v. Luster, 73 Ark. 266, 84 S. W. 223, 108 Am. St. Rep. 34; Van Pelt v. Johnson, 222 Ark. 398, 259 S. W. 2d 519. She may, however, make an election as to the place she will claim as a homestead. Bank of Hoxie v. Graham, 184 Ark. 1065, 44 S. W. 2d 1099. By continuing to live on her own property for thirteen years without claiming any other property as a homestead, it appears that long ago she selected as her homestead the property where she has lived for so many years.
Affirmed.
Seamster, C. J., not participating. | [
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Ed. F. MoFaddin, Associate Justice.
This case stems from a most unfortunate traffic mishap in which two young men were killed and a third was seriously injured.
On the night of May 1, 1954, Joe Holt, Paul Norton and Cecil Smith attended the picture show in Jasper and Started home on the Mt. Judea gravel road in a 1%-ton truck, driven by Joe Holt and owned by Otis Holt, his father. On the same night appellant, Walter Reddell, and his sister attended the picture show in Jasper and started home on the Mt. Judea gravel road in a %-ton pick-up truck driven by Walter Reddell. When several miles from Jasper the Holt truck was overtaken and passed by the Reddell truck and the occupants of the two trucks recognized each other. Then, in less than a mile, the Holt truck attempted to pass the Reddell truck; and in so doing the Holt truck went off the road at a curve: the three occupants were thrown out; Paul Norton and Cecil Smith were both killed; Joe Holt was injured; and the Holt truck was demolished. The Reddell truck remained on the road and later returned to the scene of the catastrophe where Walter Reddell attempted to assist in rendering aid.
This action was filed against Walter Reddell by (a) the parents of Paul Norton for damages for the death of their son; (b) the parents of Cecil Smith for damages for the death of their son; (c) Joe Holt for his own personal injuries; and (d) Otis Holt for damages to his truck. The plaintiffs (Norton, et al) alleged that the negligence of Walter Reddell caused the plaintiffs’ damages. The defendant, Walter Reddell, denied liability, alleged the driver of the Holt truck was negligent and claimed that such negligence was legally imputable to the other occupants of the Holt truck and to the owner thereof. The case was tried to a Jury which rendered these verdicts: (a) $3,700.00 to the parents of Paul Norton; (b) $3,700.00 to the parents of Cecil Smith; (c) $500.00 to Otis Holt for damages to his truck; and (d) no damages to Joe Holt for his personal injuries. From a judgment on the verdicts Walter Reddell brings this appeal; and Joe Holt has cross-appealed.
I. Sufficiency of the Evidence. This assignment, made by Walter Reddell, necessitates a brief review of other salient testimony in addition to the facts already recited. Joe Holt testified: that he and Paul Norton went to Jasper in Otis Holt’s truck; that after the picture show they were joined by Cecil Smith; that the three hoys started home on the Mt. Judea gravel road; that when they were about 2% miles from Jasper they were passed by the Reddell truck; that about %ths of a mile farther down the road the Holt truck attempted to pass the Reddell truck; that Holt blinked his lights as a proper passing signal; that Reddell moved over to the extreme right in response to the signal; that the gravel road was wide enough at that point for the Holt truck to pass on the left; that as the Holt truck was alongside the Red-dell truck, Reddell speeded up to about 40 miles per hour (same speed as the Holt truck); that the two trucks ran alongside for about 300 yards; that as the two trucks reached a curve where the roadway was somewhat narrower the Reddell truck bumped the Holt truck; that such bump caused the Holt truck to leave the road, go into a ditch and into the field with the casualty to the occupants; that the entire mishap Avas caused by Reddell’s actions and not by a blowout on the Holt truck; and that the blue paint of the Reddell truck was visible several days later on the Holt truck.
The effect of Joe Holt’s testimony AAras, that he Avas all the time driving with due care and in a lawful manner and attempted to pass the Reddell truck only after the blinking of the lights by Holt and the moving over by Reddell, and that Reddell then speeded up and caused the catastrophe by hitting the Holt truck and forcing it from the highway. There is no need for us to recite all the testimony: there were contradictions as to speed, evidence as to racing, and evidence as to a tire bloAvout being the cause of the Holt truck leaving the highway. All these matters Avere questions for the Jury. The case Avas submitted on instructions covering highway rules and regulations as to driving and passing, negligence, contributory negligence, imputed negligence and duty of guests to protest against unsafe driving. No complaint •is here made as to any of the instructions.
As to the parents of Paul Norton and Cecil Smith, the Jury could have found from the evidence that these boys were guests and were in no way negligent, nor liable for any negligence of Joe Holt. The negligence of a driver cannot be imputed to the guests unless the guests failed to use ordinary care for their own safety. Mo. Pac. R. Co. v. Johnson, 204 Ark. 604, 164 S. W. 2d 425; Crossett Lbr. Co. v. Cater, 201 Ark. 432, 144 S. W. 2d 1074; Mo. Pac. R. Co. v. Henderson, 194 Ark. 884, 110 S. W. 2d 516. As to Otis Holt, the evidence was sufficient to support the Jury’s conclusion that he was a bailor and that his son, Joe Holt, was bailee of the truck. "We have repeatedly held that the negligence of the bailee is not imputable to the bailor when the subject of the bailment is damaged by a third party. Mo. Pac. R. Co. v. Boyce, 168 Ark. 440, 270 S. W. 519; Featherston v. Jackson, 183 Ark. 373, 36 S. W. 2d 405; and Sanders v. Walden, 212 Ark. 773, 207 S. W. 2d 609.
This rule is well established:
“In determining the sufficiency of the evidence to sustain a verdict, the Supreme Court views the evidence in the light most favorable to the appellee, and will not set aside a verdict if supported by substantial evidence.”
See Albert v. Morris, 208 Ark. 808, 187 S. W. 2d 909, and cases there cited. In keeping with the foregoing rule, we reach the conclusion that the evidence is sufficient to sustain each of the verdicts against Walter Reddell.
II. Motion for Judgment Non Obstante Veredicto, Walter Reddell moved for such judgment against Otis Holt claiming that the verdict refusing Joe Holt any recovery was tantamount to a finding that Joe Holt was negligent and that since Joe Holt was the driver of Otis Holt’s truck, Otis Holt should also be barred from recovery. The Trial Court was correct in refusing the motion because of the bailor-bailee relationship previously discussed. Joe Holt’s contributory negligence would bar him from a recovery; but would not bar the owner of the Holt truck.
Walter Reddell also moved for judgment non obstante veredicto against the other defendants on various grounds. It was claimed, inter alia, that Paul Norton had urged Joe Holt to “pass him” (referring to Holt’s effort to pass the Reddell truck); but there was some evidence that Paul Norton said ‘ ‘ pull around him, ’ ’ which could have been interpreted by the Jury as an admonition for safe driving rather than one for increased speed. At all events, the motion for judgment non obstante veredicto was correctly refused, because the evidence was disputed. See Scharff Distilling Co. v. Dennis, 113 Ark. 221, 168 S. W. 141.
III. Court Ruling in Regard to Addresses to Jury. After all the evidence and after the instructions, the attorneys made their addresses to the Jury; and the transcript contains what purports to be the content of these addresses. Mr. Arbaugh opened for the plaintiffs; Mr. Adams, Mr. Vallines and Mr. Moore spoke in that order for the defendant; and Mr. Willis closed for the plaintiff. Appellant claims that the Trial Court should have refused to allow Mr. Willis in his argument to comment on the amount of damages, since such amount was not discussed in Mr. Arbaugh’s opening argument.
There are several answers to this contention. One answer is found in the Statute. Section 27-1727, Ark. Stats., in stating the order of trial, says:
“The parties may then submit or argue the case to the jury. In the argument the party having the burden of proof shall have the opening and conclusion; and if, upon the demand of his adversary, he shall refuse to open and fully state the grounds upon which he claims a verdict, he shall be refused the conclusion. ’ ’
Under the quoted language, the defendant’s attorneys should have demanded that the plaintiff’s attorneys make a full and complete opening statement if defendant’s attorneys desired to make the subsequent claim- — now urged —that new matter was injected into the closing argument. Defendant’s attorneys made no such demand. See Dickinson v. McBride, 127 Ark. 555, 193 S. W. 89; and see also Annotation in 38 A. L. R. 2d 1396.
Another answer' to the contention now urged is in the matter of the' discretion of the Trial Court. We have many times held that the Trial Court is clothed with considerable discretion in controlling the argument of counsel to the Jury. The case of Mo. Pac. R. Co. v. Hood, 198 Ark. 792, 131 S. W. 2d 615, reviews many of our holdings and states the general rule. See also Jackson v. State, 216 Ark. 341, 225 S. W. 2d 522, 15 A. L. R. 2d 484.
We have carefully read the transcript containing the argument here challenged, and we find no abuse of discretion to have been committed by the Trial Court. In each of the addresses of the defense counsel the Jury Avas urged to be strong against the anticipated address of Mr. Willis: so the defense counsel thoroughly anticipated any argument that was to come. Furthermore, after Mr. Willis discussed the damages in terms of dollars and cents, the defense never asked for an opportunity to ansAver him on that point. If the amount of damages was thought to be a new matter, the defense attorneys should have requested an opportunity to reply to such new argument. See 88 C. J. S. 339. In the absence of any such request, the appellant cannot claim that the Trial Court committed reversible error.
IY. Excessiveness of the Verdicts. Finally, the appellant, Walter Reddell, claims that each of the verdicts against him is excessive; but we find no merit in such contention. As to the $500.00 aAvarded for damages to the truck, there Avas competent evidence to sustain the verdict, because Otis Holt testified without objection that the difference between the value of the truck immediately before and immediately after the accident was $650.00.
As to the verdict of $3,700.00 to the parents of Paul Norton: the evidence showed that the parents paid the funeral expenses in the amount of $760.85; that at the time of his death Paul was 19 years of age; that he had always Avorked at home on the farm just as a hired hand Avould have Avorked, and Avas capable of earning $2,000.00 per year; that he lived with his parents and contributed all of his earning capacity to them; and that there was nothing to indicate that his contributions would not con tinue. As to the verdict of $3,700.00 to the parents of Cecil Smith: the evidence showed that his parents paid his funeral expenses in the amount of $718.00; that Cecil was only a few months over 18 years of age at the time of his death; that he was capable of earning $2,000.00 per year; that he lived with his parents and contributed all of his earning capacity to them; and that there was nothing to indicate that this would not continue.
Some of our cases involving the elements of recovery and amount of verdicts allowed parents for loss of a child are: St. L. S. F. Ry. v. McCarn, 212 Ark. 287, 205 S. W. 2d 704; Mo. Pac. Ry. v. McKinney, 189 Ark. 69, 71 S. W. 2d 180; Mooney v. Tillery, 185 Ark. 457, 47 S. W. 2d 1087; and Eureka Oil Co. v. Mooney, 168 Ark. 479, 271 S. W. 321. Tested by the holdings of the above cited cases, we cannot say that the verdicts are excessive in favor of the parents of Paul Norton and Cecil Smith.
V. The Cross Appeal. Joe Holt urges in his cross appeal that the Jury should have awarded him a verdict for his personal injuries, since there was a verdict for Otis Holt for the truck; but we find this cross appeal to be without merit. As previously mentioned, the Jury could have returned a verdict for Otis Holt for the damages to his truck and still have consistently found that Joe Holt was guilty of some degree of contributory negligence. The cause of action herein arose on May 1, 1954 and was tried on March 24,1955. The 1955 Comparative Negligence Statute (Act No. 191 of 1955) has no application to this case since such Act did not go into effect until June 1955.
The judgment is affirmed, both on direct appeal and cross appeal.
Walter Reddell is a minor, and has been duly represented by a guardian ad litem at all stages of the proceedings. George Reddell, father of Walter Reddell, was also sued on the theory that the son was the agent of the father; but evidence failed to establish any liability against George Reddell and the Court instructed a verdict in his favor, and that issue has passed out of the case.
Joe Holt is a minor and has at all times appeared by his father as his next friend.
In Larimore v. Howell, 211 Ark. 63, 199 S. W. 2d 820, we listed some of our cases involving motion for judgment non obstante veredicto. | [
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Robinson, J.
This is an effort by some of the residents of the Fourche Dam community, which is east of Little Rock in Pulaski County, to prevent the City of Little Rock from relocating a small portion of East 10th Street and East 26th Street in that city.
East 10th Street is on the north side of the Little Rock Municipal Airport and East 26th Street is on the south side. To facilitate the operation of modern aircraft, it is necessary for the city to install additional equipment at the ends of the northeast-southwest runway at the airport. In order to do this, the city seeks to abandon a small portion of East 10th Street and establish a new route one block north on 9th Street. This will require traffic to make two sharp turns in traveling from 10th to 9th Street. By actual timing, it takes 35 seconds longer to travel the new route than it does the old one. On the south side of the airport, the city has relocated East 26th Street for a distance of a little over half a mile. This was done by building a crescent shaped loop which makes the new route approximately 600 feet longer than the old route. The old route is in such a condition that it cannot be traveled, hence the comparative time it takes to travel the two routes is not shown, but it requires a total of one minute and 15 seconds to drive the entire new route at a usual rate of speed.
Appellants filed suit to enjoin the city from abandoning the old routes in favor of the new ones. The chancellor denied the injunction and the residents of the Fourche Dam community have appealed. Appellants contend that ‘ ‘ the City did not comply with the statutory requirement of securing approval from the P.ulaski County Planning Commission; the City had no control or jurisdiction to close the roads in question; the City has failed to provide comparable roads that are equally safe and covenient; the fact that the plaintiffs’ property does not abut on the portion of the road closed does not prevent the plaintiffs from suffering damages for which they are entitled to reimbursement; the court should have sustained the plaintiffs’ plea of res adjudicata.” Appellants also contend that the city is precluded from closing the roads by a contract made with the residents of the area. There are three points that merit discussion : first, is the city bound by a contract; second, is the cause res judicata-, and third, have appellants suffered special and peculiar damages.
As to the question of whether the city is bound by an agreement heretofore made with the residents of the Fourche Dam area, appellants introduced evidence to the effect that, in 1934, the city undertook to close East 17th Street and the county road known as Fourche Dam Pike; that the residents of the Fourche Dam community ob jected, resulting in an agreement between the city officials, the county judge and the residents of that area, that the residents would not oppose the closing of East 17th Street, or seek damages for the closing of that street, if the city and county would construct a paved road on the north side of the airport; and that, in 1940, the agreement was modified whereby the city was to improve East 10th Street, and improve and maintain East 26th Street with a right of way of 160 feet. Appellants contend that this was a valid and binding contract between the Fourche Dam residents and the city, and that the city is not now at liberty to change the location of East 10th and East 26th Streets, which are the roads furnishing access to the Fourche Dam community.
Any attempt on the part of the city to enter into a contract relating to the permanent establishment or abandonment of its public streets would be tMra vires. In establishing, maintaining or abandoning its streets, the city acts in a governmental capacity and no city administration has the authority to bind a future administration in such matters. Cities have the authority to control, supervise and regulate all streets within their corporate limits. Ark. Stats., §§ 19-2313, 19-2304. “A municipality cannot bind itself by a perpetual contract, or by one which lasts an unreasonable length of time. Thus, a municipal corporation cannot obligate itself to keep a particular street open forever.” 38 Am. Jur. 174. It is also said in 25 Am. Jur. 553: “It is established that the governmental power to control and regulate the use of highways in the public interest cannot be surrendered, or impaired by contract. Particularly as to municipalities, control over streets is given to them for the benefit of the public. It is in the nature of a trust held by the corporation, from which arises a continuing duty on the part of such corporation to exercise legislative control over their streets at all times and places when demanded by the public good. They have no power, by contract, ordinance, or bylaw, to cede away, limit, or impair their legislative or governmental powers, or to disable themselves from performing their public duties in this regard, at least without the explicit consent of the legislature, or to delegate the exercise of such powers and the performance of such duties to others, so as to relieve themselves of responsibility in this respect. ’ ’ In 37 Am. Jur. 735, 736, it is said: “It is declared to be against public policy to permit a municipal corporation to part with any of its legislative power. In the absence of a clear grant of power from the legislature, the municipal authorities can do nothing which amounts in effect to the alienation of a substantial right of the public. It cannot obligate itself not to exercise such powers, and a contract in which it purports to do so, even upon valuable consideration, is void. Thus, a municipal corporation cannot, by contract or otherwise, divest itself of its general police power, or of the power of eminent domain which has been delegated to it by the legislature, or of the power of taxation.” The law is clear that a city cannot contract away perpetually its rights, obligations and duties in connection with the public streets.
Next we reach the question of res judicata. Ordinance 9004 was adopted by the Little Rock City Council on September 22,1952. Under the provisions of the ordinance, the portions of East 10th and East 26th streets involved herein were abandoned. The ordinance set out that the city council had ascertained that portions of such streets “have not been actually used by the public generally for a period of at least five years subsequent to the filing of the plat.” It is perfectly obvious that the ordinance was adopted on authority of Ark. Stats., § 19-3825, which provides: “In all cases where the owner of property within a city or town shall have dedicated, or may hereafter dedicate, a portion of such property to the public use as streets or alleys by platting such property and causing such plat to be filed for record, as provided by law, and any street or alley, or section thereof, shown on the plat so filed shall not have been actually used by the public as a street or alley for a period of five years, the City or Town Council shall have power to vacate and abandon the street or alley, or any portion thereof, by proceeding in the manner hereinafter set forth.” After the adoption of Ordinance 9004, appellants in the case at bar filed a suit to enjoin the city from enforcing the ordinance by closing a portion of East 10th and East 26th streets. The complaint alleged, inter alia, that ‘ ‘ The defendants are now attempting to close, block, obstruct and barricade a portion of said 10th Street and have already begun to tear up the roadway and to interfere with travel along said road. ’ ’ An intervention was filed alleging that ‘ ‘ The defendants are purporting to act under the authority of Ordinance No. 9004 of the City. Said ordinance is void and a nullity. Said ordinance was not enacted in the manner required by law and contains a recitation and finding that the road or street in question has not been used for a period of at least five years subsequent to the filing of the plat. In truth and in fact, said road has been constantly and continuously used by the public, including the plaintiff and all others similarly situated, and said use has continued without abatement or interruption at the time it was opened until and through the present time. Because of the invalidity of the’ ordinance, the portion of East 10th Street that purports to be affected by the ordinance has not been vacated and the defendants have no right or authority to attempt to block, barricade, close and obstruct any portion of East 10th Street and the efforts of the defendants to close, barricade, block and obstruct East 10th Street are without authority of law and are of great damage to this plaintiff and to all others similarly situated.” Both a demurrer and an answer filed by the city asserted the validity of Ordinance 9004 as a complete defense, and did not attempt to justify the closing of the streets on any other ground. In fact, there was no other ordinance authorizing the closing of the streets. On a final hearing, there was a decree enjoining the defendants from closing portions of the streets involved. (The pleadings must have been considered amended to apply also to East 26th Street.)
If Ordinance 9004 was void because it was based on the false premise that the streets in question had not been used for five years, then the city was without au thority to close the streets and the injunction was granted properly by the trial court. It appears conclusive that the streets had been regularly used within the five year period, and therefore, that Ordinance 9004 was not passed in accordance with Ark. Stats., § 19-3825, authorizing the closing of streets where they have not been used for five years. There was no appeal from the Chancellor’s decree enjoining the city from closing a portion of the streets. The date of the decree was June 26, 1953.
A short time later, on August 10, 1953, the City Council, acting on authority of Ark. Stats., § 19-2304, which gives the city the power to vacate portions of public streets, adopted Ordinance 9290. It provides for the closing of the same portions of East 10th and East 26th streets as did the void Ordinance 9004. Seven days after the adoption of Ordinance 9290, the case at bar was filed attacking its validity. A copy of the ordinance is made a part of the complaint. (It will be recalled that this ordinance had not been passed by the City Council at the time of the trial involving the validity of Ordinance 9004.) The prayer of the complaint in the present case asks that Ordinance 9290 be declared null and void. An intervention filed by one of the appellants is to the same effect, and asks that the city be enjoined from closing the streets. There was no effort to enforce the order made in the first suit enjoining the city from closing the streets. The only issue in the first suit was the validity of Ordinance 9004. The city asserted no authority for closing the streets except the authority bestowed by that ordinance. True, the plaintiffs attacking the validity of the ordinance alleged damages, but such allegations were necessary to give them a standing in court. Without an allegation. of damages, the complaint and intervention would have been demurrable. If the cause is res judicata, as appellants claim, then the filing of the present suit was wholly unnecessary. The injunction in the first suit would have been sufficient to prevent the closing of the streets. ¡ .
The principle of res judicata is so well known that it need not he restated here. One of the necessary elements of the doctrine is that the issues must be the same. In the first case, the only real issue was the validity of Ordinance 9004. The right of the city to close a portion of the streets, had this ordinance been found valid, was never considered. The city’s right to close a portion of the streets under the authority of Ordinance 9290 was not involved. This ordinance was not in effect when the first case was tried. At the time of the first suit, the city could close portions of the streets only under the authority of Ordinance 9004, and the only issue raised in those pleadings was the validity of that ordinance. Hence, the issue in the first case is not the same as the issue in the case at bar, and the cause is therefore not res judicata.
Next we come to the question of whether the appellants suffered special and peculiar damages. None of the plaintiffs own property abutting the portions of the streets being closed, but even if it is conceded that appellants have been damaged by the relocation of the roads, they have suffered no peculiar or special damages which could give rise to a cause of action. Travelers on 10th Street, as relocated, must turn two corners and travel a little farther, which requires less than a minute in additional time. This slight inconvenience, however, is not peculiar to appellants alone. This street is an outlet from the city to one of the most thickly populated sections of the county. Every person that travels the street suffers the same inconvenience as the appellants.
The principal contention of the appellants in regard to East 26th Street is that their property is especially suitable for industrial development and that the change in the street materially lessens the value of the property from that standpoint. They say that 26th Street, before being relocated, had a 160 foot right of way. (The paved section was formerly 18 feet wide, while the new pavement is 22 feet wide.) Appellants contend that the 160 foot right of way would be more attractive to industries than the new 40 foot right of way. The city owns all of the property on both sides of the old right of way as well as that on both sides of the new right of way; No donbt the city is anxious to assist in the industrial development of the county and it is not unreasonable to believe that the city would cooperate to the fullest extent in providing the necessary facilities for industries. But, be that as it may, the fact remains that appellants have access to the city and that they have suffered no peculiar and special damages. Appellants own a few hundred acres of land, but the streets in question lead to an area consist'ing of thousands of acres of level, alluvial soil that is the same as that owned by appellants.
On the question of damages, the case of Little Rock and Hot Springs Western Railroad Company v. Newman, 73 Ark. 1, 83 S. W. 653, is in point. There the court said:
‘ ‘ The rule of law governing cases of this kind is that no private action on account of an act obstructing a public and common right will lie for damages of the same kind as those sustained by the general public, even though the inconvenience and injury to the plaintiff be greater in degree than to other members of the public; but an action will lie for peculiar or special damage of a kind different from that suffered by the general public, even though such damage be small, or though it be not confined to plaintiff, but be suffered by many others.”
The court further said;
“If a railroad is constructed across the highway leading from the home of one who lives in the country to the town or city to which his business requires that he must often go, it is very natural that he should feel that the danger of delay or accident to which he may thus be at times subjected renders his property less desirable as a home, while as a matter of fact its market value may be actually increased by the construction of the railroad. If he suffers an injury in such a case, it is general, and not special. If one owning a home in the country could recover damages in such a case, the man who owns a home in the city and has often to visit the country might on the same principle claim damages to his home in the city, and so there would be no end to such claims, for the injury is common to the whole public, whether in the town or country.”
In Wellbourn v. Davies, 40 Ark. 83, the court said:
“The inconvenience to the complainant in visiting his patients, however often he may be called to do so, is not different from that which every citizen suffers, whose business or pleasure may call him to travel the road. It is of the same character, only perhaps different in degree, from that which others suffer, who have other business, and live further away. This will not sustain his right of action. . . . The new roads were not as convenient to complainant as the old, and gradually the enclosures of his neighbors came to annoy and embarrassed him very seriously. Doubtless they did diminish the market value of his property. Nevertheless, these were the accidents to him, of a change in the population, business and necessities of the community at large. He made several applications to the County Court to reopen the old roads, and they were all refused. Evidently the public necessity did not require them. ’ ’
In Stoutemeyer v. Sharp, 89 Ark. 175, 116 S. W. 189, the court said:
“In the present case the obstruction did not abut Sharp’s premises. It was north of his place, and was between the tracts of land of Stoutemeyer and Parker. Sharp says the obstruction greatly inconvenienced him in taking his stock to Spring River for water and preventing egress and ingress to that part of the country. This was an injury differing only in degree, and not in kind, from that suffered by Parker, Hutchinson and the rest of the community. Assuming the road obstructed to be a public highway, we do not think that Sharp has brought himself within the rule above announced. ’ ’
Also, in Tuggle v. Tribble, 177 Ark. 296, 6 S. W. 2d 312, the court said:
“In this connection it may be said that there can be no change of an existing highway that does not cause some private inconvenience, and, in that sense, injury to the abutting property owners, who have adapted themselves to the existing order of things and have purchased property on a highway which they believed would never be changed. There is no question presented in the record that appellants have been entirely cut off from any public highway by the proposed change in the public road in question. ’ ’
In Greer v. City of Texarkana, 201 Ark. 1041, 147 S. W. 2d 1004, it is said:
“Appellant insists that the effect of the changing of highway No. 71 is to destroy the value of his property, which constitutes the taking of his property without compensation. But the case of Tuggle v. Tribble, 177 Ark. 296, 6 S. W. 2d 312, defines the attitude of this court on such questions. In that case the county court changed the location of a county road near the city of Hot Springs. Tuggle owned land on the old highway, and he appealed from the order of the county court making the change, and he appealed to this court from the judgment of the circuit court affirming the judgment of the county court. It was held on the appeal that the county court had the right to change the road, although the change subjected Tuggle to some inconvenience, and depreciated the value of his property. . . . Appellant has not been deprived of his means of ingress and egress, as Dudley avenue, on which his property is located, remains unaffected by the proposed change. Unaffected also is Jackson street, running into Dudley avenue at appellant’s corner. Appellant’s damage, as found by the court below, results from the diversion of the traffic; hut this was not a recoverable element of damage. ’ ’
Our conclusion is that the decree of the Chancellor is correct and is therefore affirmed.
The Chief Justice and Mr. Justice Millwee not participating.
Mr. Justice McFaddin dissents. | [
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Minor W. Millwee, Associate Justice.
This appeal is from a decree enjoining appellants, Earl L. Kinney and wife, from interfering with appellee, Gavin Patterson, in the cutting and removing of certain timber from a 180-acre tract of land which appellants own in Crawford. County.
In 1951, Robert Ploffman and his wife, J'osie Lee Hoffman, owned the 180-acre farm in question as tenants by the entirety. The Hoffmans were then making their home in Ft. Worth, Texas, having moved from the 180-acre Arkansas farm sometime previously. Appellee was operating a sawmill near the land on March 24,1951, when Hoffman and his wife came to the sawmill and told appellee they would like to sell him the timber on the 180-acre farm in order to pay a debt they owed. It was then and there orally agreed that the Hoffmans would sell all merchantable timber 6 inches in diameter, or above, on the farm to appellee for $100.00 with no time limit for cutting and removing the timber. That night, appellee and Robert Ploffman went to a notary public in the town of Mulberry and had him draft the following written memorandum which was signed only by Hoffman and appellee: “Party of the first part, sells to party of the second part, all saleable timber from eight (8) inches up, on any part of my farm. No time limit to remove timber.” Appellee paid the purchase price of $100.00 and entered into possession of the lands and began cutting the timber.
After sale of the timber to appellee, the Hoffmans listed the 180-acre farm for sale with an agent in Alma, Arkansas, who was advised of the terms of the timber sale to appellee. The agent negotiated a sale of the farm to appellants, who were agreeable to purchase the farm subject to the timber sale to appellee, provided the timber was cut and removed within 60 days, but they objected to the provision that there was no time limit for removing the timber.
A written agreement of sale of the lands to appellants was entered into between them and the agent of the Hoffmans on February 1, 1952, which contained a provision as follows: “Mr. Patterson, who has bought the marketable timber from Robert Hoffman on this said property of 180 acres, will have 60 days from date of February 1, 1952, to remove said timber which has been bought, and it shall be required of the seller that he notify him of said terms of this contract.” Appellee was not a party to the negotiations between appellants and Hoffman’s agent and knew nothing about the contract. The Hoffmans conveyed the lands to appellants by warranty deed on February 9, 1952.
