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Hart, J.
Appellant operates a baggage and transfer business in the city of Fort Smith, under the trade name of the Pony Express Company, and was employed by Mrs. Elrod in this capacity on the afternoon of December 24, 1915, to haul her trunk from her residence to the Midland Valley Railroad Company’s depot, to be there delivered into the custody of that carrier. The driver of the wagon who took the trunk to the depot was a man named Hughey and, upon receipt of the trunk from Mrs. Elrod, he gave her a claim check, in accordance with the custom of the transfer company, which was intended to enable her to identify and claim her baggage. Mrs. Elrod had intended to leave on Christmas morning to pay a visit to her husband, who was working in Oklahoma, but he came home on that day, and the trip was abandoned. On the morning of the 26th she sent her husband, with the claim check, to the Pony Express Company’s office for the trunk, but it could not then be found. Thereupon she sued that company, and, upon her motion and against the objection of the appellant, the railroad company was made a party defendant.
At the trial, the railroad company was permitted, over the objection of appellant, to prove that the trunk was never delivered into its custody, but that Hughey, the driver of the wagon, had stated that, when he reached the depot, he found both the baggage room and the ticket office closed, and that, upon the suggestion of a bystander, who had no connection with the railroad company, he placed the trunk on a truck standing on the platform. The testimony does not show what became of the trunk. Hughey was not present, and did not testify.
It is insisted that error was committed in the admission of the statements of Hughey in regard to' his disposal of the trunk. That such statements were not part of the res gestae, and that, at the time said statements were alleged to have been made, Hughey then had no duty to discharge in regard to the care or delivery of the trunk to its owner, and that he, therefore, had no authority to speak for the company, nor to make admissions binding it. We think appellant is correct in this contention. The rule in such cases is stated in the ease of River R. & H. Con. Co. v. Goodwin, 105 Ark. 247, in which case we quoted from section 357 of Jones on Evidence, the following statement of thelaw:
“The declaration of an employee or officer as to who was responsible for an accident, or as to the manner in which it happened, when made at the time of the accident or soon after, have been held incompetent, as against the company, on the ground that his employment did not carry with it authority to make declarations or admissions at a subsequent time as to the manner in which he had performed his duty; and that his declaration did not accompany the act from which the injuries arose and was not explanatory of anything in which he was then engaged, but that it was a mere narrative of a past occurrence.” See also Pfeifer Stone Co. v. Shirley, 125 Ark. 186.
In opposition to this view, we are cited to sec. 648 of Fetter on Carriers, where it is said: “We have seen that the general rule is that declarations or admissions made by an agent or employee are admissible against his principal only when they relate to a transaction in which the agent or employee had real or apparent authority to act for the principal, and only when they are made during that very transaction, and thus constitute a part of the res gestae. On this principle, it has been held that the acts and declarations of an agent in charge of a baggage room, with respect to a passenger’s baggage, on application by the passenger for' its delivery to him, are competent evidence for the passenger in an action against the company for its loss. So, where a passenger on a sleeping car places a valise in charge of the company’s servants while she •is asleep, their declarations, explanations, and suggestions, as to what had become to it, made the next morning, when the passenger inquired for it, are admissible against the company.”
A substantially similar statement of the law is found at page 539 of Thompson on Carriers.
The cases cited, as well as others, support the text, but it will be observed, in the language quoted, that the learned author states that the declarations of the agent, or employee, are admissible against his principal only when they relate to a transaction in which the agent, or employee, had real, o'r apparent, authority to act for the principal, and only when they are made during that very transaction. In the cases cited, it will be observed that each agent, or employee, whose declarations were received, had some duty to perform in regard to the delivery of the article to the person' entitled to its possession, and that the evidence admitted related to the discharge of this duty. Hughey was not in possession of the trunk at the time of making the statements objected to, nor did he then have any duty to perform in regard thereto, and his admissions of negligence under the circumstances are not distinguishable, in principle, from those of any other servant whose conduct forms the subject-matter of the inquiry after the termination of his conduct which is alleged to constitute the actionable negligence.
Other assignments of error are argued in the brief, but we do not find them of sufficient importance to require discussion.
For the error indicated, the judgment will’be reversed and the cause remanded. | [
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Humpheeys, J.
This is a petition filed in this court for a writ of prohibition against respondents to prevent them from proceeding in the trial of a suit in the circuit court of Grant County wherein respondent, T. H. Allen, is plaintiff, and petitioner is defendant, on the allegation that the warning order and summons issued in said cause were invalid and for that reason the writ of attachment issued on the complaint had nothing to support it.
The record tendered and undisputed is, in substance, as follows:
Respondent, T. H. Allen, brought suit against petitioner, J. H. Hamlen & Son, for $3,000 based upon contract in the circuit court of Grant County on July 15, 1932, by filing his complaint and an affidavit for attachment, alleging that petitioner was a,foreign corporation and a nonresident and also an affidavit for a warning order containing the same allegation, but failed to allege that it had designated an agent in the State upon whom process could be served. At the same time, respondent caused the summons to be issued and delivered to his attorney. A writ of attachment was issued and levied upon the real estate belonging to said petitioner in said county. A warning order was issued and published as required by law. On August 15, 1932, the first day said court was in session after the complaint was filed, petitioner appeared specially and filed and presented its motion to quash the warning order on the ground that it did not contain an allegation that petitioner had not designated an agent in this State for service of process upon it. During the argument of the motion, petitioner was advised that a summons had been issued upon the complaint, and was in the hands of the attorney for respondent, T. H. Allen. The summons had not then been served upon the agent appointed to receive service. At the conclusion of the argument, the presiding judge, T. E. Toler, who is the regular judge and who is the other respondent herein, passed the matter until October 16, 1932, for disposition. On August 16, 1932, the summons was served by the sheriff of Pulaski County within the confines of said county upon the duly appointed agent to receive service. Petitioner appeared specially and filed its motion to quash the summons because it was served after the return day thereof. The motion was presented to the court on October 10, 1932, whereupon the court made an order quashing the warning order, to which respondent T. H. Allen excepted, but overruled the motion to quash the service of the summons, to which petitioner saved its exception and requested a stay of thirty days in the proceeding in order that it might apply to this court for a writ of prohibition, which it has done.
The trial court correctly ruled that the. attempted constructive service was void because the affidavit failed to state that petitioner had no agent in this- State upon whom process might be served, when, as a matter of fact, it had appointed an agent in this State for that purpose. Section 1159 of Crawford & Moses’ Digest makes such a requirement when an agent has been appointed as provided in § 1151 of Crawford & Moses’ Digest. After the appointment of an agent in accordance with said § 1151, a foreign corporation can be proceeded against only by personal service upon the agent and not by constructive service upon it.
The trial court, however, was in error in ruling that the attempted personal service was valid, as the summons was not served before the return day thereof. It is true, as suggested by respondent, that according to the language of the summons, same was not returnable for 20 days after service, but § 1140 of Crawford & Moses’ Digest requires that the summons shall be returnable to the first day that the court shall he in session after twenty days after the date of the issuance thereof. The law, and not the language of the summons, must control. The first day the court was in session after the summons was issued was August 15, 1932, and the summons was not delivered to the officer and served until August 16, 1932, or one day after the summons was functus officio. The return of the officer shows that it was served August 15, 1932, hut this was necessarily a clerical error, as the officer filed an affidavit that it was not received until August 16, 1932. Under § 4199 of Crawford & Moses’ Digest, proof of the service of a summons may he made by affidavit.
Respondents also argue that, hy requesting and obtaining time in which to apply to this court for a writ of prohibition, petitioner thereby entered a general appearance in the suit the same as if it had been properly served in the beginning. We think not. It could not appeal without entering its general appearance; hence a request for it to apply to this court for a writ of prohibition was its only remedy by which to test the jurisdiction of the trial court over its person. It was forced to request the time, else the suit would have proceeded, and, being forced to do this, it cannot be said that by doing so it entered its general appearance in the cause.
On account of the error indicated, a writ of prohibition is granted. | [
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McCulloch, C. J.
This is an action instituted in the chancery court of Washington County by appellant Ark ansas National Bank, to annul a decree rendered by said court in favor of appellee Mcllroy Banking Company against W. L. Stuckey. The facts concerning the litigation in which said decree was rendered are set forth in the opinion of this court on a former appeal in the case of Arkansas National Bank v. Stuckey, 121 Ark. 302, and on the second appeal of said cause decided this day, infra, page 76. Mcllroy Banking Company held, as a pledge from Stuckey, certain shares of stock in the Ozark White Lime Company (a. domestic corporation) of the par value of $17,400, and was made a party defendant in the suit of Arkansas National Bank against Stuckey, and the prayer of the complaint was that. Mcllroy Banking Company be required to sell said pledged stock, and the surplus proceeds of the sale, if any, be applied on the claim of Arkansas National Bank against Stuckey. Mcllroy Banking Company filed an answer in that case, admitting that it held the shares of stock in said corporation as a pledge, and set forth the amount of the debt of Stuckey to secure which the pledge was made. The answer concluded with the following statement and prayer: “And it tenders said collateral to said bank if it will pay said sum and interest, and then prays for all equitable relief.”
The decree in the case of Arkansas National Bank against Stuckey was rendered on March 12, 1915, and there was a decree in favor of Arkansas National Bank v. Stuckey for recovery of a certain amount, but the attachment in the case was dissolved and an appeal was prosecuted to the Supreme Court. The chancery court entered no decree or order with respect to requiring Mcllroy Banking Company to sell the pledged stock, but there was a. recital in the decree showing that that question was left undetermined and was reserved for further adjudication. The decree now sought to be annulled was rendered on May 22, 3915, in favor of Mcllroy Banking Company against W. L. Stuckey, and the contention of appellant is that on account of the appeal to the Supreme Court, the chancery court was without jurisdiction to proceed any further in the cause. It is also contended that the state of tlie pleadings at that time did not warrant the court in granting affirmative relief to McIlroy Banking Company against Stuckey. The well-settled rule is, of course, that where a trial court renders a final judgment and an appeal is prosecuted to the appellate court, the trial court is without jurisdiction to render a further judgment concerning the subject-matter of the litigation. The fact is, however, in the present case, that the court had not adjudicated any matter which concerned the rights of the Mc-Ilroy Banldng Company, but expressly reserved the decision of that' issue in the case. The appeal from the decree settling the issue between the Arkansas National Bank and W. L. Stuckey did not have the effect of suspending the jurisdiction of the court over the issue between appellant and McIlroy Banking Company. The court having reserved those issues from the adjudication, it could take them up for decision at any time.
There is a sharp conflict in the testimony as to the circumstances under which the decree in favor of McIlroy Banking Company against Stuckey was rendered. That decree was for the recovery by McIlroy Banking Company from W. L. Stuckey of the sum of $7,375.64, and the clerk of the court, as commissioner, was directed to sell said pledged stock at public auction, upon notice, for the purpose of paying off said indebtedness to McIlroy Banking Company, and the court directed said commissioner to pay McIlroy Banking Company out of the proceeds of said sale, and that the surplus, if any, be held subject to the further order of the court. The clerk, as commissioner, carried out the order of the court by selling the pledged shares of stock, and McIlroy Banking Company became the purchaser of said shares at the price of $5,000, and credited the same on its decree, leaving a balance of $2,375.64 unpaid on the decree. The McIlroy Banking Company then caused an execution to be issued and levied on certain real estate and on shares of stock owned by Stuckey in another corporation. The decree recited that it was rendered upon the cross-complaint of McIlroy Banking Company against Stuckey, but the con tention of appellant is that there was no cross-complaint filed and no pleading at all filed by Mcllroy Banking Company except the answer hereinbefore mentioned. The evidence also shows that the attorney for the appellant was present at the time of the rendition of decree of Mcllroy Banking Company against Stuckey, and that no objection was made. There is, as stated before, a sharp conflict in the testimony, but we are of the opinion that the finding of the special chancellor who heard this cause that there was a cross-complaint filed by Mcllroy Banking Company, and that the attorney for appellant Arkansas National Bank was present at the rendition of the decree, was not against the preponderance of the evidence. It is by no means clear that it was essential to the jurisdiction of the court that an additional cross-complaint should have been filed. The answer of Mcllroy Banking Company contained a prayer for relief in response to the complaint'of appellant Arkansas National Bank demanding that it bring into court its shares of stock that the same might be sold. The record shows that before the decree was rendered in favor of Mcllroy Banking Company, Stuckey entered his appearance to the cross-complaint, and even if it be found that no additional pleading was filed by the Mcllroy Banking Company, it would seem that a decree in its favor against Stuckey was justified.
The decree compelling a sale of the shares of stock for the purpose of satisfying the debt of Mcllroy Banking Company for which the pledge was given was precisely what the Arkansas National Bank, as plaintiff in that suit, had demanded in its complaint and its rights were not prejudicially affected by that decree. It is true that appellant’s complaint against Mcllroy Banking Company and Stuckey asked that a lien be decreed in its favor on the surplus proceeds after the payment of the debt of Mcllroy Banking Company, but the terms of the decree rendered in favor of the Mcllroy Banking Company did not conflict with the rights asserted by appellant, for the commissioner was directed to hold the surplus, if any, subject to the further order of the court. However, we think that the court was justified in finding from the evidence that the additional cross-complaint was filed by McIlroy Banking Company, and that Stuckey, through his attorney, entered appearance. The court having jurisdiction to rendei the decree, the only further question in the case is whether or not any advantage was taken of the appellant in the rendition of the decree at that time. Certainly there could have been no advantage taken if the attorney for appellant was present and decree rendered without objection on his part, and that is what the special chancellor found from the testimony, which we think does not preponderate against that conclusion.
The effect of that decree was to settle an issue which had been expressly reserved by the court for further consideration and as the decree did not prejudicially affect the rights of appellant, it is difficult to see how it can now complain in a separate action seeking to annul the decree. It is not contended that there was any unfairness about the sale of the stock made by the commissioner, and the sale was duly confirmed upon the report of the commissioner, and that matter is eliminated from the consideration of the case.
The question of priority of liens of the respective decrees in favor of the Arkansas National Bank and Mcllroy Banking Company was discussed in detail and decided in favor of the former in the opinion of this court delivered today in the other case, and that question can not be disposed of in the present case, which is merely an attack on the validity of the decree itself. "We find no error in the proceedi ”.gs, and the judgment is affirmed.
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McHaney, J.
This is a snit for back taxes brought by the State on the relation of the Attorney General against appellee. The complaint alleged that tax was due the State, county and school districts by appellee by reason of the gross underassessments for the years 1925 to 1929, inclusive, of approximately 24,000 acres of timber-lands belonging to appellee in Desha County. It is alleged that said lands possessed a value of $50 an acre or more during said period,- and that same should have been assessed at the average per cent, of value at which other real estate in said county was assessed for the same period, which is alleged to have been 30 per cent. It is further charged that the average assessment of appel-lee’s lands during said period was $4.17 per acre, which is only eight and one-third per cent, of the alleged value of $50 per acre, and is far below the basis on which other real estate in Desha County was assessed. It is further alleged that this assessment, same being between one-third and one-fourth as much as the average assessment of 30 per cent, applied to other property in the county, constitutes a fraud on the State, the county and the school districts in which the land is located.
To this complaint a demurrer was interposed on several grounds, the principal and only one necessary to be considered here being that the complaint does not state facts sufficient to constitute a cause of action within the provisions of act 281 of 1931. The court sustained the demurrer. Appellant declined to plead further. The complaint was thereupon dismissed for want of equity, and this appeal followed.
We think the trial court was correct in so holding. The provisions of act 281 of the Acts of 1931, page 951, are too plain to admit of construction. It is entitled “An act to Regulate the Collection of Overdue Taxes and for Other Purposes.” The first section of the act, and the only one of any importance in connection with this lawsuit, provides: ‘(That, after the assessment and full payment of any general property, privilege or excise tax, no proceedings shall hereafter be brought .or maintained for the reassessment of the value on which such tax is based, except for actual fraud of the taxpayer, provided that failure to assess taxes as required by law shall be prima facie evidence of fraud.” The act was approved April 1, 1931. It did not have any emergency clause, but the effective date of the act becomes unimportant, in view of the express language of the act as to cases which had not been finally determined prior to the effective date. By its own terms it provides that “no proceedings shall hereafter be brought or maintained,” etc. We think there can be no doubt that the word “maintained” as here used refers to the further prosecution of suits pending on the "effective date of the act, except they be based on actual fraud of the taxpayer as provided in the act. In other words, all suits pending at the effective date of the act are abated unless amended to charge actual fraud according to the terms of the act. Otherwise the word “maintained” would have no meaning. We think the Legislature intended and very definitely expressed its intention to accomplish two things: (1) to prevent the bringing of any new proceedings, and (2) to prevent the further prosecution of any proceedings which may have been pending at the effective date of the act, except under the terms of the act. The Legislature will be presumed to have used the words “brought or maintained” with some purpose in view, and the courts will ascribe such meaning to the language used as the words ordinarily convey. Appellant says that the word “hereafter” indicates that the Legislature did not intend to give any retroactive effect to the act, and that statutes are to be construed as having a prospective operation only unless the intention of the Legislature to make them operate retrospectively is especially declared or necessarily implied. Such is the correct rule many times announced by this court. But this is a statute relating to procedure, and it is admitted that statutes involving matters of procedure are applicable to pending litigation. Foster v. Graves, 168 Ark. 1033, 275 S. W. 653. Using the words “brought or maintained” in their ordinary signification, we have no doubt that the Legislature meant to prevent the bringing of back-tax suits, or maintaining such as were already brought, except under the terms of the act.
This brings us to a consideration of the question as to whether the complaint charged actual fraud of the taxpayer, and whether the proviso in § 1 of the act “that failure to assess taxes as required by law shall he prima facie evidence of fraud” is sufficient to put appellee on its proof and therefore to answer the complaint. We answer both, questions in the negative, as did the learned trial court. The complaint charged no actual fraud of the taxpayer. It did charge that its land was greatly underassessed. It did not charge that appellee assessed its own land, nor could it well have done so, as the law places no duty upon the taxpayer in connection with the assessment of real estate except to list his property with the proper assessing officials. The complaint does not charge that this duty was neglected. A careful review of the revenue laws of this State fails to reveal any duty imposed upon the taxpayer in connection with the assessment of his real property for taxation except as stated above. The whole duty in this regard rests upon officials of the tax collecting agency, officials of the county and State. The Constitution, art. 16, § 5, provides: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct.” The General Assembly has provided the manner in which the value of property is to be ascertained. Section 9874 et seq., Crawford & Moses’ Digest. See also act 129, Acts of 1927 and 172, Acts 1929. Section 5 of the latter act provides that for the year 1929, one of the years involved in this litigation, “the county clerk shall extend taxes against such property based on the assessed valuation thereof for the year 1928, plus the value of any new improvements located thereon and valued or assessed by the assessor as by law required, provided, however, that the provisions of this section shall not be construed to prohibit or restrict the county equalization board of any county in equalizing the assessed value of such property for the year 1929.” Not only does this constitute a legislative assessment of appellee’s lands for the year 1929, but it is a legislative finding of the correctness of the assessment for 1928 because the assessment for 1929 is made the same as that of 1928. The complaint in this case simply fails to allege any “actual fraud of the taxpayer.” The mere acquiescence of the taxpayer in an underassessment made by the assessing officials, no matter how grossly undervalued, would not constitute actual fraud of the taxpayer. To constitute fraud on his part would require something more than mere acquiescence. It would require some active participation in the fraud of the assessor, as, for instance, a conspiracy between them to undervalue the property. But it is said by appellant that a gross underassessment comes within the proviso and constitutes prima facie evidence of fraud, sufficient to put appellee on its proof and therefore to require an answer. We do not think so. There was no failure upon appellee’s part or that of the assessing officials of Desha County to assess appellee’s lands for taxes at the time and in the manner provided by law, even conceding an underassessment. The language of the act is that the fraud for which a reassessment will be permitted is the actual fraud of the taxpayer. If the law imposed the duty upon the taxpayer to assess his real estate, and he fraudulently or grossly underassessed it, the proviso in the act might have some application. In the case of real estate the law imposes no duty upon the taxpayer as to any valuation to be placed upon it, the only duty being to list his property with the assessing officials, and, if such officials make a gross under-assessment without any fraudulent procurement on the part of the taxpayer, it could not be said to be the act of the taxpayer in any respect.
It is suggested by counsel for appellant that act 281 is unconstitutional and therefore void. We do not agree with appellant in this regard, nor shall we undertake an extended discussion of the grounds upon which the unconstitutionality of the act is suggested. It is admitted by counsel for the appellant that the whole proceedings for the reassessment of property and for the recovery of back taxes are purely statutory, and without such authority no such action would be available. It is also conceded that the Legislature has the power to amend or repeal such statute. We have many times so held. State v. Standard Oil Co. of La., 179 Ark. 280, 16 S. W. (2d) 581, and cases there cited. We there said: “The power of the State to maintain snits such as the one at bar being purely statutory, the method and procedure prescribed by the statute must he followed as a condition precedent to its right to maintain such action. * * * ” The original back-tax statute of the State has many times been held to be constitutional, both by this court and by the Supreme Court of the United States. This being an act in the nature of an amendment must of course be held to be within the power of the Legislature to enact.
Other questions are discussed in the excellent briefs of counsel for both sides, but we find it unnecessary to discuss them. We have reached the conclusion that the trial court was correct in sustaining the demurrer to the complaint, and its judgment must be affirmed. It is so ordered. | [
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McCulloch, C. J.
The plaintiff, Willard Evans, sues the defendant, W. H. Taylor, who is his employer, to recover damages on account of personal injuries received while in the latter’s service. The defendant was operating a coal mine, and plaintiff was working for him at the mine. Plaintiff was about nineteen years of age at the time, and as cars of coal were brought out of the slope of the mine, by means of a locomotive engine, to the tipple, where the coal was broken up, it was his duty to take charge of the cars, and, together with the man working with him, to push them into the'cage or elevator, to be carried up to the coal breaker. His work was called “caging,” and he was called a “eager.” A short distance from the tipple there was a switch, where cars of rock brought up in the coal train were cut out of the train and run back upon a sidetrack to be unloaded. Plaintiff alleges, and his evidence tends to show, that it was also his duty to uncouple the rock cars at the switch. This was done, according to his testimony, in the following manner: When there were cars of rock in the train, the engineer would sound four blasts of the whistle, to notify the eager, and slow up for the latter to board the car. The rock cars would be at the end of the train, and, as soon as they passed the switch going up grade, plaintiff would board the front rock car and stand on the bumper, put his foot on the chain which served as a coupler, and press it down, and, as slack was given by the engineer, he would draw the coupling pin, thus disconnecting the car, the speed of the train being then increased on his signal and the train continuing forward and the rock car running back down grade on the side track. Plaintiff worked under the direction of the “top boss,” who had instructed him to do the work in that manner, and on the day of the injury the boss had sent him to do that work. In his original complaint, he alleged that, on the occasion of his injury, he was engaged in that work, and that the engineer gave the signal, and he took the usual position to board the car for the purpose of uncoupling it, and that while he was attempting to board it the engineer failed to slow up at the usual place, and that by reason thereof he was thrown from the car and injured. Subsequently he amended his complaint so as to allege that, after he had boarded the car and had taken his accustomed place for the purpose of uncoupling it, and before he signalled the engineer, the latter, without looking back for the signal, suddenly increased the speed, thus causing him to be thrown from the car.
Negligence of defendant is charged in the following particulars: “That it was negligence on the part of the defendant’s engineer to fail to look back from his place and see whether or not said rock cars were uncoupled just before increasing the speed of his engine as heretofore stated; that it was negligence in said engineer to so suddenly increase the speed of said engine without knowing whether or not said cars had been uncoupled; that said engineer negligently failed to slow up the speed of said engine to enable plaintiff to uncouple said cars; that the superintendant of said mines negligently employed and placed in charge of said engine the man who was in charge at the time of plaintiff’s injuries, and negligently failed to give him proper instructions concerning the uncoupling of cars of rock; that he negligently failed to instruct said engineer to slow up the speed of said engine for the purpose of uncoupling rock cars; that he negligently directed said engineer not to stop or slow up for the purpose of uncoupling rock cars, and negligently failed to inform plaintiff of this fact.”
Defendant denied, in his answer, that it was a part of plaintiff’s duty to uncouple rock cars, or that he was instructed to do that work, and denied that plaintiff was engaged in that work when he was injured. He denied each charge of negligence, and alleged that plaintiff was injured by reason of his own negligence in getting on the cars, where he had no right to be, and in failing to exercise proper care for his own safety.
The court, by specific instructions, took away from the jury the question of negligence of the engineer and negligence of the superintendent in employing an incompetent engineer.
Plaintiff’s testimony tends to show that he was directed to uncouple the rock cars in the manner before stated; that he had boarded the car, for the purpose of uncoupling it, when the engineer, without looking back or waiting for the signal, and without giving slack, so that the coupling pin could be drawn, suddenly increased the speed, thus causing plaintiff to be thrown from the car and severely injured.
The testimony adduced by defendant contradicted plaintiff’s contention, and tended to show that it was not his duty to uncouple the rock cars, but that when injured he was attempting to board the cars for the purpose of riding to the tipple.