Appellee learned of the sale of the property to appellants about April 1, 1952. He continued to cut and remove the timber from said lands at different times until on or about April 17, 1952, when appellant, Earl L. Kinney, closed the fences around the lands and forbade appellee’s cutting and removing any more of the timber. Appellee then filed the instant suit resulting in the decree rendered December 10, 1954, which gave appellee 90 days from January 10, 1955, in which to cut and remove the balance of the timber under his contract, or, in the event of an appeal to this court, 90 days from the filing of this court’s mandate in the chancery court.
Appellants alleged as a defense in their answer that the contract between appellee and the Hoffmans for sale of the timber was void for the reason that the 180 acres constituted the homestead of Hoffman and his wife, and she did not join her husband in a written conveyance of the timber as required by Ark. Stats., § 50-415. This is also appellants’ present contention for reversal. In considering this argument, we will assume, without deciding, that appellants are in position to rely upon any homestead rights that the Hoffmans had in the lands at the time of the timber sale.
The burden was upon appellants to show that the land was a homestead. Gibbs v. Adams, 76 Ark. 575, 89 S. W. 1008. Other applicable rules are stated in Gillis v. Gillis, 164 Ark. 532, 262 S. W. 307, as follows: “The question of whether one who removes from his homestead has abandoned same is one of intention, which must be determined from the facts and circumstances attending each case. In order to avoid an abandonment, where one moves away from his home, there must not only be a present but a constant, abiding intention to return from time of removal. Gray v. Bank of Hartford, 137 Ark. 232. One who leaves his home and acquires another, where he resides for a reasonable time, will be presumed to have abandoned his old home, in the absence of convincing testimony to the contrary. Wolf v. Hawkins, 60 Ark. 262.”
Under the scant evidence adduced here, the able chancellor would have been fully warranted in finding that the lands in question did not constitute the homestead of the Hoffmans at the time of the timber sale to appellee in March, 1951. They had sometime previously moved to Ft. Worth, Texas, and were merely on a visit with Mrs. Hoffman’s mother at the time of the sale. They did not testify and there is no showing of any intention on their part to return to the Arkansas farm which they sold to appellants in February, 1952.
According to the testimony, Mrs. Hoffman was a party to the negotiations for the sale of the timber to appellee and the oral agreement as to the terms of such sale, although she did not sign the written memorandum of the agreement. It is also undisputed that appellee paid the purchase price and was placed in possession of the lands for the purpose of cutting and removing the timber. We have held that a contract for the sale of timber is taken out of the Statute of Frauds [Ark. Stats., § 38-101], even though the contract is oral, where the vendor receives payment of the purchase price and the purchaser enters possession. Beattie v. Smith, 146 Ark. 532, 226 S. W. 168. When appellee paid the purchase price and entered possession, the transaction was taken out of the Statute of Frauds and a valid sale of the timber was consummated. This conclusion renders it unnecessary to determine whether appellants were estopped from denying the validity of the sale.
Affirmed. | [
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J. Seaborn Holt, J.
February 15, 1954, Louise Myers filed suit, in First Division Pulaski Chancery Court (Case 99357) for divorce, property settlement, alimony, maintenance for the children, attorney’s fees and court cost. Her husband, Johnnie Myers, answered with a general denial. He filed no cross complaint and sought no affirmative relief. The cause was heard June 10, 1954 and the Chancellor, Rodney Parham, rendered a decree granting to Mrs. Myers a divorce from bed and board only, custody of the children, $175 per month ($50 as alimony and $125 maintenance) and $400 which her husband owed her up to July 1, 1954; directed Johnnie Myers to continue to collect the rentals on property jointly owned by them, except the home place together with personal property therein, which he awarded to Louise Myers as a home for her and the children. He further directed the husband to maintain the home, pay the expense of utilities (except telephone) incurred, and that he pay cost and attorney’s fee of $500 incurred by his wife. The court retained jurisdiction and control of the cause “for such further orders and proceedings as may be necessary or proper to ascertain definitely and enforce the rights of the parties hereto.”
Thereafter on December 15, 1954, Johnnie Myers brought suit in the Second Division Pulaski Chancery Court (Case 101532), praying for an absolute divorce and summons was had on his wife the same day. Thereafter Louise filed a petition in her original suit in First Division (Case 99357) again seeking an absolute divorce and also for additional maintenance, and a new summons was issued and had on her husband in February 1955. At this juncture Mrs. Myers filed a motion in the Second Division to dismiss her husband’s, suit (101532) in that division on the ground, “that the proceedings and decree in said action No. 99357, involve and determine the matters alleged and issues which would be involved in this action and is res judicata thereof.” The court denied Mrs. Myers’ motion holding in effect that it had jurisdiction ; whereupon, Mrs. Myers filed motion in this court (an original proceeding) for Writ of Prohibition.
The sole question presented here is one of jurisdiction, it being asserted by Chancellor Williams of the Second Division that the court over which he presided had jurisdiction to hear Johnnie Myers’ suit for divorce, and on the other hand Louise Myers claims that the First Chancery Division, where the original suit was filed, retained and had sole jurisdiction.
On the record presented we hold that the Second Division of the Pulasld Chancery Court had jurisdiction. A decree as here granting a divorce from bed and board and a decree granting an absolute divorce “rest upon the same grounds the law merely permitting the Chancellor in his discretion” to grant either kind. Crews v. Crews, 68 Ark. 158, 56 S. W. 778; Clyburn v. Clyburn, 175 Ark. 330, 299 S. W. 38, and Stats. § 34-1202, Ark. Stats. 1947, in effect so provides. A decree of a court of equity pertaining to custody of children, maintenance, alimony, etc., is the same in a divorce from bed and board as in an absolute divorce, Bauman v. Bauman, 18 Ark. 320.
The parties are residents of Pulaski County and have been for many years. Clearly the First Division had jurisdiction over the parties to enforce its decree of June 10, 1954, but it did not have jurisdiction to try a new cause of action which was set out in the husband’s complaint in which he sought an absolute divorce, and filed by him and summons had thereon prior to his wife ’? petition in the first suit (99357) in which she agaii sought an absolute divorce. The June 10, 1954, decree above, as pointed out, was only for separation from bed and board and did not affect the status of the parties as to the continued existence of the marriage ties. “A decree for judicial separation, which used to be called a divorce from bed and board, is not really a divorce at all. It has no effect upon the marital status, which continues existent just as before the decree. The decree merely regulates the personal rights of the spouses in relation to the still-continuing marital status. It has no in rem effect.” Leflar, Conflict of Laws, § 139, page 286. The decree in the original suit was a final decree. There has been no appeal from it, and as indicated the husband did not ask for an absolute divorce or any affirmative relief in that suit and now for the first time filed, in effect, a new cause of action in the Second Division, Pulaski Chancery Court, asking for an absolute divorce. This he had the right to do. The principles of law announced in the recent case, Hill v. Rowles, 223 Ark. 115, 264 S. W. 2d 638, apply with equal force here. In that case, while there was pending in the Pulaski Chancery Court a suit by the wife for separate maintenance and after decree had been rendered in her favor the husband filed a separate suit in the Saline Chancery Court seeking an absolute divorce. The wife sought a Writ of Prohibition in this court on the ground that the Saline Chancery Court was without jurisdiction in the divorce proceeding. In denying the petition for the writ we held, [Headnotes 3, 4, 5, 264 S. W. 2d 638] “A determination, in a wife’s action for separate maintenance, that wife is entitled to separate maintenance is not a determination that her husband has no grounds for divorce. Wife’s action for separate maintenance, pending in Pulaski County, did not bar her husband’s action for divorce in Saline County, even though husband had not brought cross action for divorce in Pulaski County. The policy of the law is to support and maintain marital status wherever it is reasonable to do so in the circumstances. ’ ’
In that case as here the husband had not asked for divorce in the Pulaski Chancery Court. That issue had not been determined. While the decree there was for separate maintenance, and in the present case for a divorce from bed and board, the marital status was not affected by the decree in either case, but continued existent just as before the decrees. The appellant’s first suit (99357) was not res judicata and a bar to her husband’s suit (101532) for divorce in the Second Division, Pulaski Chancery Court. The petition for Writ of Prohibition is denied. | [
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J. Seaborn Holt, J.
March. 31, 1954, appellant Pierce, a resident of Albuquerque, New Mexico, brought suit against appellee Stirling, an Arkansas resident, alleging in his complaint that: ‘ ‘ During a period including February, 1949, to July 29, 1949, plaintiff was a G-eneral Agent for Reserve Loan Life Insurance Company of Texas and defendant was appointed by the plaintiff as a special agent of that company.
“During the aforementioned period, Reserve Loan Life Insurance Company of Texas, at the request of the plaintiff (Pierce), made cash advances to the defendant (Stirling) as follows: . . .,” in the amount of $2,125.
“On July 29, 1949, Reserve Loan Life Insurance Company of Texas (including its accounts receivable) was purchased by Southland Life Insurance Company. Plaintiff and defendant continued in the same capacity with the new company.
‘ ‘ Thereafter, the following cash advances were made to the defendant by Southland Life Insurance Company at the request of the plaintiff,” in the amount of $600.
“The total of all advancements made to defendant is $2,725. Defendant is entitled to credits in the amount of $903.15, leaving a balance owing of $1,821.85.
“On April 25, 1951, it became apparent that the defendant was not going to liquidate the account and the last mentioned balance was transferred to the account of the plaintiff who thereby became primarily obligated under the terms of his contract with the insurance company, and said account was paid by the plaintiff. ’ ’
Stirling answered denying every material allegation in the complaint and alleged that he was employed by Pierce at a guaranteed salary of $300 per month for a period of three years beginning February 1949, that on July 25, 1949, his contract of employment by mutual agreement with Pierce was terminated and all obligations thereunder cancelled and settled.
“That under the terms of said agreement, the defendant was to be paid a guaranteed salary of $300 per month, against which would .be credited all earnings of the defendant from the sale of life insurance, and that in the event the earnings or commissions should exceed the minimum guaranteed salary, the excess should be paid to the defendant.
“That upon the sale of the Reserve Loan Company to the Southland Company, a complete account and satisfaction was had by plaintiff and defendant, and thereafter, plaintiff became general agent for the Washington National Life Insurance Company, and a new contract was entered into by plaintiff and defendant, which continued until the defendant left the employment of plaintiff in the year of 1952.” He further pleaded as a defense the statute of limitations as a complete bar.
Trial was had and at the close of all the testimony the court granted the motion of Stirling for a directed verdict in his favor on the ground that the debt was barred by the statute of limitations as a matter of law. This appeal followed.
For reversal appellant says: “The Court erred in holding that the plaintiff’s (Pierce) cause is barred by the Statute of Limitations because plaintiff’s original relationship was one of surety to the defendant (Stirling) on the defendant’s obligation to the Reserve Loan Life Insurance Company. Plaintiff made payments on his principal’s obligation before the Statute of Limita tions had passed on his principal’s debt, tolling the Statute of Limitations as to him, the surety. Thus, the payments later made by the surety, which are the subject of this suit, were all made within the period of the Statute of Limitations. . . .
“This suit, brought by the surety to recover from his principal on the implied obligation of indemnity, was filed within three years of the time of payment by the surety.” In short, Pierce argues that the trial court erred in taking from the jury the disputed fact question, (a) whether appellant’s relationship to Stirling was one of surety for Stirling on Stirling’s alleged obligation to the insurance company, and also, (b) whether Pierce had released Stirling from any and all liability. The testimony on these two issues appears to be conflicting.
It is well settled that when this court is called upon to determine the correctness of the action of a trial court in directing a verdict for either party, the rule is that where there is. substantial evidence to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury, and in determining this question that view of the evidence must be taken that is most favorable to the party against whom the verdict is directed. Gray v. Magness, 200 Ark. 163, 138 S. W. 2d 73, and cases there cited. Guided by the above rule, after reviewing the evidence, we have concluded that the court erred in taking the case from the jury.
In Fausett Builders, Inc. v. Globe Indemnity Co., 220 Ark. 301, 247 S. W. 2d 469, we defined surety in this language : ‘ ‘ Suretyship may be defined as a contractual relation whereby one person engages to be answerable for the debt or default of another. . . . The terms of the contract of which the surety promises performance must be read into his own contract. The principal’s contract and the bond or undertaking of the surety are to be construed together as one instrument. . . . The suretyship contract must be express, as the surety’s promise will never be enlarged to cover the implications growing out of the language employed.”
Pierce testified in effect that he arranged with his principal, Insurance Company, to make the advances by its voucher direct from the insurance company to Stirling, and they were so made. They were not made first to Pierce and then advanced to Stirling. He testified that he acted only as surety for repayment to his principal insurance company of all these advances. Pierce’s general agent’s contract provided: “RESPONSIBILITY : You will be fully responsible for the life insurance accounts and activities of agents appointed by you or transferred to you by the Home Office. ’ ’ The sequence of happenings after the last advance made by the insurance company on September 15, 1949, appear to be: From September 15, 1949, to April 25, 1951, credits were applied by the insurance company to the account from Stirling’s renewal commissions. Pierce was called upon by the company to satisfy Stirling’s indebtedness and it applied Pierce’s renewal commissions on Stirling’s account to the extent of $848.89 during the remainder of 1951. During 1952 $930.92 of Pierce’s commissions were applied on the account and on January 1, 1953, a balance of $42.04 due on the account was taken from Pierce’s commissions and the account paid in full. February 16, 1953, Pierce called upon Stirling to reimburse him (Pierce), and Stirling refused. Pierce then, as indicated, sued Stirling on March 31, 1954.
While Pierce’s general agent’s contract with his principal insurance company was entered into in New Mexico, the Arkansas statute of limitations, the law of the forum, must and does control. Chicago, R. I. & Pac. Railway Co. v. Lena Lumber Co., 99 Ark. 105, 137 S. W. 562. See, also, 11 Am. Jur., Conflict of Laws, § 191, p. 505.
Pierce’s testimony Avhich is sharply disputed by Stirling was that the advances, or loans, were made to Stirling and that he, (Pierce), guaranteed their repayment to the company, and that he had never released Stirling from any liability. It appears that Pierce was called upon by the company to pay the balance due on Stirling’s account about nineteen months after the last advance was made to Stirling, and beginning on April 25, 1951, Pierce’s renewal commissions were credited as indicated on the Stirling account until it was paid in full in January, 1953. Thus more than four and one-half years had passed since the last advance to Stirling when suit was filed. If, as Pierce testified, the advances were made to Stirling by the company and Pierce as surety guaranteed their repayment, then his cause of action against Stirling to be reimbursed by Stirling, if Pierce had any such right, was not according to Pierce’s testimony, then barred. The fact that the statute of limitations might bar any claim of the company against Stirling did not necessarily prevent Pierce, if he were in fact a surety for Stirling, and after he had paid the account to the company, from claiming that Stirling should indemnify him, within the three-year period of limitations. “It is held in many jurisdictions that if the surety pays a debt which is at the time barred by limitation as against the principal, but is a valid obligation against the surety, such surety may recover against the principal, or against his estate in case of his death. The right of action in favor of the surety arises when he pays the debt, and is not based upon the original debt itself, but upon the implied contract of indemnity which exists by law between the principal and surety.” 50 Am. Jur. 1062 (Suretyship, § 237). And, in Elder, Steam’s Law of Suretyship 523 (5th Ed., 1951), we find this language: “Where, for example, the running of the period of limitations has barred recovery from the principal, but not from the surety, the non-liability of the former does not impair the surety’s right of indemnity. Thus, where no claim is asserted by the holder of a note against the maker, but judgment is obtained against the surety, who pays the judgment after the right of action by the holder against the maker is barred by the statute of limitations, the surety may recover from the principal.
Accordingly, the judgment is reversed and the cause remanded for a new trial.
George Rose Smith, J., not participating. | [
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Humpheuys, J.
Appellee brought suit against appellant in the circuit court of Miller County to recover $1,000 penalty and attorney’s fee for total disability benefits on two policies issued to him by appellant. It was alleged in the complaint that appellee suffered total disability on March 5, 1932, within the meaning of the disability clauses in said policies. The total disability clauses were defined in the policies to be “disability caused by # * # disease which wholly prevents the insured from engaging in any business or occupation or performing any work for compensation, gain, or profit.”
A petition in proper form was filed by appellant to remove the cause to the Federal court on account of diversity of citizenship and the amount involved, which was overruled by the trial court over appellant’s objection and exception.
A demurrer was also filed by appellant to the complaint on the ground that each policy provided for the payment of $50 a month on account of total disability, and that each month’s alleged default in payment constituted a separate and distinct cause of action which could not be joined in order to confer original jurisdiction upon the circuit court. The demurrer was overruled over the objection and exception of appellant.
Appellant also filed an answer denying that appellee had been totally disabled by disease within the meaning of the disability clauses in the policies.
The cause was submitted upon the pleadings, testimony and instructions of the court, resulting in a verdict against appellant for $1,000, and a consequent judgment for said amount, 12 per cent, statutory penalty, and an attorney’s fee of $150, from which is this appeal.
Appellant contends for a reversal of the judgment because the court denied its petition to remove the cause to the Federal court. It is argued that, in addition to the amount of $1,000 sued for, there was also involved the contingent loss to appellant of premiums amounting to $360 per annum for an indefinite length of time, as well as the validity of the policies, so that the future effect of the recovery sought would carry the amount in dispute beyond $3,000. It was ruled in the case of Elgin v. Marshall, 106 U. S. 578, 1 S. Ct. 484, that the collateral effect of a judgment is not the test of' jurisdiction, but that the amount involved in the suit is the test. The same jurisdictional test was applied in the cases of the New England Mortgage Security Company v. Gay, 145 U. S. 123, 12 S. Ct. 815, and the Mutual Life Insurance Company v. Wright, 276 U. S. 602, 48 S. Ct. 323. In the Gay case, supra, the court said: “When the jurisdiction of this court depends upon the amount in controversy, it is determined by the amount involved in the particular case, and not by any contingent loss either one of the parties may sustain by the probative effect of the judg ment, however certain it may be that snch loss will occur.”
The same jurisdictional test was applied by this court in the recent case of Standard Life Insurance Company v. Robbs, 177 Ark. 275, 6 S. W. (2d) 520. It is true that in both the Wright and Eobbs casessupra, recovery was sought under, the death clause, instead of the total disability clause as in the instant case, but that does not change the principle that should be applied. In fact, under the death clause involved in those cases, the ultimate amount of recovery was certain; whereas, in the instant case, the ultimate amount that may be recovered is uncertain, being contingent upon'a continuation of total disability. The trial court correctly ruled that the amount involved in the instant case did not exceed $3,000.
Appellant also contends for a reversal of the judgment because the court overruled the demurrer to the complaint. It is, argued that appellee improperly joined separate and distinct causes of action on each installment or monthly payment in an attempt to increase the amount sufficiently to give the circuit court original jurisdiction of the cause of action. This is not an action to recover installments of $50 each as they became due, but was for past-due installments under two written instruments, and constituted a single cause of action. This court said in the case of Ft. Smith Paper Company v. Templeton, 113 Ark. 490, 168 S. W. 1092, that: “All of the separate installments due under the contract constitute a single cause of action, for the contract is not separable, as where the obligations are represented by different instruments of writing. It is true that an action may be maintained upon each installment as it becomes due, the same as upon different items of an account in the course of accrual; but, when the enforcement of the right of action is postponed until succeeding installments become due, a suit upon them all constitutes a single cause of action.” The court did not err in overruling appellants demurrer to appellee’s complaint,
The facts in this case are, in substance, as follows: On the 20th day of July, appellee, a hotel clerk and cotton buyer, took out two life insurance policies for $5,000 each, making1 representations in the application therefor that he was in good health. Each policy contained a disability clause in the language set out above. The policy provided that, in case of total disability caused by disease, appellant would pay appellee $100 a month during the period of such disability. The premiums on the.policies were either paid in cash or else the time for payment was extended beyond the month of August, 1930. Proof was filed with appellant on March 5, 1931, to the effect that appellee was unable to do any work which required him to stand on his feet for any length of time. The testimony is in slight conflict as to whether appellee was in good health at the time the policies were delivered. There is a dispute in the testimony as to whether appellee was totally disabled after the month of August, 1930, within the meaning of the total disability clauses in the policies The testimony introduced by appellee tended to show that, on and after that date, he was unable to do any work which required him to be upon his feet for any length of time, caused by a chronic case of sacroiliac joint inflammation and arthritis, and that the only remedy for the trouble or disease was to keep off his feet and to keep his body in a rigid position. In addition, it appeared from the evidence that, on account of the disease, appellee was compelled to wear day and night a specially constructed steel belt and use a specially built mattress to sleep on.
In the course of the trial, appellant offered testimony tending to show that the disability clauses related to general disability insurance, and not to disability preventing one from carrying on a particular occupation, which testimony was excluded over the objection and exception of appellant. The admission of certain other testimony of experts was objected and excepted to by appellant.
Appellant contends for a reversal of the judgment on the ground that the testimony tends to show only that appellee was unable to perform the business of a cotton buyer or hotel clerk; whereas, under the terms of the disability clauses in the policies, appellee must show by testimony that his disability prevented him from carrying on any kind of work for compensation, gain, or profit. In the first place, we think a fair interpretation of the testimony tends to show that appellee’s ailment prevented him from engaging in any kind of work in the due exercise of common care and prudence. The remedy for this ailment was to keep off his feet, hold his body in a rigid position, and lie down and rest. Just how one could do this and engage in any kind of labor or business for profit is hard to imagine. In the next place, we do do not think the disability clauses, as defined in the policies, mean that one must become helpless before he can claim the benefit from or under them. In the case of Ætna Life Insurance Company v. Spencer, 182 Ark. 496, 32 S. W. (2d) 310, this court said, in construing a disability clause not materially different from the definition of the clauses in these policies: ‘ ‘ Total disability is generally regarded as a relative matter which depends largely upon the occupation and employment in which the party insured is engaged. This court has held that provisions in insurance policies for indemnity in case the Insured is totally disabled from prosecuting his business do not require that he shall be absolutely helpless, but such a disability is meant which renders him unable to perform the substantial and material acts of his business or the execution of them in the usual and customary way.” The clause the court construed in the case referred to is as follows: ‘ ‘ That if the insured becomes totally and permanently disabled and is thereby prevented from performing any work, or conducting any business for compensation or profit.” In the very recent case of Missouri State Life Insurance Company v. Johnson, ante p. 519, this court reiterated the interpretation given such disability clauses in the case referred to, as well as other eases, in the following language: “That total disability, as used in contracts of this character, exists when the injury of the insured prevents him from doing all the substantial and material acts necessary to be done in the prosecution of his business, and that common care and prudence would require him, in his condition, not to do.” The trial court correctly instructed the jury as to the meaning of the total disability clauses in the policies.
Appellant also contends for a reversal of the judgment because the trial court refused to give its requested instructions Nos. 7, 8 and 11. These instructions were fully covered by instruction No. 1, requested by appellee and given by the court.
Appellant also contends for a reversal of the judgment because the trial court refused to give its requested instructions Nos. 14, 15 and 20. These instructions presented issues not involved because the undisputed evidence shows that the premiums had been paid in cash or the time for payment of them had been extended beyond the time appellee had become disabled. In other words, that the policies were in full force when disability occurred and proof was filed. Appellee was released from any obligation to pay premiums after becoming totally disabled. Ætna Life Insurance Company v. Phifer, 160 Ark. 98, 254 S. W. 335.
Appellant also contends for a reversal of the judgment because the trial court excluded its offered testimony tending to show that the disability clauses related to disabilities for all kinds of labor or business and not to disabilities preventing the pursuit of occupations. This testimony was not admissible because the clauses in question have received judicial interpretation by this court. Under that interpretation, there is no ambiguity as to their meaning.
Appellant also contends for a reversal of the judgment on account of the admission of the testimony of Ur. Dale relative to appellee’s case being chronic. He testified that he examined appellee on the 7th day of January, 1932, for the purpose of treating him, at which time he obtained a history of his case, and that, based npon the examination and history of the case, he regarded his ailment as chronic. The doctor qualified as an expert, and his opinion was admissible as expert testimony. Great Western Land Co. v. Barker, 164 Ark. 587, 262 S. W. 650.
Appellant also contends for a reversal of the judgment because its expert witness, Dr. Caldwell, was not permitted to testify that many persons not knowing that they were afflicted with appellee’s ailment, when enlightened by a physician, continued their manual labor, and that in his opinion, if compensation were in sight, some persons afflicted as appellee would exaggerate the extent of their pain and suffering. We do not think what others might or might not do, afflicted as appellee, had any relevancy to the issue of whether appellee was totally disabled, so the testimony of the doctor on this point was properly excluded.
Appellant also contends for a reversal of the .judgment on the ground that the policies were not delivered during the good health of appellee. No fraud was shown on the part of appellee in procuring the policies, so his statement that he was in good health in his applications for the policies was a representation only, and, if made in good faith, will not avoid the policies. Modern Woodmen of America v. Whitaker, 173 Ark. 921, 293 S. W. 1045; American National Insurance Co. v. Chavey, 185 Ark. 865, 50 S. W. (2d) 245. These policies themselves provide that, in the absence of fraud, all statements of the insured shall be deemed representations and not warranties. Under the provisions of the policies and the authority of the cases last cited, the court properly submitted this question to the jury, and the adverse finding of the jury on the disputed question of fact is binding upon appellant. Appellant argues that instructions 3 and 4 bearing upon this issue, given at its request, are in direct conflict with instruction 4 given at appellee’s request. We think not. Appellant’s requested instructions 3 and 4 were more favorable than it was entitled to under the facts, and were based on the theory that the statements were warranties, and should not have been'given. Appellee’s instruction No. 4 was based upon the theory that the statements were representations, and was a correct instruction, and announced the true rule of law applicable to the facts in this case.
No error appearing, the judgment is affirmed. | [
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Kirby, J.,
(after stating the facts). Appellant first contends that the court erred in holding the State Bank Bank & Trust Company, insolvent, of which the note sued on constituted a part, but this question has been determined against him in a former suit wherein he was a party against the Bank Commissioner, ante p. 618.
Pie insists also that the court erred in not holding the note was executed without consideration and void upon the assurance of the officers of the bank that he would never have to pay it. He admits, however, that he executed the note, and the money was loaned him by the bank with which to purchase stock of an ancillary or auxiliary corporation, of which the bank officials were officers, and who assured him that he would never have to pay the note, and that the dividends from the stock of the new company would take care of the loan. The stock was issued to him upon his purchase thereof, and he continued to renew the old note and pay the interest thereon until the execution of the note sued on herein, the last renewal of the note given. He borrowed the money, however, and admitted that he had never repaid it, and there could be no failure of consideration, so far as the loan of the money upon the note discounted was concerned, since he got the value of the money for which the note was executed. The fact that the stock purchased with the money he received on the note finally proved to be without value did not constitute failure of consideration for the note executed for the loan; and, even if it were true, which is not shown, that the bank officials made fraudulent representations to him to induce him to take stock in the ancillary company and loaned him the bank’s money for that purpose, he would still be bound to the payment of the money loaned upon this note, since the bank officers had no authority, and could have none, to lend the bank’s money to enable persons, who desired to do so, to buy stock in the ancilliary corporation, of which they were also officials. This could not be done even though they had attempted to guarantee, which was not done, sufficient returns upon the stock purchased to take care of the repayment of the money loaned. Clements v. Citizens’ Bank of Booneville, 177 Ark. 1085, 9 S. W. (2d) 569.
No error therefore was committed in directing the verdict, the evidence being virtually undisputed.
The judgment is affirmed. | [
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Smith, J.
This is the, second appeal in this case. The opinion upon the former appeal is reported in 120 Ark. 620. It appears, from the opinion there found, that this was a suit in ejectment, which, upon motion, was transferred to equity, and there tried. At the trial from which the first appeal was prosecuted, Titus, who was the plaintiff below, undertook to read certain depositions taken to show the value of improvements made by him; but the court refused to consider these depositions and made no finding on the question of improvements, and the cause was remanded on that account.
It was contended by Holub, upon the former appeal, that he was entitled to the value of any improvements made by him at any time after his - entry upon the land pursuant to a parol contract of purchase; but we held that he had no color of title until he secured his quitclaim deed, and any recovery for improvements would be limited to the value of improvements made subsequent to the date of this deed. Titus insisted, upon this former appeal, that a quitclaim deed did not constitute color of title; but we held against him in that contention. He also insisted there could be no recovery because Holub did not make the improvements in'good faith, believing himself to be the owner of the property improved, and, in support of this plea, it was pointed out that the deed to Holub was executed in June, 1902, whereas his grantor had, in May, 1895, executed a deed to the land to Titus, and that this deed had been placed of record two days after its execution. We said, however, that the constructive notice of a deed following its registration was not conclusive of the question of good faith; that actual notice of the outstanding paramount title, or the existence of circumstances from which the court or jury might fairly infer that the occupant had cause to suspect the invalidity of his title, was the test. Having thus announced the law, the cause was remanded for further hearing upon the question of improvements made since the date of the quitclaim deed. Upon the remand of the cause, Holub filed the following amendment to his answer:
“Comes the defendant, Frank E. Holub, and again offers to amend his answer herein, and for such amendment to answer to the complaint, says:
‘ ‘ That, acting under the deed herein from D. D. Titus to Joseph Holub, Sr., under date of June 19, 1902, this defendant and those under whom he claims placed valuable improvements on said property of the value of fifteen hundred dollars, and should the court decree the possession of the land to the plaintiff, that such possession be not delivered up to the plaintiff until the value of the improvements placed thereon by the defendants be paid. ’ ’
There was a prayer for the value of such improvements, and for general and proper relief.
Titus filed a reply to this amendment, containing a general denial of its allegations, and, in addition, alleged that the improvements Holub had placed upon the land were suitable only for general headquarters for a stock farm, such as barns for housing large numbers of cattle and horses, and storing feed for same, in connection with other lands owned by Holub, and added nothing to the value of the land, except for the purposes for which Holub intended to use it. Appellant has abstracted only the depositions of witnesses Kaufmann and Brown., These witnesses testified as to the improvements, which they described as a dwelling house, a pig pen, a chicken coop, a bam, a corn crib, a dipping tank, and certain sheds, catalpa posts, a pump, three and a half acres of cleared land, and a five-acre orchard, some fence, and a few other similar items. These witnesses did not undertake, however, to state when these improvements were made, nor to what extent they had enhanced the value of the land. Moreover, Holub did not testify. If it be said that the allegation of Holub’s amended answer that, in making the improvements, he had acted under the deed to him from D. D. Titus, dated June, 1902, was a sufficient allegation to admit proof of good faith in making improvements, it still does not appear that any testimony was offered in support of that allegation. It is only by inference that we can say the amended answer contains this allegation, and the testimony as abstracted does not support the allegation. The questions before the court upon the trial from which this appeal was prosecuted were: When were the improvements made? To what amount did they enhance the value of the land? And were they made by Holub while he believed himself to be the owner of the land?
From the testimony as abstracted it does not appear whether the improvements were made prior to the execution of the quitclaim deed to Holub, or since that date; nor does it appear from the testimony abstracted whether they were made under the honest belief of ownership. Under this state of the record, we can not say that .the finding of the court that “it still appearing that the defendant neither, in pleading or testimony, brings himself within the terms of the statute, in that, he neither alleged nor testified that he made the improvements believing himself to be the owner,” is clearly against the preponderance of the evidence, and the decree of the court below, disallowing the claim for improvements, is, therefore, affirmed. | [
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McCulloch, C. J.
This action involves a controversy between the plaintiff and defendant concerning an exchange of certain lands. The plaintiff, W. W. Johnson, owned a farm in Washington County, Arkansas, containing 204 acres, and defendant, H. D. Elkins, owned a farm in Texas County, Oklahoma, consisting of 520 acres, of which 360 acres were originally school lands sold by the State, and on which the State still held a lien for the sum of about $950. Each of the parties had crops on their respective farms, and also live stock and farming implements, and they entered into a written contract on July 30, 1914, for the exchange of their respective properties. The contract recited an undertaking on the part of the plaintiff Johnson to “give a warranty deed and abstract showing the same to be free and clear from any and all incumbrances of whatsoever nature, except a $1,000 mortgage” to the mortgagee whose name is specified; and also contained a recital of the undertaking on the part of defendant Elkins to furnish a “warranty deed and abstract showing the above lands all free and clear of all incumbrances ’ ’ except two mortgages, one in favor of the State of Oklahoma for the sum of $950, and the other for $1,100 in favor of a certain loan company. The contract did not specify the time within which, the respective conveyances were to be executed and abstracts of title to be furnished, but it is undisputed that plaintiff Johnson was to have sufficient time to go to Oklahoma for the purpose of inspecting the lands to be conveyed by defendant. At that time the defendant was in Washington County and had inspected the property which he was to receive in the exchange, but plaintiff Johnson had not at that time seen the Oklahoma property. They afterward exchanged conveyances and each party took possession of the respective properties conveyed.
This action was begun in the Washington Chancery Court in November, 1914, by plaintiff Johnson to require a rescission of the bargain and a cancellation of the conveyance which he had made to the defendant of the Washington County property. The alleged grounds upon which relief was sought were, that defendant had pointed out to the plaintiff the wrong lines of the Oklahoma property, and that defendant had failed to properly transfer the school lands on which the State of Oklahoma had a lien. The defendant in his answer denied that he had made any misrepresentations, or that he had failed to execute and deliver a proper assignment of the certificate under which the school lands were held, but in his answer offered to execute a transfer of the certificate and pro cure through the proper department of the State of Oklahoma a new certificate to the plaintiff. The statement of the auswer concerning the certificate covering the school lands reads as follows: “The defendant further answering, says that at the time said deed to the Arkansas lands was delivered to this defendant, he informed the plaintiff that he was ready and willing to assign the certificate as required by law, and surrender the same for cancellation and did so as alleged by the plaintiff when the plaintiff called on him for said certificate, and if said assignment and transfer of said certificate is not properly made, that this defendant stands ready, and does hereby now, in open court, to procure from the Government of the State of Oklahoma, a proper certificate and deliver the same to the plaintiff herein for said school lands as complained of by him. ’ ’
Proof was taken concerning the alleged misrepresentations of the true boundary lines of the Oklahoma lands, but on final hearing of the cause the chancellor found against the plaintiff on that issue. The very decided preponderance of the testimony is that there were no misrepresentations in that regard, and it is not now insisted on behalf of plaintiff that the allegations on that ground are supported by the testimony. The only issue, therefore, in the case relates to the failure of the defendant to comply with the Oklahoma law with respect to the assignment of the State’s certificate of -the purchase of the school lands, and when the chancellor announced his decision on that issue, the defendant renewed his offer to procure a new certificate and also to cause the discharge of the mortgage recited in the contract, which was on the school lands as well as the other lands. This offer was rejected by the court, and the defendant has appealed from the decree cancelling the said deed executed by the plaintiff to him conveying the Washington County lands.
Defendant held the school lands under a certificate of purchase from the State, which had been issued to another party prior to that time, and which had been properly transferred to the defendant with the approval of the State of Oklahoma. The certificate, which is exhibited'in the record, contains many conditions which have no bearing on the present controversy, but it contains the following stipulation with reference to an assignment of rights thereunder: ‘ ‘ The holder hereof shall have the right to transfer or assign all his rights, title and interest in and to said land and improvements, but no transfer or assignment thereof shall be valid or of any force or effect unless made in conformity with the rules and regulations of the commissioners of the land office of said State, and recorded in the office of said commissioners at the Capitol of said State.”
The rules and regulations of the commissioner of the Oklahoma Land Office provide, among other things, as follows:
“No transfer will be valid or accepted unless made on the form printed on this certificate and filed with the department within thirty days after the execution thereof, and this certificate surrendered for cancellation.” * * * “No transfer or mortgage will be valid or accepted when the vendor is indebted to the State on deferred pay-, ments or for (.axes past due. ” * * *
“After the transfer is approved by the commissioner of the land office, and upon the payment of the next deferred payment with interest in full thereon, and upon surrendering of the certificate of purchase transferred, and upon the execution by the transferee of a new certificate of purchase not for the deferred payments, a new certificate of purchase will be issued and delivered to said transferee.” * * *
“No transfer can be made or will be accepted if the land and improvements are covered by mortgage. Proper relea.-.o of mortgage shall accompany transfer.”
After the execution of the contract, which was done at Springdale, Arkansas, the plaintiff accompanied the defendant back to Oklahoma, and made a thorough inspection of the property he was to receive. They closed the trade there, and the deeds were prepared and duly executed. Defendant was living on the Oklahoma lands and remained there several days after the execution of the deed. Plaintiff lived in the house with the defendant during the t'me he was inspecting the place, and until defendant left there to come to Arkansas to take possession of the Washington County property. The plaintiff contends that nothing was said to him about it being essential to procure a transfer of the certificate of purchase of the school lands with the approval of the State department, but we think that the decided preponderance of the testimony is against him on that issue. Three witnesses, who a7>parently have no interest in this controversy, testified that it was fully explained to the plaintiff that it would be necessary to transfer the certificate and obtain the approval of the Commissioner of State Lands in Oklahoma. One of those witnesses, the cashier of a bank in Oklahoma, before whom the deeds were acknowledged, does not appear to have had the slightest interest in the controversy, and his testimony is unimpeached. The plaintiff’s testimony on that issue stands alone, and even he does not state with any certainty that he had no information on the subject of the requirements about transfers of certificates of school lands. He states in his testimony that he did not .remember that the cashier of the bank or the other parties told him of those requirements.
Defendant’s wife was in ill health at the time of these transactions, and when he came to Arkansas after consummating the exchange with plaintiff, he stopped at Bentonville, where he executed a transfer of the certificate to the school lands. He testified that his wife was extremely ill at that time, and that he got a notary public in Bentonville to take her acknowledgment notwithstanding her extreme ill health, but that her condition was so desperate at that time that he laid the certificate aside and forgot to mail it to the plaintiff. His wife died four or five days later, and defendant testified that there was nothing to recall to his mind the fact that he had not mailed the certificate until November 14, which was more than sixty days after the date of its execution, and too late under the rules of the land department of Oklahoma to file without an extension of time being granted by the Commissioner. In sending the certificate of transfer to the plaintiff, defendant wrote him a letter in which he expressed his regret that the mistake had been made of not attending to it earlier. Plaintiff made no response at all, and did not make any request of the defendant to take steps to obtain the approval of the Commissioner of State Lands or to execute a new certificate of transfer.
The rules of the land department of Oklahoma require that the certificate must be presented for surrender and cancellation within thirty days after execution, but the officers of that State connected with the department testified that it was not uncommon for the time to be extended upon a sufficient cause being shown for the delay, or that a new certificate might be issued.
\Ve think the chancery court erred in requiring a rescission of the bargain, and in cancelling the conveyance to the defendant. Time was not of the essence of the contract, and plaintiff did not suffer the slightest injury by the delay. In fact, he made no request for compliance with the contract with respect to the method of passing title to the Oklahoma lands, but he instituted this action and prosecuted it upon the groundless charge that there had been fraudulent misrepresentations with respect to the other lands. When the defendant came in with promptness and offered to comply strictly with the contract with respect to the school lands plaintiff still failed to accept that offer, but continued to.prosecute the suit upon the other ground. The defendant not only made this offer in his answer, but renewed it at the end of the litigation when the plaintiff had exhausted his efforts to sustain his unfounded charge as to false representations. He not only did that, but he offered to discharge the mortgage on these lands which he was not under the contract required to do, for the contract recites that the deal was made subject to the recited incumbrances on the several properties which were the subject-matter of the exchange. Under the principles announced by this court in Evans v. Ozark Orchard Co., 103 Ark. 212, and Mays v. Blair, 120 Ark. 69, we think the chancery court ought to have allowed the defendant a reasonable time within which to procure the cancellation of the old certificate or the issuance of a new one to the plaintiff. Any other course in the matter would result in permitting the plaintiff to profit by his fruitless effort to establish a charge of fraud, which is unsupported by the evidence in the case, and this course permits a performance of the contract without injury to either party. The decree is, therefore, reversed and the cause is remanded with directions to the court to fix a reasonable time for the defendant to comply with his contract with respect to the transfer of the certificate to the school lands, and if that is done within the reasonable time prescribed, the plaintiff’s complaint will be dismissed for want of equity. Otherwise, the deed to defendant will be cancelled.
Humphreys, J., disqualified. | [
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Humphreys, J.
Appellee recovered judgment in the Montgomery Circuit Court against appellant for $100 or. account of a malicious prosecution for obtaining goods under false pretenses. An appeal from said judgment has been duly prosecuted to this court.
(1) The first assignment of error insisted upon for reversal is that the court erred in permitting appellee to make proof of the testimony given by Mr. and Mrs. Hall, wherein appellee was charged with obtaining goods under false pretenses. The alleged incompetent testimony was that given by Mr. Hall to the effect that he was present in his place of business and heard the conversation between Mrs. Foster, Pauline Adams and his wife, Mrs. Hall, at the time Pauline Adams signed the contract as security for Mrs. Foster, who had purchased certain goods from Hall; and the statement of Mrs. Hall to the effect that her husband was not in his place of business at the time this conversation occurred. At the time this testimony was offered by appellee, Hall had not testified. It was contended that the testimony was not admissible for any other purpose than to contradict Mr. Hall, should he take the stand and give the same testimony in this case that was given by him in the criminal prosecution. We do not think the position taken by counsel for appellant is tenable. The issue in the case at bar was whether or not Hall’s prosecution in the criminal case was in good or bad faith. If Mrs. Hall’s testimony in the criminal prosecution was correct on this point, then the testimony given by Mr. Hall was incorrect, and admissible as a .circumstance to show whether or not his prosecution of appellee in the criminal case was in good or bad faith.
(2) The second assignment of error insisted upon for reversal is that there was no testimony tending to show that appellant was actuated by malice or that he had no probable cause to have appellee arrested. The law applicable to malicious prosecutions is clearly laid down in the case of Price v. Morris, 122 Ark. 382. In that case, the court decided that malice and want of probable cause must exist, but that malice might be inferred from the evidence showing the want of probable cause; also that where the defendant acted upon the advice of learned counsel, based upon a full statement of all the known facts, a suit for malicious prosecution would not lie. It becomes necessary to review the facts in order to ascertain whether appellant had probable cause for instituting the criminal prosecution against appellee; and whether the facts tending to show a want of probable cause are also sufficient from which to infer malice.
(3) The facts in the case are substantially as follows : Mrs. Foster purchased and received a suit and furs from W. H. Hall on December 30, 1914, on the installment plan, and signed a combination receipt and contract providing that the title to the property should not pass until the purchase price should be paid. Mrs. Klee-man signed the contract as security for Mrs. Foster. In April following, Mrs. Kleeman desired to be released from the obligation, and appellee signed the contract as surety for Mrs. Foster. W. H. Hall required all sureties on these contracts to be owners of furniture. Appellant’s testimony tended to show that at the time appellee signed the contract, she stated to Mrs. Hall that she ran a rooming house at 224 Court Street, and owned her own furniture. Appellee denied making the statement. There is a sharp conflict in the evidence in this regard. Mrs. Foster paid $14 on the contract before appellee signed, and $4 thereafter, leaving a balance of $11 due Hall in May, when Mrs. Foster left the city of Hot Springs, tak ing her suit and furs. On the 25th day of May, appellee and a lady friend started to California. She was arrested on the train at Benton and brought back to Hot Springs, where she was prosecuted by W. H. Hall for obtaining the suit and furs under false pretenses. On the trial she was acquitted. During the prosecution, W. H. Hall testified that he was present at the time appellee signed the contract, and heard her tell Mrs. Hall that she was the owner of furniture. The witnesses were under the rule, and Mrs. Hall squarely contradicted him on this point. Hall did not testify in the case at bar. Before Hall made affidavit and procured the warrant for appellee, he consulted the constable, two justices of the peace, and either just before or just after, consulted his attorney, Y. S. Ledgerwood. They all advised arrest and prosecution. In stating the case to his attorney over the telephone, Hall never mentioned the contract. The substance of his statement to them all was that appellee had bought or leased goods from him, either for herself or some one else, and was leaving the city with the goods; that at the time the goods were obtained, appellee represented that she was the owner of furniture at 224 Court Street, and that he had ascertained the representation to be false. From the above statement of facts, it is apparent that there was sufficient evidence in the record to support the finding of the jury that the prosecution was without probable cause; also, ample evidence from which the jury might infer malice. It is true the record discloses the fact that Hall acted on the advice of counsel, but in order to justify on that account, he must have made a full disclosure of all the facts to his counsel at the time he received the advice upon which he acted.
The judgment is affirmed.. | [
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Butler, J.
In an action for damages to an. automobile at a crossing over the public highway, where a spur track of appellant’s main line crosses to a gin nearby, judgment was rendered against the appellant, from which is this appeal.
The appellant’s claim of exemption from liability is predicated upon the contention that the switch or spur track was not its property, but was built by it for one T. E. Head, and at his expense, and, when the construction was completed, no duty thereafter rested upon the appellant to maintain the crossing. This contention is based upon the familiar principle that, “when the work is finished by the contractor and accepted by the employer, the liability of the former generally ceases and the employer becomes answerable for damages which may thereafter accrue from defective conditions in the work.” The theory is that, in the absence of a special statute making a private siding a public track for the use of the public, no liability would attach for failure to properly maintain it, and, as we have no such statute, under the contract in the instant case, in pursuance of which the track was built, the property rights to the spur track were in Head, and he, or his successors in title, are liable, and not the appellee.
It is further argued that, although Head could not exercise the right of eminent domain and the railroad company could, the exercise of that right was not called for in the instant case as the highway was located on the land of Head, and he had the right to cross the same with the spur track, as the public owned only an easement, the fee remaining in Head, and his only duty was to so construct and maintain it as not to interfere with the public use; and, if he did not keep up the crossing, then he or his successors are alone liable for damages accruing because of its defective condition.
Referring to the last argument first, we note that it is assumed in the statement of the case made by the appellant that “the switch and place where it crosses over the public road was not on the right-of-way or any property belonging to the Missouri Pacific Railroad Company,” and from the argument it is inferred that the public highway was across the lands of Head. We have care fully examined the plat filed as an exhibit in the case and the testimony of the witnesses, and are unable to determine where the public highway is located. It may be upon the land of Head, but there is no evidence which we have discovered to justify the statement. However, it is our opinion that this question of fact becomes immaterial because we think the defense in the case is based upon the erroneous view that the spur track was a private one. For the sake of brevity, the contract relied on is not written herein at length, but only the substance of its material parts stated.
The contract was called “An Industrial Track Agreement,” and provided that, at the request of the shipper (Head), the appellant would construct a track 500 feet long, more or less, leading from carrier’s (appellant’s) existing sidetrack at Indian Station in Chicot County, Arkansas, to the ginnery and cotton seed house of the shipper. Section 1 of the contract provided that the connection with carrier’s existing sidetrack should be at its cost, and that it should furnish all material and perform all labor required for the remainder of the switch at the shipper’s cost. The shipper was to provide the roadbed, right-of-way, crossties and fastenings, and the use of so much of any highway as might be required. The estimated cost of the construction of the switch was $380, which the shipper was required to, and did, pay.
Section 2 of the contract provided that “the carrier may at any time, unless necessarily detrimental to shipper, lengthen, extend or connect with, and use any of switch.” Provision was further made that the carrier should be indemnified for any expense or liability for any change or readjustment of the switch, and that the switch should be kept in good condition at shipper’s cost,' the carrier acting for the shipper to furnish or perform any work at shipper’s cost in the event the shipper should neglect to furnish or do the work within ten days following the carrier’s written request. For material furnished, or work done, the shipper was required to pay the cost to the carrier, plus ten per cent. By section 3 the shipper was required to indemnify the carrier, regardless of its negligence, for damages arising from fire caused by the carrier’s locomotives operating on the switch aiid for indemnification for any damages or injury from act or omission of the shipper, or his agents, to the person or property of the parties to the contract, and to the person or property of any other person or corporation while on or about the switch, and, if any claim or liability other than from fire shall arise from joint or concurring negligence of both parties, it should he borne by both parties equally.
Under the terms of section 4 of the contract, provision was made for its termination, and in that event the carrier was authorized to remove from its premises any metal track material, paying to the shipper from available funds its then present value as salvage. It was also stipulated that all of the switch at any time existing on the premises of the carrier, which should be deemed to include any portion of any intersecting public highway falling within the carrier’s right-of-way, should belong to the carrier.
The contract was entered into and the switch constructed in 1924. It was moved and relocated some fifty to one hundred feet west of its first location, and, after its relocation and shortly before the happening of the injury complained of here, the track was again slightly moved and realigned for the purpose of straightening a curve. The appellant’s employees did all this work, for which they were paid by the shipper, or his successors. The principal purpose for which the switch was built was for the movement of cotton and cotton seed from the shipper’s gin to the main line of appellant for shipment thereon to the market. The evidence shows that it was also used by the appellant for other purposes than to serve the shipper and his successors, such as for the “spotting” of cars loaded with gravel, billets, bolts, etc.
It is apparent from the contract and the use to which the spur track was put that it was not constructed for the exclusive use of Head, but for the use of the appellant also, and for tbeir mutual benefit. While the contract provided that Head should pay for the cost of the original construction and for its maintenance, the work was actually done by the appellaift, as well as the relocation and realignment of the switch; and appellant reserved the right, upon Head’s failure to do maintenance work after notice, to do the work itself and charge the cost to Head, or his successors. The .switch track emerged from the siding and was constructed in a slight curve down the right-of-way for approximately half of its distance from its emergence from the siding to the ginhouse, and the ownership of this portion of the switch was especially reserved in the appellant. It also reserved the right to lengthen the switch if it deemed it expedient, and to use it for purposes other than to serve Head, and it did, in fact, so use the spur track, and recognized its liability for damages by requiring indemnification in paragraph 3 of the contract. From this it will be seen that the appellant exercised practically the same control and dominion over the switch track that it did over any part of its system, and, to all intents and purposes, while constructed primarily to serve the ginnery of Head, it was a sidetrack of the appellant, although located on private property for a part of its length. The spur track is therefore included within the term “railroad” and comes within the duties imposed upon railroads by § 8483 of Crawford & Moses’ Digest, which provides, among other things, that railroad companies which have constructed railroads across any public road shall construct and maintain suitable crossings. Conway Oil & Ice Co. v. Gibson Oil Co., 175 Ark. 902, 1 S. W. (2d) 60, and cases therein cited; Lane v. Interurban Ry. Co., 190 Ia. 738, 180 N. W. 895.
The undisputed evidence is to the effect that the crossing was in bad repair, and that the appellee, while traveling along the highway and while in the exercise of ordinary care, suffered an injury to his automobile because of the defective crossing. Since, as we have seen, it was the duty of the appellant to properly maintain the crossing, the court properly found it liable for the injury, and its .judgment is therefore affirmed. | [
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Wood, J.,
(after stating the facts.) Passing over the objection of appellee that the exceptions of appellant to the rulings of the trial court were not embodied in his motion for new trial, and therefore were waived, and conceding that exceptions were properly saved, and that the errors of which appellant here complains are properly before this court for con - sideration, still we find nothing for which to reverse the judgment. Taking the grounds of the motion as appellant states them, the court did not err: “First, in refusing to declare the mortgage of March 11, 1895, void.” The mortgage recites: “Whei’eas, the said party of the first part is indebted to the said party of the second part in the sum of $1.50, evidenced by my promissory note of even date herewith, and to further secure all indebtedness that I owe said H. L. Burford,” party of the second part. It is conceded that the $1.50 expressly mentioned was not bona fide. But the 'proof showed that at the time the mortgage was executed there was a bona fide indebtedness of some $250 from the mortgagor to the mortgagee. The clause above set forth was all-sufficient to take that in. This point is ruled by Curtis v. Flinn, 46 Ark. 70, where the court, through JudgeGockrill, said: “If the mortgage contains a general description, sufficient to embrace the liability intended to be secured, and to put a person examining the records upon inquiry, and to direct him to the proper source for more minute and particular information of the amount of the incumbrance, it is all that fair dealing and the authorities demand.”
Second. The mortgage was not barred by the statute of limitations. It is true, the note which the mortgage was given to secure had only been saved from the statute bar by reason of payments made thereon. But these kept it alive, and as the mortgage of record was not barred, and did not show the debt to be barred, it was not necessary that the partial payments made on the note should he indorsed on the margin of the record of the mortgage. Section 5094 of Sand. & H. Dig. does not require it in such a case, hut only in cases where the mortgage of record shows the debt to be barred. Then, in order that third parties be not misled, if, notwithstanding the mortgage of record shows the debt to be barred, the debt is not in fact barred by reason of partial payments, these must be entered on the margin of the record of the mortgage. Such we understand to be the object and the proper construction of the proviso to section 5094 of Sandels & Hill’s Digest.
Affirm the judgment.
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Mehaeey, J.
Sometime prior to July 5, 1927, C. W. Jones entered into a contract with the Continental Grin Company for the purchase of the gin machinery involved in this suit. The machinery was delivered at Conway on July 5,1927. The agreement was that one-third of the purchase price was to be paid cash, but when the property was delivered Jones was unable to make the cash payment, and the Continental Grin Company took the note of Jones and Eula H. Jones, his wife, in the sum of $2,317, due September 1,1927, secured by mortgage dated July 5, 1927, on one acre of ground on which the gin was located, and also on the machinery purchased by Jones. On the same date Jones and Ms wife executed two promissory notes in the amount of $1,158 each to the Continental G-in Company, one note due November 1, 1928, and one due December 1,1928. By the terms of the notes, title to the gin machinery was to remain in the Continental Gin Company until the notes were paid. On February 27,
1928, Jones and wife executed two promissory notes to J. S. Westerfield, one note for $500 due August 1, 1929, and one note for $3,500 due February 27, 1930. Wester-field did not at the time advance to J ones the $4,000, but advanced $1,816,69, and the balance of the $4,000 was a debt from Jones to Westerfield secured by mortgage on Jones ’ home. To secure the payment of this $4,000, Jones executed a mortgage on the same property, the one acre of ground and gin machinery, which was described in the mortgage to the Continental Gin Company. This mortgage executed on February 27 was recorded on March 1 1929. Of the cash advanced by Westerfield at the time Jones executed the notes and mortgage, $579.85 was paid to the Continental Gin Company in satisfaction of its note and mortgage executed by Jones and his wife. Qn February 3, 1930, the Buckeye Cotton Oil Company purchased from the Continental Gin Company the two title-retaining notes of Jones and wife, and paid therefor the sum of $2,299.89, the amount of principal and interest due, and the Buckeye Cotton Oil Company took an assignment of the notes without recourse, and on the same day, February 3, 1930, the Buckeye Cotton Oil Company loaned to Jones and wife the sum of $3,000 and took three notes of $1,000 each. The Buckeye Cotton Oil Company did not actually let Jones have the $3,000, but the notes which it had purchased from the Continental Gin Company, which Jones owed, together with the cash which it let Jones have at that time, amounted to $3,000. The three promissory notes given by Jones and wife to the Buckeye Cotton Oil Company, above mentioned, for $1,000 each were due November 1, 1930, November 1, 1931, and November 1, 1932. On the same day, February 3, 1930, Jones and wife, to secure the payment of the three notes, executed and delivered to the Buckeye Cotton Oil Company a mortgage on the same real estate and gin machinery mentioned above. This mortgage was recorded on April 4, 1930.
Suit was begun in the Faulkner Chancery Court by the Arkansas Foundry Company to enforce a material-man’s lien. The appellee, Westerfield, filed answer and cross-complaint, in which he claimed a first lien on the real property and gin machinery in question, and asked that the Buckeye Cotton Oil Company be made a party. The Buckeye Cotton Oil Company filed its answer and cross-complaint, setting up its notes and mortgage and asking that its lien be 'adjudged superior and paramount to the rights of the other parties. It also asked in its cross-complaint that, if the court found that the Continental Grin Company had waived the title-retaining provisions of its notes, the Buckeye Cotton Oil Company have judgment against the Continental Grin Company for the amount due on the notes purchased from the Continental Gin Company. Westerfield contended that his mortgage was superior and paramount to any claim of any of the other parties to the suit. The Buckeye Cotton Oil Company contended that its lien was superior and paramount to the interest of any of the parties to the suit. The Buckeye Cotton Oil Company contended that by reason of the purchase of the title-retaining notes from the Continental Gin Company its rights under these notes was superior to the claim of Westerfield. It also claimed that if the title-retaining provisions in the notes had been waived by the Continental Gin Company it was entitled to a judgment against the Continental Gin Company.
Westerfield testified that, when he took the notes and mortgage from Jones and paid the balance due on the mortgage to the Continental Gin Company, he was informed by the representative of the gin company that the amount he paid it paid the entire debt, and that, unless he had so understood it from the gin .company, he would not have loaned the money and taken the notes and mortgage.
W. C. McGinley, representative of the Continental Gin Company, testified that he told Westerfield that that paid the mortgage, hut that there were title retaining notes held by it which were given for the purchase price of the machinery. This testimony is contradicted by Westerfield.