The jury returned a verdict in plaintiff’s favor, assessing damages in the sum of $1,990, and judgment was rendered accordingly, from which defendant appealed.
It is, in the first place, insisted that the evidence is not sufficient to sustain a finding that defendant was guilty of negligence in any respect. If, as plaintiff stated, he was instructed to uncouple the cars in the manner indicated, and it was the custom to do it in that way, defendant owed him the duty to give proper instructions'to the engineer to observe the signals and take proper precautions to protect him while performing the work. The engineer, who had been at work on the engine only two or three days, testified that he had had no instructions to slow up in order to let any one cut off rock cars. This was sufficient to justify a finding that defendant was guilty of negligence in directing plaintiff to do the work in that way without instructing the engineer, so the plaintiff would be protected. If, as claimed, plaintiff’s injury was caused by the omission to give such instructions, then defendant is liable. The testimony is sufficient to warrant a finding of those facts, and it is therefore sufficient to sustain the verdict.
It did not constitute negligence for plaintiff to board the cars in the usual course of his work, when it was necessary for him to do that in order to perform the work assigned to him.
Error is assigned in the court’s refusal to permit defendant to read in evidence the original complaint, for the purpose of contradicting the plaintiff, and also in refusing to permit the cross examination of the plaintiff concerning the allegations of the original complaint. The record in the case discloses that, on cross examination, plaintiff was asked whether or not he had in his original complaint alleged, as grounds of recovery, that the negligence consisted of the engineer’s failure to slow the train down and in running it too fast. Plaintiff replied that he did not know anything about what the complaint contained. It was competent, for the purpose of proving an admission on the part of the plaintiff, and also fo'r the purpose of impeaching him, to read the complaint in evidence, or to prove by him, on cross examination, that he had made allegations in the original complaint inconsistent with his present contention. Gibson v. Herriott, 55 Ark. 85; Valley Planting Co. v. Wise, 93 Ark. 1; 1 Ency. of Ev. 438.
The evidence being competent only for the purpose of shoeing an admission, or as establishing a contradictory statement of the plaintiff, it is not admissible, where it does not appear that the plaintiff knew of the allegations of the original complaint, or at least where it affirmatively appears that he was not aware of the contents of the complaint. It would be without probative force, either as an admission or as a contradictory statement, unless it was shown that the plaintiff was aware of the contents of the paper. Counsel for defendants were permitted to ask the plaintiff about the contents of the complaint, and the reply was that he knew nothing about the contents of it. No effort was made to prove that plaintiff had authorized his counsel to incorporate the allegation in the complaint or that he knew that the facts were thus alleged in the complaint. Therefore, it was not proper to read to the jury as an admission a paper the contents of which the evidence showed the plaintiff was not aware of.
The following instruction, given at the instance of the plaintiff, was objected to, and is now assigned as error:
“In obeying the commands of the master, the servant does not assume any risks occasioned by the negligence or carelessness of the master, unless he has knowledge of such negligence or carelessness, and the danger incident thereto.”
. It is contended that this instruction was inapplicable, because the danger of being thrown from the moving train was one of the incidents of the service which plaintiff assumed. We can not, however, lend our approval to this contention, for, if the plaintiff was put to work in obedience to the command of the master, he did not assume the risk of danger from negligence of the latter in failing to exercise ordinary care to protect him. He did assume the ordinary danger of being thrown from the cars as one of the risks incident to the service, but not those caused by a lack of precaution resulting from the negligent omission of the master. We think the instruction quoted above was a correct one, and was applicable to this case.
The following instruction was also objected to:
“ The jury are instructed that it is the duty of the master to furnish a servant a reasonably safe place in which to work and reasonably safe appliances and machinery with which to work, and that it is further the duty of the master to handle its appliances and machinery so as to avoid the injury of a servant; and if you find from the testimony in this case that the defendant failed in either of these particulars, and that by reason of such failure the plaintiff was injured without fault or care lessness on Ms part, then it will be your duty to return a verdict for the plaintiff.”
This instruction is, as contended, open to the objection that the part of it which referred to the master’s duty to furnish reasonably safe appliances and machinery was abstract. There was no allegation of negligence in that respect, and no proof whatever that plaintiff was injured by reason of any defect in the appliances or machinery. We can not conceive that the jury could have been misled by including this in the instruction. It is error to give abstract instructions; and where it appears that the jury might have been misled thereby, it constitutes prejudicial error which calls for reversal. 'This is so in a case where the employee is injured in some way by reason of a defect in the machinery or appliances; and unless there is some evidence of negligence on the part of the master in failing to exercise care in that respect, it would constitute error to give an abstract instruction submitting the question to the jury. But in the present case, where the plaintiff did not claim that his injury resulted by reason of any defect in the cars, but that he was thrown from the train solely on account of the sudden increase of speed, we can readily see that no prejudice could possibly have resulted from giving this instruction. Therefore, it is our duty to disregard the error, and treat it as nonprejudicial.
The court gave the following instruction over defendant’s objection, and the same is assigned as error:
“You are instructed that if you find from the testimony that the plaintiff was directed by the defendant, or his agent, to cut the string of cars and to uncouple the cars loaded with rock, and that it had been the custom so to do, and that the plaintiff, following said instructions in the usual way, attempted to perform his duty in the usual way, but that the defendant failed to check its engine, or caused the same .to jerk the cars as the plaintiff was attempting to perform his duty as directed, then the plaintiff was not guilty of contributory negligence in attempting to perform his said duty.”
Learned counsel rely, in their assault upon the correctness of this instruction, upon the principle often announced to the effect that negligence of the master does not relieve the servant from using due care. We do not, however, think that the in struction just quoted conflicts with the principle, for if, as stated therein, the servant was performing his work in the usual way and following instructions in the usual way, and the master failed to take proper steps to protect him in his work, then he was not guilty of contributory negligence. This instruction does not say that the duty did not rest upon him to exercise due care, and it is, therefore, not open to the objection which learned counsel make to it.
Defendant interposed a general objection to the following instruction:
“You are instructed that if the plaintiff was employed by the defendant, and it was a part of his duty to board and uncouple the cars of rock from the cars of coal, which cars were being pulled by an engine on a track, then it was the duty of the defendant to so handle and manage its engine and cars, as to avoid injuring the plaintiff; and if you find that the defendant failed in the manner alleged in complaint in this, without fault or carelessness on the part of plaintiff, then it will be your duty to return a verdict for the plaintiff.”
This instruction was incorrect, but it should have been met by a specific objection. A general one was not sufficient to point out its inaccuracy. St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255; Mt. Nebo Anthracite Coal Co. v. Williamson, 73 Ark. 530; St. Louis, I. M. & S. Ry. Co. v. Bowen, 73 Ark. 594; St. Louis, I. M. & S. Ry. Co. v. Dallas, 93 Ark. 209; St. Louis, I. M. & S. Ry. Co. v. Carter, 93 Ark. 589; St. Louis, I. M. & S. Ry. Co. v. Hartung, 95 Ark. 220.
The court'gave, over defendant’s objection, another instruction on the measure of damages, stating, among other elements of damage, the one for pain and suffering “which he has endured, if any, and which he is liable to endure, if any, as the result of his injury.” The objection was a general one, which was insufficient to properly call the court’s attention to the inaccuracy of the instruction. The court evidently meant to say, with reference to the future pain and suffering, that damages should be assessed according to what the evidence established in that respect. Doubtless, the language would have been corrected by the court if a specific request had been made. See cases cited supra.
There are other assignments of error with respect to rul ings of the court and in the giving and refusing of instructions,' but we find no error and nothing further of sufficient importance to call for discussion. Judgment affirmed. -
Kirby, J., dissents. | [
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Humphreys, J.
Appellee herein, a levee district in White County, brought a suit on the 21st day of April, 1931, in the chancery court of White County to enforce the collection of delinquent annual benefit tax assessments in the total sum of $1,866.45 for the years of 1923 to 1930, inclusive, against the following described lands owned by T. J. Pryor in said-district, to-wit:
West one-half, southeast one-fourth, sec. 5, Twp. 6, range 5. Southwest one-fourth, sec. 5, Twp. 6, range 5. South one-half, northwest one-fourth, sec. 5, Twp. 6, range 5. Southwest one-fourth, northeast one-fourth, sec. 5, Twp. 6, range 5.
Appellant, to whom T. J. Pryor mortgaged the land, intervened in the suit and specifically pleaded the statute of limitations in defense of the collection of the delinquent taxes.
The trial court ruled that the delinquent assessments were not barred by the statute of limitations and dismissed appellant’s intervention for the want of equity, from which is this appeal.
Section 6831 of Crawford & Moses’ Digest controls, and by it a lien is created upon the lands within the district for the assessment of benefits until paid.
The decree is therefore affirmed. | [
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Smith, J.
In the judgment from which this appeal comes appellee, Jones, was declared to have been legally nominated, at the Democratic primary election held in Franklin County on August 9,1932, for the office of county treasurer, and appellee, Watson, was declared to he the nominee of the Democratic party at the same election for the office of county judge. Contests' for the nominations for these offices were consolidated and tried together.
The decision of the contests turned upon the validity of certain assessments and payments of poll taxes. The court declared his view of the law upon the subject, and appointed canvassers to tabulate and certify the vote in accordance with this view. The effect of this ruling was to throw out enough votes to leave contestants with a majority of the votes which the court found had been Legally cast.
The legality of the votes which were thrown out as liaving been illegally cast depends upon the construction to be given our election and revenue laws relating to the assessment and payment of poll taxes, and we proceed to discuss such parts of these statutes as are here involved.
The General Assembly, at its 1909 session, passed act 320, entitled, “An act to enforce the provisions of Amendment No. 9 of the Constitution of Arkansas.” Acts 1909, page 942. The amendment, referred to as Amendment No. 9, was the amendment requiring the payment of a poll tax to qualify one to vote. This act of 1909 has been amended in particulars not important here to consider. But § 1 of this act of 1909 appears as § 3738, Crawford & Moses’ Digest, and it was decided in the case of Tucker v. Meroney, 182 Ark. 681, 32 S. W. (2d) 631, that the section is unrepealed and is existing law. Of that section, more presently.
This Amendment No. 9 was superseded by an amendment known as the Equal Suffrage Amendment, adopted at the 1920 General Election, which appears at page xxviii of 184 Ark. as Amendment No. 8. The declared purpose of this last amendment was “to confer suffrage equally upon both men and women, without regard to sex.”
In the case of Taaffe v. Sanderson, 173 Ark. 970, 294 S. W. 74, it became necessary to decide whether a female must pay poll tax to be eligible to vote, and it was there held that she was subject to the Poll Tax Amendment. This conclusion was held to fall within the principle that, when a privilege is extended to one class of citizens, upon certain conditions, and subsequently thereto a like privilege is conferred upon another class, the conditions attached to the exercise of such privilege by the former class necessarily attach, in like manner, to the subsequent class. The laws of this State in relation to the assessment and payment of poll taxes may therefore he said to apply alike to men and women.
It is not only settled that the law applies alike to both men and women in regard to the assessment and payment of poll taxes as a qualification to vote, bnt it has also been several times decided that neither a man nor a woman can become an elector without being assessed as required by law (unless they have come of age since the assessment was due), although he or she possesses a poll tax issued by the collector of taxes.
The case of Cain v.CarlLee, 168 Ark 64, 269 S. W. 57, (which was decided February 23', 1925) involved the eligibility of certain persons who possessed poll tax receipts and who had voted thereon, but whose poll taxes had not been assessed in the manner required by law. We there held that the assessment of the voter in the manner required by law was essential to qualify the voter, and that the payment of a poll tax alone did not suffice. We there said, after reciting the provisions of § 3738, Crawford & Moses’ Digest, that there were two reasons why this was true, the first being to protect the public revenue, and the second to prevent frauds in elections. See also Craig v. Sims, 160 Ark. 269, 255 S. W. 1.
In the case of Taaffe v. Sanderson, supra, where it was first held that women were subject to the Poll Tax Amendment, the facts were that certain women were assessed only by having the word “Mrs.” written after the names of their husbands on the tax books. We there held, after reciting the provisions of § 3738, Crawford & Moses’ Digest, in regard to assessment of persons whose names had been omitted from the original assessment rolls, that this method of issuing poll tax receipts did not conform to the requirements of the law, and did not qualify the holders of such receipts to vote. In so deciding, we cited both the CarlLee and the Craig cases, supra, as having held that the collector can issue a valid poll tax receipt only to a person whose name has been placed upon the tax book in the manner provided by law.
The view was expressed in the dissenting opinion in the case of Taaffe v. Sanderson, supra, that the women were qualified electors, not because they had been properly assessed for the payment of a poll tax, hut because they were not required to pay a poll tax at all.
It having therefore been definitely decided that an assessment made in the manner provided by law. must precede the issuance of a poll tax receipt, it becomes necessary to inquire how this assessment is made.
Act 172 of the Acts of 1929 is a comprehensive act of forty sections, dealing with assessments of both real estate and personal property as well as the assessment of poll taxes.
Section 3 of this act requires the assessor to appraise and assess all the personal property of his county between the first Monday in January and the third Monday in August of each year.
Section 7 of this act requires the assessor to maintain an office at the county seat of the county between the first Monday in January and the 10th day of April of each year to assess property and for the purpose of assessing such persons as are liable to pay the per capita or poll tax. It is further provided by this section that * * all male residents of the county who shall have attained the age of 21 years, and all female inhabitants who shall have attained the age of 21 years, and who wish to exercise their franchise to vote, shall, at such time and place, report to the assessor, in person or by agent, for per capita or poll tax assessment.”
It thus appears that it is the duty of the assessor to assess the poll tax of all male inhabitants over 21 years of age in any event, and all females over that age “who wish to exercise their franchise to vote,” but either-a man or a woman may assess in person or by agent.
This section of the act contains provisions — which we do not review — requiring the assessor, or his deputy, “to attend at places of holding elections” in the various townships, etc., for the purpose of assessing real, personal and poll taxes.
Section 8 of the act 172 requires the State Tax Commission to prepare and furnish to the county clerks of the State copies for all lists, blanks and records to he used in the assessment, extension and collection of taxes (except the blanks for poll tax receipts, which are prepared and furnished by the Auditor of State), and this section also provides that “no lists, blanks or records shall be used by any official in the assessment, extension or collection of taxes except as shall have had the approval of said commissi on.”
It appears therefore that there is no such thing as an oral assessment, but assessments are made in writing and upon blanks which have had the approval of the State Tax Commission, and upon no other blanks. The county clerk is required to have these blanks printed and to deliver them to the assessor on or before the first day of January each year.
Section 13 of act 172 requires the assessor, after the 10th day of April, to make a house-to-house canvass of his county to assess the property of any person who has failed to assess, and requires that the assessor “shall assess all such persons for the per capita or poll tax.”
The assessor is required to make to the county clerk a report of all assessments on or before the third Monday in August, which report shall be verified by the affidavit of the assessor, the form of which affidavit is set out in the act.
Act 172 contains provisions for the equalization of the assessments made by the assessor, etc., after which, in due course, the tax books are made by the county clerk and delivered to the collector of taxes for the collection of all taxes on the first Monday of the year.
Now, it may transpire that the assessor failed to assess a particular person, or to make return thereof, who, when he appears to pay his poll tax, is advised that he has not assessed. Provision is found in the law whereby such a person may pay his poll tax and qualify as an elector, but he can do so only by being assessed. Section 3738, Crawford & Moses’ Digest, to which reference has already been made, provides bow that name may get on tbe tax books.
This section reads as follows: “At any time after the assessment lists have been delivered to the connty clerk for the purpose of enabling him to prepare the tax books for the collector, any person whose name has for any canse been omitted from the said lists may have his name included in said list and placed upon the tax lists in the hands of the collector by application to the said clerk at any time before the Saturday next preceding the first Monday of July, when the collector is required to make his final settlement with the county court. If the said application shall be made after the tax books have been delivered to the collector, the clerk shall certify the said supplemental assessment, which he is hereby authorized to make, to the collector, and shall charge to said collector the amount of tax and penalties so added. In addition to the sum assessed against any such applicant for poll tax, the clerk shall extend against him a penalty for failing to return his assessment to the assessor at the proper time, one dollar — twenty-five cents of which shall go to the clerk for his services, and seventy-five cents shall go into the fund for general county expenses; and if said application shall be made after the 10th of April, the collector shall collect a penalty of twenty-five cents for a failure to pay the said poll tax at the time prescribed for making payment of taxes without penalty. In addition to the assessment of poll tax in such cases, it is hereby made the duty of said clerk to assess any property held by said applicant, and which, for any reason, has been omitted from the tax books.”
■Section 3738 must, of course, be read in connection with act 172 to ascertain how the county clerk shall assess the poll and other taxes of the delinquent applicant, and it appears, from what has already been said, that the assessment must be made upon blanks approved by the State Tax Commission, after which the county clerk may place the name of the party assessed upon the tax books.
The case of Tucker v. Meroney, supra, declares the law to he that one may have his name placed on the tax books through an assessment made pursuant to act 172, supra, or by the clerk, pursuant to § 3738, Crawford & Moses’ Digest, but the implication is very clear in that case that the assessment must be made in one way or the other before the collector has the authority to issue a poll tax receipt, and that, unless authorized, the receipt does not qualify the taxpayer as an elector.
Now, while one must assess his personal property and his poll tax, either through the assessor in person or by an agent, or through the county clerk in the manner above stated, to be entitled to pay his poll tax, he does not have to pay other taxes in order that he may pay his poll tax. He may pay his poll tax without paying any other taxes. Section 3739, Crawford & Moses’ Digest, gives this right.
The ruling of the circuit judge appears to conform to the views here expressed.
The assessor testified that he made a certificate in the back of his assessment book before it was delivered to the county clerk, but that he later entered names therein; that men would come in and tell him that he had made an error in not assessing their wives with a poll, and he would go to the county clerk’s office and add their names to the book. Some brought a copy of their assessment list, the original of which was in his possession, and when these copies showed two polls he would list the wife as having been left off by error. These lists were all brought to witness after April 10. There was no name on these lists except that of the husbands. “It would just say two polls. They just got to coming in by bunches, and you could tell that the numbers had been changed, the figure 1 had been erased and the figure 2 substituted. A number of persons brought in as many as twenty lists.”
We agree with the circuit .judge that these assessments did not comply with the law. None of these assessments were made until after April 10, at which time the provisions of § 3738, Crawford & Moses’ Digest, applied. Even those assessments which were not brought in “in bunclies, ’ ’ and which had not been mutilated, did not show the name of the second person assessed. The law appears to contemplate a separate assessment of each taxpayer, of all males and of all females, who wish to become qualified electors by paying a poll tax. Section 7 of act 172, supra.
One may assess who has no property subject to taxation, and one does assess who makes that statement and signs the blank assessment list showing no property subject to taxation. This may be done by the person himself or by his agent, and the husband may, of course, be the agent of his wife for this purpose. 'But some one must sign the list, otherwise there is no assessment, and there is no contention here that any husband had signed an assessment list for his wife.
For these reasons, we think the court was correct in holding that persons of this class had not been properly assessed.
The court also ordered excluded from the count the names of persons which had been placed on the tax books by the county clerk. The testimony in regard to these names was to the following effect: Persons applied to the county clerk to have him place their names on the tax books, and this was done upon this application without requiring any assessment to be made of personal property.
We think the court properly excluded these names, for the reason that no assessment of personal property was made. The fact — if, in any case, it was a fact — that these persons had no property subject to taxation would have been no reason for not placing their names on the tax books; but, nevertheless, they were required to sign a tax list showing the property, if any, owned by them.
There was a third class of voters held ineligible, whose votes were excluded; but it is unnecessary to pass upon their eligibility, as the judgment of the court must be affirmed if we uphold the action of the court in striking out the two classes of voters hereinbefore referred to, and, as we think the ruling of the court as to both those classes conformed to the law as we have here interpreted it, the judgment must be affirmed, and it is so ordered. | [
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Mehapey, J.
On September 17,1928, J. A. Chambers, of Memphis, Tennessee, and associates, organized the Specification Motor Oil System, Incorporated. The capital stock was 25,000 shares of no par value. No money was paid in at the time of the incorporation, but Mr. Chambers testified that he was the owner of all the patents covering certain fixtures pertaining to the system, and that he exchanged his patent rights and property-rights, and became the sole owner of all the stock. He transferred 3,000 shares to Ike Kempner, and took Kemp-ner’s notes for $22,500. Chambers was president of the company, and Kempner was vice president and director.
The evidence showed that Kempner acquired 3,000 shares of stock in April, 1929. He did not pay any money, but executed his notes.
On December 13, 1929, H. O. Duke sold to the appel-lee, H. Gr. Stephens, stock in the corporation, and Stephens at the time gave him a check for $1,000 and a note for $1,000. This note was indorsed by Duke, and transferred to Chambers, and Chambers afterwards transferred the note to Kempner without indorsement. This note was given for stock sold in the corporation, and the Bine Sky Law was not complied with.
There was a jury trial, and a verdict and .judgment in favor of the appellee. To reverse that judgment, this appeal is prosecuted.
The statute prohibits the sale of stock by any dealer or corporation unless the person selling said stock has complied with the provisions of the Blue Sky Law. The term “dealer,” however, does not include the owner or issuer of such securities or stock who acquired the same for his own account in the usual and ordinary course of business, and not for the direct or indirect promotion of any speculative enterprise within the provisions of the act, provided such ownership is in good faith.
It is contended, however, by the appellant that the Blue Sky Laws of the State of Arkansas or the Arkansas Securities Act is not applicable to this case for the reason that H. C. Duke was not a dealer within the purview of the acts. If H. C. Duke owned the stock in good faith, and sold it in the usual course of business, this would not be a violation of the Blue Sky Law, and the note would be valid, or, if Kempner was an innocent purchaser, he would have a right to recover on the note. The question therefore is whether, under the evidence in this case, Duke was the owner in good faith, or whether this was the promotion of a speculative enterprise within the meaning of the law.
T. W. Lewis, who assisted in the sale of the stock, testified that he knew Duke and Chambers, and he knew about H. G-. Stephens purchasing 40 shares of the stock in the Specification Motor Oil System. He handled the transaction. Stephens bought the stock and paid $1,000 cash and gave a note for $1,000. The note was made to H. C. Duke. Duke at the same time sold part of his stock to Foster, Moore and Lewis. He asked Chambers over the ’phone if Duke was sent to Helena by Chambers to sell stock of the corporation, and that Chambers said he was; that Chambers stated that he handled the notes so that cash could be gotten. Lewis himself bought stock, gave a note, and afterwards paid it to Kempner, who held it at maturity. The stock had no value. Witness did not promote the sale of stock, but did talk to Stephens, and repeated the representations that Duke made to him. From general reports, the company has no financial standing. Witness had tried to sell his stock, but had been unable to do so.
B.. M. Foster, who bought stock, testified about the purchase of the stock, and about the sale to others in Helena; that he made a note and paid it to Ike Kempner. The note was made payable to Duke. Kempner told him that he regarded the stock as valuable. Duke represented to others that he was selling his individual stock. Duke and Chambers were present when witness made the note. He was afterwards made a director.
Stephens testified about purchasing the stock and paying the $1,000 cash and giving his note. He testified that the stock that he bought was not worth anything.
The witnesses for appellant contradicted the statements made by appellee’s witnesses, but the undisputed evidence shows that Kempner gave his note, or rather gave two notes, one for $17,500 and one for $5,000. After the suit was brought, Mr. Kempner died, and, of course, we do not have his testimony.
J. M. Kempner, son of Ike Kempner, and one of the executors of the estate, testified and introduced the orig inal note, signed by Stephens. Kempner also testified that, when bis father received the note from Chambers, Chambers did not indorse it, and Mr. Kempner testified that it was not indorsed by' Chambers because his father had every reason to believe that the maker of the note would pay. He testified that his father knew that the note was given for stock, and all circumstances in evidence tend to show that he knew this.
While it is said that Mr. Kempner bought stock, giving his note for $22,500, and bought the stock as an investment, yet, in his dealings with Mr. Chambers, all of the stock for which he had given his note was taken back by Chambers, except 700 shares of it, and in exchange therefore he was given the notes of Stephens and others.
As we have said, no money was paid into the concern; Mr. Kempner was vice president and director, and there is substantial evidence that Duke was selling stock for Chambers. It is true this evidence is denied, but, when the evidence is in conflict, it is a question for the jury, and the court, at the request of the appellees, instructed the jury that, if Duke was the owner of the stock which he sold to Stephens and sold it in the ordinary and usual course of business, and he was in no sense a promoter of the same, it would not be necessary for him, as such owner, to comply with the Blue Sky Law, and that the sale, under such circumstances, would be perfectly valid, and the note be valid and binding.
The court also, at the request of the appellant, instructed the jury in effect that the defense to the action was that the Blue Sky Laws had not been complied with; that this defense could not stand or prevail as to Kemp-ner, who was suing on the note, unless the jury found that Kempner knew that the note was actually given for sale of stock, and unless they find also that the stock had been sold in violation of the Blue Sky Law; that, if they found that the Blue Sky Law had been violated, this would not defeat a recovery, but Kempner must have known at the time that he acquired the note, that it had been given for stock, and mnst have also known that the Bine Sky Law had not been complied with.
The court also, at the request of the appellant, instructed the jury that the burden was on appellee to show that Kempner had knowledge of the fact that the note sued on was given in payment of stock, and that such stock was sold in violation of the Blue Sky Law.
The court also gave an instruction, at the request of the appellee, that no person or corporation could engage in the business of selling or the offering for sale of securities until permission was given by the Arkansas Railroad Commission. In the same instruction the court told them that this does not include the owner or issuer, who acquires stock for his own account in the usual and ordinary course of business, and not for the direct or indirect promotion of any speculative enterprise.
The court told the jury that it is undisputed that neither Duke nor Chambers had complied with the Blue Sky Law, and that, if it appeared from the preponderance of the evidence that Duke, either acting for himself or as agent for Chambers, was engaged in the sale of stock of the Specification Motor Oil System, Incorporated, in the promotion of a speculative enterprise, and not in the usual and ordinary course of business, and, while engaged in said promotion sold the stock to appellee, the note would he void and unenforcible, unless they further found that Kempner purchased it without knowledge that said stock was sold in violation of law.
The evidence being in conflict, it was a question for the jury, and the question was submitted to the jury under proper instructions. The jury could not have found for appellee under the instructions of the court without finding that the stock was sold in violation of the Blue Sky Law, and that Kempner knew that the note was given in payment of stock sold in violation of the law. There is a full discussion of the questions involved here in the case of City Nat. Bank v. DeBaum, 166 Ark. 18, 265 S. W. 648. The court there said: “The statute relating to the organization of corporations does not require that all the stock authorized shall be subscribed before the Secretary of State shall issue the certificate of incorporation, but, after the corporation is organized and has become an entity, it comes within the operation of the Blue Sky Law, and cannot sell its unsubscribed stock, without first complying with the laws of the State governing such sales.
“As we have said, the notes sued on were executed for the stock of a corporation, and upon the authority of the Randle case, supra, the transaction was void unless the bank acquired them as an innocent purchaser.”
In the instant case, the corporation was organized and all of its stock immediately transferred to Chambers. Thereafter this stock was sold to Stephens, and, if in violation of the Blue Sky Law, the note was void and un-enforci'ble, unless Kempner acquired it as an innocent purchaser, and this question was submitted to the .jury, which found against appellant.
In another recent case we said: “If the corporation had been solvent, and, rio matter how prosperous it may have been, if it issued and sold the stock in violation of -the Blue Sky Law, and took the note for said stock, the note was void, and, if the appellee knew these facts, it could not recover.” Fentress v. City Nat. Bank, 172 Ark. 711, 290 S. W. 58.
It is next contended by the appellant that the court erred in permitting the defendant the opening and closing arguments. Section 4112 of Crawford & Moses’ Digest reads as follows: ‘ ‘ The party holding the affirmative of an issue must produce the evidence to prove it. ’ ’ Section 4113 reads: “The burden of proof in the whole action lies on the party who would be defeated if no evidence were given on either side.” Section 1292 of Crawford & Moses’ Digest provides: “In the argument, the party having the burden of proof shall have the opening and conclusion.”
The burden of proof in the whole case was on the defendant. He admitted that he paid $1,000 cash and executed his note for $1,000, and the only defense that he interposed was that the stock was sold in violation of the Blue Sky Law. The burden was on him to prove this.
Appellant calls attention to tlie case of Roberts v. Padgett, 82 Ark 331, 101 S. W. 753. In that case the conrt said: “The defendant did not deny that he executed it, or that it had been assigned to the plaint: He undertook to show that it was procured by fraud and misrepresentations, and also that there was a failure of consideration; and he denied that the note had been transferred to plaintiff before maturity, or that plaintiff was a bona fide purchaser for value. But, as there was no denial of the execution of the note or its assignment to plaintiff before the action was commenced, it is evident that, had the defendant introduced no evidence, judgment would have been rendered against him, whether plaintiff introduced any evidence or not.”
The court also quoted with approval the following: “In all suits on promissory notes, bills of exchange, accounts, insurance policies, or any other form of money demands where the amount claimed is liquidated and can be ascertained without the necessity of proof, the defendant is entitled to open and close the evidence and argument if he relies for his defense solely on affirmative pleas, as payment, failure or want of consideration, or duress, set-off and counterclaim, usury, or other pleas in bar by way of confession and avoidance. ’ ’ 15 Enc. Plead. & Prac. 194.
The burden was upon the defendant in the only issues involved in this case, and this fact entitled him to open and conclude the argument. Columbian Woodmen v. Howle, 131 Ark. 299, 198 S. W. 286.
There was no error in permitting the defendant to open and conclude the argument. The jury was the judge of the credibility of the witnesses and the weight to be given to their testimony, and the finding on these questions is conclusive here.
We find no error, and the judgment is affirmed. | [
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Mehaepy, J.
The appellee, Star Publishing Company, filed its claim in the county court of Hempstead County for $1,211.50, which was 50 cents a tract for publishing delinquent tax list. The court disallowed the claim as filed, but did allow a claim of $605.75.
An appeal was prosecuted to the circuit court of Hempstead County, where it was tried, and the court instructed the jury to find for the plaintiff, Star Publishing Company, the full amount of $1,211.50. There was a verdict and judgment for that amount. The ease is here on appeal.
The evidence tended to show that the county judge had refused to pay more than 25 cents for each separate tract of land.
Judge Higgason testified that Mr. Hawkins, the publisher of the Washington Telegraph, a paper published in Hempstead County, agreed to publish the list for 25 cents a tract, and Hawkins himself testified that he agreed to publish it for that amount. Several witnesses testified about conversations between the county .judge and the publisher of the Star Publishing Company, and the publisher of the paper testified that he never did agree that he would publish the list in the Star Publishing Com pany for 25 cents a tract. The evidence shows that the connty judge stated in all these conversations that he would not pay more than 25 cents a tract.
The evidence showed that the clerk delivered the list to the Star Publishing Company; that it was customary to do this, and that it was customary to publish the list in one paper one time, and the other paper the next time.
The law provides, in act 92 of the Acts of 1929, that the fees for advertising the sale of delinquent land shall be 50 cents for each tract or town lot advertised to be sold for delinquent taxes, which amount shall be added to the tax as cost of the sale. The act then provides how the fees shall be computed and paid, etc.
The effect of this act is to require the taxpayer to pay 50 cents for advertising, and that this 50 cents shall be added to the cost. We know of no law, however, which prohibits the county judge from making a contract with the publisher of a paper to advertise the list for a smaller sum, 'and, if such contract is made, it is binding between the parties to the contract, the publisher and the county.
There is some conflict in the evidence, and we think it was a question of fact as to whether there was a contract made between the 'Star Publishing Company and the county judge. This question should be submitted to and determined by the jury.
The judgment of the circuit court is therefore reversed, and the cause remanded for a new trial. | [
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Per Curiam.
The appellee, D. F. S. Galloway, moves the court to quash an execution issued against him by the clerk of this court for the collection of costs of appeal adjudged against him on reversal in the case of Stricklin v. Galloway, 99 Ark. 56. He was the executor of the estate of- Elizabeth Shall, and the appellants, as heirs, filed exceptions to his settlement account in the probate court. They appealed to the circuit court, and there, on motion of appellee, the appeal was dis missed, and they appealed to this court, where the cause was reversed and remanded with instructions to overrule the motion to dismiss, and for further proceedings. The costs of the appeal were adjudged against the appellee. His contention' now is that he appeared in the proceedings in his representative capacity, and was not personally responsible for costs. He is mistaken in his contention with reference to the position he occupies in the controversy. It is not to be doubted that, where an executor or administrator represents the estate in litigation brought by or against him as such representative, he is not personally liable for costs incurred in the proceedings. But in this proceeding he did not act as the representative of the estate; he acted in his individual capacity in resisting the attack made upon his settlement account by the heirs who excepted thereto. When he presented his account to the probate court for adjustment, any distributee of the estate had the right to file exceptions thereto; and when that was done, it raised an issue between the executor, on the one hand, and the distributee who excepted to the áccount, on the other hand. The losing party to that controversy should pay the costs, and in no event should the costs be adjudged against the estate. In such a controversy the executor or administrator does not represent the estate. The authorities cited by counsel for appellants in their brief sustain this view. The same principle was announced by this court in Adamson v. Parker, 74 Ark. 171, though the question arose in a somewhat different way. Appellee, in resisting the attack upon his settlement account, improperly moved for a dismissal of the appeal to the circuit court, and thereby caused that court to commit the error and caused the appeal to this court, which was the only way in which the error could be corrected. Appellants were entitled to their costs incurred on the appeal, and the same can not be adjudged against the estate, but were properly awarded against appellee, who was responsible for the error. The petition to quash the execution is therefore denied.
Hart, J., dissents. | [
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J. Seaborn Holt, J.
This is the second appearance of this case here. The opinion on the former appeal is now the law of this case, Collie v. Coleman, 223 Ark. 206, 265 S. W. 2d 515. In reversing the case we gave this directive: “The decree of the trial court is reversed in so far as it pertains to Charles E. Coleman, and the cause is remanded with directions to make findings against him in favor of each of the appellants in accordance with the facts disclosed in the record.”
On remand the trial court appointed a Master whose primary purpose was to state an account between Charles E. Coleman and his individual tenants and the tenants of Eed Bud Plantation, Charles E. Coleman, Trustee, based on the facts disclosed by the original record, already made. The Master took no additional testimony but called on appellees to furnish him a statement of the accounts on the amounts appellees contended appellants owed them and also called on appellants to examine the statement and determine whether they would agree to its correctness. According to the Master’s request the statement was furnished to him and he was advised by the parties that they did not question it. The record reflected that all cash refunds due to the tenants (appellants) were held by the Cooperative Gin Company where appellants had had their ginning done, and that some of these cash refunds were paid over to Charles R. Coleman in cash, but the greater part was used to purchase preferred stock in the gin company in the name of Charles R. Coleman. The Master in his report treated this stock as having been converted by Mr. Coleman as of the date the cash payments were paid to him, and that the stock’s par value of $10.00 per share should be paid over by Coleman in cash (rather than in stock) to appellants.
The Chancellor in effect held, however, that the stock itself and not its cash par value should be surrendered and reissued to the appellants (tenants), and rejected so much of the Master’s report which found that appellants, after deducting any off-sets due to Coleman, were entitled to all refunds in cash and no part thereof in stock.
The Chancellor’s findings contained these recitals:
. . . “The Court now finds from the original record, the Mandate of the Supreme Court, the Report of the Master, Exceptions thereto by defendants Charles R. Coleman and Redbud Plantation, Reply by plaintiffs, and all pleadings and additional proof offered by the defendants, as follows :
“The original complaint was filed Oct. 27, 1950, against Charles R. Coleman and The Little River Cooperative Gin, Inc., and an amended complaint filed Oct. 23, 1951, making Redbud Plantation, Charles R. Coleman, trustee, and John Lott defendants. The statute of limitations prevents any of these plaintiffs not tenants of Charles R. Coleman from recovering anything prior to Oct. 23, 1948; that the ginning season was regarded as not closed until March 31st of the year following, so that the three tenants of Charles R. Coleman may have recovery as herein provided for 1947, 1948 and 1949, but all other tenants are limited to the years 1948 and 1949, as herein set out.
“The figures contained in the Master’s Report are hereby found to be correct in so far as they apply to the findings of the court outlined herein, and is the purpose of this court to recognize said figures as being correct, but in reaching the amount of recovery due these plaintiffs, the court has taken into consideration only the cash refunds actually made, together with interest thereon and for the years herein indicated. If it should be determined that this court is in error as to the statute of limitation and as to the amounts due these plaintiffs, references to the Master’s Report will materially lessen the task of figuring these amounts.
“Based on these findings, the court finds that the plaintiffs are entitled to recover as follows:
“(1) Odie Canada, for his share of cash refunds for 1947, $17.34 and 6% interest thereon from April 1, 1948 to Nov. 1, 1954, $6.93, total $24.27. No ginnings for 1948 and 1949, so no recovery for those years. Total stock issued on his ginning for 1947 was $160.00, and he should have stock for % this amount, or $80.00.
“ (2) J. A. McConnell, for his share of cash refunds for 1947, $20.67 and 6% interest from April 1, 1948 to Nov. 1, 1954, $8.26. No cash refund for 1948. For 1949 cash refund of $39.20, with interest April 1, 1950 to Nov. 1, 1954, $10.96. Total for the three years $79.09. Total stock issued on his ginning for the three years $560.00 and he should have stock for % or $280.00.
“(3) Lethia Sibley, no cash payments made for 1947, 1948 or 1949. Total stock issued $130.00, of which the tenant gets % or $65.00, with % to Jessie L. Collie, and % f° landlord.
“ (4) Jesse L. Collie, 1947 payments cut off by statute of limitation as he was tenant of Redbud Plantation; no payments were made in 1948, but for 1949 he should recover $46.50, with interest at 6% from April 1, 1950 to Nov. 1, 1954, $13.02, total $59.52. He would have no recovery because he owes Charles R. Coleman $315.32. Total stock issued on his ginnings, only for year 1948, $370.00, and his share would he % of said amount, or $277.50.
“(5) Floyd McConnell, can collect only for 1948 and 1949, but for these years no cash payments were made on his account. Total stock issued on ginning is for year 1948 in sum of $190.00, and he would be entitled to %, or $95.00; with % going to Jesse L. Collie in sum of $47.50, remainder to landlord.
“ (6) Jerry Jackson, 1947 payment cut off by statute of limitation; no cash payments made for 1948; and for 1949 cash payments due him $24.76, with 6% interest from April 1, 1950 to Nov. 1, 1954, $6.94, total $31.70. Stock issued only for 1948 in total sum of $170.00, and he is entitled to %, or $142.50.
“ (7) John Parnell, no recovery for 1947; cash payments for 1948 none, and not a tenant for 1949. Total stock issued on ginning for 1948 is $300.00, and of this amount he is entitled to %, or $225.00.
“(8) Ben Tyson, cut off for 1947 by statute of limitation; no cash payments made for 1948, but for 1949 he is entitled to $26.86 and 6% interest from April 1, 1950 to Nov. 1, 1954, $7.51, total $34.37. Total stock only for 1948 $310.00, and he is entitled to %, or $155.00.
“ (9) Willie Richardson, no recovery for 1947, and no cash refund for 1948; for 1949 he is entitled to recover cash refund of $16.10, with 6% interest from April 1, 1950 to Nov. 1, 1954, $4.50, or total of $20.60. No stock recovery for 1947, but for 1948 he is entitled to % of $150.00 stock issued on his ginning, or $112.50.
“(10) Harry Morris, not a tenant for 1947, none paid for 1948, and no ginning for 1949. Stock issued on his ginning for 1948 was $1,450, and he is entitled to % of this amount, or $1,087.50.
“ (11) Charles Glenn was tenant only for 1948, and no cash payments were made. Total stock issued on his ginning was $270.00, and he is entitled to % of this amount, or $202.50.
“(12) Sam Jones was not a tenant for 1947, only for 1948, when no cash payments were made. Total stock issued for 1948 was $250.00, and he is entitled to stock in amount of %, or $125.00. Not a tenant for 1949.
“(13) Robert Howard, tenant only for 1947, and entitled to no recovery for that year.
“ (14) Doffie Walls, tenant only for 1947, and entitled to no recovery for that year.
“(15) Caleb Tyson and Ethel Tyson, no recovery as the indebtedness at time of their death exceeds any amount for which recovery might be had.”
The court entered a decree in accordance with these findings and directed that the stock be surrendered and cancelled and that the proportionate part due each of the appellants be issued to them and appellees were perpetually enjoined and restrained from withdrawing or accepting all or any part of the reserve and patronage accounts held by the Little River Cooperative Gin Company. Appellants were given judgment for cost against Charles R. Coleman in the court below in amount of $120.85 and for $61.50 for costs on appeal to the Supreme Court, total $182.35, and required Coleman to pay the Master’s fee in amount of $200.00.
We have concluded that the findings of the Chancellor and the decree that followed are with one exception in full compliance with our directive and not against the preponderance of the testimony. The one exception is this: the Trial Court held that twelve of the tenants could not recover their refunds from the period of October 27, 1947 to September 27, 1948. We hold that these twelve tenants were entitled to recover their refunds beginning October 27, 1947. Our first opinion fixed that as the date. The motion filed on September 27, 1951 related back to the date that the first complaint was filed, which was October 27, 1950. The motion went to a matter of form and not of substance. Thus on remand the Chancery Court will allow these twelve tenants their rights beginning October 27, 1947. Affirmed in part and reversed in part.
Justice Mill wee thinks the Master’s Report should have been adopted.
Justice George Rose Smith disqualified. | [
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Paul Ward, Associate Justice.
This litigation involves the construction and effect of numerous deeds with respect to two hundred acres of land in Montgomery County intended for a recreation and reunion site for the lineal descendants of Drs. A. B. Clingman and Alfred Jones, now deceased.
Appellant, a daughter of G-ranville Jones, (who in turn was the son of the said Alfred Jones) instituted this suit in the Chancery Court of Montgomery County against certain Trustees of the Clingman-Jones Family Corporation to recover an undivided one-half interest in the two hundred acres under the terms of her father’s will. The trial court dismissed her complaint, and also made certain finding's in favor of the defendants, as later noted, from which findings and decree the appellant prosecutes this appeal.
A historical background to this litigation is necessary to an understanding of the issues, and it can be briefly stated since there is no dispute about the essential facts.
Early in the year 1923 several of the descendants of Clingman and Jones decided to purchase some land for the purpose above mentioned, and pursuant to that purpose two hundred acres were purchased from J. R. Yaught and wife. The deed, dated September 3, 1923, was regular in form and the grantees were ‘ ‘ Granville J ones, Isaac Jones, and Granville Cubage, Trustees.” We will refer herein to this deed as “Deed No. 1.” The proof shows that the above grantees were to hold the land in trust for the descendants and for the purpose heretofore mentioned.
Following the execution of the above deed, two more conveyances-of the same land were made, but these two deeds need be mentioned only briefly since, with one exception noted later, they have little bearing on the questions here involved. On September 16, 1924, the above named Trustees conveyed the land to Isaac J. Jones in order to facilitate borrowing money to build a dam on the property, but this venture did not materialize at that time. We refer to this deed as “Deed No. 2.” Later, at one of the numerous annual reunions of the families, it was decided to give Granville Jones (father of the appellant), a retired lecturer, the right to live on and use the proceeds of the land so that he might engage in writing at his leisure. For the above purpose Isaac Jones conveyed the land to Granville Jones, as directed by the family representatives. This is referred to as “Deed No. 3.”
It appears that no one objected to Granville Jones having the use of the land for the purposes above mentioned, but one Trustee in particular thought such privilege should be differently conveyed. This result was sought by the execution of ‘ ‘ Deed No. 4. ’ ’ Consequently, on May 28, 1927, Granville Jones and his wife, Jessie Lyon Jones, executed a deed to “Granville Jones, Isaac Jones, Arthur Jones, Claude Jones, and Guilford Jones, as Trustees for themselves and other lineal descendants of Drs. A. B. Clingman and Alfred Jones, deceased, and to the successors of said Trustees,” conveying said land. Following the description, the deed reads:
“With full right to any one of said lineal descendants to establish on said lands a summer cottage and use the same with all privileges thereto appertaining under such rules and regulations as may he prescribed by the said trustees, but specially reserving to the grantors, Gran-ville J ones and J essie Lyon J ones, all profits arising from concessions, summer resort privileges and other commercial and industrial use of the said land and of a dam and lake thereon known as ‘Sylvan Lake’ and other improvements heretofore placed on the said land of Granville Jones together with any future improvements incident to such use as a summer resort, when such improvements shall have been approved by a majority of the grantees as such Trustees, conditioned that no sale, transfer or assignment of these reservations, privileges and sources of revenue shall be made by the said Granville Jones and J essie Lyon J ones, or either of them, without the approval of a majority of said Trustees expressed in writing.”
It was, and is now, the contention of appellant that: (a) Deed No. 4 is void, as violative of the rule against perpetuities; (b) Her father, Granville Jones, therefore received a fee title to the land by virtue of deed No. 3, and; (c) Her father left her a one-half interest [also his wife a one-half interest] in the land by his last will which appears in the record. We are not in agreement with contention (b) above. Reserving, for the present, consideration of contention (a) above, it is clear from the testimony and the record, that appellant’s father did not receive by deed No. 3 a fee title or a beneficial title. It is clear from the testimony that deed No. 3 was executed for the sole purpose of eventually achieving the results attempted in deed No. 4. Both deeds were executed on the same day, indicating again that Granville Jones was not to receive any beneficial title in the land by virtue of deed No. 3. The record conclusively shows that the Trustees considered Granville Jones as a mere conduit of the legal title. We agree, therefore, with the trial court that Granville Jones did not have a fee title in the land at the time of his death, and that consequently his will passed no beneficial or equitable title. Our conclusion would be the same regardless of the validity or non-validity of deed No..4.
A short time before this suit was filed (and after appellant had filed and dismissed a similar suit) appellees organized a corporation called the “Clingman-Jones Family Corporation.” The articles of this corporation appear in the record, and its purpose is expressed in the third paragraph:
“SECOND: The nature of the business of the corporation and the objects or purposes to be transacted, promoted or carried on by it, are as follows, to-wit: To acquire, own, manage and control all properties held in common by the lineal descendants of Drs. A. B. Clingman and Alfred Jones. ’ ’
In the record appears a deed, conveying said land, to this corporation. We designate this deed as “Deed No. 5,” and will discuss it later.
At the close of the hearing, the court, after dismissing appellant’s complaint, made two principal findings in favor of the appellees. ' (a) Deed No. 4 was reformed, and (b) title to the land was quieted in the Clingman-Jones Family Corporation. We shall now consider these findings in the order named.
(a) We think it is not material to the final disposition of this case, but also think the court was justified in making the reformation. All the reformation amounted to was to more clearly define the purposes and manner in which the grantees in deed No. 4 were to hold the land, and to provide for the succession of trustees. All changes effected by the court were amply substantiated by the testimony.
(b) We have concluded that the court erred in quieting title in the new corporation, because we think deed No. 5 (from the Trustees in succession to the Cling-man-Jones Family Corporation) violates the rule against perpetuities.
Apparently appellees were concerned that deed No. 4 might violate the rule against perpetuities, and so sought to evade that probability by the substitution of deed No. 5. We think no such result was achieved, and also think both deed No. 4 and deed No. 5 violate the rule. Since both deeds contain practically the same essential phraseology we will confine our consideration to deed No. 5.
In deed No. 5 (to the Family Corporation) there is a regular granting clause, and then, after the description of the land, there is a “. ” and this paragraph:
“As a memorial, vacation, and reunion campsite for said lineal descendants, with full right of any one of said descendants to establish a summer cottage on said lands and use the same with all the privileges appertaining, under such rules as may be prescribed by the Directors of the Clingman-Jones Family Corporation.”
Before reaching a conclusion regarding the rule against perpetuities, we find it necessary to construe the effect of said deed No. 5 as a whole and in particular as to the language quoted above in an attempt to determine whether the deed vested a fee simple title in the Corporation,-or whether the deed was in effect a conveyance in trust.
If, under this deed, the Corporation received a vested title in fee with the right to dispose of the land, we would be compelled to conclude that the rule was not violated.
After a careful consideration of the testimony relative to the purpose of the family organization, the Articles of Incorporation, and the language used in the deed to the Corporation, we are impelled to the conclusions hereafter set out.
By the use of the words “lineal descendants” of Clingman and Jones in deeds No. 4 and No. 5 we do not think the Trustees or the family organization meant to refer only to persons then living but rather to those who might be later born. We get the impression from the undisputed evidence that the family had no intention of limiting the recreation and reunion project to those persons who were alive. In fact that is the very issue which prompts this litigation on the part of appellees. There has never been any contention that the living lineal descendants of Clingman and Jones did not have the right to establish and maintain a recreation and reunion project.
Likewise we can draw but one conclusion from the Articles of Incorporation, and that is that the sole purpose and power of the Corporation was to hold the land [in trust] for the “lineal descendants of Drs. A. B. Cling-man and Alfred Jones.” It is perfectly apparent that the Corporation would have violated its purpose and trust if it had disposed of the land or had used it for the benefit of anyone except the ones designated. This being true we cannot say the fee title vested in the Corporation at the time the deed was made or that it certainly would vest in the foreseeable future.
Our views concerning the Articles of Incorporation are confirmed by an examination of deed No. 5 by which the land was conveyed to the Corporation. This deed, in the portion above copied, shows that it was the intention of the grantors to limit the title conveyed. The right was reserved for “lineal descendants” [of Clingman and Jones] to use the land “as a memorial, vacation, and reunion campsite ’ ’ and for ‘ ‘ any one of said descendants to establish a summer cottage” on the land.
The fact that the granting clause in deed No. 5 is regular and, apparently, conveys a fee absolute and that the portion of the deed quoted above is a limitation thereon, avails appellees nothing under the established rule of this court that we look to the four corners of the deed in order to arrive at the intention of the grantors. Also, in applying this rule here, we can look to the testimony introduced by appellees, and from this we have confirmation that they expected the family organization to extend indefinitely.