W. F. Bradford, representative of the Buckeye Cotton Oil Company, testified about the purchase of the title-retaining notes from the Continental Gin Company, and introduced the notes and letter. The evidence was in •conflict, and the chancellor found that Jones and wife were indebted to Westerfield in the sum of $4,440, for which he should have judgment, and that this sum should bear interest at the rate of 6 per cent, per annum until paid. That Westerfield’s debt was secured by mortgage on the real estate and gin machinery, and that his lien was superior to any right, title, interest or lien of any other parties to the suit. The court also found that Jones and wife were indebted to the Buckeye Cotton Oil Company in the sum of $3,387.50, and that Jones was further indebted to the Buckeye Cotton Oil Company in the sum of $327.69, and that these amounts should bear interest at 6 per cent, per annum until paid. The court further found that the indebtedness due the Buckeye Cotton Oil Company was secured by a mortgage executed by Jones and wife dated February 3, 1930, and that this mortgage constituted a lien against the property above mentioned, and that this lien was subordinate to the lien of Wester-field, but superior to any right, title, interest or lien of the other parties to the suit. The court also found that the indebtedness due Westerfield and the Buckeye Cotton Oil Company was past due, and that each was entitled to a decree for the amounts above mentioned, and also found that the Buckeye Cotton Oil Company had no cause of action against the Continental Gin Company. There was a decree and judgment for the amounts above mentioned, and for the foreclosure of the mortgage and for sale of the property if the amounts were not paid. It was provided in the decree that the commissioner should first pay the cost and expense of sale and costs of suit and then pay Westerfield the amount of his decree with interest; that he should then pay to the Buckeye Cotton Oil Company the amount of its decree with interest; that the remainder, if any, should he held subject to the orders of the court. It was also ordered and decreed that the cross-complaint of the Buckeye Cotton Oil Company be dismissed as to the Continental Grin Company.
It is 'contended by appellant that the Continental Grin Company did not waive title. It cites and relies on Jordan v. Wilkerson & Carroll Cotton Co., 152 Ark. 533, 238 S. W. 780. In that case the court said: “Immediately after sale, and in ignorance of the fact that the purchaser had executed a mortgage, the seller took a mortgage to secure the purchase money. The first mortgage was given by the seller at a time when the vendor had title, and the court said that the first mortgagee was not misled to its disadvantage, and that it was manifest that appellant would not have accepted the mortgage in lieu of the retention of its title if it had actually known that its vendee had theretofore executed a mortgage to appellee.” The court stated that under the circumstances in that case appellant, in good .conscience and equity, should have been restored its rig-hts under the note and contract in which it retained title. The court said: £ ‘ This equitable principle was applied by this court in the restoration of a senior mortgagee’s prior lien, where the senior mortgagee through ignorance of an intervening mortgage to a third party had taken a renewal mortgage and satisfied the first or original mortgage of record. ’ ’ The court cites as announcing the same doctrine, Wooster v. Cavender, 54 Ark. 153, 15 S. W. 192, and Shurn v. Wilkinson, 131 Ark. 167, 198 S. W. 279.
The question we have here was not decided or discussed in either of those cases. In the Wooster case, Judge Hemikgway, speaking for the court, said: “As ■ the appellees acted in good faith and without culpable neglect under a mistake as to a material fact, it is within the ordinary powers of a court of equity to grant them relief, provided it can be done without working hardship or injustice to innocent parties. In the Shurn case, supra, the court reaffirmed the doctrine announced in the case of Wooster v. Wilkerson. None of these cases in any way modify or change the rule announced in the case of Thorton v. Findley, 97 Ark. 432, 134 S. W. 627. This court said in the last-mentioned case: “And, as a general rule, if the vendor takes a mortgage or other security for the price without their reserving title, such act will he regarded as a waiver of the condition of the original sale and an election to consider the sale as absolute.” There is nothing in the mortgage -to the Continental Gin Company reserving- title. When the Continental Gin Company took a mortgage on the machinery without reserving title, such act was a waiver of the title-retaining provision in the note. There is some conflict of authority as to the effect of taking a mortgage to secure the payment of the purchase price of property where the vendor has retained title. Taking a mortgage to secure the payment is inconsistent with ownership in the vendor. If the title remains in the seller and he takes a mortgage, he would be taking a mortgage on his own property. This being true, it is immaterial whether the vendor takes a mortgage on the property sold for all or only a part of his debt, because the taking of the mortgage is a recognition of title in the purchaser and is a waiver of the title-retaining provision of the note. Again, when West-erfield took his mortgage, he testified that he paid the Continental Gin Company $579.85, and was told that that settled the debt. This evidence is contradicted by the witness for the gin company, but he testified that he would not have paid the money to the gin company if he had known it claimed title to the property. Moreover, the gin company accepted the money and knew at the time that Westerfield was lending the money to Jones and taking a mortgage on the property as security. It is next contended that the Buckeye Cotton Oil Company did not waive title. What we have said above as to the mortgage given to the Continental Gin Company applies here. In addition to what we have said, the Buckeye Cotton Oil Company purchased the notes from the Continental Grin Company, and the notes were transferred without recourse. In addition to the amount of the note purchased from the Continental Grin Company, the Buckeye Cotton Oil Company advanced Jones enough money to make the loan $3,000. For this amount it took from Jones three notes for $1,000 each, and at the same time took a mortgage on the gin machinery to secure the payment of these three notes. There was no provision either in the notes or mortgages reserving title. This was inconsistent with a 'claim of title in itself. It took these notes and mortgage after Westerfield’s mortgage and with a knowledge of the Westerfield prior mortgage on the same property. It would make no difference whether the Continental Grin Company had waived the title retained in the notes or not. The Buckeye Cotton Oil Company waived its rights and, since the transfer of the debt was without recourse, it would have no claim against the Continental Gin Company. The Buckeye Cotton Oil Company knew when it purchased the debt that Jones had given a mortgage to the Continental Gin Company on the property, and, if this was a waiver, the Buckeye Cotton Oil Company knew as much about it as the Continental Gin Company.
We find no error, and the decree is affirmed. | [
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McHaNey, J.
Appellee brought this action against appellant to recover damages for the killing of one horse and injury done to another, by the operation of a train, in the total sum of $120, being $100 for the horse killed and $20 for the horse injured. He prayed for double damages and attorney’s fees under the statute. Appellant defended on the grounds that it was not guilty of any negligence in the killing and injury of said stock, and that the horses ran upon the track in such close proximity to the train that it was impossible ■ for the operatives to stop the train in time to avoid injuring them. The case was submitted to a jury, and the following verdict was returned: “We, the jury, find for the plaintiff, E. C. Johnson, against the defendant, in the sum of $100.” Appellee requested the court to render judgment on the verdict in the sum of $200 and a reasonable attorney’s fee, which the court declined to do, but entered a judgment for $100, in accordance with the verdict. There is an appeal by the railroad company and a cross-appeal by appellee.
The first and principal assignment of error urged by appellant is that the court erred in refusing to direct a verdict in its favor at its request. We do not agree with appellant in this contention. The facts, briefly stated, are as follows: The train was running south through Piggott, Arkansas, at a slow rate of speed. The horses were on the track between a quarter and one-half mile north of the depot in the town of Piggott. The stock alarm was given by the operatives, when the horses began running down the tracks. They continued to run down the tracks, past the depot and onto a trestle some two or three hundred yards south of the depot where one of them was killed and the other slightly injured. The one killed failed to get across the trestle because his hind feet fell through the trestle and the train ran against it and killed it. The other got across but was injured by being struck by the train. The train came to a stop with the engine a short distance south of the trestle. Several eyewitnesses, other than the engineer and fireman, testified as to how the accident happened, but the substance of the testimony is that the horses ran down the tracks, then off to the side of the tracks, then back on the tracks, always ahead of the train, and would probably have escaped had they not tried to cross the trestle. For a distance of approximately a one-half mile therefore these animals were running along and by the side of the tracks, in a dangerous position, to the knowledge of the engineer and fireman, who were giving the stock signals all the time.
They therefore had plenty of time to stop the train, or to have had it under such control as to be able to stop it, without doing injury to the stock. They knew that the trestle was ahead, and that, if the horses attempted to cross same they would likely be injured. In Paragould Southeastern Ry. Co. v. Crunk, 81 Ark. 35, 98 S. W. 682, which was a case where a horse was injured in a trestle by being frightened hy the approaching train and running into the trestle, a similar contention was made as in this case. There the court quoted from Railroad Co. v. Ferguson, 57 Ark. 18, 20 S. W. 545, 18 L. R. A. 110, 38 Am. St. Rep. 217, that “appellant did owe the appellee the duty, when it discovered^ its colt upon its track, to use ordinary or reasonable care to avoid injury to it by running its train against it, or by frightening and driving it by unnecessary alarms against the wire fence,” and said: “Generally speaking, ordinary or reasonable care does not require a train to be stopped in order to avoid injury to stock on the track; but there may be facts which make the stoppage only ordinary care to avoid the injury which would otherwise occur, and there were sufficient facts in this case to send that question to the jury.” So here these colts, according to one witness, never did get off the track, but, according to others, they were off and on several times before attempting to cross the trestle, and we are of the opinion that it was a question for the jury as to whether the operatives exercised ordinary care to prevent injurying them.
Complaint is also made by appellant of the refusal of the court to give two instructions requested by it, Nos. 2 and 3. We think these instructions were properly refused, and, in so far as they were correct, were fully covered by other instructions given by the court on its own motion.
On the cross-appeal of appellee, but little need be said, as the court correctly declined to enter judgment for double damages as provided under certain conditions defined in § 8563, Crawford & Moses’ Digest. The proviso to that section relating to double damages reads as follows: “And provided further that, if the owner of such stock killed or wounded shall bring suit against such railroad after the thirty days have expired, and the jury trying such cause shall give such owner a less amount of damage than he sues for, then such owner shall recover only the amount given him by said jury and not be entitled to recover any attorney’s fees. ’ ’
Here appellant made demand for $120 for both animals and prayed double damages in the sum of $240 and attorney’s fees. The .jury returned a verdict for $100, without stating whether it was for the value of the horse killed or the value of the horse killed plus damages for the horse injured. We are unable to say that the verdict related to the dead horse only, but, iu any event, appel-lee failed to recover the amount sued for, so, under the plain provisions of the statute, he was not entitled to recover double damages or attorney’s fees.
The judgment will be affirmed both on the appeal and cross-appeal. | [
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Butler, J.
Plaintiff and defendant, respectively, the appellee and appellant here, were adjoining property owners in the residential -section of the city of Little Rock. Their properties consisted of adjacent lots upon which each had established and maintained a residence for a number of years. Between the lots the defendant some years ago had constructed an ornamental iron fence, but -shortly before the institution of this suit she began the erection of a solid board fence separating her back yard from that of the plaintiff and continuing its construction along the line between the properties to a point about even with the front of defendant’s house. Plaintiff brought this action to enjoin the further construction of said fence and to require that portion which had already been built to be torn down and removed. Plaintiff alleged that the defendant was ¡maliciously constructing the fence for spite, which fence, when completed, would constitute a solid wall about eight feet in height; that it would be unsightly, obstruct his light and air' and materially lessen the value of his property.
The defendant answered denying the allegations of the complaint and in effect alleging that the construction of the fence was not caused by malicious and spiteful purpose on her part, but was necessary for the quiet enjoyment of her property. She made counterclaim for damages because of the depredations by plaintiff’s and neighbors’ children, to which a reply was filed, and an amendment also made to the complaint in which it was alleged that plaintiff had acquired title by adverse possession to all of the ground south of the iron fence and prayed in addition to his prayer for injunction that his title to all of the land south of the iron fence be quieted in him because of his adverse holding.
The cause was heard upon the pleadings and testimony offered, and the court entered a decree finding in favor of the plaintiff and dismissing the defendant’s cross-complaint for want of equity.
It is conceded by the parties to this action that there is no statute in this State regulating the construction of fences of such character as it is alleged was in course of construe tion by the appellant, or that this court has ever been called upon to decide the precise issue here involved. It is the contention of the appellant that, according to the rule at common law and the great weight of authority, an owner of land may erect on his own property any kind of structure he may desire, even though it might have the effect of causing great annoyance to the neighboring owners, and that the motive or intent of the person erecting the structure cannot be inquired into unless the structure can have no benefit or advantage, but is for the avowed or manifest purpose of damaging a neighbor; nor could an owner be prevented, even though the purpose is a malicious one, from erecting a structure which merely prevents the free use of light and air by the adjoining property owner. In support of this contention counsel for the appellant has cited an array of authorities, among which are 1 C. J. 1229; 1 R. C. L. 399, and cases from courts of Kentucky, Ohio, Pennsylvania, South Carolina, Texas, Vermont and from a number of other respectable courts of last resort.
It is the contention of the appellee that, although the rule contended for by the appellant may have its foundation in common law and be supported by the greater weight of authority, yet the trend of modern decisions is to the effect that an adjoining landowner may enjoin the erection or maintenance of a structure erected for the purpose of annoying him and making the use of his property less desirable. To support this view, appellee cites cases from the States of Oklahoma, Michigan, Nebraska and other jurisdictions.
As we view the facts, it becomes unnecessary for us to express our adherence to either of the conflicting views. It is our opinion that the preponderance of the evidence is to the effect that the fence complained of was being built, not for the sole purpose of annoying the appellee, but to preserve and protect appellant’s property from trespassers and from the wilful destruction or damage of her flowers, fruit and windows inflicted by thoughtless persons some of whom at least were attracted to the neighborhood by reason of the means of recreation afforded by the appellee. While the fence to some extent obscured the vision of those looking from the ap-pellee’s kitchen and dining room windows and was not as attractive'as the ornamental iron fence, it was not of an unusual height, considering the purpose for which it was being built, as it was not more than eight feet, high— probably about seven feet. There is some testimony to the effect that obnoxious articles were hung upon the fence and that offensive language was used by the appellant to members of appellee’s household, but this all occurred after the institution of this suit, and had but little bearing on the question of the motive which induced the construction of the fence.
We are also of the opinion that the decree of the chancellor quieting title in appellee to all of the land south of the iron fence was erroneous. ■ The evidence is clear that the property line of appellant extended south of the iron fence about six inches at one end, gradually increasing to about eighteen inches at the other, and, while the appellee had mowed the grass on this strip for a number of years, there was no evidence of any act upon his part or any one for him which would indicate an intention to claim beyond the true boundary between his property and that of the appellant, or any conduct which would bring home to the appellant the knowledge that he was intending to divest her of title by adverse occupancy. Indeed, it is quite manifest that he never had any such intention until the unfortunate incidents occurred out of which this suit has arisen.
The decree of the trial court is therefore reversed, and the cause remanded with directions to set aside the decree vesting title to the strip above described in the appellee and to dissolve the injunction.
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Hart, J.
On the 18th day of June, 1910, J. H. Vincent executed a mortgage on two forty-acre tracts of land adjoining each other in White County, Arkansas, to the New England Securities Company for the sum of $300 with certain interest coupons. On the 8th day of November, 1912, J. H. Vincent conveyed the north forty acres to Z. M. Walker, for the consideration of $100 cash in hand paid, and the further sum of $300 for which vendor’s lien was retained to be paid to the New England Securities Company on December 1,1914. On the 28th day of October, 1913, Z. M. Walker and wife conveyed this tract of land to James Will Dowen for the sum of $400, one hundred dollars of which was paid in cash, and the further sum of $300 to be paid to the New England Securities Company for which vendor’s lien was retained. On the 8th day of November, 1912, J. H. Vincent conveyed to C. A. Neal the south forty acres in consideration of the sum of $500, for which vendor’s lien was retained, payable at the rate of $100 annually for the next succeeding five years. On the 24th day of November, 1913, C. A. Neal and his wife conveyed said forty acres to Y. H. Mathis for the sum of $500, which was paid. The mortgage debt of the New England Securities Company was not paid, and it instituted an action to foreclose its mortgage. J. H. Vincent and his subsequent grantees were all made parties to the suit.
Y. H. Mathis filed a separate answer to the plaintiff’s complaint and a cróss-complaint against Z. M. Walker. He asked that the land conveyed to Z. M. Walker be first sold for the payment of the mortgage debt, and in effect asked that he be subrogated to the rights of the mortgage company.
Walker filed an answer in which he denied that Mathis should have a judgment against him or that his land be first sold for the payment of the mortgage debt. The mortgage debt amounted to $327.58. At the sale, the land which had been conveyed to Z. M. Walker was sold for $160 and Walker became the purchaser thereof. The land which had been conveyed to Mathis was sold for the sum of $224, which was necessary for the payment of the balance of the mortgage debt and the costs. Mathis bid in his land. In the subsequent term of court the chancellor entered a decree in favor of Mathis against Walker for said sum of $224. Z. M. Walker has appealed.
In addition to the foregoing facts, it may be stated that the deeds from Vincent to Y. H. Mathis and the other parties named above are warranty deeds; that James Will Dowen is dead and his estate is insolvent; that J. H. Vincent is insolvent and that C. A. Neal is a nonresident of this State and has no property in it.
We think the decision of the chancellor was correct. In Felker v. Rice, 110 Ark. 70, the mortgagor conveyed the mortgaged premises by warranty deed and the deed contained a stipulation that the property was subject to a mortgage which the grantee agreed to pay. It was held that, by thé acceptance of the deed, the law implied a promise by the grantee to pay the mortgage, and if the mortgagee could not make the amount of the debt out of the mortgagor and the foreclosure of the mortgage, the grantee, having assumed the debt, and having agreed to pay it, stood in the position of a surety to the mortgagor.
In the instant case, Walker was the grantee of Vincent the mortgagor. Vincent conveyed forty acres of the mortgaged property to Walker and Walker assumed to pay off the mortgage debt. This was recited in the deed. So in the application of the rule laid down in Felker v. Rice, supra, Walker became the surety of Vincent. The record shows that Mathis was a purchaser in good faith for value of part of the mortgaged premises and that his immediate grantor, C. A. Neal, was a nonresident of this State and had no property in it; that Vincent was insolvent and that Walker had assumed to pay $300 of the mortgage debt. Under these circumstances, Mathis was not a volunteer but discharged the mortgage debt in order to protect his own interest, and he is entitled to be subrogated to the rights of Vincent, his grantor. This is in application of the maxim that, equity regards that as done which ought to be done, and looks to the intent rather than to the form. Vincent, if he had paid the mortgage, would be entitled to a judgment against Walker for the amount of the mortgage debt, which Walker in his deed assumed to pay, and Mathis having paid off a part of the mortgage debt in order to protect his own interests, was entitled to be subrogated to the rights of Vincent.
It is, also, a well-settled rule in equity that, where a subsequent owner of the equity of redemption (if not the mortgagor) pays a prior mortgage, the payment shall never operate as an extinguishment of the first mortgage to the prejudice of any existing rights of the purchaser, but the transaction will be treated simply and purely as an assignment of the first mortgage. Merwin on Equity & Equity.Pleading, § 628, 3 Pomeroy’s Equity Jurisprudence, § § 1211 and 1212. Several well considered cases' are cited in support of the text. So it may be said in the application of this equitable rule that Mathis would be entitled to be subrogated to the rights of the New England Securities Company, the mortgagee.
It follows that the decree will be affirmed. | [
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Butler, J.
From an action by the beneficiaries named in an insurance certificate based on an application signed by Romie Long and issued by the appellant, a fraternal benefit society, resulting in a verdict and judgment in favor of the beneficiaries, comes this appeal.
The defense to the action is grounded upon the allegation that in the medical examination embracing the questions and answers included in and a part of the application, a false answer was made to a question, and that this question and answer thereto constituted a warranty under the policy and that the answer, being'false, avoided the policy. The question propounded and the answer thereto are as follows: “ Q. Have you consulted a physician during the last five years'? A. No.”
In the body of the certificate, the application, constitution and by-laws of the appellant were referred to and were made a part of the contract of insurance. In the by-laws and in the application there is a stipulation to the effect that all statements and answers made in the application shall be (by the assured) adopted as his own, admitted to be material, full and complete, and in any case, if any untrue or incomplete answer shall be made in such application, then the certificate issued thereon and said contract shall be absolutely null and void. It was further stipulated in the application that any beneficiary’s certificate based thereon shall be held to be a contract made in the State of Ohio and subject to its laws. These stipulations, which were a part of the contract of insurance, constituted the answer to the question a warranty both under the laws of the State of Ohio and of this jurisdiction. Mutual Reserve Fund Life Ins. Assn. v. Farmer, 65 Ark. 581, 47 S. W. 850; Providence Life Assurance Society v. Reutlinger, 58 Ark. 528, 25 S. W. 835; Amer. Life & Accident Ass’n v. Walton, 133 Ark. 348, 202 S. W. 20; Ins. Co. v. Pyle, 44 Ohio St. 19, 4 N. E. 465, 58 Am. Rep. 781; Wills v. Nat. Life & Acc. Ins. Co., 28 Ohio App. 497, 162 N. E. 822.
The difficult question arising is, if the answer was false and the assured had in fact consulted a physician within the last five years, is the appellant estopped from setting this up as a defense? It is insisted that this is not a case in which estoppel or waiver applies, but that under the undisputed evidence a case is presented “where, with a full knowledge of all the facts as to the provision of the contract and as to the facts inquired about, Long gave an untrue answer to the question as to whether he had consulted a physician within the last five years”; that to these facts an application of the principle announced in Ins. Co. v. Reutlinger, supra, and in Mudge v. Supreme Court I. O. F., 149 Mich. 467, 112 N. W. 1130, 14 L. R. A. (N. S.) 279, 119 Am. St. Rep. 686, would render the contract void from its inception and make unavailing the plea of estoppel. As we understand the rule laid down in the Reutlinger case, it is merely to the effect that, if a false answer is knowingly made by the insured with the knowledge of the agent of the company, and the two collude to defraud the company by means of the false answer, the policy of insurance is void. In the Mudge case the inference to be drawn from the testimony was that the assured was as well informed of the nature of the question as was the agent. The question was, “Have you ever had the disease of insanity?” This question was answered in the negative, when in fact the insured had at one time been insane, and the examining physician was well aware of this fact. Therefore, both the insured and the physician knew that the answer was false, and thereby colluded to defraud the insurer.
In the case at bar we think a fair analysis of the testimony on the question of estoppel does not warrant the conclusion reached by the appellant, i. e., that the applicant had full knowledge of the facts inquired about and gave an untrue answer, but rather that the medical exanfiner placed his own interpretation on the question and gave what he conceived to be a correct answer. The appellant introduced several physicians who testified that they had examined the insured in a hospital in Little Rock in June, 1927. Appellee then called the physician who had made the examination of the insured at the time of his application and who wrote the answers in the application. It developed that this physician and •.the insured both lived in the town of G-urdon, and that the ‘medical examiner had been the physician of the insured for a period of time from five to ten years. This physician testified that the insured had never had any disease of a serious nature before the application for insurance was made; that he knew that the insured had gone to the Missouri Pacific Hospital in June, 1927, and that he had treated him two days before he went there for a slight indisposition, describing the ailment and its result as “a bilious attach and a bad cold — he had got kind o’ knocked out, as we call it.”
Long was a brakeman in the employ of the Missouri Pacific Railroad Company, and as such was entitled to free treatment in the hospital of the company whenever he was indisposed. Employees of the railroad company made frequent use of the hospital advantages as they were transported to and from their homes to the hospital and there cared for without any cost to them. For this reason they would go to the hospital, even though troubled with only minor ailments. The physician who took the application was, and had been, employed by the appellant company for the purpose of examining applicants for insurance for eight or ten years. The blank applications would be sent to him for use as occasion required. He testified that he made the examination of Long in November, 1927, and that he, himself, wrote the answers to the questions that were contained in the application. Referring to the blank spaces left for the insertion of the answers to questions he was asked “Did you fill those in,” and he answered, “Yes, sir — in answer to his question, or father my questions.” Witness was also asked the following question: “Just tell how you conducted the examination, doctor.” To this question the appellant objected, and, after some colloquy between counsel and the court, the objection was sustained and the witness was not permitted to answer. The witness was then asked, “Doctor, in the application you were asked if he had consulted a physician and the answer is, no. You wrote that answer down?” The witness answered, “Yes, sir.”
The physician further stated that at the time the" application was taken to the best of his knowledge the applicant had not consulted a physician for anything serious within five years; that he believed the statement as written down by him was true. We think it may be fairly deduced from this testimony and from the nature of the ailments of the applicant, for which he was treated by the physician before his visit to the hospital, that these were, as thought by the physician, only temporary in their nature, attendant merely with bodily discomfort and without any serious consequence such as would affect his general health or life expectancy; that this was known to the physician and also that the applicant had stayed about three or four days in the hospital some three or four months before the date of the application, and that he had gone there because of a bilious attack and a cold, and that with this knowledge the physician placed his own interpretation on the question and gave an answer based on that interpretation which he believed was true; that this was the answer of the physician himself and not that of the applicant. It will be remembered that the physician was asked to state how he conducted the examination of the applicant, and on objection of the appellant was not permitted to testify. This testimony should have been admitted, for it was not for the purpose of varying the answers, but to show specifically how and by whom the answers were in fact given, and, if not literally true, why a false answer was written. As the examining physician at that time was the witness of the appellee and the agent of the appellant at the time the application was made, it must be presumed that both knew the answer that would be given, and, since the appellant prevented this testimony by his objection, the inference is that it would have been unfavorable to it, Miller v. Jones, 32 Ark. 337.
In the state of the record we think the principles announced in the case of Kandar v. Indemnity Co., 30 Ohio Circuit Court Decisions of 1909, p. 260, apply. It is there said: “If the agent of the company placed a construction upon it, making the answer given an honest one, is the company bound by it so as to be thereafter estopped from asserting as a defense to an action on the policy that a false representation had been made in this regard? We are not without authorities upon questions somewhat analogous. We have found reference to a mass of litigation along the same lines in Clemans v. Supreme Assembly, 131 N. Y. 485, 30 N. E. 496, 16 L. R. A. 33. * * * If the insurer’s agent after being informed fully as to the facts incorrectly states them in the application, the insurer is estopped to take advantage of the error to avoid liability on the policy. * * * If the statements in the application relied upon as breaches of warranty are inserted by the agent of the insurer, without collusion or fraud on the part of the insured, the insurer is estopped to set up their error or falsity.”
This seems to be the rule laid down by onr own decisions. The case of Dwelling House Ins. Co. v. Brodie, 52 Ark. 11, 11 S. W. 1016, was an action based upon a policy of fire insurance, and one of the defenses was that one of the representations made by Brodie, which was by express agreement of the parties a warranty, was false. The question was, “Do all the stove pipes go directly into brick chimneys'?” and the answer was, “Yes,” while in truth the stove pipes did not go into brick chimneys, but ran directly through the roof. It was shown that the answers were not written by Brodie but by the agent of the insurance company and signed by Brodie. To the application was appended a statement to the effect that the applicant warranted each of the answers to the questions to be true. There was evidence that the agent personally inspected the property at the time of the application and knew the condition of the stove pipes. The court instructed the jury that the false statements vitiated the policy unless the agent of the company inspected the property and informed the applicant that the facts warranted the answer. In approving this instruction, the court quoted with approval from Ins. Co. v. Wilkinson, 13 Wall. 222, as follows: “They (the agents) not unfrequently mislead the insured by a false or erroneous statement of what the application should contain, or, taking the preparation of it into their own hands, procure his signature by an assurance that it is properly drawn, and will meet the requirements of the policy. The better opinion seems to be that, when this course is pursued, the description of the risk should, though nominally proceeding from the insured, be regarded as the act of the insurers. The modern decisions fully sustain this proposition, and they seem to us founded in reason and justice, and meet our entire approval.”
The following statement from the case of Bedwell v. Northwestern Ins. Co., 24 N. Y. 302, was likewise quoted and indorsed by the court in the Brodie case: “Indeed, it is not easy to perceive why an insurance company, by reason of the formal words or clauses (of a general and comprehensive nature) inserted in a policy, intended to meet broad classes of contingencies, should ever be allowed to avoid liability on the ground that facts, of which the company had full knowledge at the time of issuing the policy, were then not in accordance with the formal words of the contract, or some of its multifarious conditions. If such facts are to be held to be a breach of such a clause, they are a breach eo instanti of the making of the contracts, and are so known to be by the company as well as the insured, and to allow the company to take the premium without taking the risk, would be to encourage a fraud. ’ ’ Concluding, this court said: “We therefore conclude that the appellant was estopped from taking advantage of the falsity of the answer appended to the question, ‘Do all stove pipes go directly into brick chimneys?’ if, at the time the policy sued on was issued, it, personally, or through its agent, knew or had notice of, the facts which the question was intended to elicit.” The doctrine of that case has been reaffirmed in People’s Fire Ins. Co. v. Goyne, 79 Ark. 322, 96 S. W. 365, 16 L. R. A. (N. S.) 1180 9 Ann. Cas. 373, and followed in Franklin Life Ins. Co. v. Galligan, 71 Ark. 295, 73 S. W. 102, 100 Am. St. Rep. 73; Maloney v. Maryland Casualty Co., 113 Ark. 174, 167 S. W. 845; Hutchins v. Globe Ins. Co., 126 Ark. 360, 190 S. W. 446; Des Moines Life Ins. Co. v. Clay, 89 Ark. 230, 116 S. W. 232; American Nat. Ins. Co. v. Hale, 172 Ark. 958, 291 S. W, 82.