Having concluded that the Corporation was in effect a trustee and that the use of the land was not limited to those descendants who were alive at the time the deed was made, it follows, as a matter of law, that deed No. 5 is void because it violates the rule against perpetuities. The authorities are numerous and uniform to that effect. The general rule is very well stated in 41 Am. Jur. at page 50 under the heading “Rule Against Perpetuities,” which, in part, reads:
“Although all the established forms have been complied with governing the alienation of property, the law, for reasons of public policy, still imposes some restrictions on the right to dispose of property. One of the most important of these restraints is the rule against perpetuities. The rule against perpetuities prohibits the creation of future interests or estates which by possibility may not become vested within the life or .lives in being at the time of the testator’s death or the effective date of the instrument creating the future interest, and twenty-one years thereafter,” etc.
For some of the decisions of this court sustaining the above rule see: Moody v. Walker, 3 Ark. 147; Union Trust Co. v. Rossi, 180 Ark. 552, 22 S. W. 2d 370, and; Fletcher v. Ferrill, 216 Ark. 583, 227 S. W. 2d 448, 16 A. L. R. 2d 1240. For other jurisdictions see: Shepperd v. Fisher, 206 Mo. 208, 103 S. W. 989; Beverlin v. First National Bank In Wichita, 151 Kan. 307, 98 P. 2d 200, 155 A. L. R. 688; Glock v. Glock et al., 110 N. J. 477, 160 A. 339; Jackson et ux. v. Powell et ux., 225 N. C. 599, 35 S. E. 2d 892; Lewis v. Cockrell et al., 80 Fed. Supp. 380, and; Foley v. Nalley et al., 351 Ill. 194, 184 N. E. 316.
Having reached the conclusion that deeds Nos. 4 and 5 are void because they violate the rule against perpetuities, it follows from the record that the bare legal title to said land was in Granville J ones at the time of his death as a result of deed No. 3, and that this title passed by his will to appellant and to his widow, Jessie Lyon Jones. Since Jessie Lyon Jones is deceased her portion of the title would of course vest in her legal heirs in the absence of a will by her. It is also clear that the equitable or beneficial title to the land vests in the Trustees of the Clingman-Jones Family Organization for the benefit of the lineal heirs of Drs. A. B. Clingman and Alfred Jones. These Trustees are the ones named as grantees in deed No. 1 since, as we have indicated, the equitable or beneficial title was never conveyed by them. Since Granville Cubage is the only surviving Trustee the equitable or beneficial title now vests in him as such Trustee.
Before appellant and Jessie Lyon Jones can be divested of the bare legal title, they would have to be made parties to litigation for that purpose.
Affirmed in part and reversed in part as above indicated.
Justice McFaddin concurs in part and dissents in part. | [
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Sam Robinson, Associate Justice.
Murdock Acceptance Corporation has filed in this court a petition for writ of prohibition questioning the jurisdiction of the Union Chancery Court in a case filed in that court by one D. E. Griffin to void for alleged usury a contract for the sale of an automobile. The issue here is whether Murdock waived the jurisdiction of the Union Chancery Court by filing an answer to the complaint without raising the question of jurisdiction and without reserving the jurisdictional question.
On the 5th day of May, 1955, Griffin filed his complaint in the Union Chancery Court. The summons was directed to the Sheriff of Pulaski County and was served on the defendant in Pulaski County by the Pulaski County Sheriff on the 20th day of May, 1955. On the 9th day of June, 1955, the defendant filed in the Union Chancery Court an answer to the complaint. The answer in no way raises as an issue the jurisdiction of the court. About two months later, on August 19, 1955, Murdock filed a motion to quash the service and dismiss the action, alleging that service was had on defendant in Pulaski County, where defendant had its sole place of busi ness and residence; that there had been no service on any agent of the defendant in Union County and that the Union Chancery Court had no jurisdiction to render judgment in the cause. The motion to dismiss was overruled. Murdock then filed in this court its petition for a writ of prohibition.
Ark. Stats., § 27-614, provides: “Where any action embraced in the preceding section is against a single defendant, the plaintiff shall not be entitled to judgment against him on the service of a summons in any other county than that in which the action is brought, unless he resided in that county at the commencement of the action or unless, having appeared therein, he fails to object, before the trial, to its proceeding against him.” Petitioner stoutly contends that under the above statute the cpiestion of jurisdiction of the parties may be raised at any time before the trial and that such issue was raised in this case before the trial. Section 27-614 is certainly susceptible to the construction contended for by petitioner. However, this section of the statutes was originally adopted as Section 97 of the Civil Code which took effect January 1, 1869, and in a long line of cases this court has held that a general appearance will subject the defendant to the court’s jurisdiction even though the suit is filed in the wrong venue. See Leflar on Conflict of Laws, page 141.
In Mercer v. Motor Wheel Corporation, 178 Ark. 383, 10 S. W. 2d 852, this court said: “This court is committed to the doctrine, by a long line of decisions, that taking any substantive step by defendant in an action brought against him in the courts operates as a general appearance, and waives the manner of process or any defects therein. Hawkins v. Taylor, 56 Ark. 45, 19 S. W. 105, 35 A. S. R. 82; Carden v. Bailey, 87 Ark. 230, 112 S. W. 743; Dodson v. Butler, 95 Ark. 617, 130 S. W. 581; German Investment Co. v. Westbrook, 101 Ark. 124, 141 S. W. 510; Linn-McCabe Co. v. Williams, 116 Ark. 307, 172 S. W. 895; Bixley v. Taylor, 122 Ark. 278, 183 S. W. 200.” And the court further said: “According to the Arkansas cases, a defendant against whom a suit has been filed, whether served at all, enters his appearance generally and for all purposes by taking substantive steps therein, such as answering, . . . Certainly no sound distinction can be drawn between a void process and no process at all. If a defendant may waive service entirely by participating in the trial, it logically follows that void service may be waived in the same manner.”
Petitioners cite Sloan v. Peoples Loan and Investment Company, 195 Ark. 1085, 115 S. W. 2d 833, as authority for the proposition that the question of the jurisdiction of the court may be raised at any time before judgment even though there has been a general appearance by the one raising the question. Ark. Stats., § 27-614, on which petitioner relies, was not involved in the Sloan case. That was an action where a non-resident of the county was sued along with a resident of the county. There was a verdict in favor of the local resident and a verdict against the non-resident. Before the judgment was entered, the Peoples Loan and Investment Company — the non-resident — on the strength of Ark. Stats., § 27-615, filed an objection to a judgment being entered against it. Ark. Stats., § 27-615, provides that nonresident defendants may object to a judgment being-entered against them where there had been a verdict for the resident defendant. Hence the Sloan case is not in point with the situation presented here.
By filing a general denial, without reserving the question of jurisdiction, the defendant waived the jurisdiction of the court as to the parties and the petition for prohibition is therefore denied. | [
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George Rose Smith, J.
In 1943 and 1944 the appellant, Dee Walker, obtained from his sisters, Addie Biddle and Mary Walker, quitclaim deeds to 320 acres of land that had been held by the Walker family for many years. This suit to cancel those deeds was brought by Addie Biddle and by some of Mary Walker’s heirs, the others being named as defendants. The plaintiffs successfully contended below that when the deeds were executed the two sisters were tenants in common with their brother and placed the title in his name merely to enable him to act for all three in the execution of oil-and-gas leases and deeds. Dee contends that the land was already his, that he had put the title in the names of his wife and two sisters for the purpose of defrauding a judgment creditor, and that after the judgment claim had been settled the sisters simply reconveyed the title to him.
Since we have concluded that all issues of fact must be determined adversely to the appellant by reason of a letter he wrote to Addie Biddle a few months before this suit was filed, we pass quickly over the background facts. The Walker children inherited the land from their father in 1907 but lost it by foreclosure in 1927. Title was regained in 1931 when Henry Stevens executed a deed to Dee’s wife and the two sisters. Dee says that he alone arranged to repurchase the land from Stevens in 1927, that he made payments until the debt was satisfied in 1931, and that Stevens, who was Dee’s attorney, made the deed to Dee’s wife and sisters in order to protect the title from an unsatisfied judgment against Dee. The testimony on the other side is that the brother and two sisters all lived on the land, worked the crops together, and by their joint efforts regained the land as tenants in common.
Title remained in the three women until Addie and Mary gave Dee a quitclaim deed to 160 acres in 1943 and a similar deed to the other 160 acres in 1944. These are the deeds now in controversy; we have mentioned the conflicting reasons that are given by the parties for the execution of these conveyances.
The brother and sisters continued to live on the property until Mary died in 1947. According to Addie’s testimony, in 1950 and thereafter she tried to persuade Dee to divide the land, but Dee wanted to postpone the division until he could “get shed” of his second wife. On June 26, 1952, Dee wrote his sister this letter, which we consider to be decisive :
“Hello Addie how are you find I hope this leave al well hope this will find you al the same I got your letter was glad to here from you But sorry that you think I am made with you for what listen Addie you is got land her just like I am dont want your land and aint trying to take it from you listen I have married the laward [lawyer] told me let that land stay like it is if I dont my wife can get a part of it that why I wont vied [divide] it if it stay like it is she can not get any thing that why I dont want to vied it yet a while that why I diden want you to talk with me before her that night listen when you come down here I will tell you al a bout it when I see you a gen I dont want you land so with love
Dee Walker”
Confronted with this letter Walker was unable to explain why he had written that his sister had land just as he had, why he had assured her that he was not trying to take it from her, or why he had thought is necessary to give a reason for not dividing the land. When this letter is considered with the other testimony we conclude that the appellees have met the burden of showing by clear and convincing proof that the deeds in question were made in reliance upon Walker’s promise to hold the land for himself and his sisters.
Aside from this question of fact the appellant urges two issues of law. First, it is argued that the statute of frauds prevents the enforcement of Dee’s oral promise to hold the title for his sisters. This is time, but the statute by its terms does not apply to a constructive trust. Ark. Stats. 1947, § 38-107. That type of trust is involved here. When the grantee’s oral promise to hold for the grantor is fraudulently made, or when such a promise is given by a grantee who stands in a confidential relation to the grantor, equity will impose a constructive trust upon the grantee’s refusal to perform his promise. Armstrong v. Armstrong, 181 Ark. 597, 27 S. W. 2d 88; Rest., Restitution, § 182; Rest., Trusts, § 44. The relation between brother and sister is, in the absence of estrangement or other unsual circumstances, one of confidence; they are not regarded as dealing with each other at arm’s length. Gillespie v. Holland, 40 Ark. 28, 48 Am. Rep. 1; Reeder v. Meredith, 78 Ark. 111, 93 S. W. 558, 115 Am. St. Rep. 22.
Second, it is contended that since the statute of limitations, in the absence of concealment, runs in favor of the trustee of a constructive trust, Matthews v. Simmons, 49 Ark. 468, 5 S. W. 797, this suit is barred by the seven-year statute. The answer is that the constructive trust did not arise at the moment the deeds were executed. It is the transferee’s repudiation of his promise that brings the trust into being. The evidence indicates that Walker did not claim the land as his own until after his sister Mary’s death in 1947; so the bar of the statute had not fallen when this suit was brought in 1952.
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Ed. F. McFaddin, Associate Justice.
This appeal emphasizes the necessity of itemizing an account. Appellees filed action against appellant, alleging:
“Defendant is indebted to plaintiffs in the sum of $310.60, together with interest from September 24, 1949, to date, at the rate of six per cent per annum, for goods, wares and merchandise which defendant purchased from plaintiffs on the dates and in the amounts as is shown on the itemized and verified statement of the account attached as Exhibit ‘A’ hereto and made a part hereof.”
The ‘ ‘ itemized and verified statement of the account attached as Exhibit ‘A’ ” merely contained information like this:
“7-29-48 Groceries 6.72
7-29-48 ” 1.87
7-31-48 ” 4.94
8- 4-48 ” 6.86
8- 5-48 ” 3.23
8- 7-48 ” 13.26
8-10-48 ” .21
8-10-48 ” 2.49
8-11-48 ” .36
8-14-48 Paid on Account 20.00
8-14-48 Groceries 17.07
8-21-48 Paid on Account 15.00
8-21-48 Groceries 11.08
10.67 8-28-48
In other words, the account merely gave a date, the general word “groceries” and the total of the purchases of groceries on the date shown.
Appellant (defendant) filed this motion:
‘ ‘ The defendant respectfully moves the Court to require the plaintiffs to make their complaint more definite and certain in the following particulars:
“1. To itemize the account sued on;
“2. To state each item alleged to have been purchased by the defendant, and the cost thereof. ’ ’
The Court overruled the motion, tried the case, and rendered judgment for appellees; and the only point on appeal is the alleged error of the Trial Court in refusing to require the appellees to itemize the account.
In Brooks v. International Shoe Co., 132 Ark. 386, 200 S. W. 1027, in regard to the necessity of an itemized account when requested, we said:
“It will be observed that the account filed by appellee did not purport to be an itemized account, but only to show the total amount of bills alleged to have been sold on the dates mentioned without giving a complete inventory of the goods sold.
“The word ‘account’ is said to have no inflexible technical meaning and is differently construed according to the connection in which it is used. However, in mercantile transactions it is invariably used in the sense of a detailed or itemized account. Bouvier defines the word as ‘A detailed statement of the mutual demands in the nature of debt and credit between parties, arising out of contracts or some fiduciary relation.’ Substantially the same definition is given in 1 Corpus Juris, p. 596, where it is said: ‘ To constitute an account, there must be a detailed statement of the various items, and there must be something which will furnish to the person having a right thereto information which will enable him to make some reasonable test of its accuracy and honesty. ’ ’ ’
In the Brooks case the word was “merchandise”; here the word is “groceries.” Other eases as to itemization are Tylor v. Crouch, 219 Ark. 858, 245 S. W. 2d 217; and Terry v. Little, 179 Ark. 954, 18 S. W. 2d 916. Under these cases it is clear that the defendant was entitled to have the account itemized by the plaintiffs, specifying the particular articles (i. e. ham, cheese, crackers, lard, etc.) covered by the generic word “groceries,” and totalling the amount of the purchases on each day shown.
To avoid the effect of our holdings as previously quoted, appellees claim that in Brooks v. International Shoe Co., supra, this Court quoted a Statute (then contained in § 6128 Kirby’s Digest), and that the present Statute (§ 27-1143 Ark. Stats.) omits the last sentence contained in the Kirby’s Digest section and reading as follows:
“If upon an account, a copy thereof, must, in like manner, be filed with the pleadings. ’ ’
Appellees point out that the last quoted sentence was contained in § 138 of our Civil Code of 1869 but was omitted from the Amendatory Act which was Act 48 of 1871. But the appellees’ claim in this regard fails to go to the heart of the matter. The complaint said that attached to it was an “itemized and verified statement of the account.” The defendant asked to be furnished such “itemized statement.” The plaintiffs failed to itemize the statement; and we have held that itemization is required when requested, unless good reason be shown for inability to itemize.
Furthermore we cannot see — in the record before us — anything that would support a holding that appellant has lost the right to raise the point on appeal. The order, overruling the motion to make more definite and certain, merely says:
“And the Court, after hearing argument of counsel, overrules the said demurrer and motion.”
Prior to Act 555 of 1953 an exception would have been required in order to save the point; but § 21 of Act 555 abolishes exceptions and it is only necessary that the party at the time of the ruling makes known to the Court “the action which he desires the Court to take or his objections to the action of the Court and his grounds therefor.” Certainly when the defendant filed in the Trial Court his motion to make more definite and certain, he made known the action which he desired the Court to take; and thus there is substantial compliance with § 21 of said Act 555.
The record before us contains only the pleadings in the Trial Court, but the appellees have not objected or claimed the record to be deficient. The appellant designated in the Trial Court as his point for appeal:
“The defendant herein, Roy Griffin, is appealing this case to the Supreme Court of Arkansas only from the Court’s action in overruling the defendant’s Motion to Make the Complaint More Definite and Certain.”
Section 12 of Act 555 of 1953 says in part:
“Where the record has been abbreviated by agreement or without objection from opposing parties, no presumption shall be indulged that the findings of the trial court are supported b}^ any matter omitted from the record.” (Italics supplied.)
When the defendant presented to the Trial Court his motion to have the statement itemized, the plaintiffs could have shown that they had furnished the only itemization they had, or they could have offered other excuses. But because of the said § 12 of Act 555, as above quoted, we cannot indulge the presumption that any such matters occurred. In this state of the record, we see no course open to us except to apply our cases concerning the necessity of itemizing an account when requested.
Therefore, the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Justices Holt and Ward dissent.
In Ark. Stats. Anno. Vol. 3, p. 1101 in the Appendix, there is Form No. 16, which gives the suggested form of complaint in an action on an account. The complaint here was similar to that form.
This Section 21 is a copy of Rule 46 of the Federal Rules of Civil Procedure.
This quoted sentence is not a part of Federal Rule 75(e) from which the first part of § 12 of Act 555 is copied. | [
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Lee Sbamstek, Chief Justice.
The appellant, a citizen of Pulaski County, has appealed this case from a judgment of the Chancery Court of the County sustaining a demurrer and dismissing a complaint filed by him in said court, against the appellee the County Judge of said County.
On February 4, 1955, the Pulaski County Court entered an order declaring the necessity for the construction of a county jail, for the handling, detention and rehabilitation of juveniles in said county. The court appointed architects who prepared and filed plans for the jail and estimated the cost thereof at $386,000.
The complaint sets ont the above facts and alleges that unless the appellee is enjoined he will proceed to call an election to see if the voters of the county will approve the proposed project and vote a tax to pay for the same. He further alleges that the county court is proceeding under the provisions of Amendment No. 17 to the Constitution of this State and that such amendment does not authorize the construction of such a building as proposed in the order; that the order is void and appellee has spent and is preparing to spend county funds illegally in carrying out the order so made by the county court.
Amendment No% 17 provides the only method by which a county without current funds, can construct a county jail. It’s admitted by both parties that the county is without current funds to construct the building.
The principal contention of the appellant is that the proposed building is not a county jail because it is proposed to house therein delinquent juveniles, dependent juveniles and the juvenile court administration together with other personnel. Amendment No. 17 makes it the business of the County Court to determine in the first place, the necessity for the construction of a county jail, before it can proceed with the, construction of the building the voters of the county have to approve, by their vote, the construction thereof and vote for a tax to pay therefor. The law prohibits the placing of juveniles with adult prisoners.
It is conceded that the county does not now have a suitable place for the detention of juveniles. The purpose to be served by the proposed building is a proper function of the county government. It is generally known that a county jail is a building where a person or persons may be legally detained for many different reasons, for investigation and observation to answer a charge of some offense, to serve out a fine, to await transfer to another state, or another prison and for many other reasons.
The jail buildings generally provide a place for the jailer, and other personnel to live, a place to prepare meals, and sanitary conditions are maintained therein. The proposed building according to the plans will provide áép'árate facilities for the juvenile court, the duties of such court are more administrative than judicial. It also provides a place to keep the administrative records and conference rooms; separate compartments for dependent children such as sleeping, and eating quarters and other facilities. The plans also provide for delinquent juveniles the same facilities on another floor level so that such children will not be housed together but kept separate as provided by law. No child will be detained in said building except for legal cause, just the same as in any county jail. They will be detained for processing in a legal manner, the dependent children will have shelter, food and clothing until suitable homes can be found for the homeless. For those who have homes until their homes can be improved and a proper home life provided for them. The delinquent children, whether because they are incorrigible or law violators will be held in the build-’ ing on a separate floor from any other department in the building until arrangement can be made with their parents, other relatives, or some suitable person or persons to provide for them a normal home life where they may have an opportunity to become useful citizens.
Our law requires that juveniles be kept separate from adult prisoners. The County Court found that the County now has no separate facilities for the care of juveniles. Amendment No. 17 authorizes the construction, reconstruction or extension of county jails. The contention of the appellant is that the proposed building is not a county jail. Webster’s Dictionary defines a jail (among other definitions) “as a building for the confinement of persons held in lawful custody. ’ ’ A county jail, whether for adults or juveniles, in the common acceptation of the term, is a place for the legal detention of all persons, who come within the provisions of our laws which authorizes our law enforcement officers to detain them. Many persons, who are not criminals, are taken by officers to the jail. They may never be charged with any offense and still be legally in the custody of some officer. They are sometimes held for investigation, as a witness or for any reason which would tend to protect society or the person detained.
A jail is no longer just a prison. It is rather a place also where persons in lawful custody are processed or handled and may be liberated, passed on to other legal entities, detained for a short or long time — So long as the detention thereof is legal.
We hold the proposed building comes within the provisions of amendment No. 17, which authorizes the construction, reconstruction and extension of county jails. The County Court to date has proceeded legally in this matter. The case is affirmed.
Justice McF addin thinks this suit is premature.
Justice George-Rose Smith-dissents. | [
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Hart, J.,
(after stating the facts). It is first contended by counsel for appellant that the agreement of January 28, 1908, by its terms put an end to the original contract, and that under it appellee is precluded from maintaining this action, but we can not agree with them in this contention. In this respect, this case is different from that of the Cherokee Construction Company v. Prairie Creek Coal Mining Company, ante p. 428.
In that case, the language of the new or substituted agreement was very broad and comprehensive. It purported to be in full settlement of all matters and differences between the parties, and the court held that the language of the contract embraced all matters that might be in dispute between the parties under the original contract, and that parol evidence could not be introduced to vary the terms of the new contract or agreement. There it was attempted to be shown that certain matters embraced in the original contract were not intended to be included in the settlement, and the court held that under the express language of the new agreement this could not be done because it would operate to contradict or vary its terms. Here the language is not sufficiently broad and comprehensive to preclude appellee from maintaining this action for damages for breach of the original contract.
It is next contended by counsel for appellant that the court erred in refusing to admit testimony to the effect that it was understood or agreed between the-parties at the time the new agreement was made that the old contract was at an end, and that the new contract was made for the purpose of rescinding it altogether. This testimony, we think, was competent.' It is the theory of the appellee in this ease that appellants committed a breach of the contract the first of December, 1907, by failing to meet his pay roll, and that appellee was prevented from performing his contract by this act; that, having been prevented from performing his contract, he turned over the property in satisfaction of what he owed appellants, and in order to get them to pay other outstanding indebtedness which he owed. He admits that he turned back to them all the houses and all the other property which he used in running the saw mill, and that the vendors of the machinery took that away from him, but he says that this was done after appellants had refused to allow him to perform his contract with them according to its terms, and that therefore he could not run his mill, and had no use for the property connected therewith.
On the other hand, appellants claim they advanced appellee more than $900 to be used in paying for his machinery and in making preparations to perform his contract; that appellee never paid any of this indebtedness, and that because of this fact they refused to meet his pay roll on December 1, 1907; that on January 28, 1909, they had a full settlement of all matters included in the original contract, and that it was understood between them that the original contract was terminated thereby.
"While the contract remains executory on both sides, an agreement to annul on one side is consideration for the agreement to annul on the other, and vice versa. ” 9 Cyc. 593-4.
We do not think that the effect of the excluded testimony was to vary or alter the terms of the contract of January 28, 1908, as copied in the statement of facts. That agreement went merely to the settlement of the indebtedness between the parties, and did not purport to be an agreement between them as to all matters embraced in the original contract.
The evidence excluded tended to establish a collateral agreement which involves no contradiction of the written agreement, and does not in any way vary its terms. In other words, the excluded evidence did not in any manner tend to contradict or vary any language of the contract of January 28, 1908, or any of the terms thereof, but only tended to establish a distinctly collateral agreement between the parties which was not considered necessary to be put in writing when the written agreement was executed, but which in fact constituted, in part, the consideration for it. The authorities are that proof of such an agreement not inconsistent with the terms of the written contract, may be made by parol evidence. Weaver v. Fletcher, 27 Ark. 510; 17 Cyc. 713-17.
For the error as indicated in excluding this testimony the judgment must be reversed, and the cause remanded for a new . trial. | [
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Ed. F. McF addin, Justice.
Appellants and appellees are, together, all the heirs of A. A. Armstrong, deceased. The appellants brought this suit to set aside a deed from A. A. Armstrong to appellee. At the close of the plaintiff’s case the Chancery Court sustained defendant’s motion for decree. See Act 470 of 1949; and Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225. The question here presented is whether the testimony for the plaintiffs was strong enough to present a question of fact for decision. If the plaintiffs made a case, then the decree must be reversed under the authority of Werbe v. Holt, supra, which was recognized by the Chancellor as stating the applicable test.