In Maloney v. Maryland Cas. Co., supra, the court held that, where the answers to questions in an application for insurance were written by the agent of the insurer without consulting the insured, the principal is charged with the knowledge of the agent, and is estopped, from denying what his own agent has assented to as true. Hutchins v. Globe Ins. Co., supra, was a suit on a life insurance policy where the defense was made that the insured had failed to state that he was afflicted with epilepsy at the time of his examination for insurance. There was some testimony that the examining physician for the insurance company had attended and treated the applicant for epilepsy and knew of his condition. In commenting upon this, the court said: “If, in fact, the doctor had this knowledge when he wrote down a false answer, his knowledge is imputed to the company, and it cannot now be heard to say there was a breach of the warranty. ’ ’
It must he admitted that the representation with reference to the consultation with a physician was a warranty, but the power of the agent of the company remains the same, although the application contains a warranty, and may estop its principal, where said agent is authorized to ask the question and write the answer and puts his own construction upon the facts of which he has knowledge, and deduces therefrom an erroneous answer which he writes down, and the applicant has the right to rely upon the superior knowledge of the medical examiner where he is acting in good faith and does not knowingly make false answers as to facts upon which the medical examiner may base his conclusions. Here the medical examiner was a physician who had been practicing his profession for a long time, and of course he knew that any one who entered a hospital would be examined by the physicians in attendance there to the same extent as if the insured had told him in detail his entire experience during his stay in the hospital. Indeed, there is no evidence to show that he did not, and it would be a grave mistake to suppose that the rule which would avoid the contract for a false warranty could he extended so as to hold the applicant responsible for the truth of an answer which was the result of a mistake in judgment or an error or blunder of the company’s agent especially charged by the company with the preparation of the application. We have attentively examined the Arkansas and Ohio cases cited by counsel. As we interpret them, we find nothing which conflicts with the view we have expressed.
It is not contended that there was any collusion between the examining physician and the applicant, and therefore the court under the evidence did not err in submitting the question of estoppel and the instructions given fairly presented that issue to the jury. The court did not err in its refusal to give the instructions requested by appellant because they ignored the question of estoppel and were equivalent to a peremptory instruction to find for the defendant.
One of the assignments of error raised in the motion for a new trial, assignment of error No. 17, was that the instructions presented issues not raised by the pleadings, and this is argued briefly by appellant in its brief, wherein it is contended there was no written plea of waiver or estoppel nor any request made that the pleadings be amended to conform to the proof, and that objections were made to the evidence tending to establish estoppel, and exceptions saved to the overruling of the objections. An examination of the testimony of the examining physician, which was the only testimony offered on the question of estoppel, shows that there was no objection made to. the evidence on the ground that it was not responsive to the. pleadings. The only exception saved Avas to the overruling of an objection to a question asked the doctor if the applicant had ever consulted him or any other physician with reference to any serious illness, and the objection was not on the ground that there was no plea of estoppel, but that “it sought to contradict the’ statement the man adopted as Ms own as the basis of the contract.” As the evidence warranted the submission of the question, it was not an abuse of the court’s discretion to treat the pleadings amended to conform to the proof and to submit the issue to the jury. Anglin v. Marr Canning Co., 152 Ark. 1, 237 S. W. 440.
The appellant offered to introduce the physicians in attendance at the hospital for the purpose of disclosing the result of their examination of the insured with respect to his physical condition and the diseases with which he was afflicted in June before taking out the policy. The appellant insists that under the decisions of the Ohio courts an interpretation has been placed upon clauses in insurance policies, similar to the one in question, which operated to constitute a waiver of the right to claim privileged communications under the statute. Wills v. Ins. Co., supra. While the contract before us is by agreement of the parties to be construed as an Ohio contract, the laws of that State have no application except as to the construction of the contract, and the competency of the testimony and its admissibility are to be determined by the law of the forum. 5 R. C. L., p. 1044; K. C. Sou. Ry. Co. v. Leslie, 112 Ark. 305, 167 S. W. 83. Our statute, § 4149, Crawford & Moses’ Digest, makes the information which a doctor or trained nurse obtains, acting in their professional capacities, which is necessary to enable them to prescribe as a physician or act as a trained nurse, privileged, and this statute was passed for the protection not only of themselves, but for their patients. A patient, however, may waive the privilege by' calling the physician to testify or by a clause in the contract on which suit is brought, and if the privilege is waived by a clause in the contract that waiver binds any one who claims thereunder. In the case at bar, however, the contract did not contain any such clause, and the court properly refused to admit the testimony of the physicians. Mutual Life Ins. Co. v. Owen, 111 Ark. 554, 164 S. W. 720; Wooten v. Wooten, 176 Ark. 1174, 5 S. W. (2d) 340.
It follows that the judgment of the trial court is correct, and it is therefore affirmed. | [
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Humphreys, J.
This suit was instituted on November 30, 1914, in the Garland County Chancery Court by appellee against appellant, to cancel a deed executed by Mary S. Zeigler, administratrix of the estate of T. R. Daniel, deceased, conveying to Benjamin W. Zeigler the following described real estate in Garland County, Arkansas, towit: the west half of the southeast quarter, the northeast quarter of the southeast quarter and the southeast quarter of the northeast quarter in section 32„ township 2 south, range 17 west; and for the cancellation of a mortgage executed by Benjamin "W. Zeigler and Mary S. Zeigler, his wife, to J. R. Ewing on the 16th day of March, 1914, to secure a note for $200; and to recover the possession from Mary S. Zeigler of the deed for said real estate executed on the 17th day of October, 1908, by W. H. LeCroy, Octavia LeCroy, J. A. LeCroy, Iona LeCroy and Mrs. J. F. LeCroy to appellant; and to recover the possession of said real estate from Benjamin W. Zeigler, and for rents.
Appellee alleged that he was the owner of said real estate by virtue of a deed executed by W. H. LeCroy et al. to appellee on the 17th day of October, 1908, and delivered to his uncle for him.
Benjamin W. Zeigler answered in substance, that the deed, under which appellee claims, had never been delivered to him and never passed any title to him, but whatever title it did pass, if any, was in trust for the uncle, T. R. Daniel; that T. R. Daniel died on the 22d day of November, 1909, the owner of the beneficial interest in said real estate; that it was sold by.order of the probate court to pay probated claims against the estate of T. R. Daniel, deceased; that Albert W. Jernigan purchased the land at the sale, and that for valuable consideration he procured the certificate of sale, and on the 12th day of May, 1913, procured a deed to said real estate from Mary S. Zeigler, his present wife, who was the' widow of T. R. Daniel, and the administratrix of the estate of the said T. R. Daniel; that he immediately entered into possession of said real estate under' his deed, made valuable improvements thereon; that appellee knew of the proceedings in the probate court, failed to object and is estopped; that he afterward borrowed $200 from J. R. Ewing and gave a mortgage on said real estate to secure the indebtedness, and asked that J. R. Ewing be made a party.
Ewing was made a party and answered, setting up his mortgage and pleaded that appellee, by word and conduct, led him to believe that appellee intended to claim no interest in said real estate and is thereby estopped from claiming an interest therein as against his mortgage.
The cause was heard by a special chancellor upon the issues joined and the evidence in the form of depositions and exhibits, from which the court found that the plaintiff, J. W. Daniel (now appellee) is the owner of said real estate; that he acquired his title by deed from "W. H. LeCroy et al., and that Mary S. Zeigler is in the wrongful possession of the deed; that T. R. Daniel did not own said real estate at the time of his death; that the deed from Mary S. Zeigler, who was formerly Mary S. Daniel, administratrix of the estate of T. R. Daniel, deceased, to Benjamin W. Zeigler, passed no title, and that the Zeigler’s mortgage to J. R. Ewing created no binding lien against said land. The court, in accordance with the findings, decreed a cancellation of Zeigler’s deed, Ewing’s mortgage, and surrender of the deed from LeCroy to appellee and the delivery of possession of said real estate to him.
From this decree an appeal has been lodged in this court and the cause is here for trial de novo.
The record is voluminous and it is impracticable to set out the evidence even in condensed form in this opinion. Suffice it to say we have read the evidence with great care and can not say the findings of fact by the learned chancellor are clearly against the preponderance of the evidence. In fact, we are of opinion that the findings of fact by the chancellor are supported by the weight of the evidence.
T. R. Daniel lived for years in the home of appellee’s father. He was the uncle of appellee, and they were associates a,nd close friends. T. R. Daniel was a cripple, and the appellee, as a boy growing up in the family, waited on his uncle for years. In fact, he was so very fond of his nephew that in the year 1902, prior to his marriage, he made a will devising and bequeathing practically all his estate to him. The business affairs of each were entrusted to the other and this confidential and friendly intercourse continued after the marriage of T. R. Daniel and until his death. It is quite natural that the uncle should give his nephew a part of the real estate, even after his marriage.
(1) The bone of contention is that T. R. Daniel purchased this land from the LeCroys in consideration of a mortgage held by him against the land, and had them make a deed to his nephew to cover up his estate and defeat his creditors. This is largely inferred from the fact that the deed was executed during, or just after, a general money panic in this country, together with some self-serving statements made by T. R. Daniel tending to establish a fraudulent purpose in having the name of appellee inserted in the deed.. As against this contention, the natural desire exists on the part of the uncle to reward his nephew for valuable services and kindnesses, love, affection and in addition a close business relationship existed between them; Mrs. Iona LeCroy, J. A. LeCroy and R. W. Daniel all testified to the effect that appellee’s name was ordered to be inserted in the deed by his uncle, who at the time stated that he wanted to make a gift of said land to his nephew because he had been of great assistance to him, and had done much for him when sick and afflicted; and the evidence of T. C. Williams, the justice of the peace who took the acknowledgment to the effect that he handed the deed to T. R. Daniel, who said he would hand it to his nephew; as well as the evidence of W. F. Daniel to the effect that T. R. Daniel gave him the deed to have it recorded.
The facts and circumstances in this case are not sufficient to establish a fraudulent purpose on the part of T. R. Daniel in conveying this property to his nephew.
(2-3) On the record before us, there could be no question of innocent purchaser. All parties interested had actual knowledge of the existence of the deed from the LeCroys to J. W. Daniel. If they had not known of the deed, the record title was not in T. R. Daniel, but in the LeCroys, and that would have been sufficient alone to put parties purchasing upon inquiry, and by inquiry the real facts concerning the title could have been ascer tained. Appellant relies upon section 5149 et seq., Kirby’s Digest, known as the lis pendens statute. This statute has no place or application in the case before us for the reason that all interested parties had actual notice of the condition of the title.
(4) It is urgently insisted that the cause should be reversed for the reason that appellee knew of the proceedings in the probate court, and failed to stop them. In other words, appellant insists upon the equitable doctrine of estoppel. The evidence in this case does not meet the rule of equitable estoppel laid down by Mr. Pomeroy and adopted by this court in the case of Geren v. Caldarera, 99 Ark. 260. The rule there approved is as follows: “Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, or contract, or of remedy, as against another person who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires some corresponding right, either of property, of contract, or of remedy.” The chancellor must have found in this case that appellee’s attorney attended the sale and objected thereto and informed those present of appellee’s title. Benjamin W. Zeigler had actual notice of the character of title he was buying, and could not have been misled.
J. R. Ewing, one of the appellants, also invoked the doctrine of equitable estoppel and insists that he inquired directly from appellee concerning his title, and that appellee informed him that he did not intend to assert any claim to the land; and that on the strength of this representation he loaned $200 to Benjamin W. Zeigler and took a mortgage on the real estate in question to secure the payment of the note evidencing such indebtedness. "We have examined the evidence of appellant, J. R. Ewing, and appellee, J. W. Daniel, on this point. Upon this point, J. R. Ewing testified as follows:
“Q. State whether or not you ever had any conversation with J. W. Daniel concerning these lands for the purpose of ascertaining if he made any claim to them, and, if so, please state in your own way the conversation you had with him and the purpose for which it was had?
A. Yes, sir; I had a conversation with Mr. Daniel in regard to the land. I asked him if he had the deed to this land, and he told me no, he did not have it, that he could have got it once, hut he did not get it, and I asked ' him if he was going to try to get the land, and he said he did not know that it had been so long that he did not know whether he could get it or not. I told him that I wanted to know that I was thinking of taking a mortgage on this land for $200, and if he was going to try to get it, or had the deed to it, I did not want to have anything to do with it. That was all we said concerning the land.
Q. Did you have this conversation with him for the purpose of ascertaining whether or not he made any claims on these lands?
A. Yes, sir.
Q. You state as.a matter of fact, that the conversation you had with J. W. Daniel, the plaintiff herein, at the time hereinbefore mentioned was for the purpose of ascertaining whether or not he claimed any interests in ; líese lands, and at that time he gave you to understand that he had made some effort to claim them previous to the conversation, but at the time he talked to you he made no claim to them?
A. That is the way I taken it from his conversation that he did not have any claim on them then. ”
And upon the same point, J. W. Daniel testified as follows:
££Q. Do you know one Raymond Ewing that lives at Lonsdale, Arkansas?
A. Yes, sir.
Q. Did he ever have a conversation with you with reference to these lands?
A. Yes, sir.
Q. I will ask you if he asked you whether or not you had any claim on them?
A. I don’t remember just exactly what he did ask me, but something to that effect; I told him I did, the reason I said it was that he told me that Mr. Zeigler, Mr. Benjamin W. Zeigler, wanted to borrow two hundred dollars and wanted to let the place stand good for the money.
Q. Do you know if he asked you about these LeCroy lands for the purpose of ascertaining whether or not you had any claim to them?
A. That is what I considered that.
Q. And wasn’t it for the purpose of ascertaining your claim to these lands as he didn’t wish to loan Ben W. Zeigler any money on the lands that you had any claim to, if you had any claim to them?
A. I don’t know.
Q. The conversation had with you and Raymond Ewing was with reference to his loaning Ben W. Zeigler two hundred dollars and to secure the loan on these lands, was it not?
A. Weil, that is what he—I allowed that was it; well, he told me that he wouldn’t let him have it, I am pretty sure, on that land, I don’t know for certain, but I am just pretty sure he wouldn’t let him have it on that land.”
There is a sharp conflict in the testimony of these witnesses. The burden was upon Ewing to establish his allegation that J. W. Daniel had waived any claim to the real estate or had misled him. His proof does not meet this burden. Ewing’s own testimony admits that J. W. Daniel told him he did not know whether he would contend for the land. J. W. Daniel states positively that he told Ewing that he had a claim on the land. The chancellor found the issue on this point against Ewing, and the finding is not contrary to the weight of the evidence.
(5) It is contended that the deed was never delivered to J. W. Daniel and for that reason never passed title to him. The évidence is undisputed that T. R. Daniel gave the deed to W. F. Daniel to be placed of record. This was a sufficient delivery to J. W. Daniel in order to pass the title.
The decree is affirmed. | [
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Smith, J.
Appellee was the holder of a beneficiary certificate in the appellant company, which contained a covenant that he should receive the sum of $200 if he should sustain a broken arm, the payment to be made upon satisfactory proof to the order that the injury had been sustained. The constitution and by-laws of the order, which, by stipulation contained in the beneficiary certificate, became a part of the certificate, provided that, in case a member was injured, the clerk and banker of the local lodge, called Household, should investigate and promptly report the date and cause of disability, and that the eminent clerk of the order should send to the clerk of the Household the proof forms prescribed by the order, upon which the beneficiary or member should make proof of the claim for which he was demanding compensation, and ■ that no proof should be considered, and no claims allowed, upon any proof not supplied on such form.
The appellant company defended the suit against it on two grounds, first, that appellee had not sustained a broken arm, and, second, that he had not made the required proof of his alleged injury.
Appellee testified that, while cutting willows with a hand-axe, his foot slipped, and he fell across a willow and broke Ms arm; that Ms arm became swollen and painful, and Ms fingers stiffened, and be went to a doctor, wbo placed tbe arm in splints for two weeks or more. That about five days after bis injury, be went to a Mr. Perry, whom be described as “their bead man here,” and asked bim about tbe claim, and was told by Mr. Perry that be would look after it for appellee. Mr. Perry was not, in fact, tbe clerk and banker of tbe local Household, but bis wife held that office. It was shown, however, that he performed in part, at least, the duties of this office for his wife. The duty of notifying the proper officers of tbe company was evidently performed, for, on September 10 thereafter, tbe medical director of tbe company, whose offices were in Atlanta, Georgia, wrote appellee in regard to bis alleged injury, and advised bim that tbe constitution of tbe order entitled tbe company to require an x-ray photograph of tbe claimant, and, pursuant to this authority, directed appellee to report for that purpose to tbe office of Doctor, Zell in Little Rock. Tbe letter promised to pay appellee’s railroad fare and hotel bill, but these expenses were never paid. Pursuant to these directions, appellee reported to Doctor Zell, wbo made tbe required x-ray picture, and reported to tbe company that appellee’s arm was not broken, and Doctor Zell testified at tbe trial that tbe picture made by bim did not show any fracture of tbe bone. Tbe company never furnished any blanks for tbe purpose of making proof of injury, nor did it make any request of appellee, except to report to Doctor Zell for examination.
In support of tbe allegation of injury, ¡appellee’s physician testified that tbe arm was broken, and that this condition was revealed, not only by tbe touch, but that a grating sound could be beard, and the nurse corroborated bim in both statements.
Appellant discusses in its brief tbe authority of Mr. Perry, and tbe failure to furnish proofs on tbe blanks of tbe company as required by tbe constitution and bylaws, and complains of tbe action of tbe court in refusing to submit these questions to the jury. The court gave, at appellee’s request, and over appellant’s objection, an instruction which reads as follows:
“If you believe from the evidence in this case that one of the bones of the forearm, that is, the arm between the elbow and wrist, was completely fractured, that is, broken in two, then you are instructed that, within the meaning of the policy sued on in this case, plaintiff suit fered a broken arm, and your verdict should be for him in the sum of $200.”
It is apparent that this instruction excludes from the jury any consideration of the question of the failure to give notice, although other instructions given did submit that question, and, in testing its correctness, we must decide whether the question of notice had passed out of the case. It is conceded that the company was entitled to notice, and had the right to demand, as a condition precedent to payment of any claim, that proof of this claim be made upon the blanks provided for that purpose. But it is undisputed that appellee, the insured, had, in good faith, promptly done what he intended as a full compliance with the requirement of the order in making proof of his' injury. It may be true that he should have reported his injury to Mrs. Perry, rather than to her husband, but that fact is immaterial. It dees not appear whether Mr. Perry or Mrs. Perry performed the duty resting upon Mrs. Perry of communicating the claim to the investigating officers of the order; but that duty was performed, if not by Mrs. Perry, then by Mr. Perry for her, and no complaint was made by the company of the manner in which it had received the required information. Acting upon this information, the medical director took the action which the notice from Mrs. Perry would have required him to take in the discharge of his duties as medical director in the examination of this claim. He wrote appellee that the by-laws required an x-ray picture, and directed him to report to Doctor Zell for that purpose. Appellee obeyed this direction promptly, and sustained a loss of time and incurred a substantial expense in following tbis direction. Tbis examination by Doctor Zell furnished the company all the information it required. The company had the right to .require formal proof on blanks to be furnished for that purpose, but it was the duty of the company to furnish the blanks, and it did not do so. This formal proof could have been furnished only on the blanks of the company, and as it did not furnish them for that purpose, it can not now complain of its own omission to demand a form of proof which it could have secured only by doing something which it failed to do. Apparently, it relied upon the report of Doctor Zell, and, while no formal denial of liability was made, the company elected to pursue its inquiry no further, although it must necessarily have known that appellee was insisting upon the payment of his claim, and was attempting to furnish such proof as the company required. Appellee was led to believe that by furnishing such proof as was asked, no other proof would be required. Under these circumstances, we must hold that, if the requirement of proof of injury was not substantially complied with, such compliance was waived, and that no prejudice resulted in the failure to submit this question to the jury. National Masonic Accident Assn. v. Seed, 95 Ill. App. Ct. Rep. 43; Standard Life & Accident Ins. Co. v. Schmaltz, 66 Ark. 588; 14 R. C. L. (Insurance), sections 517, 519, 520, and cases there cited.
Finding no prejudicial error, the judgment of the court below is affirmed. | [
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Kirby, J.
On September 1, 1931, the State Bank Commissioner took over five banks in Boone County as being insolvent. Taxes bad been assessed against these banks, in the time and manner required by law, for the year 1930, which had not been paid before they became delinquent. "When the time for payment had expired, and the taxes had not been paid, the collector of taxes for Boone County filed a motion, in the nature of an intervention, in the chancery court where the assets of the banks were being administered, praying that the Bank Commissioner be required to .pay these taxes out of such assets as he had on hand belonging to the respective banks.
The cause was heard on an agreed statement of facts, in which it was stipulated that the Commissioner had, pursuant to law, levied a 100 per cent, assessment against the stockholders of all five banks, but that the proceeds of this assessment, together with the other assets of said banks, would not suffice in any instance to discharge the claims of the creditors and depositors in full.
The chancellor held that there was a paramount lien for the taxes, and ordered them paid, and this appeal is from that decree.
It was stipulated that the taxes had been properly assessed, and that the lien therefor had attached before the banks were taken over by the Bank Commissioner. Section 9949, Crawford & Moses’ Digest, prescribes how these taxes shall be paid, and it reads as follows: “The taxes assessed upon the shares of stock thus listed shall be paid by the corporation or company, respectively, and they may recover from the owner or owners of such shares the amount of taxes to be paid by them, or deduct the same from the dividend accruing on such shares, and the amount paid shall be a lien on such shares, respectively, and shall be paid before a transfer of such stock or shares can be made. ’ ’
It is argued, for the reversal of the decree of the court below, that the Bank Commissioner cannot nay the taxes pursuant to this section, for the reason that the shares of stock have no real value; indeed, their ownership has become a liability, instead of an asset, and an assessment of tlie face value of these shares of stock has been made to discharge this liability, and that the Bank Commissioner has in his hands no funds with which to pay the taxes on the shares of stock due by the stockholders.
There is no controversy about the facts, and we are of opinion that the Bank Commissioner is correct in his contention.
It was said, in the case of First National Bank of Batesville v. Board of Equalization of Independence County, 92 Ark. 335, 122 S. W. 988, that the revenue statutes of this State contemplate that the shares of stock in hanks shall be taxed, and not the capital stock of the bank itself, and that the tax is assessed in solido against the bank as trustee or agent for its stockholders, and is to be paid by the bank and collected by it from its stockholders.
Many States have similar legislation. In the case of In re Feliciana Bank & Trust Co., 143 La. 46, 78 Sou. 169, it was said, by the Supreme Court of Louisiana, in construing a statute similar in essential respects to our own in regard to the taxation of banks, that State legislation upon the subject is responsive to the Federal legislation permitting the taxation, by the State, of shares in national banks, which would not otherwise be subject to taxation, and that the object and effect of the State legislation was to enable the State to reach, for taxing purposes, the capital stocks of banks as the property of its shareholders, thus placing the burden of State taxation equally upon National and State banks.
It was said in this Louisiana case that the tax is assessed on the shares of stock as the property of the shareholders, and that the liability for the tax is upon the shareholders, and not upon the bank, which, under the statute,’was construed as being merely the agency or instrumentality through which the tax is collected, and that the duty or obligation of the bank was merely to nay the tax out of the means or property of the shareholders in its possession — a method of collection supplementary to, and not exclusive of, the ordinary means available for the collection of taxes on personalty.
After thns declaring the law, it was held by the Supreme Court of Louisiana that a proceeding by the State against the liquidator of an insolvent bank for the collection of taxes assessed against its shareholders could not be maintained where it was neither alleged nor proved that the liquidator has, or that the bank had, on the date of insolvency any assets belonging or accruing to the shareholders.
In the instant ease there is, not only no allegation or proof that the Bank Commissioner has assets in his hands belonging to the shareholders with which to pay taxes, 'but, on the contrary, it is stipulated that all of the assets, including the 100 per cent, assessment made against the stockholders, will not be sufficient to discharge the claims of the creditors and depositors in full.
Other cases having the view expressed by the Louisiana court as to the liability of an insolvent bank for the taxes due from its stockholders on their shares of stock are: First Nat. Bank of Louisville v. Kentucky, 9 Wall. 353, 19 U. S. (L. ed.) 171; Primghar State Bank v. Rerick, 95 Iowa 238, 64 N. W. 801; Farmers’ & Traders’ Nat. Bank v. Hoffman, 93 Iowa 119, 61 N. W. 418; Court of Commissioners of Washington County v. State ex rel. Fairford Lumber Co., 172 Ala. 242, 5-5 Sou. 623; State v. Barnesville Nat. Bank, 134 Minn. 315, 159 N. W. 754; Baker v. King County, 17 Wash. 622, 50 Pac. 481; City of Boston v. Beal, 51 Fed. 306; Rosenblatt v. Johnston, 104 U. S. 462.
In 3 Cooley on Taxation (4th ed.) at § 1269, it is said: “Statutory liability is often imposed on corporations for taxes due from its stockholders or bondholders, in which case reimbursement is expressly provided for or is implied. The statutory liability of the corporation to pay the tax against stockholders carries with it an implied lien in favor of the corporation against the stock and the dividends for reimbursement. G-enerally, payment cannot be enforced against a corporation, where the tax is one on the stockholders, where the corporation is insolvent and in the hands of receivers. ’ ’
"We conclude therefore that the court was in error in directing the Bank Commissioner to pay the taxes of the stockholders on their stock when no funds were in his hands belonging', to them.
The decree of the court below will therefore be reversed, and the cause remanded with directions to deny the prayer of the collector of Boone County that the Bank Commissioner be required to pay the delinquent taxes. | [
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Riddick, J.,
(after stating the facts.) This is an action by the Binghampton Trust Company against the First National Bank of Little Rock to recover damages for deceit.
The company does not ask for a rescission of its contract with the president of the bank by which it became the owner of the note of McCarthy-Joyee Company. It asks for damages for deceit and fraud practiced upon it by which it was induced to pay out a large sum of money for the worthless note of an insolvent company. A party who is induced to purchase property by deceit and fraud has an election of remedies. He may rescind the contract, and to do this he must return or offer to return what he has received under it. On the other hand, he may affirm the contract, and sue for damages occasioned by the deceit and fraud, and in that event he is not required to return or offer to return what he has received under the contract. These rules are well settled, and the contention of the bank that plaintiff should have returned or offered to return the notes must be overruled. Goodwin v. Robinson, 30 Ark. 535; Mat lock v. Reppy, 47 Ark. 148; 14 Am. & Eng. Enc. Law (2d Ed.) 168, and cases cited.
The next contention is that Allis was not acting for the bank, but for the McCarthy-Joyce Company, and that he had no authority to bind the bank by his false representation. Allis was president of the bank to which the McCarthy-Joyce Company was indebted in a large amount.- This company was financially embarrassed, and in fact insolvent. As president of the bank, Allis was endeavoring to collect this debt. For this purpose these notes were executed and delivered to him, and for this purpose he negotiated them to the trust company. His letter to the trust company by which he effected the sale of the notes is written on paper upon which is the bank’s letter head. He assumes in the letter to be' acting for the bank, and directs the company to remit the proceeds to “our credit” (meaning the bank), and signs the letter, “H. G. Allis, President.” As president of the bank, it was his duty to endeavor to collect the debt which McCarthy-Joyce Company owed it. While he may have been trying to befriend the McCarthy-Joyce Company as well as to protect the bank, the evidence leaves no doubt in our minds that in this matter he was acting for the bank, and endeavoring to protect its interests. It is a matter of no moment that the directors of the bank did not know or authorize the false representations of Allis. We must, to quote the language of Mr. Benjamin, “distinguish between authority to commit a fraudulent act and-authority to transact the business in the course of which the fraudulent act was committed.” The bank, of course, did not authorize Allis to commit a fraud, “but it entrusted him with the conduct of this class of business, and he conducted it unfairly, and committed the fraud in the course of his employment.” Benjamin, Q. C., in Mackay v. Commercial Bank, Law Rep. 5 P. C. 402. If a conductor having charge of a railway train in the course of his business commits an assault upon a passenger, the company may be liable for the damages, though it neither authorized or desired its agent to commit such an assault; for the principal is liable for the .wrong of the agent committed in the course of his duties as agent. On the same principle, a bank is liable for the fraud of its agent committed in the course of the bank’s business. This rule is often applied, and hardly needs citation of cases to support it. In this case, as before stated, the fraud was committed by Allis as a means of collecting a debt due the bank from another party. It was done in the interest of the bank, and the bank received the money obtained by his fraud. Under these circumstances, the bank cannot at the same time retain the benefit and avoid the liability. That the bank is liable for the damages occasioned by this fraud of its agent, at least to the extent of the benefit received by it from the fraud, follows from settled rules of law, as well as from the plainest principles of justice. Mackay v. Commercial Bank, Law Rep. 5 P. C. 394; Barwick v. English Joint Stock Bank, Law Rep. 2 Exch. 259; Swire v. Francis, Law Rep. 3 App. Cases, 106; Fishkill Savings Inst. v. National Bank, 80 N. Y. 162. The question of the authority of the company to discount notes is also involved in this case, but we have already determined that the bank had such authority, in another case between the same parties, and refer to our opinion in that case for our reasons for this conclusion. Binghampton Trust Co. v. Auten, ante, p. 294.