The complaint alleged, and there was evidence tending to show, that prior to July 21, 1934, A. A. Armstrong and his wife lived on the land here involved; that Mr. Armstrong was involved in litigation which he feared might result in a judgment against him; that an attorney advised him that any judgment rendered against him would not disturb his homestead during the lifetime of himself and wife, but would be a lien thereafter if the homestead had not been previously transferred; that Mr. Armstrong and his wife then executed and acknowledged a general warranty deed to the property in question which recited a good and valuable consideration and conveyed the property to Mildred Armstrong, who is now Mildred Robinson, the defendant below and the appellee here. The said deed had this provision: “. . . reserving, however,- the said A. A. Armstrong and Ella Armstrong, his wife, the use, benefits and right of occupancy of said lands for and during the natural life of either or both the said A. A. Armstrong and Ella Armstrong. . . .’■’
The trial in the Chancery Court involved the actual or constructive delivery of the deed to the grantee, as well as the acquiescence of Mr. Armstrong in the grantee having the deed recorded. That a deed was signed and acknowledged by Mr. Armstrong and his wife as grantors is an admitted fact; but the plaintiffs maintain that the deed was never delivered, either actually or presumptively. Our reports are replete with eases presenting various factual situations regarding delivery. The facts in the case at bar are not entirely identical with any one of our cases; so we state the applicable rules and then measure the facts in the case at bar by such rules. In Cavette v. Pettigrew, 182 Ark. 806, 32 S. W. 2d 808, Mr. Justice Frank Gr. Smith used this language:
“It is elementary law that delivery is essential to the validity of a deed, but it is frequently a mixed question of law and fact as to whether there has been a delivery, and the law on the subject has been declared in a number of our cases. Russell v. May, 77 Ark. 89, 90 S. W. 617; Maxwell v. Maxwell, 98 Ark. 466, 136 S. W. 172; Battle v. Anders, 100 Ark. 427, 140 S. W. 593; Stephens v. Stephens, 108 Ark. 53, 156 S. W. 837; Faulkner v. Feazel, 113 Ark. 289, 168 S. W. 568; Watson v. Hill, 123 Ark. 601, 186 S. W. 68; Fine v. Lasater, 110 Ark. 425, 161 S. W. 1147; Bray v. Bray, 132 Ark. 438, 201 S. W. 281; Davis v. Davis, 142 Ark. 311, 218 S. W. 827; Hardin v. Russell, 175 Ark. 30, 298 S. W. 481.
“In the case of Battle v. Anders, supra, it was said: ‘The important question in determining whether there has been a delivery is the intent of the grantor that the instrument should pass out of his control and operate as a conveyance. The intent of the grantor is to be inferred from all the facts and circumstances adduced in the evidence. His acts and conduct are to be regarded in ascertaining his intent.’ ”
In Battle v. Anders, supra, Mr. Justice Hart said:
“It is only where the acts or words unequivocally evince the purpose of the grantor that the question of delivery becomes one of law. Cribbs v. Walker, 74 Ark. 104; Russell v. May, 77 Ark. 89; Eastham v. Powell, 51 Ark. 530.”
In the case at bar the facts stated most favorably to the plaintiffs — as must be done in testing the motion-show that Mr. Armstrong never knowingly allowed the deed to pass from his possession; that the grantee acted surreptitiously in obtaining the deed and placing it of record; that the grantor discovered such fact shortly before his death and insisted that as soon as he was able he would have the grantee go with him to the courthouse to have the deed cancelled of record. There was evidence that the grantor kept the deed in a box in a trunk; there was no showing that the grantee had either the legal or moral right of access to the trunk or the box; and there was testimony that the grantee admitted she had “done wrong” in getting the deed and placing it of record.
Thus the testimony in the case at bar was sufficient to present factual issues as to whether there had been (1) actual delivery, (2) acquiescence, or (3) the overcoming of presumptive delivery. The fact questions could not be settled on a motion to dismiss; they required a weighing of the evidence and the exercise of fact finding-powers. The motion to dismiss should have been overruled, and the case should have proceeded to a final decision on the facts.
Reversed and remanded.
Mrs. Armstrong is also deceased.
Some of our cases not elsewhere listed in this opinion are: Graham v. Suddeth, 97 Ark. 283, 133 S. W. 1033; Taylor v. Calaway, 186 Ark. 947, 57 S. W. 2d 410; Johnson v. Young Men’s Bldg. & Loan Assn., 187 Ark. 430, 60 S. W. 2d 925; Ransom v. Ransom, 202 Ark. 123, 149 S. W. 2d 937; and Ellis v. Shuffield, 202 Ark. 723, 152 S. W. 2d 535. | [
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Sam Robinson, Associate Justice.
In this case appellants contend that the grantor and grantee made a mutual mistake in the description of property intended to be conveyed, and that such a mistake is one of fact. They seek to have the deed reformed. Appellee maintains that the mistake, if any, is one of law and that under our prior decisions the deed cannot be reformed.
Appellants are devisees under the will of Lula Dubisson; appellee is the only child of D. J. Dubisson and the residuary devisee under his will. On December 18, 1939, D. J. Dubisson and his wife Lula acquired as an estate by the entirety the east % of Lots 1, 2 and 3, Block 281 of the city of Little Rock. On June 23, 1949, Dubisson deeded to his wife Lula of E % of Lots 1, 2 & 3 in Block No. 281.” In February, 1950, Lula died. Later D. J. Dubisson died, and appellee Greraldine Dubisson Lee, being the residuary devisee under his will, acquired whatever interest if any Dubisson owned in the property under consideration at the time of his death. Evi dence was introduced at the trial going to show that it was Dubisson’s intention to deed all of his interest in the property to his wife Lula, and that he thought he had done so. It makes no difference here about the admissibility of such evidence, because assuming that it was Dubisson’s intention to deed all of his interest to his wife, the deed fails to accomplish that purpose, and this was a mistake of law.
Undoubtedly, Dubisson thought that by owning the property with his wife as an estate by the entirety, they each owned an undivided one-half interest, and that by conveying to his wife one-half interest in the entire property he was conveying all of his interest. If he had owned an undivided one-half interest of course the deed would have carried out his intention, but such was not the nature of the estate he owned. It was an estate by the entirety. His mistake was not as to the description of the property. He thought he owned an undivided one-half interest and he executed a deed accordingly. He did what he intended to do, but by operation of law the deed did not effect the result intended. This was a mistake of law.
In support of their contentions in the matter, appellants cite Spaulding Manufacturing Company v. Godbold, 92 Ark. 63, 121 S. W. 1063, 135 Am. St. Rep. 168. There, reformation was allowed. It was proved that the property was purchased by individual partners instead of by the partnership. By mistake the partnership was named as grantee in the deed. But that case is not analogous to the situation here. If Dubisson had employed a scrivener to prepare the deed and by mistake the wrong person had been named as grantee, the Spaulding case would then apply.
Appellants also rely on Wood v. Wood, 207 Ark. 518, 181 S. W. 2d 481. There this court said: “The lower court’s decree was necessarily based on a finding that there was a mutual mistake when the appellees executed and the appellant accepted from them a deed conveying an interest in the land — the dower and homestead inter est of the widow — which they did not own.” Obviously a mistake of fact was involved in the Wood case. Other cases cited by appellants are equally inapplicable.
In Rector v. Collins, et al., 46 Ark. 167, this court said: ‘ ‘ The rule is well settled that a simple mistake by a party as to the legal effect of an agreement which he executes, or as to the legal results of an act which he performs, is no ground for either defensive or offensive relief. If there were no elements of fraud, concealment, misrepresentation, undue influence, violation of confidence reposed, or of other inequitable conduct in the transaction, the party who knows, or had an opportunity to know, the contents of an agreement or other instrument, cannot defeat its performance, or obtain its cancellation or reformation,' because he mistook the legal meaning and effect of the whole, or of any of its provisions. Where the parties with knowledge of the facts, and without any inequitable incidents, have made an agreement, or other instrument, as they intended it should be, and the writing expresses the transaction as it was understood and designed to be made, then the above rule uniformly applies; equity will not allow a defense, or grant a reformation or rescission, although one of the parties, and — as many of the cases hold — both of them, may have mistaken or misconceived its legal meaning, scope, and effect. The principle underlying this rule is that equity will not interfere for the purpose of carrying out an intention which the parties did not have when they entered into a transaction, but which they might, or even would, have had if they had been more correctly informed as to the law; if they had not been mistaken as to the legal scope and effect of their transaction.”
Crews v. Crews, 212 Ark. 734, 207 S. W. 2d 606, is controlling. There, Mrs. Crews executed to her husband a deed for one-half interest in the property involved. Later Mr. Crews died, and Mrs. Crews in an attempt to show that the property was an estate by the entirety testified that it was her intention to create such an estate. The court said: ‘ ‘ The effect of her deed was not to ere- ate an estate by the entirety, but to vest in Crews an undivided one-half interest in the property. . . . While appellee testified that she thought the deed she was executing to Crews would create an estate by the entirety as to the ‘home place,’ it was not shown that any fraud or deception, as to the contents of the deed, was practiced on her. Mere mistake of a party as to the legal effect of an instrument does not vitiate the instrument or afford ground for reformation.”
Appellants further contend that appellee is estopped to claim title to the property because her predecessor in title accepted benefits under the will of his wife Lula which were inconsistent with his ownership of the property. It is true Dubisson did accept such benefits under the will of his wife, but the benefits he accepted were less than he was entitled to and such acceptance on his part gives rise to no principle of estoppel. Appellants rely on Hudson v. Union & Mercantile Trust Company, 155 Ark. 605, 245 S. W. 9. But, in that case Mrs. Hudson claimed a dower interest in a certain fund. Relying on her election to take dower, the administrator on order of the probate court paid the balance of the fund on preferred claims. Later Mrs. Hudson claimed the entire fund. In these circumstances, the court held that she was estopped. It can readily be seen that the principle of estoppel involved in the Hudson case is not present in the case at bar.
The decree is affirmed. | [
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Wood, J.,
(after stating the facts). In Jackson v. Gorman, 70 Ark. 88, the order of sale of 'July 21, 1897, was held to be valid. The appellants in this case were parties to that suit. In their amended answer and cross bill to the petition for the new order of sale made in the probate court, which they were resisting, they attack the order of sale of July 21, 1897. This court, in that case, speaking of that order of sale, said:
“The probate court had acted, and, presumptively, upon the proper showing made, and the term had passed without objection raised. The conclusion is that everything was properly done. ”
This decision settles the question raised by the appellants as to the validity of the order of sale.
We deem it unnecessary to set out and discuss in detail the various exceptions presented in the probate court and in the circuit court to the confirmation of the sale made by the probate court, for, in our opinion, Jackson v. Gorman, supra, settles also adversely to them the various objections urged by appellants to the confirmation of the sale. In that case this court said;
“The amended answer and cross bill is mainly an attack upon the validity of the order of the probate court allowing the claims against the estate under the administration of James Evans, now also deceased, and made years ago. These allowances are in the nature of judgments, and after the expiration of the term are not within the control of the probate court. It follows that to attack them in the probate court would be in violation of all rules on the subject. The circuit court, on appeal, can have no other issues before it than had the probate court from which the appeal is taken. These judgments of the probate court, moreover, were final after the expiration of the term at which they had been rendered, and could not be reopened by the probate court, and could only be called in question by appeal or by original bill in chancery on the allegation of fraud, accident or mistake. ’ ’
In the earlier case of Carter v. Engles, 35 Ark. 205, this court held that “the allowance of a claim in the probate court has the force and effect of a judgment.” This court in that case also pointed out that where the allowance of a claim was procured by fraud between the creditor and the administrator, the remedy to parties interested was by appeal from the judgment of allowance, or, if the term had ended, by a proceeding in equity to set aside for fraud on the court in procuring the allowance. See other cases cited in the opinions above mentioned.
Kirby’s Digest, § 125, provides: “The probate court shall have power to hear and determine all demands against any estate made agreeably to the provisions of this act, and cause a concise entry of the allowance to be made on the record, which shall have the same force and effect as a judgment. ”
This court, as early as 1843, in Dooley v. Watkins, 5 Ark. 705, in passing upon a similar provision, held that the allowance of a claim by the probate court has the force and effect of a judgment.
As late as 1909, this court, in the case of Davis v. Rhea, 90 Ark. 261, held that the allowance of a claim by the probate court was a judgment of a court, of competent jurisdiction, which could only be set aside on account of fraud in the procurement thereof. The same was held in James v. Gibson, 73 Ark. 440, and in Scott v. Penn, 68 Ark. 492. Other earlier cases are McMorrin v. Overholt, 14 Ark. 244; Wright v. Campbell, 27 Ark. 637; Wolf v. Banks, 41 Ark. 104; Brown v. Hanauer, 48 Ark. 277.
So it is thoroughly settled by statute and the decisions ■of this court that the allowance of a claim by the probate court has the force and effect of a judgment. If the parties who are seeking to set aside the allowance of such claims were parties to the record when the judgments of allowance were entered, or became parties thereto before the term ended, their remedy to correct any errors in the allowance of such- judgment, by fraud or otherwise, would be by appeal. If they did not become parties to the record during the term, then their remedy to set aside the allowance for fraud in procuring the judgment would be by bill in equity, as shown in the cases of Scott v. Penn, Jackson v. Gorman, and James v. Gibson, supra.
The cases of Burgett v. Apperson, 52 Ark. 213, and Gorman v. Bonner, 80 Ark. 339, cited by learned counsel for appellants are not in conflict with the principles above announced, and are not, as we believe, applicable to the question under consideration.
In Burgett v. Apperson, supra, no attack was made on the judgment of allowance upon which the order of sale was based. The appellant, Miss Burgett, who was an infant and heir at law, was permitted in that case to correct certain erroneous proceedings that inhered in the sale of the land. It was expressly held in that case that there was a valid judgment upon which the order of sale and the sale itself were made, but the petitioner was not a party to the record when the confirmation of the sale took place, and she had lost her right of appeal by the erroneous action of the court in confirming the sale on a day not fixed by its order. She had, therefore, lost the right of appeal through' no fault of her own, and was permitted to resort to.the writ of certiorari to correct erroneous proceedings by the administrator in making the sale. It is said in that case: “It must be conceded that th'e probate court proceeded irregularly in every step taken in that tribunal after entering the circuit court’s order of sale upon its record. ” In that case the lands were offered for sale without regard to their appraised value. The administrator at the time of the confirmation of the sale was an imbecile. The lands sold were the homestead of the petitioner. The debt for which they were sold amounted to $10,000, and the creditor purchased them at the sum of $17,000, when they were appraised at $79,340, and were offered in bulk at the sale to pay his debt.
Of course, if appellants were making an attack upon the proceedings of the administrator in making the sale, and not upon the judgment itself upon which the sale was based, the case of Burgett v. Apperson would be in point, but such is not the case.
In Gorman v. Bonner this court merely holds that one who is sued at law on a legal liability and who allows judgment to go against him can not afterwards enjoin that judgment in equity upon some equitable grounds that were known to him before the judgment at law was rendered. In other words, that one who is sued at law must set up such defenses as he knew he had in that suit, and that if he fails to do so he can not after-wards seek relief against such judgment in a court of equity.
Another case upon which appellants rely is that of Marshall v. Holmes 141 U. S. 589. In that case Mrs. Marshall sought by petition in the Federal court to enjoin certain judgments that had been rendered against her in the State of Louisiana. She alleged, among other things in her petition, that “all the judgments were obtained by false testimony and forged documents, and that equity and good conscience required that they be annulled and avoided.” The petition set up specifically the facts upon which she alleged the injunction should be granted. In that case the court said: “The case evidently intended to be presented by the petition is one where, without negligence, laches or other fault upon the part of the petitioner, Mayer has fraudulently obtained judgment which he seeks, against conscience, to enforce by execution. ” The court further said: “It is the settled doctrine that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery. ”
The above cases, as we view them, have no application to the case at bar, for the reasons that the exceptions presented by appellants as objections to the confirmation of the sale in this case are nothing more nor less than a collateral attack upon the judgment of the probate court allowing the claims for the payment of which the lands were sold.
The order of the probate court allowing these claims, having the force and effect of a judgment, can hot be attacked in this manner, according to the numerous decisions of our own court. Upon this view of the case it becomes unnecessary to pass upon the other question of res judicata. It follows that the judgment of the circuit court was correct, and it is affirmed. | [
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McCulloch, C. J.
Antone Frankring became a member of the Loyal Fraternal Home, a fraternal insurance society, and had a benefit certificate or policy therein for the sum of $1,000, payable to his two children, Annie and Bertie Frankring. One of the by-laws of the society contained the following provision:
“Benefits shall be made payable only to families, widows, heirs, blood relatives, affianced husband or affianced wife, to persons dependent upon the member, or to the member for accidental injury, and to such others as may be permitted by the laws of the State of Missouri, and the beneficiary or beneficiaries shall be designated by the applicant in his application. Should a member in good standing clesire at any time to change his beneficiary, he shall pay to the secretary a fee of fifty cents, and deliver to him his benefit certificate, with written surrender on the back thereof and directions as to the change desired and name of new beneficiary. The secretary shall then forward said certificate with the fee of fifty cents to the supreme secretary, who shall at once issue a new certificate as requested.”
Subsequent to the issuance of said certificate to Frankring, the National Annuity Association, another corporation engaged in the same business, took over and assumed the obligations of the Loyal Fraternal Home. On September 19,1908, Frankring signed a written application, in accordance with the laws of said association, for a change of beneficiary, offering to surrender the original certificate, and requesting therein the issuance of a certificate payable to appellant, Mary L. Longer, who was designated in said application as a “dependent.” This application was forwarded to the national president, together with the surrendered benefit certificate, and that officer erased the names of the two beneficiaries originally designated therein, and inserted in the same place the name of appellant as dependent aforesaid, this change being attested by the signature of said officer and dated September 28, 1908. The certificate as thus changed was returned to the local secretary and delivered to appellant, who still holds it. Frankring died January 7, 1909, while still a member of said fraternity, and while said benefit certificate was outstanding in the hands of appellant, and an action was thereafter instituted against the National Annuity Association by the two children suing by their guardian, F..T. Carter, to recover the amount of said benefit. Appellant appeared in that action, and asked to be made a party, which was done by consent of all parties. The National Annuity Association denied liability under the policy or benefit certificate on account of alleged misrepresentations of Frankring concerning his habits with reference to the use of intoxicating liquors and also with reference to past illness. While the cause was pending in the circuit court, and before the trial thereof, the three parties to the action entered into the following written agreement:
“It is hereby agreed by all the parties to this suit that the cause may proceed to trial as if Mary Longer was joined as party plaintiff; and if it is found that the defendant, the National Annuity Association, is liable upon the policy of insurance, the court shall determine which of the parties under the law and the evidence is entitled to a judgment; and it is further agreed that, if either party desires to do so, they may submit to the court additional evidence upon the question of the amount recovered.”
The cause was tried by a jury, and the trial resulted in a verdict and judgment against the defendant in the action for the full amount named in the benefit certificate, and on appeal to this court the judgment was affirmed. National Annuity Association v. Garter, 96 Ark. 495. The judgment was rendered in favor of appellant, Mary Longer, and appellees, Annie and Bertie Frankring, and contained an order directing that the sum so recovered “be paid to the clerk of this court, to beheld by him until the rights of Mary L. Longer and Francis P. Carter, guardian for Anna and Bertie Frankring, can be determined by this court.” After the affirmance by this court, appellees filed an amended complaint, naming appellant and the National Annuity Association as defendants, alleging that they (appellees) were the daughters and sole heirs of Antone Frankring; that the original benefit certificate was payable to them, and that appellant, Mary Longer, is falsely and fraudulently asserting some rights to the benefit. Appellant filed her answer to this amended complaint, setting forth the aforesaid change of benefit certificate in her favor. The National Annuity Association made no further appearance in the suit, and, we assume, paid the amount of the benefit over to the clerk of the court in accordance with the judgment. The cause was tried before the court sitting as a jury, and the court found for ap pellees, and rendered judgment in their favor, awarding the amount of the benefit to them.
The benefit was subject to change according to the by-laws of the association, and appellees, as the original beneficiaries, had no vested interest therein. Carruth v. Clausen, 97 Ark. 50. It seems to be settled by the weight of authority that, where a member of a fraternal benefit society has the right, under the laws of the order, to change the beneficiary, and does make a change in the manner prescribed by the laws of the order, no one but the society itself can question the eligibility of the person thus designated, and the original beneficiary has no right to complain, even though the new beneficiary does not fall within the class specified by the laws of the order. In other words, that the society itself may waive the ineligibility of the designated beneficiary and that the original beneficiary, having no vested interest in the benefit, is not in position to complain. Alfsen v. Crouch, 115 Tenn. 352; Coulson v. Flynn, 181 N. Y. 62; Maguire v. Maguire, 59 N. Y. App. Div. 143; Tepper v. Supreme Council of Royal Arcanum, 61 N. J. Eq. 638; Cowin v, Hurst, 124 Mich. 545; Knights of Honor v. Watson, 64 N. H. 517; Hoeft v. Knights of Honor, 113 Cal. 91; Supreme Lodge, etc., v. Terrell, 99 Fed. 330; Taylor v. Hair, 112 Fed. 913; Martin v. Stubbings, 9 Am. St. Rep. 629, 126 Ill. 387. That doctrine has been announced and adhered to by this court, and upon principle we entertain no doubt of its correctness. Johnson v. Knights of Honor, 53 Ark. 262; McDonald v. Humphries, 56 Ark. 63. In Johnson v. Knights of Honor, supra, there, was a controversy between the widow and the heirs as to which was entitled to the benefit, there being no designation further than that it should be paid to his heirs, and the widow contended that the heirs in that case were collateral kindred, had no insurable interest, and did not fall within the class of beneficiaries named in the laws of the order, and therefore could not take the benefit. Judge Battle, in disposing of the case, said this:
“It is contended that the brother and sister of Johnson are entitled to no part of the $2,000, because the constitution of the supreme lodge of 1884 limits the rights of a member of any lodge of the Knights of Honor to name beneficiaries in a certificate issued to him to the members of his family, or those dependent on him, and they belonged to neither of these classes. But this question can be raised by no one except the supreme lodge, and it does not. By paying the money into court, it has expressed its willingness to have it paid to Johnson’s heirs. ”
It is insisted that the rule above announced does not apply in this case, for the reason that the effect of the agreement of the parties in the action was to transfer to appellees the society’s right or privilege of raising the question as to who was entitled to the benefit. We do not think that such is the effect of the agreement. By entering into this agreement and pleading other defenses, the society, in effect, waived its objection to the alleged ineligibility of appellant as the person named in the benefit certificate, and consented to the payment to her, if its liability under the certificate and the membership of Frank-ring should be established. Contesting the policy under those circumstances and under that agreement, we think, was the same as if the money had been paid into court for the benefit of the person whom the court should decide was entitled to it. The benefit certificate being payable to appellant, it established her right, prima facie, to collect the money, and no one but the society itself can complain. It has not done so, but, on the contrary, has elected to defend solely on other grounds.
It is also insisted that the change of the beneficiary was not valid, because the application was not signed by Frank-ring himself, the point being made that, as he was an illiterate, he could only sign by mark. Signature of an illiterate by mark is not the exclusive method by which an instrument may be signed by an illiterate. The undisputed testimony in the case establishes the fact that the name of Frankring was signed to the application by the local secretary in his presence. This was sufficient. It appears that the name of the local lodge president was signed to'the application without authority. This was, however, only an irregularity, at most, which only the society itself could take advantage of. Moreover, there does not appear to be any requirement that the application for change of beneficiary shall be attested by the president of the local lodge.
It is apparent from the record in this cause that the appellant is entitled to the benefit, and the court erred in not awarding the amount to her. The judgment is therefore reversed, and the cause remanded with directions to enter judgment in favor of appellant for the fund adjudged to be paid by the • National Annuity Association.
Wood and Hart, JJ., dissent. | [
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Ed. F. McFaddin, Justice.
Appellants filed this action for $1,979.90 against appellee, Wilcox Oil Company, a corporation. The theory of the appellants was that they were entitled to the “retainage” which the State allowed the appellee. The cause was tried on an agreed statement of facts before the Circuit Court without a jury and resulted in a judgment for the appellee. AVe copy the agreed statement of facts in toto:
“R. W. Whiteley and John F. Whiteley are partners operating a filling station on the corner of West Mountain Street and South School Street in the City of Fayetteville, under the firm name of R. D. Whiteley and Sons Service Station. Neither the partnership nor any members thereof were qualified as ‘distibutors’ or ‘persons other than distributors’ as provided by §§ 75-1109 and 75-1110, Arkansas Statutes (1947) and were not authorized to buy motor fuels for sale in the State of Arkansas without payment of the Arkansas Motor Fuel Taxes, during any period of time in which said plaintiffs purchased gasoline from the defendant.
“Wilcox Oil Company is a corporation duly organized under the laws of the State of Delaware and is authorized to do business in Arkansas and is qualified as a distributor of motor fuels in the State of Arkansas as provided by § 75-1109, Arkansas Statutes (1947) holding distributors Permit No. 151 issued by the Commissioner of Revenues of the State of Arkansas and was such licensed distributor at all times involved herein.
“Wilcox Oil Company sold motor fuels to R. D. Whiteley and Sons from time to time beginning in De cember, 1949, and tbe last sale being in February, 1954. Sales were made at the Wilcox bulk plant at Bristow, Oklahoma, and transported to Fayetteville by public carrier tank truck. Gallonages were measured at the bulk plant at Bristow, Oklahoma, with proper temperature correction. No shortages existed when delivery was made at Bristow. Gasoline was transferred from tank truck directly to Whiteley’s retail tanks.
“During the period the parties were engaged in the purchase and sale of gasoline, Wilcox reported all gasoline sold to Whiteley for sales in the State of Arkansas and collected the correct Arkansas Motor Fuel Tax, making reports and remittances to the Commissioner of Revenues of the State of Arkansas, retaining therefrom the percentages authorized by § 75-1112C (1) (e) as amended by Act 352 of 1949. During the period herein covered, Wilcox retained one thousand nine hundred forty-six dollars and seventy-six cents ($1,946.76).
“At no time were any shortages in motor fuels suggested or claimed, either by evaporation, shrinkage or other losses from unknown causes by reason of the shipment of motor fuels from the Wilcox bulk plant to the Whiteley Retail Station. ’ ’
The Circuit Court judgment was correct. Section 75-1101 et seq. Ark. Stats, is the “Motor Fuel Tax Law.” Section 75-1106 levies a tax of 6%<5 per gallon on the motor fuel — gasoline, in the case at bar. Sections 75-1109 to 75-1113, inclusive, provide for the licensing of distributors and other persons; and require, inter alia, an application, a surety bond, accurate bookkeeping, regular reports, and remittances; and § 75-1112 (C) (1) (e), as amended by Act 352 of 1949, allows a “retainage” in this language:
“. . . it being determined by the General Assembly that 2% on the first 200,000 gallons of motor fuel so received by the distributor and 1% of the remaining of the total gallonage so received is the actual and average amount of loss resulting from evaporation, shrinkage and losses resulting from unknown causes irrespective of the amount thereof, and the cost of collection.”
Thus, under the law, the person holding a permit and making the collections and reports is allowed to keep a “retainage” to cover losses and cost of collections. Appellee, Wilcox Oil Company, was the license holder and kept the “retainage” in the case at bar; and appellants are trying to recover the said retainage on all the gasoline that they purchased from the Wilcox Oil Company. Appellants never attempted to become licensed in any way by the State of Arkansas. They were willing to let appellee perform all the requirements of the Arkansas law; and now appellants want to recover from appellee the $1,946.76 which the State of Arkansas allowed appellee to retain for all of its shrinkage, losses, troubles, and expenses of collection.
The agreed statement demonstrates the fallacy of appellants’ contentions. If they had wanted to have the “retainage,” they should have complied with the applicable Statutes, as mentioned. The money appellee retained was allowed by the State to the appellee, as a licensed distributor. There is no merit in appellants’ claim that appellee has been unjustly enriched. The case of Cook, Comm. v. Sears Roebuck, 212 Ark. 308, 206 S. W. 2d 20, does not support the appellants in any way. In 1 Am. Jur. 417, in discussing “Elements of Good Cause of Action,” the holdings of the cases are summarized in this language:
“A cause of action arises when that is not done which ought to have been done, or that is done which ought not to have been done, . . . The essential elements of a good cause of action are the existence of a legal right in the plaintiff, with a corresponding legal duty in the defendant, and a violation or breach of that right or duty with consequential injury or damage to the plaintiff, for which he may maintain an action for the recovery of money damages, or other appropriate relief.”
The law says ‘there is no wrong without a remedy’; and the converse of the situation must also be true: there can be no remedy when there has been no wrong. Here the appellee has not wronged the appellants in any way so the appellants have no cause of action on the statement of facts to which they agreed. The Circuit Court was correct in so holding.
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Paul Ward, Associate Justice.
Appellants, Thomas Garner and Gilbert Thomas, brought this action in the circuit court, asking for damages against appellees, based on the alleged negligence of Cecil Scott in driving a concrete mixer, belonging to C. J. Horner & Co., into the automobile in which they were riding. From a jury verdict in favor of appellees, comes this appeal.
For a reversal appellants make three assignments of error, viz.: (a) Inadmissible evidence; (b) Eefusal to allow examination of certain witnesses, and; (c) Giving Instruction No. 7. We find it necessary to reverse the cause on the last assignment, and will therefore mention the first two only briefly.
In order to evaluate Instruction No. 7, it is necessary to set out a summary of the issues and the testimony.
The complaint alleges: Garner and Thomas, in a Chevrolet sedan, owned and driven by Garner, were driv ing north on Third Street in the City of Hot Springs when Scott “negligently, willfully, wantonly, and with malicious intent drove” the concrete mixer, suddenly and without warning, into the left side of the automobile, forcing it into the curb, and damaging it to the extent of $350 and injuring Gilbert Thomas in the amount of $2,500. The prayer was for the above amounts and for punitive damages for each of them in the amount of $5,000.
In addition to a general denial, appellees answered: (a) Appellants were guilty of contributory negligence; (b) Appellants were in pursuit of the driver [Scott] of the cement mixer with intent to do him bodily harm and to do physical damage to the cement mixer, and; (c) Scott was compelled by reason of the negligence of appellants either to collide with an approaching vehicle or to collide with the Chevrolet car.
By far the major portion of the testimony in this case concerned a state of ill feeling that was supposed to exist between appellants and the appellees as the result of a strike at the place of business of appellee C. J. Horner & Co. The first contention of appellants is that much of this testimony was inadmissible. Without at this time passing on the merit of that contention it suffices to say that much of it was first introduced by appellants. Appellants’ second contention is that they should have been afforded an opportunity to examine one of appellees’ witnesses to ascertain the source of his contemplated testimony. Regardless of whether appellants were denied any rights in all probability this question will not arise again.
This case seems to have been tried largely upon a theory somewhat novel to any reported decisions of this court. Appellees undertook to show that appellants were pursuing them with intent to do harm to Scott and damage to the cement mixer, and that in order to protect himself and the cement mixer Scott' drove the mixer into the automobile in which appellants were riding. There is not a great deal of material conflict in the testimony introduced by both sides relative to what happened shortly before the collision. Earlier in the day Scott had driven the cement mixer, which loaded weighed approximately 37,000 pounds, to different jobs in Hot Springs to deliver concrete. On these occasions he had noticed appellants following him in the automobile, and had noticed that they would park their automobile nearby while he was'unloading. Scott’s testimony was that they were apparently trying to force him to stop the truck in which he was riding and he thought they were bent on doing him or the truck harm. It was developed that appellants belonged to a union and that perhaps they were in sympathy with the strikers, but that Scott had refused to walk out with the other strikers. Just before the incident complained of Scott stated that after he entered Third Street going north appellants drove in front of him and he thought they were trying to block his progress, and that he drove at a somewhat excessive rate of speed in order to avoid an altercation. Scott testified that as long as he was in the cement mixer he was not afraid. Scott testified that immediately before the collision he drove up behind appellants’ automobile and that as he was about to pass there was another car coming from the opposite direction and that he was forced either to drop back in the line of traffic behind appellants’ automobile or drive his truck into the automobile. Scott does not deny that he did strike the back end of appellants’ automobile and caused damage to it and injury to Gilbert Thomas.
There is no complaint made about the instructions relative to contributory negligence or any other feature of the case except the one instruction referred to above.
Under the above state of facts the trial court gave, over the general and specific objections of appellants, Instruction No. 7 which reads as follows:
“If you find from a preponderance of the evidence in this case, that plaintiffs were on a joint mission to do bodily harm to Cecil Scott or to damage the truck that he was driving, by forcing him to the curb or by forcing him to stop so that bodily injury might he inflicted upon him, and that the defendant, Cecil Scott, honestly and without fault on his part, believed that plaintiffs were about to inflict upon him a bodily injury or damage the truck, or that it became necessary, and it appeared to the defendant Scott at the time, acting as a reasonable person, that it was necessary to defend himself, and he did so by driving his truck into the car occupied by plaintiffs in order to prevent bodily harm to himself or damage to the truck, then you are instructed that he was justified in doing so, and you will find the issues in favor of the defendants.” (Emphasis supplied.)
We have given careful consideration to the wording of the above instruction and have concluded that the court should not have included that portion which is italicized above but should have inserted other suitable language similar to that hereafter suggested.
We find nothing wrong with the first portion of the instruction down to the part italicized, hut as it now stands it amounts to the court telling the jury that Scott had a right to do exactly what he did. In other words Instruction No. 7 practically made Scott the sole judge of what to do to protect himself and did not, as it should have, require him to use only such means as were necessary under the circumstances to prevent harm, or, acting as a reasonably prudent person, to have tried to avoid harm to himself in some other way. For instance the jury might have thought that he could have pulled in behind appellants’ automobile as the approaching vehicle passed and then continue on his way to a place of safety, particularly since he had stated that he was not afraid as long as he was in the cement mixer.
As stated before this case presents a somewhat novel situation hut we find expressions in other decisions that confirm our conclusion that Instruction No. 7 was prejudicial.
The question of how much force is permissible in resisting an unlawful arrest was considered in People v. Cherry, 307 N. Y. 308, 125 N. Y. S. 2d 654, 126 N. Y. S. 2d 603, 121 N. E. 2d 238, and the court at page 240 had this to say:
‘ ‘ If force is necessary to prevent an unlawful arrest, then force may be employed, the one limitation on its exercise being that the victim may not pursue his counterattack merely for the sake of revenge or the infliction of needless injury.”
In Fraguglia v. Sola, 17 Cal. App. 2d 738, 62 Pac. 2d 783, it was said: “Force that one may use in self defense is that which reasonably appears necessary in view of all circumstances of the case, to prevent impending damages.” At page 786 the court said the jury could find for the plaintiff even though the plaintiff was at fault “if you further find that the resulting assault and battery on the plaintiff by defendant was accompanied by greater force than was reasonably necessary for the purpose of self defense. ’ ’ It cites with approval 4 Am. Jur. 152 which says: “Generally stated the force that one may use in self defense is that which reasonably appears necessary in view of all of the circumstances of the case to prevent the impending injury.”
Randall v. Ridgely, (La. App.) 185 So. 632. This was a civil action for damages in an assault and battery case. At page 633 the court said: “Under no theory can it be said that defendant was warranted in using any greater force than was necessary in ejecting plaintiff from the premises.” On the same page it quotes with approval “A person defending himself from an attack becomes liable as an aggressor where the force employed is in excess of that which the law will tolerate in a given case for defensive purposes, and for the use of such excessive force he is liable both civilly and criminally.”
Downey v. Duff, 106 Ark. 4, 152 S. W. 1010, this is a civil case in assault and battery. At top of page 7 the court approved the following instructions:
“ ‘If you find from the evidence that the plaintiff, Duff, made an assault upon the defendant Downey, with a dangerous weapon and that Downey in good faith believed that it was necessary for him to strike Duff in order to prevent Duff from striking him with the weapon (to avoid the infliction of bodily harm upon himself) and that Downey used no more force than was necessary (as the situation appeared to the defendant under the circumstances) then you should find for the defendant.’ ”
“ ‘You are instructed that an assault is an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another, and, if you find from a preponderance of the evidence that at the time defendant struck plaintiff, plaintiff was committing an assault upon him, the defendant was justified in using such force as appeared to him reasonably necessary, acting as a prudent person would under similar circumstances, to resist the assault of plaintiff, and to prevent any renewal of such assault, if such renewal could be reasonably apprehended.’ ”
Bestatement of the Law, under Torts, § 70, at page 147, in this same connection it is said:
“The actor is not privileged to use any means of self defense which is intended or likely to cause a bodily harm or confinement in excess of that which the actor correctly or reasonably believes to be necessary for his protection. ’ ’
At the bottom of page 148 it is stated that: ‘ ‘ The actor must believe that the means which he applies are necessary to prevent the apprehended harm. . . . Not only must the actor so believe, but . . . his belief must be reasonable, that is, the circumstances which are known or should be known to the actor must be such that a reasonable man would so believe. ’ ’ And again at page 149: ‘ ‘ The actor is not privileged to apply a particular force if he knows or should know that the apprehended harm can be prevented by the application of a force less in kind or degree . . . ”
The judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion. | [
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Ed. F. McFaddin, Associate Justice.
We have before us on this appeal the validity of a local option election. Pursuant to Initiated Act No. 1 of 1942 (§ 48-801 et seq. Ark. Stats. ), a local option election was held in Bradley County on August 7, 1954. The Board of Election Commissioners duly certified the result of the election to be:
2001 votes against the sale or manufacture of intoxicating liquors;
1673 votes for the sale or manufacture of intoxicating liquors.
In other words, on the face of the returns, the “Drys” (appellees here) won the election by 328 votes. In due time the “Wets” (appellants here) filed a contest proceeding in the County Court Avhich decided in favor of the contestees; and the contestants appealed to the Circuit Court. There, after an extended trial, the Court found that the contestees won the election by the aforesaid vote of 2001 to 1673. The contestants bring this appeal; and in effect present here one issue — that is, that the conduct and methods employed by the contestees before and during the election constituted such fraud, intimidation and coercion as to void the entire election.
Usually in an election contest the contestant challenges certain designated ballots or the returns from certain designated voting places; but the present election contest is not of that kind. Here,.there is no attack on any specified ballots; rather the attack is on the entire election. This is the language of the contestants’ petition :
“Come the undersigned contestants, . . . and for their contest of the local option election held in Bradley County, Arkansas, on August 7, 1954, under provisions of Initiated Act No. 1 of 1942, allege:
“1. That prior to and during the conduct of said election, there Avas such manifestation of intimidation exerted by the Bradley County Drys that many voters Avere actually prevented from voting as desired to such an extent that the results of the election do not reflect a true sentiment of the electors. That by reason of the intimidation exerted by the Bradley County Drys, the true result of the election cannot be ascertained with certainty.
“2. That fraud, intimidation, or coercion of Amters in a system of illegal voting was permitted to such an extent that the result of the election would have been different if such practices had not been engaged in by the Bradley County Drys and certain election officials.”
To support the foregoing allegations, the contestants, in Paragraphs 3 to 11 of their petition, alleged specific acts claimed to have been fraud, irregularities or intimidation committed by contestees or their leaders. The record here is voluminous, being approximately 700 pages of pleadings and testimony besides separate exhibits. At the conclusion of the trial, the Circuit Judge delivered his opinion. He named in order nearly every one of the more than forty witnesses who testified; discussed the extent and effect of the testimony of each such witness; and then discussed the combined effect of the testimony offered by each side. Prom all of the evidence the Circuit Judge found and declared that, even though there had been irregularities and illegalities (definitely named by him) in the election, nevertheless these were not sufficient to void the entire election. Prom a judgment rendered in accordance with that opinion and dismissing the contest, the contestants bring this appeal.
At the outset we mention that the findings of the Circuit Judge in an election contest have the force and effect that a jury verdict has in the ordinary circuit court case. Williams v. Buchanan, 86 Ark. 259, 110 S. W. 1024; Schuman v. Sanderson, 73 Ark. 187, 83 S. W. 940; Logan v. Moody, 219 Ark. 697, 244 S. W. 2d 499; and Phillips v. Melton, 222 Ark. 162, 257 S. W. 2d 931.
The appellants claim that the case at bar is ruled by the case of Patton v. Coates, 41 Ark. 111. That was a landmark case . There, in the days immediately following the Eeeonstruction, an election was held for County Judge of Pulaski County, and the then recently enfranchised Negro voters attempted to see that every Negro voted for the same candidate: to insure the entire absence of opposition votes, armed bands paraded before some of the election places; various acts of force and intimidation are discussed in the opinion. The result was, that this Court reversed a finding, that there had been a valid election, and remanded the case for further proceedings. Mr. Justice Bakin, the author of that opinion, gave this test as to when an election should be set aside:
“The wrong should appear to have been clear and flagrant; and in its nature, diffusive in its influences; calculated to effect more than can be traced; and sufficiently potent to render the result really uncertain. If it be such, it defeats a free election, . . . If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.”
The appellant quotes the above as the test by which to judge this local option election in Bradley County held August 7, 1954; and for the purposes of this appeal, we accept the quotation as the standard by which to test this case, in order to see if the findings of the Circuit Court are without substantial evidence to sustain them.
Here we have these five as the principal irregularities or illegalities in this case:
(1) Letters were sent by the contestees to men in the Armed Services saying that if the recipient had voted “wet” in an absentee ballot and desired to change the ballot, the recipient could request a new ballot and vote again. Of course, such statement as to second voting, was entirely erroneous and in violation of § 3-1509 Ark. Stats. Within a very few days after mailing the said letters, the contestees learned of the illegality that had been proposed, and promptly dispatched a second letter to each recipient correcting the first one. There is absolutely no showing that the first letters resulted in any illegal voting. Their sending was unwarranted, unwise and illegal: but there is no showing that they resulted in a single duplicate ballot being cast in the election.
(2) The contestees heard that the contestants were trying to get the Negro voters to vote “wet” in the absentee box and then vote “wet” again in person at the August 7th election; and so the contestees sent mimeographed letters to about 1100 Negro voters urging them to vote “dry” at all- times, and enclosing a circular which stated that it was a fine of $100.00 to vote more than once in the same election. A portion of § 3-1121 Ark. Stats, was copied in the circular. It is claimed that this “$100.00 fine circular” was intimidation. The mimeographed letter (contestees’ Exhibit No. 4) is in the most polite language, contains no threats or suggestions of intimidation, and explains that the circular is not a threat but a mere statement of a portion of the law. There were five witnesses who testified that they decided not to vote after seeing this circular because it “scared them.” Let us assume that the circular, worded as it was, should not have been sent; nevertheless there is no proof that it affected more than five voters. Certainly such evidence is not sufficient to void an entire election.
(3) There is testimony that two ardent ‘ ‘ drys ’ ’ met with Negro voters individually and collectively and urged them to vote “dry.” These meetings and conferences Avere not illegal: open and free discussion is always proper. Campaigning is one of the practices in our democratic system of society. One Negro said that he Ayas “threatened” by such conversation; yet he admitted that he voted “wet,” and the evidence shoAved that he worked for the “Avets” all through the election period. Certainly he Avas not prevented or intimidated from voting or working Avith others for the side that he espoused. The testimony, that the white man “threatened” him, is without corroboration. These items (2) and (3) are the only portions of the testimony that bear on the matter of intimidation.
(4) It Avas shown that in two precincts the voting-box on the August 7th local option election Avas located at a place 100 to 450 feet distant from where it had been located at the previous July 28th primary election; but in neither precinct was it shown that anyone Avas deterred or hindered from voting. In each precinct the voting box Avas at a place theretofore or thereafter used in other elections; and it Avas shoAvn that it Avas not unusual to have the voting box either at the store or at the church a short distance away. Certainly there Avas noth ing in these two claims — involving only two boxes out of twenty-seven — to void an entire county-wide election.
(5) The greatest irregularity occurred in the absentee box in which the certified vote was 101 against the manufacture or sale of intoxicating liquors and 260 for the manufacture or sale of intoxicating liquors. It was shown that there were 94 requests for absentee ballots which were never honored because the notation on each envelope indicated it to be a ballot instead of a request for a ballot. These envelopes were made exhibits : each was addressed to the County Clerk at Warren, Arkansas, and bears on the face of the envelope these words: “Ballot, Local Option”; and in most instances the words, “Ballot, Local Option,” are in the same handwriting as that of the address. The County Clerk testified that he thought these were ballots, instead of requests for ballots; and so he placed them in the receptacle for ballots; and it was not discovered until after the election that these were mere requests. If we should say that each one of the 94 requests was from a person who intended to vote “wet,” and if we added these 94 to the 1673 ballots received by the contestants, still the result would not be sufficient to change the election. The Circuit Judge found as a fact that there was no fraud in regard to the absentee ballot box, and there is substantial evidence to sustain his findings.
There were other charges of illegalities and irregularities, but they lacked any substantial proof to support them. In Velvin v. Kent, 198 Ark. 267, 128 S. W. 2d 686, in speaking of charges of fraud and improper conduct of electors and officers of the election, this Court said:
‘ ‘ These charges were serious and grave, but they did not prove themselves. Forceful and emphatic denunciation at this time does not supply proof wholly lacking upon the trial.”
The quoted statement finds application in the case at bar. Furthermore, in Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723, Chief Justice Cockrill said:
“It is a serious thing to cast out the votes of innocent electors for acts done by others, and it is the province of the Courts to see that every legal vote cast is counted when the possibility exists.”
Without prolonging this opinion to discuss each of the other claimed irregularities, it is sufficient to say that the Circuit Court did not condone any illegalities or irregularities that occurred in this election. Neither do we condone them, but we do say that there is substantial evidence to sustain the findings of the Circuit Court to the effect that all of the specific items of irregularities and illegalities, when totalled, were not sufficient to void the entire election within the test stated in Patton v. Coates, as heretofore quoted. It is a serious matter to throw out an entire election; and that result should not be reached unless the contestant has offered proof sufficient to satisfy the test in Patton v. Coates. The Circuit Judge found that the test had not been met in the ease at bar; and there is substantial evidence to sustain his findings.
One other matter appears most significant. The poll tax list of Bradley County for the year of this election showed that there were 5053 poll taxes issued. There ivere a total of 3674 votes cast in this August 7th local option election, which total is more than 72% of the total poll tax receipts. Of course, maiden voters and “move-ins” might have increased the total voting capacity of 5053; but deaths and removals might have equalled the maiden voters and “move-ins.” The point is, that the vote in this election of August 7th was 72% of the total poll tax receipts issued. It is not claimed that any of the 3674 votes were illegal. Only five people testified that they failed to vote because of the “$100.00 fine circular,” and 94 requests for absentee ballots failed to be honored. There was no showing that any one of the remaining voters of Bradley County was deterred from voting or coerced to vote against his wishes. Furthermore the evidence discloses that in the primary election of July 28, 1954 — in which there was a most spirited race for nomination for United States Senator and for Governor — there were only 3595 votes cast in all of Bradley County. So in the local option election of August 7th there were 79 more votes cast than in the primary election. This seems a most cogent argument against the contestants’ allegation that “many voters were actually prevented from voting.”
The Circuit Court found that the contestants’ evidence failed to meet the test stated in Patton v. Coates; and we find substantial evidence to support the Circuit Court’s finding.
The judgment is affirmed.
Mr. Justice Robinson not participating.
In Denniston v. Riddle, 210 Ark. 1039, 199 S. W. 2d 308, we considered this Initiated Act No. 1 of 1942; and in Tollett v. Knod, 210 Ark. 781, 197 S. W. 2d 744, we listed some of our cases involving the said Act.
On the point here involved, the ease of Patton v. Coates has been cited in the following cases: Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723; Freeman v. Lazarus, 61 Ark. 247, 32 S. W. 680; Schuman v. Sanderson, 73 Ark. 187, 83 S. W. 940; and see also Sumpter v. Duffie, 80 Ark. 369, 97 S. W. 435; Williams v. Buchanan, 86 Ark. 259, 110 S. W. 1024; Crissman v. Shaver, 191 Ark. 692, 87 S. W. 2d 404; Velvin v. Kent, 198 Ark. 267, 128 S. W. 2d 686; and Wilson v. Luck, 203 Ark. 377, 156 S. W. 2d 795. | [
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Ed. F. MoFaddin, Associate Justice.
This appeal presents a question concerning election of remedies. The Trial Court was of the view that the appellant — by certain allegations in the original complaint — -had elected to release the appellee. Accordingly the appellant’s complaint was dismissed; and this appeal ensued.
On June 8, 1953 appellant (Thompson) filed the present action against L. A. Phillips individually and also against North Webster Parish Lease and Oil Company, Inc., an Arkansas corporation, hereinafter referred to merely as “Corporation.” The original complaint alleged that L. A. Phillips was president of the corporation, and that the plaintiff had done certain work for which he was entitled to judgment for $5,807.50. The complaint stated:
“There was an agreement between the plaintiff, Cline Thompson and the said defendants that he would furnish his equipment and labor in performing the necessary work and that he would be paid therefor. . . .
“Plaintiff further states that at the time this contract was entered into, he was informed that the said North Webster Parish Lease and Oil Company, Incorporated had no money in its treasury, but the defendant, L. A. Phillips, who was President of said Corporation, personally guaranteed that the said Cline Thompson would be paid according to the terms of the contract above described. . . .
‘ ‘ That said defendant corporation and L. A. Phillips are justly indebted to the plaintiff Cline Thompson, in the amount of $5,807.50 for work performed under the terms of said contract. That demand has been made therefor and defendants have failed and refused to pay same. ’ . .
“Wherefore, Plaintiff Cline Thompson prays judgment against the said North Webster Parish Lease and Oil Company, Incorporated and L. A. Phillips, jointly and severally, in the sum of Five Thousand Eight Hundred Seven and 50/100 Dollars ($5,807.50), . . . . and for all other legal relief. . . .”
On September 14, 1953, in response to defendant’s motion to make more definite and certain, Thompson filed an amended and substituted complaint, which contained these allegations:
“That plaintiff Cline Thompson states that on or about the 12th day of December, 1952, he was approached by J. T. McKinzey and L. A. Phillips, officials of the North Webster Parish Lease and Oil Company to clear some land and construct a road in Webster Parish, Louisiana, in order that the North Webster Parish Lease and Oil Company might drill an oil well upon said property. Said work was to be performed upon the L. L. Clements and the Joe Clements land in said Parish in Louisiana. It developed at this time that the North Webster Parish Lease and Oil Company had no funds with which to pay for the work to be performed by Thompson. In order to induce Thompson to perform this work, the said L. A. Phillips orally agreed with Thompson that he would personally pay him for doing this work. Upon Phillips’ oral contract with Thompson to pay for the work performed, Thompson began the work soon thereafter and worked upon the project until about the middle of March, 1953, when he was told to keep his equipment on a standby basis. ...