The only remaining question arises on the contention by the bank that the discount of the notes by the trust company at the rate of seven per cent, per annum was, under the laws of New York, illegal and usurious. Now, conceding that this was a loan, and not a mere purchase of the note, the trust company could, under the New York statute of 1892, charge six per cent, interest and reasonable collection charges. In the absence of any proof as to what the collection eharges were, we are not sure that we could hold the seven per cent, to be usurious under New York law, and it certainly would not be under the law of this state. But we need not discuss that question further; for, in order to show usury in this transaction, the defendant corporation relies upon a law of New York, but under another statute of that state a corporation cannot interpose the defense of usury. The statute, as construed by the courts of that state, operates to make lawful the contract of a corporation for the loan of money to itself which would otherwise be usurious and void. Rosa v. Butterfield, 33 N. Y. (665; Lane v. Watson, 51 N. J. L. 188; Junction Railroad Co. v Bank of Ashland, 12 Wall. (U. S.) 226. This statute applies to all corporations borrowing money in New York, and we know of no reason why it should not apply to a national bank. If there is any class of corporations which should not be permitted to plead usury, certainly banks should not be allowed to do so. All parties to this contract were corporations, and the contract was valid under the law of New York; and, if valid in the state where made, it is valid everywhere. If it was an Arkansas contract, it was valid, because it is not unlawful to charge seven per cent, in this state. So there is no usury, whether it is a New York or an Arkansas contract.
The note which the trust company was led to purchase through the fraud of the bank’s president was shown to be worthless, and we think the trust company has made out a clear case to recover damages to the amount it paid to the bank on the note purchased. The judgment of the circuit court will be reversed, and a judgment entered here for that amount in favor of the trust company, with interest from date of payment.
Battle, J., did not participate. | [
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McCulloch, C. J.
Appellant, R. C. Rose, owned a, plantation in. Mississippi County, Arkansas, which he leased to one Johnson, and he also took mortgages from Johnson on the crop for the year 1914 and the farming equipments. A controversy arose between Rose and Johnson, and the former instituted suit to foreclose said mortgages and also instituted an action of unlawful detainer against Johnson to recover possession of the leased premises. On January 19, 1915, while those suits were pending Rose and Johnson entered into a written contract whereby appellee, Lexie Nicholson, should be appointed receiver to take charge of the ungathered crop and other mortgaged property of Johnson, and gather and gin the. crop and ship it to W. A. Gage & Co^at Memphis, Tennessee, who held the mortgage notes by assignment from Rose. It was further stipulated in the contract that Rose should pay the expenses of the receivership, including the fees of the receiver. Nicholson accepted the appointment and gave bond in the amount fixed by the chancellor. The evidence shows that the bond of the receiver was made by Rose. The farming tools and other equipment were, it appears from the evidence, sold before Nicholson took charge as receiver.
Nicholson had been working for Rose for several years as bookkeeper, find on the day after his appointment as receiver he and Rose and one Catchings entered into a contract of copartnership for the operation of the farm theretofore held by Johnson under his lease, and it was stipulated in the contract that Bose should receive rent on the land at the price per acre mentioned in the contract, and that Catchings and Nicholson should each receive a salary of $75 per month. The remainder of the crop was gathered and shipped by the receiver, which ended his duties, and he made his final report.
The present controversy arose over the allowance to Nicholson of his fee as receiver. The court fixed the fee at the sum of $500. It is contended by appellant that Nicholson was in his employ and it was understood that he was to receive no additional compensation for his services as receiver. Nicholson testified that Bose’s attorneys told him at the time he was approached on the subject of accepting the appointment as receiver that Bose would pay his fee.
Nicholson was engaged only a short while in performing his duties as receiver, and what he did was in connection with his duties as a member of the partnership in which Bose was interested. We are of the opinion that when the relation of the parties, the amount of work done by the receiver and its relation to his other duties are all considered, the fee allowed by the chancellor is excessive. It is, of course, a matter in the fair discretion of the chancellor as to what fees should be allowed for services as receiver, but we think that the sum of $150 will be ample compensation for the services rendered. The decree will, therefore, be modified so as to reduce the allowance to that sum. | [
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Wood, J.,
(after stating the facts). I. As authority for the probate court to make the order under review, appellees invoke section 213 of Kirby’s Digest, which is as follows: “When any testator or intestate shall have entered into any contract for the conveyance of lands and tenements in his lifetime which was not executed and performed during his life, and shall not have given power by will to carry same into execution, it sba.ll be lawful for the executor or administrator of such testa tor or intestate, with the approval of the court, in term ■time, to execute a deed of conveyance of and for such lands pursuant to the terms of the original contract, such executor or administrator being satisfied that payment has been made therefor according to the contract, and reciting the fact of such payment to the testator or intestate, or to such executor or administrator, as the case may be, which deed may be acknowledged and recorded as other deeds, and shall have the same force and effect <to pass the title of such testator or intestate to any such lands as if made pursuant to a decree of court. ”
The Constitution of 1836, under which the above act was passed, conferred upon probate courts jurisdiction “in matters relative to the estates of deceased persons, executors, administrators and guardians, as may be prescribed by law, until otherwise directed by the General Assembly.” Const, of Ark. 1836, art. 6, § 10. It was not otherwise directed by the General Assembly until 1873, when a law was enacted conferring on the circuit court “exclusive original jurisdiction of everything properly pertaining to matters cognizable in courts of probate, and all the powers and jurisdiction now possessed by courts of probate.” Act of April 16,1873.
The Constitution of 1874 confers on the probate court “exclusive original jurisdiction in matters relative to estates of deceased persons, executors, administrators, etc., * * * as is now vested in the circuit court or may hereafter be prescribed by law.” Const. 1874, art. 7, § 34.
The statute under review is clearly within the above provision of our Constitution. The statute does not take from chancery courts their ancient jurisdiction to enforce the equitable remedy of specific performance as applied to contracts for the conveyance of real estate, nor does it confer such jurisdiction upon courts of probate. That remedy, as enforced in courts of chancery, contemplates adversary proceedings in which the party who conceives that he is entitled to the remedy of specific performance institutes a suit by a bill in chancery against the recusant party to the contract, praying that he be required to specifically perforin the same. 4 Pomeroy’s Eq., § 1400; 20 Enc. PI. & Pr. 389; 36 Cyc. 543, 758.
“In most of the States,” says Mr. Pomeroy, “the statutes expressly provide for the ease where the vendor dies before completing the contract and leaves heirs or devisees adult or infant. * * * This legislation is of different types. In some States it deals entirely with the suit in equity for a specific performance. In others it provides for a more summary special proceeding by which the contract may be enforced without suit, as a step in the settlement of the deceased vendor’s estate. By the common form of this special proceeding, where a vendor •who had entered into a written contract, dies before completing the contract, and the party entitled to a conveyance has paid or is ready to pay the purchase price, the. probate court which has control of the administration may authorize or order the administrator or executor of the decedent to make the conveyance which the vendor himself should have made had he been alive; and the conveyance so made is declared to have the same force and effect as though it had been executed by the vendor himself.” Pomeroy on Contracts, § 497, p. 556.
Our statute takes the form of the special proceeding by which the contract may be performed without suit and as a step in the settlement of the deceased vendor’s estate. We must assume, that the General Assmbly of 1859 was familiar with our statute of frauds, which was a part of the Revised Statutes of 1837, and with the decisions of this court at that time, holding that notwithstanding the statute of frauds specific performance of an oral contract for the sale of lands could be enforced by a bill in chancery where the party seeking such relief had performed or so partly performed the contract on his part as to make it inequitable or a fraud upon his rights not to grant the relief prayed. Rev. Stat. (1838), chap. 30, § 1; Keatts v. Rector, 1 Ark. 391; Underhill et al., Admrs. v. Allen, 18 Ark. 466; Wynn v. Garland, 19 Ark. 23.
(1) In view of tlie statute of frauds and these decisions, if the Legislature of 1859 had intended to vest courts of probate with jurisdiction to enforce the equitable remedy of specific performance of contracts for the conveyance of lands it can not be doubted that they would in express terms have authorized the vendee or those in privity of right to institute suit for that purpose in the probate court against the personal representatives of the vendor, his heirs, assigns, or devisees. And the Legislature, in express terms, would have conferred upon the probate court jurisdiction to hear the cause and to determine the same according to the rights of the parties. No such procedure is projected, even in outline, by the language of the act under consideration. It does not provide for an action at all to be instituted in probate court for specific performance. The vendee or those claiming under him are not authorized to file any petition or complaint in the probate court asking for the equitable remedy of specific performance. This act simply confers authority upon the executor or administrator of the testator or intestate, with the approval of the court, to execute a deed of conveyance pursuant to the terms of the original contract with the decedent, where the executor or administrator is satisfied that payment has been made according to the contract. The statute does not give to the purchaser the right to insist that this special proceeding be pursued for his benefit. It is only a license or permission granted by the sovereign power to the executor or administrator to make the deed when he finds certain facts and conditions to exist. The license is to be exercised then only upon the approval of the probate court.
The executor or administrator, who is an officer of the probate court, has in his hands such property of the decedent, real and personal, as is not exempt under the Constitution, for the purpose of the settlement of the debts of the estate, under the orders of the probate court. He may put the statute in motion, and, with the approval of the probate court, is licensed to make the conveyance as one of the steps in the regular course of the adminis-.' tration of the res in his hands for the payment of the debts of the decedent. It would do violence to the language of the act to construe it as expressing an intention upon the part of the Legislature to confer jurisdiction upon probate courts to enforce the equitable remedy of specific performance of a contract to convey real estate.
In the recent case of Oliver v. Routh, 123 Ark. 189, 196, we held that “the probate court had no power to make an order for specific performance of the contract made by the decedent in his lifetime to convey his homestead to another. ’ ’ In that case we said: ‘ ‘ The authority to grant specific performance of an executory contract to convey land against the executor or administrator of a decedent is a special power conferred upon the probate court. It is to be exercised in a special manner, and not according to the course of the common law. ’ ’ In that case it was not necessary to the decision and the court did not have under consideration, and hence did not decide, the question as to whether or not the statute now under review was unconstitutional because it invested probate courts with the jurisdiction exercised by courts of chancery to enforce the equitable remedy of specific performance of a contract for- the conveyance of land. True, we there designated the privilege or license conferred by this statute as “the authority to grant specific performance, ’ ’ yet what we decided in that case was that the authority under this-statute is a “special power,” and not one to be exercised according to the course of thei common law, and that the wife had not joined in the contract for the conveyance of the homestead. That decision is not in conflict, but in harmony with our present holding.
(2) Since our Constitution (art. 7, sec. 34) vests courts of probate with exclusive original jurisdiction in matters relative to the estates of deceased persons, executors, administrators, etc., it can not be questioned that the authority or license contained in this statute is peculiarly germane to the jurisdiction so conferred. Thus, by the organic law, probate courts are made the guardians so to speak, of the estate of deceased persons, and have been given the custody of such estates for the purpose of set'* tling the debts incurred and performing the contracts entered into by the decedent. It is their duty to administer these estates in the most expeditious and frugal manner consistent with the rights and interests of all concerned. The Legislature doubtless had in mind in enacting this law the time and expense usually'incident to adversary proceedings in a suit in chancery for the specific performance of contracts to convey lands. Instead of compelling the one entitled to the remedy of specific performance to pursue a circuitous route through the chancery court to obtain such relief, the Legislature adopted the more direct, simple and inexpensive course prescribed by this statute. Thus the summary proceedings authorized by the act of 1859, as one of the steps in the administration, accomplishes the same purpose that would be attained by the equitable remedy of specific performance, but in a manner far more advantageous to the estate.
In Ferguson v. Bell’s Admr., 17 Mo. 347, 350, the court, concerning similar legislation, said: “Indeed this authority was given to the probate courts to be liberally used and exercised for the speedy execution of such contracts, without the delay and expense usually attending a proceeding in chancery.”
And the Supreme Court of California says: “This special statutory remedy would seem to be a wise provision. It evidently tends to save the expense and delay that would follow a separate action in equity for a specific performance.” In re Garnier’s Estate, 82 Pac. 68, 69.
The Constitution of Minnesota vests its probate courts with jurisdiction over the estates of deceased persons. See art. 6, sec. 7, Const, of Minn., Rev. Stat. Minn. 1905, p. 1176. Frank H. Peterson v. Wm. H. Vanderburgh, 77 Minn. 218.
In re Mousseau’s Estate, 41 N. W. 977, the Supreme Court of Minnesota held that a statute similar to the one under review was valid and appropriate to the administration of estates under their Constitution. Judge Mitchell, in a concurring opinion, spolce of such legislation as appropriate “for the purpose of disposing of the decedent’s interest in the land and freeing it from the claims of administration.”
We have thus adverted to the wisdom and policy of the statute under consideration for the purpose of showing that as an act providing for one of the steps to be taken in the administration of estates, it does not in any manner conflict with the jurisdiction of courts of chancery to enforce specific performance of contracts, and is not only a valid enactment, but one exceedingly appropriate to the jurisdiction conferred by our Constitution on courts of probate.
Learned counsel for appellants, in their original brief, among other things, say: “The Legislature, by this act, gives to the probate court, which is, in a sens’e, a court of limited jurisdiction, a special limited jurisdiction to authorize an administrator to convey lands when his intestate has entered into a contract to convey same during his lifetime. * # * The title of the act is ‘An Act to enable administrators and executors to make title. ’ Thus it will be seen that neither in the title nor in the body of this act, upon which appellees must rely, is there any reference to specific performance. * * * It was never intended to vest in the probate court that chancery jurisdiction which, under our statutes, has always been either in our circuit courts, sitting in chancery, or as, since 1903, in separate courts of chancery.”
These statements are a correct and accurate characterization of the act and its purpose. But counsel for appellants, in their “Supplemental Brief in Reply” have made an elaborate argument, endeavoring to show that the act under review is unconstitutional, based upon the erroneous assumption that the act does vest probate courts with “jurisdiction of the pure equitable remedy of specific performance.” Having reached the conclusion that the act does not vest the probate court with such jurisdiction, it would be obiter to decide whether or not such an apt, if it did exist, were constitutional. We therefore pretermit any discussion or decision of the interesting question propounded by counsel, and so exhaustively argued in their “supplemental brief in reply,” towit: “Has a probate court, under the Constitution and laws of Arkansas, jurisdiction of the pure equitable remedy of specific performance?”
II. Counsel for appellants also, in their original brief, urge that the statute is applicable only to written contracts. They say, “The only character of contract with reference to lands recognized by our statutes or by courts of law generally are written contracts.” Hence, they now contend that the present contract because of the statute of frauds could not be performed by courts of probate.
The jurisdiction conferred on probate courts under our Constitution is general and exclusive in the matters ' relating to the estates of deceased persons, administrators, executors, etc., and they may determine all issues arising within the sphere of their jurisdiction according to the principles of law involved. If the issue is one that can only be decided correctly by the application of the rules and principles of equity, then the court having plenary power over the subject-matter must so decide it. This special act confers jurisdiction upon the probate 'court to approve the making of a deed by the personal representative of a decedent, and when it is made, under the direction of such court, it has the same force and effect to pass title as if made pursuant'to a decree of court. Therefore, if the approval of the probate court is sought under the statute for permission to make a deed where an oral contract is involved, the court, in deciding the issue, must apply the principles applicable to the performance of such contracts just as they are applied in courts having jurisdiction to enforce the remedy of specific performance. But this power is quite another and different thing from having jurisdiction to hear and determine causes of action cognizable only in courts of chancery.
In Cresswell v. McCaig, 11 Neb. 222, it is held (quoting syllabus): “The statute of frauds does not render a contract void, but voidable, at the option of either party; but it does not require a party to ignore considerations of moral obligation, equity and good faith by pleading the same, and a creditor can not do so.” See, also, Wright v. Jones, 105 Ind. 17; Kemp v. National Bank, 109 Fed. 48; Minns v. Morse, 15 Ohio 569; Cahill v. Bigelow, 18 Pick. 369.
This court, in El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 186, said: “A parol agreement is neither illegal nor void. A plea of the statute of frauds is a plea or defense which may be waived.”
In Ferguson v. Bell’s Admr., 17 Mo. 347, an infant executed a deed, and after coming of age, expressed satisfaction with her bargain and received part of the consideration and spoke of her intention to make a confirmatory deed, but died suddenly without doing so. The probate court held that sales by infants were not void, but voidable only; that the privilege of avoiding or disaffirming the contract or deed of an infant was one that could be exercised by his personal representative or his privies in blood, but not by his assignees or privies in estate only. The administrator of the infant refused to disaffirm the contract, and the Supreme Court sustained his action, saying: ‘ ‘ The probate court of St. Louis County had ample jurisdiction over the whole subject-matter of the petition, and the probate court erred in refusing to order the deed to be made by the administrator upon the proof as preserved by the petitioners on this record.”
The general statute of limitations, when set up in actions on contracts to which it applies, is analogous to the statute of frauds. The effect of both alike in actions on contract to which they apply is to bar recovery, though the contract sued on be valid. In one of the earlier cases this court, through Judge Fairchilds, speaking of the statute of limitations, said: “It is an obligation resting upon no man to discharge an honest subsisting debt by the plea of limitations.- What would be infamous by a man when alive can not be commendable or legally binding to be done for him by his representatives when he is dead.” Conway v. Reyburn, 22 Ark. 290. See, also, Jacoway v. Dyer, 50 Ark. 228; Williams v. Risor, 84 Ark. 61; Rhodes v. Driver, 108 Ark. 80.
Honest men are always anxious and willing to perform their contracts when they are able to do so. When death only prevents one from performing a contract, his personal representative is not compelled to set up the statute of frauds to defeat the performance of such contract. To so hold would be to convert a statute which was intended to shield from fraud into an instrument by which fraud could be perpetrated. For, if the personal representative could be compelled to set up the statute of frauds to defeat a contract which the decedent not only intended to perform, but the performance of which could have been enforced, this would be a fraud upon the rights of parties to contracts and perpetrated by the personal representative whose duty it is, as far as possible, to perform those contracts. We can never underwrite such a doctrine.
(3-4) The statute under consideration contemplates that the personal representative of a decedent may, on his own motion, put the same in operation by seeking the approval and direction of the probate court concerning the subject-matter contained in the statute. It necessarily follows that it is not incumbent upon him to set up the statute of frauds. The statute of frauds has no application to proceedings under this statute, for no adversary proceedings are provided for. The personal representative only is authorized to take the initiative and make the deed, and thus perform the contract of the decedent under the statute in those cases, where the conditions exist that render the statute of frauds inapplicable. Where the personal representative of a decedent can not plead the statute, a judgment creditor can not do so, even under the broad provisions of the act of 1909, p. 956. At the time the act of 1859 became a law, oral contracts for the sale of land, as we have seen, were not void, but voidable only, and the performance of same conld be enforced where the conditions essential to such performance existed, notwithstanding the statute of frauds. See Keatts v. Rector; Cahill et al., Admrs., v. Allen; Wynn v. Garland, supra.
Since the Legislature must have known of these decisions, the conclusion is irresistible that if it had intended that the statute should apply only to written contracts, it would have said so in plain terms. We may assume, also, that the Legislature, while they had under consideration the passage of this act, had their attention drawn to similar legislation in other states. At that time our neighbor State of Texas had a similar law, only it specified contracts in writing. Now, with such a model before them, if they had intended to limit the operation, of the statute to written contracts, they would have followed the model and have put into the statute the words “written contracts.” Instead, they have deliberately chosen to write into the act of 1859 the words “any contracts,” showing unmistakably an intention not to limit the operation of the statute to written contracts only, but to make it apply to oral contracts as well. At any rate, the language “any contracts” is certainly broad enough to include oral contracts. To construe the statute as meaning only written contracts, would, in effect, change its language by writing into it the word “written” before the word “contract.” Where the language of a statute is unambiguous, the intention of the Legislature must be gathered therefrom. If we change it, we thereby encroach upon the peculiar function of the sovereign power lodged in a co-ordinate branch of the Government. Although as individual judges, some of us doubt the wisdom of lodging the important power prescribed by this special statute in probate courts, whose judges are not required to be lawyers, and who may not therefore have the technical knowledge necessary to best determine such an issue, yet it nevertheless appears to a majority of us that the law is so written, hence it must be enforced as enacted.
III. The appellants contend in the last place that the proof is not sufficient to sustain the findings and judgment of the court. The broad language ‘ ‘ any contracts ’ ’ is sufficient to confer jurisdiction upon probate courts over the subject-matter regardless of whether the contract has been partly performed. 'Whether probate courts would abuse their discretion and commit reversible error in making the order in cases where the contract had not been performed or partly performed by one of the parties to it, does not arise and need not be decided now. For here the contract was sufficiently performed by the association.
(5) The facts briefly stated, are as follows: D. J. Young died February 21, 1915. He was indebted to the association in the sum of $24,154.59. The court found, and there is no evidence in appellant’s abstract to the contrary, that his estate was solvent. The association, for some time prior to Young’s death, had been pressing him for a settlement. On October 12, 1914, a written agreement was entered into by which Young aclarowledged indebtedness to the association in the sum of $25,000, and executed notes in the aggregate for $15,000 of the indebtedness, evidenced by three notes for $5,000, payable at future dates named, with interest, and as security for the payment of these notes at the times mentioned, Young pledged stock in certain corporations shown to be of the face value of $56,700, and to have almost that actual value. Young, in several letters, had offered to settle his indebtedness to the association by a conveyance of unincumbered real estate. Young was also indebted to the First National Bank of Fort Smith, and it held a mortgage on certain of his real estate to secure that indebtedness.
After considerable negotiation, evidenced by letters and as shown by personal interviews, the association accepted Young’s proposition and agreed to take real estate in settlement of his debt. They agreed upon the real estate that should be conveyed, which included a part of the real estate of Young upon which the bank had a mortgage. To secure the release of this mortgage, Young and the bank entered into an agreement whereby the association was to deliver the stock which it held as collateral for Young’s debt to the bank, and the bank agreed to take this stock as security for its debt, and in consideration of this stock, to release the real estate from the mortgage included therein, which Young had agreed to convey to the association. This agreement was consummated on the part of the bank, and the association in January, 1915, and was evidenced by written receipt of the bank showing that the association had delivered and it had accepted the stock in pursuance of the agreement.
After the real estate to be conveyed had been definitely agreed upon, Young instructed the representative of the association to draw up the deed, which was done, and was ready to sign two or three days before Young’s death. The representative of the association went to Young’s residence with the deed for him to sign, but Young was then so near death’s door that he was unable to sign the deed.
On April 15, 1915, the probate court ordered the administrators of Young’s estate to execute the deed, and thus carry out the agreement entered into between D. J. Young in his lifetime and the association. The deed was executed the 19th day of April, 1915, and was signed by Angie E. Young and J. Ross Young, administrators, and also by Angie E. Young, the widow, and the heirs of D. J. Young, in their individual rights.
The mortgage of the association to the bank was introduced in evidence, showing that it had been filed for record December 14, 1914, and the release of the real estate covered by the three party agreement was endorsed on the mortgage under date of April 27,1915.
It was shown that as a part of the agreement entered into between Young and the association, the association was to pay the taxes which had accrued on the property, amounting to the sum of $1,409.19. These taxes were not paid by the association until after the probate court had ordered an execution of the deed.
The evidence was sufficient to sustain the finding and judgment of the court. The contract was proved, and such part performance thereof on the part of the association as would have entitled it to have the contract performed by Young had he lived. The surrender by the association of the valuable collateral to the creditor of Young, the benefit of which Young received, in pursuance of the agreement to do so, was sufficient to constitute a part performance. The surrender was irrevocable because the stock had been delivered by the association to, and received by, the bank, and the effect of this transaction, under the agreement, constituted a release of the real estate covered by the agreement and embraced in the mortgage from the time the stock was delivered to and accepted by the bank. The entering of the release or satisfaction upon the mortgage afterward was but an evidence of what, in legal effect, had already taken place. See King v. Williams, 66 Ark. 333. A more meritorious case for the application of the statute could scarcely be conceived.
The judgment is correct in all things, and it is therefore affirmed.
McCulloch, C. J., and Hart, J., dissent.
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Butler, J.
This is an action for damages to lands of the appellee occasioned by the construction of Drainage District No. 7 in Poinsett County. There was a verdict and judgment for the appellee in the trial court, from which judgment is this appeal.
Drainage District No. 7 was created for the purpose of reclaiming a large territory of swamp lands. The general description of the district may be fonnd in the cases of Sharp v. Drainage District No. 7, 164 Ark. 306, 261 S. W. 923; Keith v. Drainage District No. 7, 181 Ark. 30, 24 S. W. (2d) 875, and Hogge v. Drainage Dist. No. 7, 181 Ark. 564, 26 S. W. (2d) 887. In the course of the construction of the district, a floodway was dug and leveed leading from the drainage district to a point on the St. Francis River practically opposite the lands of the appellee in Crittenden County. The St. Francis River and Little River were closed by dams and levees so constructed that with these dams a large territory was inclosed, and the waters which were accustomed to drain down the St. Francis and Little Rivers were diverted from a natural flow, and, with a great amount of other waters from an area above draining into the rivers, were impounded and in times of high water flowed through the floodway with such violence and in such volume as to overflow the banks of the St. Francis River, flooding the lands of the appellee and destroying its value for agricultural purposes. From the point where the St. Francis River was dammed on the southern boundary of the district to the appellee’s land, following the meanderings of the stream, is an estimated distance of forty miles, while the floodway which leaves the district at a short point west of the dam is approximately nine or ten miles in length. The flow of the water is therefore greatly accelerated, resulting in a volume of water on appellee’s land in a given space of time much greater than that it received before the construction of the improvement, with the result that the lands were overflowed and their agricultural value destroyed.
Among the assignments of error is that the court erred in refusing to grant instructions Nos. 4 and 5 asked 'by the appellant. These instructions are as follows:
“No. 4. If you find from the evidence that the flow of water is accelerated through the floodway and the heigflt of the waters increased thereby at or near the lands of the plaintiff, but further find that said floodway, although it takes flood waters from the St. Francis River, puts the same back into the river at a lower point, then said drainage district is not liable for damage due to the floodway.”
“No. 5. If you find from the evidence that the flow of water is accelerated through the fl’oodway and the height of the waters increased thereby at or near the lands of plaintiff, but further find that said floodway, levees and dam or any one of them, if they divert water from the St. Francis River, put same back into the same river at a lower point and before it reached the land of plaintiff, then your verdict should be for the defendant.”
In support of the correctness of these requested instructions, appellant relies upon the case of Board of Drainage Commrs. v. Board, 130 Miss. 764, 95 So. 75, 28 A. L. R. 1250.
The case of Baird v. Drainage Dist. No. 7, 181 Ark. 1145, 26 S. W. (2d) 892, was a case almost identical with the instant case and involved the question of injury to the fractional northwest quarter of section 5-35-6. This land adjoins the lands of appellee, and the damage to it arose from the same causes as the damage to appellee’s lands. The facts in that case are not set out in the opinion nor a review of the cases upon which the drainage district relied, but its chief reliance was the principle announced in the Mississippi case, supra, from which extensive quotations were made. The court in that case adopted the view expressed in the case of Mizelle v. McGowan, 129 N. C. 93, 39 S. E. 729, 85 Am. St. Rep. 705, which announced the rule that the right to drain into a natural water course is not limited to the natural capacity of the stream. It was admitted, however, that the rule of the North Carolina court was against the weight of authority, and that the majority of the courts and the text-writers held that the right of the upper owner to drain into the water course is qualified to the extent that the flow must not he increased beyond the capacity of the stream. We think it unnecessary to announce our adherence to either of the conflicting rules, because, as we see it, neither is applicable to the facts of this record. The Mississippi case was a case where, as is said in the opinion, “the water is discharged at different points and in separate quantities, not by one person nor any one body, but by many landowners acting separately and independently in the exercise of their right to drain into the natural water course of the water-shed,” and in that state of case the court said: “It is true the appellees are entitled to the benefit of the rule that water should flow as it is wont to flow, but we think with this exception or qualification that it may be increased by a riparian owner who, in the reasonable exercise of his right of drainage, discharges into the stream in excess of its capacity.”
In the case at bar the drainage district concentrated the surface waters of a large territory and diverted them by dams and levees from their natural flow and through an artificial channel accelerated the flow of the surface waters of the Little and St. Francis rivers, discharging it in one body into the river further down at a point practically opposite the lands of the appellee. This, therefore, is not a case, as was the Mississippi case, where upper owners drain surface waters into the water course, but where such water courses were diverted and the waters draining into them not allowed to follow the natural flow of the streams.
The instructions refused were in effect peremptory instructions, as there is no dispute but that the waters diverted by the levees and dam into the floodway finally reached again the stream of the St. Francis River át a lower point. These instructions also ignore the diversion of the waters from their natural flow, which fact is undisputed and is the basis of the cause of action.
Complaint is also made of the court’s refusal to give instruction No. 9, as follows: “If you find tliat the defendant drainage district has not diverted the course of any stream hut has simply so drawn its levee lines and constructed its ditches as to protect as much land within the district as possible and that the damage, if any, to plaintiff results solely from the placing of levee lines and ditches in such way as to protect the lands of the district, then for such damage the plaintiff: cannot recover.”
It is insisted that whether there was an impounding and diversion is a matter of argument, since the engineer witnesses for the appellant maintained “that the structures constituted a placing of levee lines and ditches in a manner best adapted to the protection of the lands of the drainage district as a whole.” But, regardless of the opinion of these witnesses, the undisputed fact remains that the St. Francis and Little rivers were dammed and their waters diverted from a natural flow into the floodway, and thus precipitated in increased volume upon the lands of the appellee. There was therefore no question for the jury regarding the diversion of the course of any stream, and the requested instruction would have improperly submitted that issue to the jury.
The appellant requested the following instruction: “You are instructed that there was a mortgage upon the lands at the time of the bringing of the suit and also at the time of the damage complained of; and the mortgagee is not a party to the suit, and there can he no recovery for lack of complete title in plaintiff at the time of alleged injury, and your verdict will therefore be for' the defendant.” The appellee’s lands were mortgaged, and the appellant insists that the mortgagee was a proper party and should have been joined as a plaintiff; that it knew nothing about the title until appellee, himself, in his testimony disclosed the existence of a mortgage, and that the court erred in its refusal to grant the instruc-iion requested. Of course, at the beginning of this suit the appellant could- have discovered the existence of the mortgage and the condition of the title, had it made any investigation, and the lands being in Crittenden County would not constitute such an obstacle as would prevent an investigation of the title. The mortgagee, while a proper party, was not an indispensable one, and, by failing to raise that question by motion, demurrer or answer, it must be deemed to have waived same. Less v. English, 75 Ark. 288, 87 S. W. 447. The general demurrer interposed did not reach the defect of want of proper parties (Love v. Cahn, 93 Ark. 215, 124 S. W. 259) and the instruction raised the objection for the first time and was properly refused. Crawford & Moses’ Dig., §§ 1189, 1190.
Complaint is also made that no instruction detailing-defendant’s theory except on the amount of damages was given. A sufficient answer to this is that defendant ’s theory has been all along that its liability for damage falls within the rule announced in City Oil Works v. Helena Imp. Dist. No. 1, 149 Ark. 285, 232 S. W. 28, that where a landowner’s property is left outside of a levee he is entitled to no damages because of the failure to protect his land or because the levee as constructed may prevent water from flowing off of his land as it otherwise would or may deepen the water in an overflow of the land between the embankment and the river. In cases arising out of injuries occasioned by the construction of the appellant district we have repeatedly held that the principle contended for had no application because the damage in those cases and in the instant case was caused, not by the erection of levees to prevent streams from overflowing and for the purpose of confining waters within the bed of the stream, but because there was an obstruction of the flow of the waters in the stream and a diversion of them by dams and levees. Sharp v. Drainage Dist. No. 7; Keith v. Drainage Dist. No. 7; Hogge v. Drainage Dist. No. 7, supra.
We have discussed the assignments of error not as presented in appellant’s brief, bnt as we view them according to their importance, and we now come to a consideration of what appears to ns to be the main ground relied upon by the appellant for a reversal. Appellant contends that the complaint and evidence show that the suit is barred by the statute of limitation, and that the court should have directed a verdict for the appellant as requested in its instruction No. 1, and that, if it was not entitled to a directed verdict, it was entitled to have the question of limitation submitted to the jury by its request for instructions No. 10 (a) and No. 10 (b), which were to the effect that, if the jury should find that the damage complained of occurred more than one year before the institution of the suit, its verdict should he for the defendant.
In Hogge v. Drainage Dist. No. 7, supra, we held that on the question of limitation, § 3942 of Crawford & Moses’ Digest applies. This section is as follows: “All actions for the recovery of damages against any levee or drainage district for the appropriation of land, or the, construction or maintenance of either levees or drains, shall he instituted within one year after the construction of such levees or drains, and not thereafter; provided, that any person, persons, or corporations, who may have any existing claims against any levee or drainage district, suffered on account of appropriation of land, for the purpose of constructing either a levee, ditch, canal, or drain, or on account of the construction or maintenance of either a levee, ditch, canal or drain, shall bring their action within six months after the passage of this act, and not thereafter. ’ ’ The action in the case at bar must have been begun within one year after the construction of the district. The original complaint was filed on June 5, 1924, and it is insisted that the complaint on its face showed that the action was barred. The allegation depended upon is as follows:
“That the main waterway of defendant district was completed and opened into the St. Francis River early in the year 1923, and at and since that time snch vast amounts of water were, through said waterway, discharged into the St. Francis River; that said river has been caused to overflow its banks and to entirely submerge the lands of this plaintiff and to keep them submerged during the latter part of the winter season, all of the spring season and far up into the summer season of each year, preventing the raising of crops of any kind, except a few unprofitable late crops, rendering said lands unfit and worthless for agricultural purposes, or for any other purpose whatever, and resulting in a permanent damage to the lands of this plaintiff in the sum of the value of said lands, all said damage being caused by the construction of the improvements herein described.”
Several amendments to the original complaint were filed, the last one according to its recitals being filed in compliance with the ruling of the court, and, after reciting that several former amendments to the original complaints had been filed, it concludes paragraph I with the prayer that “this be treated as his complaint in chief containing all the allegations constituting his cause of action. ’ ’ This, therefore, was not only an amendment to the complaint, but a substituted complaint, and it was to this that the answer was filed. In this complaint the allegation in the original complaint quoted, supra, was omitted, and the complaint therefore contained no reference to the date on which the structures were completed, nor did the original complaint, except as to the main waterway of defendant district (the floodway). It will ■be observed that the point from which the statute begins to run is from the “construction of the improvement” and not from the date of the damage, so that, although the damage might have fully accrued in January, 1923, the one year statute of limitation would not begin to run from that date, but from the date of the construction of the improvement. We are of the opinion that the term nsed in the statute (Crawford & Moses’ Dig., § 3942) “after the construction of such levees or drains, and not thereafter,” means the completion or finishing of the levees or drains, and the statute would begin to run from the completion of the work. This interpretation is warranted by the cases cited by the appellant. In Board of Directors of St. Francis Lev. Dist. v. Barton, 92 Ark. 406, 123 S. W. 382, the statute was held to run from the date when the levee was finished at that point. In Davis v. Dunn, 157 Ark. 125, 247 S. W. 793, it was held that, where the injury is permanent and the structure is permanent, the statute of limitation begins to run from the time of the completion of the structure. In St. L. I. M. & S. R. Co. v. Morris, 35 Ark. 626, it was held that the statute began to run as soon as the company had finished its work about the embankment, trestles and ditches.
It therefore remains to be ascertained from the evidence in the instant case the .dates when some essential and substantial part of the work of the district remained uncompleted, and to which the injuries complained of might be referable. The testimony on this question is undisputed, and was elicited from the engineer witnesses of the appellant. The floodway was opened in January, 1923, the last 300 feet of which was excavated with dynamite, and it is not shown when the levees on the east side of the floodway were completed, but, as is shown by the plat which was introduced by both parties, the levees run on either side of the floodway to the St. Francis River and on the right bank of the same down to the appellee’s land in section 6, township 9, range 6, in Crittenden County. This floodway was but a part of the drainage district. Other essential portions of it were the levees inclosing the storage basin or reservoir and the dam across the St. Francis River. The uncontradicted evidence is that immediately upon the opening of the flood-way great damage resulted to the lands of the appellee, and that the levees on the western side of the storage ■basin and all tlie way down tlie west side of tbe floodway were finished in January, 1923, bnt that the dam was not pnt in the river nntil the winter of 1924 or the early part of 1925, and that the lock and dam was completed in January, 1925. This is in the testimony given by 0. M. Fairley, a member of the firm of Pride & Fairley, the engineers for the appellant district, and this testimony stands nncontradicted. The dam was an essential part of the structure. It was not completed until after the original complaint was filed, and therefore, according to the uncontradicted testimony, the appellant district had not been completed within a year before the filing of the complaint, and the court correctly overruled the demurrer to the complaint and refused to submit the question of limitation'to the jury.
There remains to be considered the question as to the excessiveness of the verdict which was $20,000. The damages awarded are large, but we cannot say that they are excessive. The uncontradicted testimony is to the effect that the lands of appellee were very fertile, producing from three-fourths to a bale and a half of cotton per acre according to the season and sixty bushels of corn per acre; that the lands in the tract, exclusive of waste land, amounted to 565 acres, ten acres of which was cleared when purchased by the appellee; that the purchase price for the property, exclusive of the waste land, was between twenty-three and twenty-four dollars per acre, of which sum appellee paid $5,000 in cash and from his earnings and money borrowed he spent $20,875 in clearing, fencing and otherwise improving the property. At the beginning of the year 1923 he had subdued and improved 255 acres, which made 265 acres including the ten in cultivation when he bought it. Of the 300 remaining acres half was deadened preparatory to cultivation. The lowest estimate of value placed by any of the witnesses for this property was $100 an acre for the land in cultivation and $35 an acre for the remainder. A majority of the witnesses placed the value of the cultivated land at $125 an acre. Six witnesses, including the appellee, testified as to the value of the lands. One did not testify as to the value of the uncultivated land, but two of five witnesses placed the value of the uncultivated land at $50 per acre, two at $40 per acre, and one at from $35 to $40 an acre. This testimony was not contradicted. So, while the verdict is large, it is supported not only by substantial testimony but by all the evidence. The testimony also is undisputed that this land had this value for agricultural purposes, and that this was the sole purpose to which it was adapted and that the value had been completely destroyed. It follows from the views we have expressed that the judgment of the trial court is correct, and it is therefore affirmed.
Smith, J., dissents. | [
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McCulloch, C. J.
The Attorney General instituted this action in .the chancery court of Lafayette County against the Bodcaw Lumber Company, a domestic cor p oration domiciled in that county, to recover taxes alleged to he due the State and its subdivisions by reason of the failure of said corporation to assess all of its property for taxation for certain years. The right to sue is predicated upon the authority of the statute embraced in Kirby’s Digest, section 7204, et seq., as amended by the act of May 30,1911 (page 324), and further amended by the act of March 12, 1913 (page 724), providing that where it is made to appear to the Attorney General that “in consequence of the failure from any cause to assess and levy taxes or because of any pretended assessment and levy of taxes upon any basis of valuation other than the true value in money of any property hereinafter mentioned, or because of any inadequate or insufficient valuation or assessment of such property or under valuation thereof, or from any other cause, that there are overdue and unpaid taxes owing to the State * * * by any corporation upon any property now in this State which belonged to any corporation at the time such taxes should have been properly assessed and paid, that it shall become his duty to at once institute a suit * * * for the collection of the same, ’ ’ etc.
It is alleged in the complaint that the property of the Bodcaw Lumber Company consists of its capital stock represented by and invested in real and personal property situated in certain counties in the State of Arkansas and in the State of Louisiana, and that the said corporation had failed, during certain years, to make return of all its property for taxation as provided by the statutes of this State, in that it had made no return of its capital stock and had not assessed for taxation any of its property except the tangible property situated in the State of Arkansas. It is further alleged that the capital stock of said corporation is, and has been during the years mentioned, of very great value in the aggregate, after deducting the tangible property subject to specific assessment under the statutes of the State, and that there is now due to the State the sum of $250,000, as the just proportion from said corporation to the State for the taxes on property which has thus escaped taxation. The court sustained a demurrer to the complaint and dismissed it for want of equity, and the Attorney General has prosecuted an appeal to this court.
(1-2-3) Learned counsel in the case have set forth in the abstract, by way of illustration, the exact financial condition of the Bodcaw Lumber Company for many years past and the situs and value of its tangible property, together with a statement of the amount of its capital stock, the number of shares and value thereof as taken from the reports filed by the president and secretary with the county clerk pursuant to statute, but that statement is not set forth in the complaint nor exhibited therewith, and we can not take notice of it. Nor do we deem it necessary to do so in order to dispose of the questions of law presented on the demurrer, for the complaint contains sufficient allegations to present for argument the questions discussed so thoroughly and ably by counsel in the respective briefs.' Suffice it to say that the facts appearing from the complaint are that the Bodcaw Lumber Company has, during the years named, assessed for taxation its tangible property situated in the State of Arkansas, but it has not made any return of its capital stock for taxation, which, according to the contention of the State, is subject to taxation here without deduction of the value of property outside of this State which goes to make up the value of the stock. On the other hand, the contention of counsel for the defendant corporation is that only the tangible property of the cqrporation in the State is subject to taxation here and that the taxation of the capital stock, without deduction of the value of the tangible property outside of the State would be tantamount to indirectly taxing the property itself and would constitute double taxation. It must be treated as settled that there can be no double taxation in the sense that the same property may be twice assessed for taxation. That is not contemplated by the Constitution and laws of this State. Nor does it matter, in considering the question of double taxation, whether property is doubly taxed partly in one State and partly in another, for the rule against double taxation reaches to any form, and prohibits the double taxation under different sovereignties. Wright v. L. & N. Railroad Co., 195 U. S. 219. Therefore, an attempt on the part of the State to tax property permanently situated outside of its borders would constitute double taxation. It has been held by many of the courts that shares of stock in a corporation may be treated separate and apart from the stock and property of the corporation itself for the purpose of taxation, and that that does not offend against the rule prohibiting double taxation. Kidd v. Alabama, 188 U. S. 730; Corry v. Mayor of Baltimore, 196 U. S. 466; Hawley v. City of Malden, 232 U. S., p. 1. Such, however, is not the practice under the statutes of Arkansas, which contain an express provision that “no person shall be required to include in his statement as a part of the personal property, moneys, credits, investment in bonds, stocks, joint stock companies or otherwise, which he is required to list, any share or portion of the capital stock or property of any company or corporation which is required to list or return its capital and property for taxation in this State.” Kirby’s Digest, § 6902, Act 1883, § 15, p. 217. This court decided that the purpose of the law-makers in enacting the above statute was to provide against double taxation. Dallas Co. v. Banks, 87 Ark. 484; Dallas Co. v. Home Fire Ins. Co., 97 Ark. 254.
A discussion of the questions presented involves an analysis of the statutes of this State relating to the assessment of the property of corporations for taxation. There are different classifications under the statutes for different kinds of corporations. There is a separate provision with reference to banks, which requires a return to be made by the officials of the corporation, and we have decided that tbe scheme contemplates a taxation of the shares of stock in snch corporation according to value and not of the property of the corporation itself, and that, therefore, the value of shares of stock in a national bank, when assessed for the purpose of taxation are not subject to deduction of value of property of the' bank which is exempt from taxation. First National Bank v. Board of Equalization, 92 Ark. 335.
The defendant is a manufacturing corporation, which falls within the general class of corporations required to make returns for purposes of assessment in the following manner:
Such corporations shall, through their president, secretary, principal accounting officer, etc., annually during the month of July “make out and deliver to the assessor of the county in which such company or corporation is locatéd or doing business, a sworn statement of the capital stock, setting forth particularly:
“First. The name and location of the company or association.
“Second. ■ The amount of capital stock authorized, and the number of shares into which such capital stock is divided.
“Third. The amount of capital stock paid up, its market value, and, of no market value, then the actual value of the shares of stock.
“Fourth. The total amount of all the indebtedness, except the indebtedness for current expenses, excluding from such indebtedness the amount paid for the purchase of improvement of the property. •
“Fifth. True valuation of all tangible property belonging to such company or corporation; such schedule shall be made in conformity to such instructions and forms as may be prescribed by the Auditor of State; and shall also show in what county such property is situ ated.” Kirby’s Digest, § 6936, as amended by act of March 11,1913, p. 615.
ThQ next section (6937) provides that if the officers of the corporation neglect or refuse to make the return as required above, then “the assessor shall from the best information he can obtain, make out and enter upon the proper assessment roll a list with the valuation of all tangible and intangible property belonging to such defaulting company or corporation subject to taxation by the provisions of this act with 50 per cent, penalty.”
Now, the provision just quoted with reference to the method of assessment of corporation property must be read in connection with the statute already referred to, which provides that the owners of shares of stock in a corporation required to list its capital stock are not required to include such shares of stock in their personal assessments, and, when thus considered, it is seen .that the legislative scheme provided is not merely to assess the property of the corporation itself, but to include the value of the shares of stock and tax them at the source. The words “capital stock” used in the statute means the aggregate value of the shares of stock in the hands of the shareholders, though the value of the shares of stock themselves do not constitute the limit of taxation. The purpose of the law-makers was to merge the separate valuation of the shares of stock into the aggregate valuations of the whole, and thus constitute the compound as a basis for fixing the valuation for taxation purposes, after deducting the value of the tangible property which is to be specifically assessed separately. In this way the law-makers have provided a scheme for taxation of all of the elements of value of this property one time, and only once, and the tax is levied at the source and paid there without any assessment being levied against the individual shareholders. The scheme absolutely excludes any idea of double taxation, but it does provide an adequate means of including all the elements of value contained in the shares of stock and the tangible property of the corporation itself, merged into a composite whole. The assessment of the property is in name only against the corporation, for it includes the elements that go to make up the value of the shares of stock themselves. The assessment does not include both the shares of stock separately and the aggregate whole as represented by the-capital of the corporation, for that would be double taxation, but the scheme does, as before stated, contemplate that all of the elements of value be considered in fixing a basis of value which will include every .species of property involved. The two species of property, that is to say, the shares of stock held separately in the hands of the shareholders and the property of the corporation itself, do not contain the same elements of value. The capital of the corporation is represented by its tangible assets; whereas, the shares of stock contain only the element of market value, which may be increased or decreased by the value of the earning capacity of the corporatioil above or below the market value of the property owned by the corporation. The statute expressly provides that intangible as well as tangible values shall be taxed, and shares of stock represent the taxable intangible value, subject to reduction to the extent of the value of the tangible property in the State which is taxed separately. If the State should tax only the tangible property in the State, it would get no benefit whatever from the element of value represented by the earning capacity of the corporation and nothing in return would be received in the way of taxes for omitting from taxation the shares of stock in the hands of the individual holders, thus creating a complete exemption of that class of property.
(4) So when these different elements are considered together, we have a taxation scheme which embraces them all in making up the true valuation for assessment purposes. Such being the state of the law with respect to the method of assessment and the elements to be considered, the question arises whether or not there should be a deduction of tangible property outside of the State, over which the State has no jurisdiction and which is taxed elsewhere. Our statute expressly provides that tangible property of the corporation shall be assessed separately, but this does not include, of course, the assessment of property outside of the boundaries of the State, for the power does not extend that far. But it does not necessarily follow that because the property owned by the corporation is in another State and is taxed there, that its value must be deducted from the blended valuations which are assessed for taxation in this State. That construction would lead to a partial exemption of the shares of 'stock from taxation, and we can not presume that the legislative scheme contemplates such a thing, for it is contrary to an express provision of the Constitution, which prohibits exemptions from taxation. Dallas Co. v. Home Fire Ins. Co., supra. The statute hereinbefore quoted which authorizes the omission from the personal assessment lists of shares of stock in a corporation is limited to such corporations as a.re required to list their property for taxation, and if it be held that the property of the corporation outside of the State is not to be listed, it would necessarily follow that the shares of stock themselves must be separately listed and taxed against the owners thereof. Such was obviously not the intention of the framers of the statute, even though the tangible property is situated beyond the limits of the State, for there is no provision for an assessment of the shares of stock against the owner in the cases where the corporation itself assesses its property partly in this State and partly in some other State. The State undoubtedly has a right to assess all the property of the corporation and its shareholders in this State and to consider all the elements of value in levying the assessments. It does not attempt to assess the property outside of the State, either directly or indirectly, nor does it attempt to assess the capital of the corporation as represented by the value of property outside of this State, but what it has attempted to do in the statute hereinbefore outlined is to introduce into the assessment the elements of value attaching to the shares of stock themselves, even though if may be based on property of the corporation situated outside of the State, and thus'“to require one tax on all attainable sources of value.” Wright v. L. & N. Railroad, supra. This view of the statute prescribing the method of taxation reconciles the assessment without such deduction with those decisions of the United States Supreme Court, which hold that the assessment of the property of a corporation can not include property outside of the State, and also with those which hold that the shares of stock themselves can be assessed, even though property which goes to make up the value thereof is situated beyond the borders of the State. Delaware L. & W. Rd. Co. v. Pennsylvania, 198 U. S. 341; Hawley v. Malden, supra.
Learned counsel for the defendant earnestly rely on the decision of the Supreme Court of the United States in the first of the two cases just cited as sustaining their contention that this is in effect an attempt to indirectly tax tangible property outside of this State by including it in the assessment of the capital stock of the corporation. There is language found in that opinion which seems to bear out that contention. The court say:
“We can not see the distinction, so far as the question now before the court is concerned, between a tax assessed upon property eo nomine or specifically when outside the State, and a tax assessed against the corporation upon the value of its capital stock to the extent of the value of such property, and which stock represents to that extent that very property. If the property itself could not be specifically taxed because outside the jurisdiction of the State, how does the tax become legal by providing for assessing the tax on the value of the capi tal stock to the extent it represents that property and from which the stock obtains its increased value? Can the mere name of the tax alter its nature in such ease? If so, the way is found for taxing property wholly beyond the jurisdiction of the taxing power by calling it a tax on the value of the capital stock or anything else which represents that property. Such a tax in its nature, by whatever name it may be called, is a tax upon the specific property which gives the added value to the capital stock.”
It must be remembered that the above statement of the law was made in a case reviewing an ^assessment which did not contain the element of value going to make up the shares of stock of a corporation, but it related purely to an assessment of the capital as the property of the corporation itself. It does not appear that in the State of Pennsylvania, where that case arose, there was a statute such as we have here, requiring the corporation itself to return the value of the shares of stock and exempting individual stockholders from taxation. But on the contrary, it appears from the opinion that the assessment provided under the laws of Pennsylvania, constituted one against the property of the corporation itself, and, for aught that appears in the opinion referred to, the shares themselves were otherwise taxed.
(5-6) The statute which we deal with in the present case contemplates an assessment of the shares of stock themselves, or at least the separate elements of value which they represent, and the State has a right to impose the assessment at their value without deduction of property outside of the State. In other words, there is a clear distinction between an assessment solely of the corporation property and a composite assessment such as is provided under our statute for the taking into consideration of all of the elements of value, including the shares of stock therein. The Supreme Court of the United States so held in the case of Commercial Bank v. Chambers, 182 U. S. 556, and the force of the decision is not impaired by the later case cited above. The statute, and the assessment which the State attempts now to make thereunder, is not an evasion of the rule against double taxation, as the court indicates was attempted under the Pennsylvania statute, but it constitutes merely an attempt to assess the valuation of property in this State and tax it only one time according to its true elements of value. In considering the validity of a taxation scheme, we look to the effect and to the result sought to be accomplished, rather than to the mere form or to the use of the name in designating the method of taxation, and when this is done we discover the intention of the law-makers to tax in the name of the corporation the shares of stock themselves, without deduction, as is our right, of the valuation of property outside of the State, which goes to make up the valuation of the shares of stock. The statute, provides for a separate taxation of the tangible property of the corporation in the State, and the valuation .of the property thus separately assessed must be deducted from the total valuation- assessed against the corporation. Hempstead County v. Hempstead County Bank, 73 Ark. 515; Harris Lumber Co. v. Grandstaff, 78 Ark. 187; Arkadelphia Milling Co., v. Board of Equalization, 126 Ark. 611; Harvester Building Co. v. Hartley, 160 Pac. (Kan.) 971. The deduction, however, can only be of the property in this State which is assessed here, for the sole object of the deduction is to prevent double taxation. Hempstead County v. Hempstead County Bank, supra. It should not include property outside of the State, for that is not taxed here. Upon other principles hereinbefore indicated, the valuation of the property outside of the State must be omitted when the property of the corporation itself is sought to be taxed, but when the effort is to assess the values of the shares ,of stock it should not be deducted, for those shares of stock have a separate valúa, tion existing here within the jurisdiction of the State and upon which the State has a right to take its toll of taxation.
Our conclusion, therefore, is that the State is correct in its contention that the failure of the defendant corporation to make return of its capital stock without deduction of the value of tangible property outside of the State was a violation of its duty, and that the property was and is subject to taxation. The allegations of the complaint are not altogether clear in the statement of the State’s cause of action for recovery of taxes on unas^ sessed property, and the language used indicates some confusion of the statutory terms referred to. This is particularly true in the amendment to the complaint defining the term “capital stock” as used therein. That term as used in the statute means shares of stock of the corporation in the aggregate, and not the capital of the corporation as represented by its tangible assets. The meaning of the law-makers in this regard is perfectly clear when the use of the term is considered in connection with a provision which follows, to the effect that the corporation is required to state in its return the number of shares “into which such capital stock is divided,” . and the “amount of capital stock paid up, its market value,” etc.
(7) Counsel were in error in the definition given in the complaint of the term “capital stock,” but that error does not destroy the force of the allegations as the statement of a cause of action. The character and effect of a pleading is to be determined from its statement of facts and not from its name, and if the facts stated constitute a cause of action the pleading is sufficient to call for relief, even though erroneous conclusions be drawn as to its effect. Merrit v. School District, 54 Ark. 468; Fordyce v. Nix, 58 Ark. 136.
Notwithstanding the erroneous definition contained in the complaint, it appears sufficiently from the allega tions that the corporation named and assessed only its tangible property in this State and failed to return its capital stock as expressly required by statute. From the statement of those facts the court itself must draw the proper legal conclusions, and determine whether or not taxable property has been withheld from assessment.
(8) The only remaining question is whether or not the statute authorizes the Attorney General to sue to recover back taxes omitted in this way from assessments. The contention of counsel for defendant is that this statute was only intended to reach tangible property omitted from former assessments and that the property involved in this controversy is not of that character. The statute relates to property “now in this State which belonged to any corporation at the time such taxes should have been properly assessed and paid,” and which is now owned by a corporation. The property in controversy falls within the designation of the .statute. It was at the time it should have been assessed, property of the corporation within the meaning of the taxation laws of the State, and is still owned by a corporation within that meaning., There is nothing in the language of the statute which warrants a contention that it relates only to tangible or corporeal property. The aggregate of the capital stock was assessable in the name of the corporation, and was, therefore, the property of the corporation within the meaning of the statute, which was designed to reach property which corporations were and are required to assess, even though it included the shares of stock in the hands of the individual shareholders.
Upon the whole, we are of the opinion that the complaint stated a cause of action against the defendant and that the court erred in sustaining the demurrer. The judgment is, therefore, reversed, and the cause remanded with directions to overrule the demurrer to the complaint and for further proceedings not inconsistent with this opinion.
Smith and Hart, JJ., dissent. | [
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Humphreys, J.
On August 31, 1932, appellant brought suit in the circuit court of Poinsett County contesting the certificate of nomination of appellee by the Democratic party for the office of senator for the 29th senatorial district, composed of the counties of Poinsett, Mississippi and Jackson, alleging that the entire vote of Poinsett County was void because there was no certified list of voters .prepared according to law, and that more than 2,236 people were permitted to vote without having purchased a poll tax receipt, and whose names did not appear upon any kind of list, and that no poll tax receipts or certified copies thereof were attached to the ballots, and no separate list kept by judges and clerks as required by law; and also alleging that there were certain illegal votes cast in Mississippi and Jackson counties, and that, if the illegal votes in the several counties were cast out, the result would be changed, so that appellant would receive a plurality of all legal votes cast in the district.