“That said defendant L. A. Phillips is justly indebted to the plaintiff Cline Thompson, in the amount of $5,807.50 under the terms of said contract. That demand has been made therefor and defendant has failed and refused to pay same.”
In another pleading filed September 14, 1954, there were also these statements made by Thompson:
“That the contracts heretofore set forth in plaintiffs’ original complaint and entered into between the plaintiffs and defendants were oral contracts. . . . That the agreement of L. A. Phillips was part of the consideration for plaintiffs’ undertaking.”
Still later (on February 17, 1955) in response to defendant’s further insistence Thompson stated:
“That the plaintiff, Cline Thompson, states that some few days prior to the 12th day of December, 1952, he discussed with a Mr. J. S. Turner the possibility of the plaintiff being employed to clear some land and construct a road in Webster Parish, Louisiana, in order that the North Webster Parish Lease and Oil Company might drill an oil well upon said property. It developed that the North Webster Parish Lease & Oil Company had no money to pay for the work to be performed, and the plaintiff called the said L. A. Phillips in Little Rock, Arkansas, by long distance telephone from Minden, Louisiana, to discuss this work with him. In this long distance telephone conversation, which took place on or about the 12th day of December, 1952, the defendant, in order to get the land cleared and the road under construction, promised the plaintiff that if he would do the work that he, L. A. Phillips, would personally pay him for such work. That upon Phillips’ oral contract with Thompson to pay for the work performed, Thompson began the work soon thereafter, and worked upon such project until on or about the 15th day of March, 1953, when Thompson was then instructed by Phillips to keep his equipment on a standby basis.”
Based on all of the foregoing allegations in Thompson’s pleadings, the defendant, L. A. Phillips, on February 18, 1955, filed this “Motion to Dismiss”:
“That this action was originally filed on June 8, 1953, by plaintiff against North Webster Parish Lease and Oil Company, Inc., and against this defendant, L. A. Phillips; that in said original Complaint so filed Cline Thompson alleged ‘that on or about the 15th day of De cember, 1952, be entered into a contract with the said defendant, North Webster Parish Lease and Oil Co., Inc., to build a road and clear land in Webster Parish, Louisiana, in order that said defendant corporation might drill an oil well upon said property.’ Plaintiff also alleged in said Complaint that the said L. A. Phillips ‘ guaranteed that the said Cline Thompson would be paid according to the terms of the contract above described.’ In response to a motion filed by defendants North Webster Parish Lease and Oil Company, Inc., and L. A. Phillips, plaintiff filed a reply herein on or about September 10, 1953, in which he stated that the ‘contracts’ heretofore set forth in plaintiff’s original Complaint and entered into between the plaintiffs and defendants were oral contracts. Plaintiff has now elected to rely on an Amendment to an Amended and Substituted Complaint in which he alleges that he made a contract over long distance telephone with the defendant, L. A. Phillips, under which the said L. A. Phillips became primarily liable on the same obligation he originally alleged to have been incurred by defendant North Webster Parish Lease and Oil Company, Inc., and which he at that time alleged defendant L. A. Phillips orally guaranteed; that the allegations and theory of the Amended and Substituted Complaint with Amendment thereto are wholly inconsistent with the allegations in the original complaint; that plaintiff is now seeking a recovery from a defendant which recovery so sought is wholly inconsistent with that originally alleged in this suit; that the present allegations seek to hold the defendant L. A. Phillips primarily liable although the allegations in the original Complaint and Response to Motion to Make More Definite and Certain stated that the aforesaid Corporation was primarily liable; that the plaintiff is bound by his election of remedies as originally sought and is estopped to seek recovery against the defendant, L. A. Phillips, under an allegation that he is primarily liable for the debt sued on after first electing to sue the corporation as being primarily liable and defendant Phillips as being liable under a guaranty agreement.”
We have given the pleadings in considerable detail so that the full picture will be visible. The Trial Court sustained Phillips’ Motion to Dismiss, and Thompson has appealed from the final order of dismissal of his claim against Phillips. The question is whether Thompson— by his pleadings in this case — definitely and finally elected at any stage of these pleadings to pursue the corporation alone as primarily liable and Phillips as only a guarantor. Appellee claims: (a) that in the original complaint Thompson sought to hold the corporation liable as original debtor and Phillips liable on an oral guaranty; (b) that the guaranty was within the Statute of Frauds and therefore unenforceable; and (c) that because of the allegations in the original complaint, Thompson cannot now be heard to say that Phillips is liable on an enforceable original promise. Thompson contends: (a) that the allegations in the original complaint showed a clear attempt to recover from both the Corporation and Phillips; (b) that the use of the word “guaranteed” in the original complaint is clarified in all subsequent pleadings; and (c) that there has been no allegation by Thompson to the effect that he was seeking recovery only from the Corporation on an original promise.
With the issue posed, we search for the applicable law. In 28 C. J. S. 1057 this definition is given:
“Election of remedies is the adoption of one of two or more coexisting remedies, with the effect of precluding a resort to the others.”
And in discussing the necessity of election this is stated in 28 C. J. S. 1061 et seq.:
“Between Coexisting but Inconsistent Remedies. Generally, a party having two or more remedies which regardless of their form or class are based on inconsistent theories must elect between them; . . .
“Between Concurrent and Consistent Remedies. The pursuit of one remedy will exclude the pursuit of another only where the remedies are inconsistent; where remedies are concurrent and consistent, whether against the same person or different persons, a party may pursue one or all of such remedies until satisfaction is had, and similarly, no election is required between remedies for distinct causes of action arising out of separate and distinct facts.”
In 18 Am. Jur. 129, in defining “Election of Remedies,” the text says:
“Election is simply what the term imports — a choice shown by an overt act between two or more inconsistent rights, either of which may be asserted at the will of the chooser alone. An election of remedies may be defined as the choosing between two or more different and coexisting modes of procedure and relief allowed by law on the same state of facts. . . .”
And in stating the essentials to constitute election it is said in 18 Am. Jur. 133:
“Stated briefly, the essential conditions or elements of election of remedies are: (1) The existence of two or more remedies; (2) the inconsistency between such remedies; and (3) a choice of one of them. If any one of these elements is absent, the result of preclusion does not follow. ’ ’
Our case of Belding v. Whittington, 154 Ark. 561, 243 S. W. 808, 26 A. L. R. 107, presents a classic example of election of remedies: there a litigant had sued at law for damages for breach of a contract to convey real estate; and such action was held to be an election of remedies so as to preclude a later suit for specific performance based on the same real estate contract. The case of Home Life Ins. Co. v. Arnold, 196 Ark. 1046, 120 S. W. 2d 1012, likewise involved an election of remedies. There the beneficiary of the policy had sued the reinsurance company (Central States Life Ins. Co.) upon the contract of reinsurance. We held that the beneficiary had thereby elected to affirm the reinsurance contract and could not later be heard to sue the original insurance company and allege that the reinsurance contract was void.
The case at bar is not governed by the foregoing cases, but is governed by the rule stated in Wood & Henderson v. Claiborne, 82 Ark. 514, 102 S. W. 219, 118 Am. St. Rep. 89, which is itself one of our leading cases on election of remedies. In Wood v. Claiborne a minor had been injured and a recovery had been made by his father as next friend. The attorneys who were successful in making the recovery paid the minor’s money to the father of the minor, since there was no guardian. When Claiborne, the minor, reached maturity he sued his father and recovered judgment but was unable to obtain satisfaction. Thereupon Claiborne sued the attorneys for wrongfully paying his money to his father. The attorneys pleaded ‘ ‘ election of remedies, ’ ’ contending that the suit against the father precluded the subsequent suit against the attorneys. This Court, speaking through Judge Riddick, held that there had been no election of remedies so as to prevent the action against the attorneys for wrongfully paying the money.
In the case at bar the pleadings reflect that throughout the entire negotiations leading up to the original contract it was recognized by the parties that the Corporation was without funds and that Thompson did the work after Phillips had agreed to pay for it. Under the case of Foster-Grayson v. Talley, 190 Ark. 37, 76 S. W. 2d 950, the allegations here were sufficient to make Phillips’ promise an original undertaking, and when Thompson filed his first complaint he asked judgment against Phillips. He used the word “guaranteed” instead of “agreed” in his original complaint filed June 8, 1953; but he entirely clarified his position when in the Amended and Substituted Complaint, filed September 14, 1953, he said that Phillips agreed that he “would personally pay” Thompson. In the prayer to the original complaint and at every step in the pleadings, Thompson showed his intention to hold Phillips liable for the debt. He never elected to look solely to the Corporation, and the Trial Court was in error in holding that Thompson had elected to release Phillips.
The judgment dismissing Thompson’s complaint against Phillips is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
The performance was in Louisiana; and Louisiana has a Statute of Frauds, involving the answering for debts, defaults and miscarriages of another, somewhat similar to the Arkansas Statute, § 38-101.
The distinction between an original promise and a promise to answer for the debts of the other is well illustrated and discussed in our case of Foster-Grayson Lbr. Co. v. Talley, 190 Ark. 37, 76 S. W. 2d 950.
One of the most enlightening discussions is that contained in the note in 116 A. L. R. 601 entitled “Doctrine of election of remedies as applicable where remedies are pursued against different persons.” This Annotation in A. L. R. has caused the publishers of American Jurisprudence to add in the Pocket Supplements to the title on “Election of Remedies” a section numbered 27.1 concerning “Election against different persons.” | [
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J. Seaborn Holt, Associate Justice.
Blakley A. Kendall, the son of appellees, made application to appellant, Metropolitan Life Insurance Company, in Missouri, April 14, 1953, for life insurance in the amount of $5,000. On May 20, 1953 the policy was issued to him in Missouri on his payment of premium of $94.75. Thereafter, December 31, 1953, Blakley A. Kendall died of malignant tumor of the liver. Appellees, his named beneficiaries, filed the present suit to recover on the policy. Appellant denied liability and specifically pleaded as a defense that the insured in his signed application, which was a part of the insurance contract, knowingly made false answers to material questions propounded to him and thereby induced appellant to issue the policy; when in fact, Blakley A. Kendall was not insurable when the policy was delivered to him. On a trial, a jury having been waived by agreement, the court found in favor of appellees for the face of the policy, $5,000, and entered judgment accordingly. This appeal followed.
“The broad, uncontroverted rule is that the lex loci will govern as to all matters going to the basis of the right of action itself, while the lex fori controls all that is connected merely with the remedy. . . . It is well settled in this State that, when a party comes into court to enforce his remedy upon a contract, that remedy will be enforced in accordance with the laws of this State regulating the remedy and not according to the remedy of the State where the contract was made.” St. Louis-San Francisco Railway Co. v. Cox, 171 Ark. 103, 283 S. W. 31.
For reversal appellant relied on but one point, that: “The trial court erred in excluding from evidence the appellant’s offered depositions of Drs. Eber Simpson, J. B. Guccione, Louis F. Stephens, Charles Sparks and Clarence A. Bishop and Messrs. Eugene F. Nolan and D. W. Orr, as being privileged communications,” or, as stated by appellees: “Were the depositions of the attending physicians and surgeons, and the records of the hospitals, competent evidence at the trial in the lower court? Or, did appellees waive the privileged communications when they executed two authorizations, giving appellant the right to secure the medical history of appellees’ deceased son?”
The application, which became part of the insurance contract, contained this provision: “The foregoing statements and answers are true and complete. It is agreed that: 1. The Statements and answers in Part A and Part B of the application for this insurance shall form the basis of° the contract of insurance, if one be issued. ... I have read the foregoing answers before signing. They have been correctly written, as given by me, and are true and complete. There are no exceptions to any such answers other than as stated herein.” The insurance policy contained this provision: “The Company shall incur no liability under this application until a policy has been delivered and the full first premium specified in the policy has actually been paid to and accepted by the Company during the lifetime and continued insurability of the applicant . .
For the purpose of establishing the state of health and physical fitness of the assured, Blakley A. Kendall, from the date the policy was issued to his death, some seven (7) months later, appellant sought to put in evidence the deposition testimony of a number of physicians who had treated the assured in hospitals in Missouri and Arkansas during this period, and who had derived the information sought to be introduced by reason of having attended assured as indicated. On objection of appellees to the introduction of this testimony, on the ground that it was privileged and incompetent, the court denied its introduction, under the provisions of § 28-607, Ark. Stats. 1947. Appellant stoutly contends here that appellees waived the privilege accorded them by executing certain authorizations in their proof of loss in establishing their claim. It appears that on December 31, 1953 appellees signed the “Claimant’s Statement” contained in appellant’s printed form of “Proof of Death.” They jointly executed printed authorization as follows:
“To any physician or, To the superintendent of, and To the Superintendent of any other institution where the deceased person named below has been treated within three years.
“I am claiming the proceeds of policy number 199 802 411A issued by the Metropolitan Life Insurance Company, on the life of Blakley Kendall (deceased), and I request you to permit bearer, who is authorized by me, to make or obtain a copy in whole or in part or an abstract of any records you may have concerning the above named decedent.
“I authorize bearer, on my behalf, to submit such copy or abstract directly to the Metropolitan Life Insurance Company as part of the proofs of said claim.
/s/ Amos C. Kendall father
/s/ Lou B. Kendall mother”
Thereafter on February 1, 1954, appellees executed the following instrument:
“Request for and Consent to Release of Information from Claimant’s Records To: Veterans Administration Address..........
Blakley A. Kendall
(Name of Veteran)
“The Undersigned hereby requests and authorizes the Veterans Administration to release to Metropolitan Life Ins. Co. c/o Mr. J. A. George, or bearer, Address 1 Madison Ave., New York 10, N. Y., information from the claims file or clinical records of the above-named veteran relating to the item or items specified below, for each of which the dates or approximate dates of the periods to be covered are stated:
Item 1 — Information regarding dates of treatment and examination and advice — Complaint and brief history — Findings — Diagnosis — Autopsy findings for period from Nov. 21, 1946, to Dec. 23, 1953k A:
Item 2 — Information regarding date and basis for any award for period from Nov. 21, 1946, to Dec. 23, 1953. This information is to he used for the following purposes: To facilitate consideration of policy claim —policy number 19802411Á.
/s/ Amos C. Kendall)
) Parents
/s/ Lou B. Kendall )”
(Signature of Claimant)
Hartman, Arkansas
Date: February 1, 1954
VA Form 10-3288
Mar. 1948
Tbe insurance policy involved here contains no provision waiving the privilege as to the testimony of attending physicians, nor does it require the presentation of any such information as a part of the “Proof of Death.” These authorizations clearly were furnished, at appellant’s request, as part of proof of loss, in order to obtain a settlement of their claim for the insurance; “as part of the proof of said claim” in one, and “to facilitate consideration of policy claim” in the other. In similar circumstances the governing rule has been clearly announced by this court in Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, where we said: “According to the weight of authority, where a policy of insurance does not itself contain a provision for waiver of the privilege, the introduction in evidence of certificate of death given by a physician of the insured does not waive the provisions of the statute against physicians testifying concerning information received in the course of professional employment. . . . But whatever may be the state of the law on that question as established by the authorities, even if the rule be otherwise than as above stated, it can not be extended to cover a case like this, where the affidavit or certificate of the physician is not furnished pursuant to the requirements of the policy, but merely as a voluntary act in an effort to secure a settlement. ’ ’ This holding was reaffirmed in Aetna Life Ins. Co. v. McAdoo, 106 F. 2d 618, (an Arkansas case, Sept. 12, 1939) by the Eighth Circuit Court of Appeals. In that case the claimant, beneficiary, executed the following authorization: “I hereby authorize and direct you, and each of you and/or any physician or surgeon in your employ or associated with you in any way, to give the Aetna Life Insurance Company, at any time requested, any and all information they may desire and which may have been acquired by you, or any of you, and/or such physician or surgeon or associate, in attending my father Alonzo D. McAdoo in a professional capacity, and I hereby waive, as to the Aetna Life Insurance Company all provisions of law prohibiting any physician or surgeon who has attended Alonzo D. Mc-Adoo from disclosing any information thereby acquired.” The court said: “The controversy is as to whether this waiver was a limited one for the purposes of adjustment and settlement of the claim or was general and covered use of that information in a suit involving the policy. It would seem that this matter is ruled against the company by Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A. N. S. 493.” 106 F. 2d 618.
Accordingly the judgment must be and is affirmed. | [
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Ed. F. McFaddin, Associate Justice.
This litigation results because the mortgagee in a chattel mortgage failed to have the mortgage recorded and also failed to observe the Statute and endorse the mortgage before filing it (§ 16-201, Ark. Stats.). Appellants, O. M. Pate and wife, filed this suit in the Chancery Court against Troy Eaney and wife, (a) to obtain judgment for $4,500.00 and interest on a series of notes, (b) to foreclose a vendor’s lien on certain lands, and (c) to foreclose a chattel mortgage on certain described cattle. The Chancery Court awarded judgment in favor of the Pates for the money claim and also decreed a foreclosure of the vendor’s lien on the lands; so those issues pass out of this case entirely. Here, we are only concerned with the various issues arising in connection with the chattel mortgage.
The chattel mortgage from Raney to Pate was dated October 5, 1953, and was filed, but not recorded, in the office of the Circuit Clerk on October 7, 1953. It subsequently developed that the chattel mortgage had not been endorsed, as required by § 16-201, Ark. Stats.; and, as aforesaid, that omission caused this litigation. The Pate complaint, duly verified, was filed December 13,1954, and alleged: that Troy Raney had left the State; that the cattle would be lost unless impounded; and that an immediate order should be made for the care and possession of the cattle. There was a Us pendens filed on the land, but not on the personal property. On December 21,1954, the Court appointed the plaintiff, O. M. Pate, as receiver, under a bond of $750.00, to take charge of and care for the cattle and make report thereof. Pate made bond and took the oath as receiver. Report of the receiver was filed January 18, 1955, stating certain cattle to be in his possession.
On February 14, 1955, W. R. Griffin intervened in the foreclosure case of Pate v. Raney, alleging: that Griffin obtained judgment against Troy Raney and wife in the Cleburne Chancery Court in the case of Griffin v. Raney; that the judgment was unsatisfied in the amount of $2,269.17; that execution had been issued thereon on December 28,1954; and that Griffin’s execution lien was superior to Pate’s chattel mortgage. In answer to Griffin’s intervention, Pate alleged that he took possession of the personal property on October 10, 1954, as mortgagee, and that his rights were superior to the lien of Griffin’s execution.
With issues joined as to the superiority of the exe-' cution lien and of the chattel mortgage, the cause was tried on April 19, 1955; and resulted in a decree giving Pate and wife judgment for debt with the same as a lien on the lands; but holding that Pate had no lien on the cattle since the mortgage was not endorsed and there had been no possession taken by Pate. The decree further found that Griffin’s intervention should be dismissed for want of equity. Thus, as regards the cattle, neither Pate nor Griffin was allowed any lien by the decree of April 19, 1955, and both have duly appealed — Pate by direct appeal and Griffin by cross-appeal.
But further issues arose in the same case. Immediately after the said decree of April 19th, Griffin had an execution issued against Raney and wife for $2,269.87 and had the execution served on the cattle described in Pate’s chattel mortgage. Pate then remembered that on April 2, 1955, he had gone to the Clerk’s office and finally endorsed his chattel mortgage, as required by law, although the fact of such endorsement was never developed in the trial of April 19th. Based on these matters, Pate filed (1) a motion to quash Griffin’s execution of April 19th and (2) a motion to modify the said decree of April 19th. There was a trial on these two motions on May 6, 1955, at the same term of the Court as the April 19th decree; and resulted in (1) a quashing of Griffin’s execution and (2) a refusal to modify the decree of April 19th or to allow Pate to make proof of his actions of April 2nd in endorsing the chattel mortgage. Prom this trial of May 6, 1955, as also from the said decree of April 19th, both parties have duly and seasonably appealed — Pate by direct appeal and Griffin by cross-appeal. Pate lists five assignments on the direct appeal, and Griffin lists four assignments on the cross-appeal. We will consolidate the assignments under suitable topic headings.
I. The Refusal of the Court on May 6th to Modify the Decree as Requested by Pate. The purpose of Pate’s efforts to modify the April 19th decree was to show that on April 2nd Pate had endorsed his chattel mortgage, as required by Statute. In refusing to allow the case to be reopened, the Chancellor said that all the information was available to Pate oh April 19th at the trial, and that Pate was not entitled to have two trials in the case. We cannot say that the Chancellor abused his discretion in.refusing to reopen the case. Fromholz v. McGahey, 120 Ark. 216, 179 S. W. 360; Halk v. Soncini, 208 Ark. 736, 187 S. W. 2d 960; Troxler v. Spencer, 223 Ark. 919, 270 S. W. 2d 936.
II. The Action of the Court in Holding That Griffin Had No Lien on His Execution of December 28,1954. At the trial on April 19th Griffin introduced his execution which had issued in the case of Griffin v. Raney on December 28,1954. It was shown that his execution had not been served and had been returned by the Sheriff. The Court held this execution was no lien on the cattle involved in this litigation; and the Court was correct. An execution must be returned within sixty days (§ 30-431, Ark. Stats.). This one was returned earlier; and when the Sheriff returned the execution unserved — whether for lack of indemnity bond or other good reason — then the execution became “functus officio”; that is, its power had been exhausted.
III. The Action of the Court on May 6th in Quashing Griffin’s Second Execution. As previously recited, after the trial on April 19th (in which the Court held that neither side had a lien on the cattle), Griffin went immediately to the Clerk’s office and had a second execution issued against Raney. In the trial on May 6th, the Court quashed this second execution because it recited that it was issued in the case of Pate v. Raney instead of the case of Griffin v. Raney. We need not consider the correctness of that reason, because in Topic IY infra we are holding that Pate should have been awarded a lien, in the decree of April 19th, on the cattle described in his mortgage. With that lien declared, naturally Griffin’s second execution was inferior to such lien, and such holding disposes of the respective claims made.
IY. The Refusal of the Court in the Decree of April 19th to Aivard Pate a Lien on the Cattle Described in His Chattel Mortgage. In the decree of April 19th, the Court refused Pate a lien on the cattle described in his mort gage; and in this ruling the Court was in error. When it was shown that Griffin’s execution of December 28th was not a lien on the cattle, then there was no adverse claimant to Pate’s mortgage, and the issue was whether the mortgage was a lien as between Pate and Raney, even though the mortgage had never been properly endorsed. An unfiled, unendorsed chattel mortgage is good between the parties: the purpose of endorsing and filing is to make the mortgage valid as against third persons. Ringo v. Wing, 49 Ark. 457, 5 S. W. 787; Thornton v. Findley, 97 Ark. 432, 134 S. W. 627; Ebbing v. Hassler, 188 Ark. 766, 68 S. W. 2d 96. When Griffin’s first execution failed, then there was no third person claiming a valid lien, and Pate’s mortgage was good as against Raney. The Court should have so decreed.
V. The Cattle Described in the Chattel Mortgage. The chattel mortgage from Raney to Pate described the following property:
“1 Red Cow about 6 years old, with White Face Heifer Calf; 1 Brown Jersey about 5 years old, with two calves, 1 Bull and 1 Heifer; 1 Brown Jersey Cow about 8 years old, with White Face Heifer Calf; 1 White Face Heifer about two years old, no calf; 1 White Face Heifer about 18 months old; 1 Red Heifer about 16 months old. ’ ’ There is no language in the mortgage to cover any increase ; and our Statute allows the increase of cows to be included only when the mortgage so states (§ 51-1003, Ark. Stats.). Therefore, all that Pate was entitled to was a lien on the specific animals described in his mortgage. So, as to these, the decree is reversed and the cause is remanded, with directions to award Pate a lien on the specific animals. In all other respects the decrees are affirmed.
VI. Other Assignments. Pate claims that the Court committed error in refusing to allow him his expenses as receiver; but the Court evidently found that he had never actually taken possession of the property; so we leave that part of the decree undisturbed.
The costs of this appeal are to be paid equally by Pate and Griffin.
While Mrs. Pate is a party, all matters herein were handled by Mr. Pate.
Evidently this was on the theory that (1) Pate’s mortgage was not endorsed; and (2) Pate had never taken actual possession of the cattle at any time, either as mortgagee or receiver.
As previously recited, the foreclosure of the lien on the lands is not questioned in this case. | [
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J. Seaborn Holt, J.
The parties here were divorced March 20, 1952 and under the decree appellant, E. H. Griffith, was ordered to pay appellee $150.00 per month alimony. He made these payments as ordered until March 20, 1953 but has paid nothing since June 30, 1954, when he paid $75.00 to appellee. The alimony payments had been reduced to this amount by a previous court order. Appellant married again March 3, 1953. In February 1955 appellant was cited to appear and show cause why he should not be held in contempt for failure to comply with the court’s order to pay $75.00 per month alimony. On a hearing April 19, 1955 appellant was adjudged to be in contempt. A jail sentence of ten days, and a fine of $50.00, were imposed. The court found him to be delinquent in his payments in the sum of $570.00 and entered judgment against appellant for this amount “for the collection of which immediate execution or garnishment may issue as upon a judgment at law.” In addition appellant was ordered to pay appellee ’s attorney $100.00, all costs, and $50.00 per month future alimony to appellee until further orders of the court. This appeal followed.