Appellant offered to amend his complaint so as to set out the names of the voters in Mississippi and Jack son counties that be alleged voted illegally, which request was refused hy the court.
Several motions and special demurrers were filed by appellee, which it is unnecessary to set out or refer to in this opinion as the trial court sustained the general demurrer to the complaint, and dismissed it on the sole ground that the contest should have been filed within ten days after appellee was certified as the nominee of the Democratic party.
The trial court was in error in thus construing § 3772' of Crawford & Moses’ Digest, specifying the time in which contests in primary elections must he commenced. Said section provides, in part, that: ‘ ‘ The complaint * * * shall he filed within ten days of the certification complained of, if the complaint is against the certification in one county, and within twenty days if against the certification in more than one county.” The contest in the instant case is against the total vote of the entire district, composed of three counties, and not against the total vote cast in one county. The purport and gist of the complaint was to change the total vote in the entire district so that the contestant might receive a plurality of the entire vote in senatorial district 29, composed of three counties. Under the rule of liberal construction applied to the primary election laws in this State, set out in the case of Logan v. Russell, 136 Ark. 217, 206 S. W. 131, the correct interpretation is to allow a contestant for an office in a district composed of more than one county 20 days from the date of certification in which to file his complaint.
The trial court should have permitted appellant to amend his complaint. Wilson v. Cardwell, ante p. 261.
On account of the errors indicated, the judgment is reversed, and the cause is remanded with directions to allow the requested amendment, and to proceed with the trial of the cause upon its merits. | [
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Mehaffy, J.
The appellant, George H. Burden, is a contractor, and had the contract to tear down and remove an old bnilding at Fourth and Louisiana streets and to erect a new building. The old building had to be taken down before the new one could be built. He had had experience in wrecking buildings and doing work of this kind. At the time he was tearing down the building on Fourth and Louisiana streets he had several jobs going on, and was therefore at this job only occasionally, something like once a day. He was on the job when the accident happened, and had been there fifteen or twenty minutes. The appellee, 0. C. Hughes, is 37 years old, and was in the employ of appellant working under Mr. Harry Haws, who was the foreman for the appellant. The roof had 'been torn off by the laborers, and, when Hughes came to work Monday morning, he was put to work cleaning up lumber. He went to work about the center of the north side of the wall that fell. He worked there cleaning up that lumber all day except for a few minutes when he was called away by the foreman to clean some 2-x 6’s. At the time of the accident, appellee was working’ north of the wall, pulling’ nails and cleaning lumber there, and, while he was stooped over picking up some lumber, the wall fell on him and injured him. There is no dispute about the injury or its extent.
Appellee brought suit in the Pulaski Circuit Court alleging that appellant was a contractor and engaged in construction work at the southwest corner of Fourth and Louisiana streets in the city of Little Rock on the 3d day of August, 1931. That on that day about 4 o’clock in the afternoon appellant directed all work to cease in tearing down the building which was then being removed. After said work had been stopped by orders of the foreman, appellee with two other employes were directed by the foreman to pick up pieces of timber and clean them and pick up trash near one of the walls of said building. While so engaged and while acting under the immediate orders of the foreman in charge of said work, said wall fell upon appellee, breaking bis collar bone in two places, breaking eleven ribs, puncturing bis lungs, crushing and breaking bis right elbow, pelvis, chest and stomach, injuring him internally, inflicting numerous cuts and bruises on his body, hands and legs, from which he suffered pain and from which he will so continue to suffer. That the injuries are permanent, and that he will not be able to do any kind of work again. Ap-pellee was 37 years old and earned from $5 to $8 per day, and he had lost in earnings $4,600 and had been damaged in the further sum of $50,000 on account of his pain and suffering. It was alleged that his injuries were due to the negligence of appellant as follows: (1) It was the duty of the defendant to use reasonable care to provide for plaintiff a reasonably safe place in which to work. In this he negligently failed, in that he negligently and carelessly removed the I-beam and the window frame and all other supports of the wall which fell upon plaintiff and injured him, thereby caused said wall to fall and result in injury to the plaintiff above described. (2) The foreman of defendant negligently and carelessly directed plaintiff to perform work near said wall, both he and the defendant being present, looking on, directing and supervising the work done by the plaintiff, when they knew or by the exercise of ordinary care could have known that said wall was dangerous and likely to fall.
Appellant filed answer denying all the material allegations in the complaint and pleading contributory negligence and assumption of risk.
There was a jury trial, and a verdict and judgment in favor of plaintiff for $5,000. The case is here on appeal.
The appellant concedes that the master must exercise ordinary care to furnish a safe place to work, but contends that this rule is not applicable here because appellee was a member of a wrecking crew which was demolishing a building, and the work itself which he engaged to do constantly changed the working place and created hazards, and these were ordinary risks incident to his employment, which he assumed. In other words, the contention is that the appellee assumed the risk because he was a member of the wrecking crew which was constantly changing the working place. The undisputed evidence is that the appellee was not working on or about the wall at all, hut was 12 or 14. feet away from the wall cleaning up lumber and had nothing to do with tearing down the wall. The appellee testified that he did not help take the joists down because Haws, the foreman, saw him there and told him after he got the paper off to go ahead and take the sheeting off. That Haws was there directing .the detail work. Hughes testified that he thought he was in a s.afe place, and was working under the direction of the foreman Haws, and there was nothing to cause him to believe there was any danger. The appellant and Haws, the foreman, both testified that the posts were rotten at the bottom and this caused the wall to fall. Neither of them had investigated to see if there was any danger, and Haws testified that the laborers must make their own place safe as they go and guard against pitfalls. He did not advise any of the laborers that there was any danger of the walls falling. He said he did not know it. He did not make any investigation, but testified that what happened showed that an investigation should have been made. Numerous authorities are referred to, but this question has been settled by decisions of this court, and we deem it unnecessary to review or discuss all the authorities referred to by appellant. The undisputed evidence .in this case shows that the appellant was tearing away the building, and that the work was under the direction and control of Mr. Haws, the foreman, and, at the time the wall fell and injured appellee, both appellant and the foreman were present, and both of them admitted in their testimony that the rotten posts were the cause of the wall falling, and they both admitted that no investigation had been made to determine whether the posts were rotten or whether there was any danger of the wall falling. We have said: ‘ ‘ The master is required to exercise ordinary care in discovering defects and in repairing them and in discovering dangers and obviating them. And this care and prudence must be tested by the business in which the master is engaged and the circumstances surrounding it and commensurate with its requirements.” Bryant Lbr. Co. v. Stastney, 87 Ark. 321, 112 S. W. 740.
“Although the defense of assumption of risk .is established as a part of the law and will be applied in all cases fairly within the rule, it is nevertheless not a favored doctrine, but at best is artificial and harsh and should not be extended beyond its reasonable limits.” 39 C. J. p. 689.
Where the injured employee provides the place to work himself or where his work so changes the place as the work progresses as to make it dangerous and this changing of the work causes injury without the negligence of the master, the injured employee cannot recover. In other words, he assumes this risk, but here the master was directing the work, and the injured employee had nothing to do with its direction and no knowledge of any danger, and it was not his duty to inspect the wall to determine whether there was danger. It was, however, the duty of the master to take such precautions as a person of ordinary prudence would have taken under the circumstances to protect the employee.
“Where there is any evidence justifying an inference that the defect or danger was known or ought to have been known by the defendant, the question whether he took reasonable precautions to guard against the defect or danger is generally a question for the jury.” 45 C. J. p. 1325.
In this case the appellee was not changing the place in any way, but the place was being changed at some distance from appellee under the direction of the foreman himself. The rule contended for by appellant, if adopted, would relieve the master from all liability for injury to servants tearing down a building, no matter how negligent the master himself might be. Such a rule has never been adopted by the courts. It is the duty of the master to make inspection for all latent or concealed defects beyond tbe knowledge of the employee. It is the duty of the master to make proper tests and inspections to discover dangers, and the employee has a right to assume that this duty has been performed by the master, and whether in any particular case the employer has discharged his duty with respect to making proper test and inspections is ordinarily a question for the jury.
. The appellant earnestly insists that the progress of the work in which the appellee and his co-laborers were engaged was constantly changing and that the appellee therefore assumed the risk. The evidence shows that in the progress of the work which the appellee was doing there was no change, and it was simply a question whether the master was guilty of negligence causing the injury.
It is next contended that the court erred in admitting testimony as to the unsound condition of the studding and floor joists because he says there was no allegation in the complaint that the floor joists were rotten. Any evidence tending to show the cause of the wall falling was competent. Moreover, both the appellant and the foreman testifying for the appellant said that the posts were rotten, and that this caused the wall to fall.
It is next contended that the court erred in giving instruction No. 1 requested by appellee, because the complaint does not ask a recovery for failure to warn appel-lee. This is not an independent ground for recovery in any sense. It was the duty of the master to exercise proper care to prevent injury to the appellee, and the foreman and appellee testified about warning without objection.
■Objection is made to instruction No. 7 and No. 10 also. The objection to No. 7 was that it was misleading-in telling the jury that it was the employer’s duty to refrain from any act which would render the employee’s working place more insecure, and that, even though the master did not furnish a safe place, it. was his duty to contribute towards making it a safe place. An objection was made to No.10 because it repeated the alleged error of submitting the failure to warn as a ground for re covery. We do not think the court erred in giving either of these instructions. As we have already shown, it was the duty of the master not only to exercise reasonable care to furnish a safe place to work, but it was his duty to exercise ordinary care in discovering defects and in repairing them and in discovering dangers and obviating them. Bryant Lbr. Co. v. Stastney, supra.
It is next contended by appellant that it was a mere accident which ordinary foresight conld not anticipate, and that no negligence was proved. The evidence shows conclusively that, by the exercise of ordinary care and proper inspection, it could and would have ¡been discovered that the posts were rotten, and this precaution was not taken. The negligence of the appellant was a question of fact properly submitted to the jury, as was also the question of assumed risk and contributory negligence of appellee.
We find no error, and the judgment is affirmed. | [
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Battle, J.,
(after stating the facts.) This action was for the price of a car load of potatoes, which were alleged to have been sold by L. A. Freker & Go. to J. P. Matthews & Co. In the account filed with the justice of the peace Matthews & Go. were charged with having bought the potatoes. In the affidavit annexed to the account Freker swore that the account “for goods, wares and merchandise sold and delivered by said firm (Freker) to said J. P. Matthews & Co. was just, true and correct in all particulars.” Matthews & Co. denied having purchased the potatoes, or being indebted to Freker for the same. The cause of action was the sale of the potatoes. The justice of the peace could not have acquired jurisdiction of the-suit as an action ex delicto, the amount in-volved being $126.70, and his jurisdiction in matters of damage to personal property being limited by the constitution lo cases where the amount in controversy does not exceed the sum of one hundred dollars. The circuit court acquired by the appeal no jurisdiction except that which the justice of the peace had; neither could it try any cause of action except that tried by the justice of the peace. The only question in the case, then, is, did Freker sell to Matthews & Co. the car load of potatoes?
In Benjamin on Sales it is said: “To constitute a valid sale, there must be a concurrence of the following elements, viz.: (l) Parties competent to contract; (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer; and (4) a price in money paid or promised.” Sec. 1.
Did the mutual assent necessary to constitute a valid sale exist in this case? The right of Freker to recover of Matthews & Co. is based upon the telegram in which they said: “Rush both cars. Send papers of - Mena car to ourselves.” Matthews & Co. did not expressly agree to purchase' the potatoes, or to pay for them. The word “rush” might imply that they were of the opinion that Foster & Co. would accept the potatoes if they were promptly shipped. Foster & Co. wanted the potatoes, and were impatient on account of the delay in their shipment. Foster testified that they were to be shipped immediately; that their “customers were crowding them for potatoes, and they had to have them as soon as possible.” The order for the potatoes was received by Freker on the morning of the 25th of February. On the same day he received a telegram from Foster & Co., asking if both cars were shipped, and Freker replied: “Fort Smith shipped to-day; Mena car to-morrow.” In the afternoon of the same day Freker received another telegram from Foster & Co. countermanding the order, which he answered by saying: “Fort Smith car loaded, and ticket signed. Mena order received by mail to-day, and are loading.” Foster & Co. replied by saying “they would not accept the Mena car under any circumstances.” They did not countermand the order for the potatoes which were sent to Fort Smith. They had been shipped. When Freker received the last telegram from Foster & Co. countermanding the “Mena order,” he wired to Matthews & Co. as follows: “Mena car nearly loaded. Goes forward to-day. We are not at fault. Convince Foster.” After this he received a telegram from Matthews & Co. saying: “Rush both cars. Send papers of Mena car to ourselves.” J. P. Matthews testified that Matthews & Co. did not receive the telegram asking them to “convince Foster” until after they had sent the telegram to Freker. But, assume that it was received before, did they thereby intend to propose to purchase or pay for the potatoes which were ordered to be shipped to Mena? If so, their telegram might also mean that they proposed to purchase or pay for the car load which had been shipped to Fort Smith, for they said, “Rush both cars.” No one contends for this construction, for that order was not countermanded.
The direction in the telegram to “send papers of Mena car to ourselves” did not necessarily imply that they would purchase or pay for the potatoes shipped to Mena, for Matthews testified: “I had this car of potatoes sent íd my name in order to get the benefits of a certain freight rate. * * * I had a guaranty from the railroad that such rate should obtain. I explained to Freker to ship in my name unless he could get that rate. Fearing that he could not get that rate, I wired him to send the papers to Matthews & Co. Both he and Foster knew the reason.”
The jury might reasonably have inferred from all the evidence in the case that Matthews & Co. did not intend by their telegram to Freker to purchase the potatoes, but they showed thereby that they were of the opinion that Foster & Co. would pay for the potatoes if they were promptly shipped to, and received at, Mena. But the jury were not permitted to take this view of the facts. The court, over the objections of Matthews & Co., instructed them as follows:
“3. But if they sent said teiegram without the authority of J. Foster & Co., and at the time they sent it they knew that Foster had countermanded the order for the Mena car of potatoes, or if at that time they had received the telegram from plaintiffs, ‘Mena car loaded. Goes forward to-day. We are not at fault. Convince Foster’ — then defendants J. P. Matthews & Co. are liable for the contract price of the car.
“4. But if Matthews & Co. sent the telegram (‘Rush both cars,’ etc.) before receipt of the telegram of plaintiff stating that ‘We are not at fault. Convince Foster,’ and if said telegram, ‘Rush both cars,’ etc., was without authority of Foster & Co., then the liability of Matthews- & Co. depends on whether or not, after subsequent receipt of the telegram, ‘Mena car nearly loaded. Goes forward to-day. We are not at fault. Convince Foster,’ Matthews & Co. acted with ordinary care
“5. Ordinary care means the care that would be expected of a reasonable, careful, prudent and competent broker, under all the circumstances. Now, if, after sending the telegram, ‘Rush both car's,’ etc., Matthews & Co., received the telegram sent by plaintiff, stating, ‘We are not at fault. Convince Foster,’ — and if ordinary care under all the circumstances would have led them to make inquiries, and they could have thereby ascertained the state of affairs, and informed plaintiffs thereof, and they failed to use such care, then they are liable. But if they did use ordinary care, or if they failed to make inquiry, and snch. failure was want of ordinary care, then they are liable.”
In giving these instructions the court erred.
Reversed and remanded for a new trial. | [
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Riddick, J.,
(after stating the facts.) This is an action of ejectment. The plaintiffs claim as the heirs of Rebecca Cook, and also as the heirs of Clementine Cook. The defendants claim under a purchase and deedfrom Clementine Cook. It is not disputed that Clementine Cook was the adopted heir of Rebecca Cook, the former owner of the land sued for, and the only-question presented by the appeal has reference to the deed executed by Clementine Cook and her husband, S. W. Cook, to Lymus Walker, the ancestor of the defendants. The plaintiffs contend that such deed is void for uncertainty in the description of the land attempted to be conveyed.
The land owned by Mrs. Cook, and which she and her husband sold and undertook to convey to Lymus Walker, was the northwest quarter of the southwest quarter of section 30j township 5 north, range 3 east, containing 44 acres. The deed from Cook and his wife described the land as “the north part of the west half of the southwest quarter of section 30, township 5 north, range 3 east, containing 44 acres, more or less.” If the deed, instead of describing the land as the “north part” of the west half of southwest quarter of section 30, had described it as the “north half” of the west half of southwest quarter of section 30, etc., there would have been no controversy about the-description, but as written there is room for doubt as to its validity. But a deed is not to be held void for uncertainty if by any reasonable construction it can be made available. Dorr v. School District, 40 Ark. 237. It is clear that the parties intended that it should have effect, and that intention should be carried out if consistent with a reasonable construction of the language used.
When the description of the land as given in the deed is doubtful, the courts, in their endeavor to arrive at its meaning, should assume the position of the parties. The circumstances of the transaction should be carefully considered, and in the light of these circumstances the words- should be read and interpreted. 2 Devlin, Deeds (2 Ed.) § 1012.
The circumstances here are that Cook and his wife owned the north half of the west half of the southwest quarter of section 30, containing 44 acres, and owned no other laud in that section. The land was improved and neai’ly all under fence. They sold it to Lymus Walker, and put him in possession of it, describing it in the deed which they executed and delivered to him as the north part of the southwest quar ter of section 30, etc., containing 44 acres, more or less. Now, apart from the circumstances surrounding the conveyance, a description of that kind shows prima facie an intention to convey 44 acres off the north part of the west half of the quarter section laid off in the shape of a rectangular parallelogram with the north line of the west half of the quarter section as one of its sides. Watson v. Crutcher, 56 Ark. 44. The proof shows that a rectangular tract containing 44 acres laid off in that way in the north part of the west half of the quarter section would take exactly the north half of the west half of the quarter section. And the. .circumstances in proof show that such a construction of the deed coincides with the intention of the parties thereto. Though a description in a deed which is clear and unambiguous cannot be set aside by parol proof of the acts of the parties, either before or after the deed, still in a case of doubtful description it is competent to look to the construction placed on the deed by the parties themselves as an aid to ascertain its meaning. 1 Jones, Real Prop. § 334; Harris v. Oakley, 130 N. Y. 1.
Taking into consideration the fact that Cook and his wife owned no other land in that section, that they sold the tract in controversy to Walker and put him in possession of it, and thereafter recognized it as his land, there cannot be the slightest doubt as to what land they intended to convey. But it is said that the construction we have placed on this deed cannot be maintained here for the reason that the quantity o! and s given in the deed as “forty-four acres, more or less.” It is urged that the addition of the words “more or less” makes the number of acres given of no avail in the description, and that the court cannot say what quantity of land was intended to be conveyed. But we are of the opinion that the use of the words “more or less” do not alter the conclusion to be derived from the number of acres given. These, said the court of appeals of New York, are words of precaution, and intended to cover slight or unimportant inaccuracies, but they do not weaken or destroy the indications of quantity, when no other guide is furnished. Oakes v. DeLancey, 133 N. Y. 231; 1 Jones, Real Prop. § 407.
For these reasons we think the circuit judge erred in holding the deed to be void for uncertainty, and in excluding it from the jury.
But, even if we should concede the contention of counsel that the description of the land in the deed was too vague and indefinite to pass the title, it would not follow that the plaintiffs could recover the land. The heirs of the vendor could not in such a case avoid the consequences of his deed; for, while it might be denied effect as a deed, it would be good as an executory contract to convey. Warvelle, Vendors, §§ 342, 946; Gilmore v. Hamblin, 37 Ark. 626; Conrad v. Schwamb, 53 Wis. 372. The case then would be that the vendor, having put the vendee in possession of the premises under a written contract to convey, could not maintain ' ejectment without showing that the vendee, or those holding under him, were in default in the performance of the contract. But it is not claimed that there was any default on the part of the vendee here. On the contrary, we infer from statements in the briefs of counsel that the purchase money has been paid in full, though the record is silent on that point. It is true that this view of the case does not seem to have been presented by counsel, either here or in the circuit court, but under the admitted facts it constitutes, we think, another reason why plaintiffs should not recover in this action.
For the reasons given the judgment is reversed, and a new trial ordered. | [
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Butler, J.
The Blewster Service Station, a domestic corporation, was engaged in retailing gasoline and oils .in Texarkana, R. IT. Hanson being its president, T. M. Blewster its vice president, and Stella Hanson its treasurer. Desiring to establish a line of credit with the Louisiana Oil Refining Corporation, appellants in their individual capacities, executed a contract on March 21, 1928, in the form of a letter addressed to the Oil Refining Corporation requesting sale and delivery to the Blewster Service Station, on the usual terms, such merchandise as might from time to time be selected (including gasoline and oil, and agreeing that the signers would become personally responsible for the payment of the purchase price not to exceed $1,000, whether evidenced by open account or otherwise. Acting upon this contract, the Oil Corporation sold and delivered a quantity of gasoline and oil to the Blewster Service Station to the amount of $2,100.48. Some payments were made and certain discounts allowed reducing the amount of the indebtedness claimed by the Oil Corporation to the sum of $1,420.78, and, this amount remaining unpaid, the Oil Corporation instituted this action against the appellants setting out the personal obligation entered into by them, alleging the sales and deliveries, the balance due, and exhibiting with its complaint an itemized account showing the debit and credit items and the balance, which was sworn to by the proper officers of the Oil Corporation.
The appellants filed an answer which was subsequently withdrawn and another answer filed in lieu thereof, in which the execution of the agreement to pay the account of the Blewster Serviré Station up to the amount of $1,000 was admitted and also the items charged in the statement of the account, but denied that, after allowing all credits, the balance remaining unpaid was the sum of $1,420.78 and that the account showed all the credits to which the service station was entitled. They alleged that the credit items which should have been allowed and were not were two cents per gallon on gasoline and ten cents per gallon on oils allowed the purchaser as a trade discount; that, when said discounts were credited as they should be, nothing would remain due and unpaid on said account.
As a further defense to the action, appellants set up a certain contract executed on the third day of September, 1928, between the Blewster Service Station and the Oil 'Corporation which is as follows:
“LOUISIANA OIL REFINING- CORPORATION.
‘ ‘ Contract.
“State of Arkansas, County of Miller — ■
“This agreement to sell by and between Blewster Service Station Company, R. H. Hanson, president, and Louisiana Oil Refining Corporation, a Virginia corporation, authorized to and doing business in the State of Arkansas, with its principal office in the city of Shreveport, herein represented by.... whose authority is recognized and acknowledged, witnesseth:
“Blewster Service Station Company, R. H. Hanson, president, has agreed to . and does hereby agree to sell the Louisiana Oil Refining Corporation, which has agreed to and does hereby agree to the following described property, for the consideration and on the terms and conditions herein expressed:
“Description of Property. All that parcel of land on which is situated the Blewster Service Station being-more particularly described as follows:
“Examination of Title. This agreement is subject to examination of title by the attorneys for the Louisiana Oil Refining Corporation, whose opinion thereon shall be final.
“Consideration. Five thousand dollars ($5,000). All debts, rentals, bad checks, etc., owed to Louisiana Oil Refining Corporation to be deducted from purchase price and balance to be payable in three yearly payments of equal parts.
“Thus done and signed in duplicate in the presence of the undersigned and competent witnesses on this 3d day of September, 1928.
“BLEWSTER SERVICE STATION CO.,
“By R. H. Hanson, Pres.
“LOUISIANA OIL REPINING- CORPORATION,
“By W. Oden.
“Witnesses:
“H. B. Wren, Jr.
“Ford Land.”
It was alleged that the above contract superseded the contract upon which suit was brought and was a novation of the indebtedness sued on; that the Oil Corporation arbitrarily breached the contract of September 3, 1928, thereby preventing the consummation of sale. This answer was not sworn to.
The case was submitted to the jury upon conflicting testimony as to the amount of credits that should be allowed upon the account. There was a finding in favor of the Oil Corporation, and verdict was rendered in its favor in the sum of $750. Judgment was entered in accordance with the verdict, from which is this appeal.
The court instructed the jury that the burden was upon the appellants to show the payments for which •f-bev claimed credit, and, further, that, if they should fine* from a preponderance of the evidence that the service station was entitled to credits other than those shown in the statement of account, the appellants would be entitled to the benefit of the same, and, if these credits equaled or were greater than the amount of the debit items, the verdict should be rendered for the appellants, otherwise for the appellee (plaintiff) in whatever amount the just credits were less than the amount of the debit items.
It is insisted by the appellants that these instructions wrongfully imposed the burden of proof upon them to prove the items of credit, whereas it in fact devolved upon the appellee to establish both debit and credit items by a preponderance of evidence. The complaint with the verified itemized account made a prima facie case, and, since the correctness of the account was admitted, except for certain deductions by way of trade discounts claimed by the appellants, the burden was upon them to prove the right to such deductions, and the instructions complained of were proper declarations of the law. Ferguson Lbr. Co. v. Logan-Long Co., 181 Ark. 1146, 26 S. W. (2d) 569.
The court refused to grant an instruction requested by the appellants to the effect that an arbitrary refusal on the part of the Oil 'Corporation to perform its contract of September 3d without fault on the part of the service station, when it was able and willing to perform the same, would exonerate the appellants from liability, regardless of the status of the account sued on. The court did not err in this regard. The contract alleged to have been breached was not between the appellants and the appellee, -and for its breach no right of action would have accrued to them but to the service station. Nor was there any allegation or showing made that any damage would have resulted to the service station because of the alleged breach.
It is next insisted by the appellants that the contract of September 3, 1928, constituted a novation and superseded the credit contract, and that the court erred in refusing to so hold. The contract of September 3d, supra, is explicit in its terms and does not warrant the contention made. It is well settled that novation is the substitution by mutual consent of one debt for another, or a new debt for an old one, whereby the old debt is extinguished, and the intention to effect this must be positively declared. Cockrill v. Johnson, 28 Ark. 192; Brewer v. Winston, 46 Ark. 163; Elkins v. Henry Vogt Machine Co., 125 Ark. 6, 187 S. W. 663.
It is next insisted that the court erred in its rulings in holding competent certain testimony offered over objections. On the question of the trade discounts claim ed, the district manager of the Oil Corporation testified that he had no authority to make such agreement. This testimony was admitted by the court as a circumstance tending to show whether in fact the district manager had made an agreement to allow discounts as claimed by the appellants. For this purpose such testimony was competent. For the same reason, the rules of the National Petroleum Institute showing the prices of the products were admissible, as was also the original contract between the Oil Corporation and the service station regulating the terms under which the latter might sell, as it was shown that the service station continued to sell under this contract after the Hansons became interested in the business and during the time the account sued on was made.
Again complaint is made that the appellee’s attorney exhibited to Hanson a carbon copy of a letter which the Oil Corporation claimed to have written and mailed to Hanson, which Hanson denied receiving, and permitting said attorney to read an excerpt from said carbon copy, and ask Hanson if he did not remember receiving the letter containing that statement. To this question the witness answered, “No.” The court instructed the jury that the carbon copy of the letter could not be considered as evidence, and it was not error to permit the question to be propounded.
The last assignment of error argued is that the verdict was contrary to the law and the evidence, in that the testimony on the part of the appellants tended to show that there was a balance, of only $21.85 due the oil corporation after the trade discounts claimed had been deducted, and that the testimony on the part of the appellee tended to show that not less than $1,000 was due. Appellants therefore argued that the verdict was unsupported in any view of the testimony. Accepting the evidence of the appellee as true, as the jury must have done, it is clear that it was entitled to a judgment in the sum of $1,000, but the appellants are in no position to complain, as the verdict was more favorable to them than was justified by the testimony. Washa v. Harris, 162 Ark. 186, 266 S. W. 944; Fulbright v. Phipps, 176 Ark. 356, 3 S. W. (2d) 49.
The judgment is affirmed. | [
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Hart, J.
Appellant prosecutes this appeal to reverse a judgment of conviction for selling intoxicating liquors.
(1) One of the grounds of his motion for a new trial is that the court erred in overruling his motion for a continuance. The motion does not appear in the record, and the presumption is that the action of the court was correct. Kinslow v. State, 85 Ark. 514.
The only remaining ground in appellant’s motion for a new trial is that the evidence is not sufficient to support the verdict.
(2) A witness testified that he twice bought a pint of whiskey from appellant on the Saturday night before the third Sunday in June, 1916, at his residence in Nevada County, Arkansas, and each time paid him seventy-five cents therefor. Another witness testified that he was with the defendant when he bought one of the pints of whiskey. The constable of the township and another person testified that they were in hiding near by and saw the witness purchase the whiskey from appellant, as testified to by him. The appellant testified in his own behalf, and denied that he sold the witness any whiskey, and stated that the witness came to his house to get some matches, and to ask him to go to a dance with him.
The testimony of the witnesses for the State was sufficient to warrant the verdict, and the judgment will be affirmed. | [
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