For reversal appellant says: “It is our position that while appellee was entitled to a judgment for arrearages it was not within the power of the court to imprison appellant for contempt because performance of the court’s order at the time of the hearing was a physical and financial impossibility. It is our further position that while appellee’s attorney rendered valuable services it was an abuse of discretion to impose an attorney’s fee against appellant because there is no evidence of financial ability to pay any amount. The same is true of the $50.00 award of alimony.”
Appellant was a conductor on the Missouri Pacific Bailroad. July 5, 1954, he became disabled and on the same day hospitalized because of a coronary occlusion. He has not been able to work since. He remained in the hospital for a period of forty days and has been back several times since. These returns to the hospital are recited in the following summary by Dr. S. C. Fulmer, heart specialist, who had him in charge.
“He was admitted July 5, 1954 and discharged August 14, 1954. The diagnosis was acute coronary occlusion. This attack had occurred on the morning of July 5, 1954 while walking from his train to his room about 4:30 a.m.
“He was admitted to the hospital on October 3, 1954 for a follow-up examination of his coronary occlusion and was discharged October 5, 1954.
“He was readmitted November 28, 1954 and discharged December 2, 1954. The diagnosis was old coronary occlusion with mild congestive heart failure.
“He was again admitted for further heart study on January 16, 1955 and discharged on January 18, 1955. Diagnosis: old coronary occlusion.
“He was admitted February 1, 1955 and discharged February 7,1955. Diagnosis: osteoarthritis of the spine, old coronary occlusion.
“He was admitted February 15, 1955 and was discharged February 17, 1955. During this examination his whole case was reviewed and it was my opinion that Mr. Griffith was totally disabled to do the work of a railroad conductor and I recommended that he be retired from service as of February 17, 1955. This opinion was concurred in by Dr. Peter 0. Thomas, District Surgeon for Little Rock Missouri Pacific Hospital.”
His pay from the railroad has stopped and he is now on the retired list, and he received sick benefits of $73.80 every two weeks for a period of six months until January 1955. He has 29 years service with the railroad and has applied for retirement pay (“or sick benefits”) to which he is entitled and should receive in due course. The amount of such benefits is not disclosed. Appellee at the time of trial and for sometime prior thereto was receiving $25.00 per week as a clerk in a New Orleans department store.
Appellant’s contention that the court erred in assessing a fine and jail sentence in the circumstances is correct. Imprisonment for contempt for failure to pay alimony may be imposed only in those cases where it appears that the defendant was able to pay but willfully and stubbornly refused to do so. We hold, on trial de novo here that the findings of the court, that appellant was able to pay during the six months’ period and that he willfully refused to do so, were against the preponderance of the evidence.
. On the record presented this is clearly not a criminal contempt proceedings but one of civil contempt, the object of which is not to punish appellant but to coerce him to pay the money due for alimony under the divorce decree. The prevailing rule appears to be as announced in Snook v. Snook, 110 Wash. 310, 188 P. 502, 9 A. L. R. 262, where it is said: “In a contempt proceeding . . . the object of which is to coerce the payment of money, the lack of ability to pay on the part of the defendant is always a complete defense against enforcing payment from the defendant by imprisonment. In harmony with the law on that subject in most of the jurisdictions of this country, this court has repeatedly so held.”
The above rule appears to be in accord with our own in Ex parte Caple, 81 Ark. 504, 99 S. W. 830, where we said:
“Our statute expressly provides that the court in actions for divorce ‘may allow the wife maintenance and a reasonable fee for her attorneys, and enforce the payment of the same by orders and executions and in proceedings as in cases for contempt.’ Kirby’s Digest, § 2679 (now § 34-1210, Ark. Stats. 1947). It further provides in another section that such orders may be enforced by sequestration and such other lawful ways and means as are in accordance to the rules and practice of the court. Kirby’s Digest, § 2682 (now § 34-1212, Ark. Stats. 1947). Imprisonment in such a case is only justified on the ground of willful disobedience to the orders of the court; and, so soon as it is made to appear that the defendant is unable to comply with the orders of the court, he should be discharged.” And, in Harmon v. Harmon, 152 Ark. 129, 237 S. W. 1096, we said: “Imprisonment of a divorced husband for a failure to pay alimony is justified only on the ground of willful disobedience to the orders of the court, and as soon as it is made to appear that he is unable to comply with such orders, he should be discharged. East v. East, 148 Ark. 143, 229 S. W. 5; Webb v. Webb, 140 Ala. 262, 37 So. 96, 103 Am. St. Repts., 30, and Messervy v. Messervy, 85 S. C. 189, 67 S. E. 130, 137 Am. St. Repts. 873, and case note at 883.
“It does not appear that the defendant made a fraudulent disposition of his property' after the award of alimony against him; or that he failed or refused to perform the decree from mere contumacy. It .appears that his neglect was the result of misfortune from want of means and ill health.' The court is empowered to punish the defendant by imprisonment for willful obstinacy where it shall appear that he had the means with which to comply with the decree, but it should not imprison him where he shows that he. has not the pecuniary ability to comply with the decree and is in such ill health that he cannot earn enough money to do so.” Reaffirmed in Hemby v. State, 188 Ark. 586, 67 S. W. 2d 182. As indicated, there was no showing here that appellant was able to pay and refused from mere contumacy.
The judgment against appellant for arrearages, attorney’s fee, costs, and future alimony payments of $50.00 per month will be allowed to stand, and as we said in the Harmon case above, 152 Ark. 129, 237 S. W. 1096, . . . ‘ ‘ under our practice the defendant may be again cited for contempt if it should be shown that his disobedience to the order of the court continues and is willful or the result of fraudulent conduct in the premises on his part.” So much of the decree adjudging the appellant guilty of contempt and assessing the $50.00 fine and a ten day jail.sentence is reversed and dismissed; in all other respects the decree is affirmed. | [
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Robinson, J.
The principal issue here is whether appellant, a minor, may rescind a contract to purchase a pick-up truck. On the 20th day of March, 1954, L. D. Robertson, a minor, entered into a conditional sales agreement whereby he purchased from Turner King and J. W. Julian, doing business as the Julian Pontiac Company, a pick-up truck for the agreed price of $1,743.85. On the day of the purchase, Robertson was 17 years of age, and did not have his 18th birthday until April 8th. Robertson traded in a passenger car for which he was given a credit of $723.85 on the purchase price, leaving a balance of $1,020.00 payable in 23 monthly installments of $52.66 plus one payment of $52.83. He paid the April installment of $52.66.
It appears that Robertson had considerable trouble with the wiring on the truck. He returned it to the automobile dealers for repairs, but the defective condition was not remedied. On May 2nd, the truck caught fire and was practically destroyed. He notified the automobile concern and they stated that they would send the insurance man to see him. It appears that the insurance representative, upon finding out that Robertson was only 17 years of age, refused to deal with him.
On June 7th, appellees filed suit to replevy the damaged truck from Robertson. By his father and next friend, Robertson filed a cross-complaint in which he alleged that he is a minor and asked that the contract of purchase be rescinded and sought to recover that part of the purchase price he had paid, which he alleges is the amount of $723.85, allowed by the dealers on the car traded in, plus the one monthly payment of $52.66, totaling $776.51. A jury was waived and the cause was submitted to the court. There was a judgment for King and Julian on the complaint and the cross-complaint. On appeal, Robertson contends that he was 17 years of age at the time of the alleged purchase and that he has a right under the law to rescind the contract and to recover the portion of the purchase price he has paid.
Appellees contend that the judgment should be sustained because Robertson did not return the damaged truck to the automobile dealers. However, the judgment of the court states: ‘ ‘ The court further finds the proof to be that the plaintiff has possession of the said GMC pick-up truck. ’ ’ Hence, there is no merit to this contention. Appellees also contend that Act 337 of 1953 applies in that a minor cannot rescind a contract of purchase without reimbursing the seller for any loss that he may have sustained by reason of such rescission. This statute deals with situations where a minor is 18 years of age at the time of making a purchase. The statute is not applicable here because according to the undisputed evidence Robertson was only 17 years of age at the time of entering into the purchase agreement.
Appellees further contend that the minor is bound by the contract because the automobile was a necessary. The record does not contain any substantial evidence to support this contention. The only evidence on this issue is that the boy quit school in 1951 and has been earning his own living since that time, and that he has been working for a construction company and traveling around the country to different jobs with his father in his father’s truck. The boy lives at home with his parents and there is no showing whatever that he needed the truck in connection with any work he was doing. One of the witnesses for the appellees testified that the boy stated he ivanted to use the truck in a farming operation. The record contains no evidence that he was engaged in farming at any time. Another witness for the appellees testified that the boy stated that he Avanted to purchase the truck on the “farmer’s plan,” but there is no showing that the car Avas sold to him on a “farmer’s plan.” He was allowed a sum on the car which he traded in, amounting to more than one-third of the purchase price of the new truck, and he was to make substantial monthly payments for the balance. Just what the “farmer’s plan” is does not appear in the record, but it is a matter of common knoAAdedge that the plan under Avhich the boy bought the truck is the usual method of making purchases of automobiles. In a suit by a minor to rescind a contract the burden is on the defendant to show that the article was a necessary. Barnes v. Rebsamen Motors, Inc., 221 Ark. 791, 255 S. W. 2d 961.
It is our conclusion that the evidence does not sustain a finding that the truck was a necessary to Robertson. In that respect, this case is distinguishable from Sykes v. Dickerson, 216 Ark. 116, 224 S. W. 2d 360, where the court said: “It was contemplated that he would use the truck in hauling lumber, and for some months he did so, as an aid to self-support. ’ ’ The law is settled in this State that a minor may rescind a contract to purchase where the property involved is not a necessary. Foreman v. Dickerson, 177 Ark. 121, 6 S. W. 2d 829; Arkansas Reo Motor Car Company v. Goodlett, 163 Ark. 35, 258 S. W. 975; Quality Motors, Inc. v. Hays, 216 Ark. 264, 225 S. W. 2d 326.
The automobile dealers have disposed of the car they received in the trade, and cannot restore it to the minor. In a situation of this kind, the weight of authority is that the actual value of the property given as part of the purchase price by the minor is the correct measure of damages. Neither side is bound by the agreement reached as to the value of the car at the time the trade was made. This is true because the contract has.been rescinded and there is no contract fixing the value. It is said in 43 C. J. S. 117: “While it is generally held that, where property traded in by the infant as part of the price is beyond reach of the seller, the infant is entitled to the reasonable value of the property at the time of the purchase, rather than the value fixed in the purchase agreement, it has also been held that he is entitled to receive the value fixed in the agreement.”
In support of the rule that a reasonable value of the property at the time of purchase governs, C. J. S. cites Collins v. Norfleet-Baggs, Inc., 197 N. C. 659, 150 S. E. 177, where the court said: “Where the infant parts with personal property, he may, upon disaffirmance, recover the value of such property, as of the date of the contract, but he is neither bound by, nor entitled to be awarded, the price fixed by the contract, for its real value may be more or less than the amount so stipulated. ’ ’ However, in Lockhart v. National Cash Register Co., (Tex. Civ. App.) 66 S. W. 2d 796, the Court of Civil Appeals in Texas held the fixed trade in value prevailed. In 27 Am. Jur. 790, it is said: “Where, upon an infant’s disaffirmance of a purchase of an automobile in exchange for his note and an old automobile, the old automobile cannot be restored, he is entitled to recover the value thereof, which is presumably the valuation at which the defendant took it.” Cited as authority in Schoenung v. Gallet, 206 Wis. 52, 238 N. W. 852, 78 A. L. R. 387. In that case there was no showing that the automobile traded in by the infant had any value other than that mentioned in the purchase agreement. The court said: “As plaintiff’s former automobile has been wrecked and cannot be restored by defendant, he is liable for the value thereof, which is, presumably, the sum of $50 at which he valued it when he obtained it from plaintiff.”
In the case at bar, although the minor was allowed over $700.00 on his car in the trade, there is evidence to the effect that it was actually worth about $350.00. Although there is conflict among the authorities as pointed out above, we believe the better rule holds that the value of an article given in trade by a minor as a part of the purchase price is the reasonable market value of the article at the time of the purchase, and that neither party is bound by the value fixed in the purchase agreement.
Young Robertson is a minor; the truck was not a necessary; and Act 337 of 1953 is not applicable. Hence, the court erred in finding for the automobile dealers, and the cause is therefore reversed and remanded for a new trial.
Mr. Justice Holt dissents. | [
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Minor W. Millwee, Associate Justice.
This is the third time we have been presented with the issue of ap pellee’s personal liability to appellant in connection with the execution and foreclosure of separate mortgages given each by Springs Investment Company, a corporation. In the original suit, appellant, Anson Mark, Jr., sought to foreclose a second mortgage given him by the corporation. Appellee, Cecil E. Maberry, as first mortgagee, intervened in the suit and a decree was entered foreclosing his mortgage. The decree was adverse to appellant’s numerous allegations as to the illegality of Springs Investment Company and the personal liability of appellee, and other incorporators, to appellant for the corporation’s indebtedness to him under the second mortgage. The decree ordered a sale of the mortgaged premises in satisfaction of appellee’s first mortgage and directed that any surplus be applied to payment of accrued interest found due on appellant’s second mortgage, the principal of said debt being then unmatured. The decree in the original suit was affirmed June 5, 1953, in Mark v. Maberry, 222 Ark. 357, 260 S. W. 2d 455.
Appellee Maberry purchased the mortgaged property for less than the amount of his judgment at the foreclosure sale held July 28, 1953, pursuant to the decree in the first suit. On September 14,1954, appellant filed the second suit against Springs Investment Company, appellee and the purchasers to whom appellee had sold the property. While this suit was primarily an attack on the validity of the 1953 foreclosure sale, it was again alleged that appellee was liable to appellant and the corporation on account of his alleged nonpayment for capital stock in the corporation, and that the purchasers from appellee should be required to apply future payments of the purchase price of the property in satisfaction of appellant’s second mortgage indebtedness. The defendants’ plea of res judicata was sustained by the trial court.
On appeal of the second decree, we upheld the action of the chancellor except as to appellant’s right to be heard on his claim for judgment against the corporation on a note and prayer for receivership, saying: “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 has any assets from which a judgment might be collected, but the plaintiff is nevertheless entitled to be hoard 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 be determined by the chancellor upon remand.” Mark v. Springs Investment Company, et al., 225 Ark. 133, 279 S. W. 2d 843.
On remand, appellant filed an amended and substituted complaint in which he again attacked the validity of the foreclosure sale and asserted personal liability against appellee as in the former case, plus the additional allegation that appellee illegally acquired title to the mortgaged property in violation of Ark. Stats. Sec. 64-111 and thereby became liable to appellant for his claim against the corporation. In addition, appellant also asked for judgment against Springs Investment Company on a note for $1,000, which had matured since the second suit, and for $4,500 as the rental value of an apartment in the mortgaged prémises allegedly occupied by appellee from May, 1948 to August, 1954. The prayer for receivership was also renewed. Appellee Maberry’s separate plea of res judicata as to his personal liability was suslained by the trial court and Mark has again appealed.
Insofar as this record discloses, the questions of the liability of Springs Investment Company to appellant on the $500 and $1,000 notes and the claim for apartment rental, as well as the matter of receivership, are all still pending in the trial court and the corporation is not a party to this appeal. The only issue here relates to appellee Maberry’s personal liability to the appellant and it is clear from our opinion on the second appeal that this issue has been determined and redetermined. As to Ma-berry’s personal liability, the only new matter alleged in the amended and substituted complaint here is his alleged liability under Ark. Stats. Sec. 64-111. This statute prohibits certain corporations from transferring their property to stockholders for the payment of any debt or upon any other consideration than the full cash value of the property. Obviously no such transfer is involved in this suit, and the validity of the foreclosure sale ordered by the court in the first suit has been fully and finally adjudicated insofar as appellee’s personal liability to appellant is concerned. Since appellee’s personal liability to appellant is the only issue before us on this appeal, it follows that the trial court correctly sustained his plea of res judicata. The decree is accordingly affirmed. | [
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Lee Seamster, Chief Justice.
The appellee, Mrs. Albert Rorex, brought this action against appellant, Pfeifers of Arkansas, to recover damages for physical injuries which she alleged she sustained as the result of a fall she suffered while a customer in appellant’s department store in Little Rock, Arkansas, on October 25, 1954.
The negligence alleged in this case was the failure on the part of the appellant to exercise ordinary care to maintain its premises in a reasonably safe condition in that appellant had knowledge of but carelessly and negligently failed to remove a slick substance from the floor of its store or warn its visitors and customers of the presence thereof. The appellee further contends that while in the exercise of due care and regard for her own safety, she slipped on this slick substance and fell to the floor suffering serious physical injury.
The appellant’s answer was a general denial of the allegations of the complaint and a plea of contributory negligence on the part of the appellee. This canse was tried in the Pnlaski Circuit Court, Second Division, on May 16, 1955, resulting in a verdict and judgment in favor of appellee, in the sum of $5,000.
For a reversal of the trial court’s judgment, appellant lists the following three points: (1) the trial court erred in refusing to direct a verdict for the appellant. The finding of the jury that defendant was negligent was contrary to the evidence, and there was no negligence as a matter of law; (2) the trial court erred in admitting the testimony of witness C. V. Lugar concerning certain statements allegedly made by an employee of the appellant; and, (3) the damages awarded by the jury were grossly excessive and there was no substantial evidence to support the amount of the verdict.
The testimony of appellee disclosed that on the occasion of the injury she entered appellant’s store for the purpose of purchasing merchandise. She purchased several articles and was walking down the aisle of appellant’s store when her right foot came in contact with a slippery substance on the floor, she slipped and turned completely around and fell to the floor. The appellee contended that she remained on the floor for about ten or twelve minutes since the employees of appellant would not allow her to move from her position after the fall in fear that she might have been seriously injured. Appellee further testified that this fall caused severe pain in the region of her left hip whereby appellant sent her in an ambulance to the Arkansas Baptist Hospital and she remained in the hospital for a period of 41 days after the fall. A period of three weeks elapsed, after she was admitted to the hospital, before she was able to walk and then only by holding to the back of a wheelchair.
The appellee further testified that after her release from the hospital it became necessary that she remain in Little Rock for a period of ten days in order to secure further treatments. On her return home, she could only move about her home by holding to furniture and other objects. The appellee insists that the affected area was painful for a period of approximately seven months after the injury.
Dr. James W. Shuffield, a witness on behalf of appellant, testified that he examined the appellee on the date of the alleged injury and found her suffering from a bruised hip, strained muscles inside the right thigh and upper joints and muscular strain in the lower part of the back, with sensitivity of the bone utilized in sitting. Dr. Shuffield further testified that in his opinion, based solely upon objective findings, the appellee did not suffer any permanent disability by reason of the accident and could have been discharged from the hospital on or about November 8, 1954. The testimony revealed that subjectively the appellee’s progress of recovery after the accident was very slow and the objective findings made by the doctor are those findings that can be revealed by X-ray or other visible means and are not by any means tantamount to a finding that appellee had completely recovered from the injury and had been restored to good health.
0. Y. Lugar, a witness on behalf of appellee, testified that he was a customer in appellant’s store on the day of the accident and saw the appellee slip and fall on some form of greasy substance on appellant’s floor. Mr. Lugar further testified that immediately after this accident, he overheard an employee of appellant make a statement to the effect that the substance should have been removed from the floor before somebody slipped and fell. This statement was made approximately thirty seconds after the accident. At the time of the accident, Mr. Lugar was standing about ten feet in front of the spot or substance on which the appellee slipped and fell. Lugar further testified that he saw the woman who made this statement and presumed that she was an employee of appellant since she initially came out from behind a counter near the aisle and later, after issuing this statement, she went back in behind the counter.
Several of the witnesses for the appellant testified that shortly before the accident in which the appellee slipped and fell to the floor, another customer had dropped a package on the floor of the aisle. When the package made contact with the floor its contents broke and an unidentified liquid substance seeped through the brown paper sack onto the appellant’s floor. Most of these witnesses testified that only a short interval elapsed between the time the liquid seeped onto the floor and the time the appellee slipped on this substance and fell to the floor. No explanation was given as to what disposition was made of the brown paper sack nor as to identification of the woman who allegedly dropped the sack.
Mrs. Bernice Stein, one of appellant’s employees, testified that she was standing behind a counter at a distance of about three or four feet from the spot where the unidentified woman dropped the package. Her attention was called to the incident when she heard a crash and saw this woman picking up a sack, with fluid seeping through the sack onto the floor. Mrs. Stein testified that she immediately proceeded to notify the department manager of the incident so that a porter could be procured to clean up the substance that was spilled on the floor.
Initially, the appellant contends that the court erred in refusing to direct a verdict for the defendant; the finding of the jury that defendant was negligent was contrary to the evidence and there was no negligence as a matter of law. None of the trial courts instructions are attacked by the appellant. The appellant insists that appellee offered no evidence whatsoever to prove her allegations of negligence on the part of the appellant nor did appellee offer evidence tending to show how the liquid had gotten on the floor or how long it had been there. The evidence reveals that appellee was a customer and was injured by a fall on some unidentified slippery substance while shopping in appellant’s store. It was definitely established that there was a slick substance on the appellant’s floor which precipitated the fall, and its presence was known by appellant’s employees before appellee slipped on this substance and fell to the floor. The length of time the substance had been on the floor, how it got there, the sufficiency of care exercised by appellant’s employees after admitted notice, all were subject of conflicting versions and were properly submitted to the jury. It was in the province of the jury to decide whether the appellee exercised such care for her own safety as a person of ordinary prudence would have exercised under like circumstances. That is what the law required of appellee, and all that it required; and whether or not she did that was a question of fact to be determined by the jury from all the evidence. Menser v. The Goodyear Tire and Rubber Co., 220 Ark. 315, 247 S. W. 2d 1019.
The appellant next contends that the trial court erred in admitting the testimony of witness C. V. Lugar, concerning certain statements allegedly made by an employee of the appellant. Lugar testified that immediately after Mrs. Borex fell, a store employee stated, in substance, that the floor should have been cleaned up before somebody slipped and fell. We think that this statement was a spontaneous declaration uttered at the time of the occurrence of the accident and was clearly admissible as a part of the res gestae. It is not easy, always, to determine when a declaration is a part of the res gestae. It is dependent upon the particular circumstances under which the declaration is made. The circumstances of this case, both in point of time and in causal relation to the main transaction, bring it within the doctrine which admits the declaration in evidence as a part of the transaction itself. It is certain that the declaration was made immediately in point of time after the happenings of the accident; and that the declaration itself was the spontaneous emanation born of the excitement of the moment. See Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479, 108 S. W. 2d 1053, and cases cited therein.
Finally, the appellant contends that the damages awarded by the jury to appellee were grossly excessive and there was no substantial evidence to support the amount of the verdict. The jury returned a verdict for $5,000, but we do not think it can be said to be excessive. The jury had before it evidence of a substantial nature that appellee’s health, which had been good before the injury, changed to a sudden and prolonged pe riod of disability. A transition from good health to a condition of disability is itself of probative value.
We have often said the amount of damage to be awarded for personal injuries rests largely in the discretion of the trial jury. Many aspects of personal injury are difficult to compensate in monetary damage. It is only when the amount awarded is, under the testimony, so excessive as to raise a presumption that the jury fixed it as a result of prejudice, rather than from a deliberate consideration of the evidence, that we may require reduction thereof. In Missouri Pac. R. Co. v. Hendrix, 169 Ark. 825, 277 S. W. 337, this court said: “The element of pain and suffering is one which must be left largely to the sound judgment of a trial jury and the conclusion reached by the jury as to the proper amount should not be disturbed unless the award is clearly excessive.” Also see Meeks et al. v. Zimmerman et ux, 223 Ark. 503, 266 S. W. 2d 827; Coca-Cola Bottling Co. of Arkansas v. Adcox, 189 Ark. 610, 74 S. W. 2d 771, Norris v. Johnson, 214 Ark. 947, 218 S. W. 2d 720.
We cannot say that the amount of the verdict in this case is out of proportion to the injury suffered by appellee, Mrs. Albert Rorex, as to authorize us to interfere with the verdict on that ground.
The judgment of the trial court is affirmed. | [
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Lee Seamster, Chief Justice.
On February 9, 1955, the County Court of Pulaski County entered an order finding' it necessary that certain improvements be made by remodeling and reconstruction of the County Court House, including the air conditioning thereof, and the making of other necessary repairs and improvements. The court found it was urgently necessary to make such improvements for the proper and efficient conduct of the county’s public business.
Architects were appointed and they filed plans for the remodeling of the court house and estimated the cost ■thereof at $175,000.
The appellant, a citizen of Pulaski County, filed a suit in the Chancery Court of the County, setting out the above facts and further alleged that the county court was preparing to call an' election, and ask the voters of the county to approve the making of such improvements and vote' a tax to pay therefor.
• He alleged that unless enjoined by the Chancery Court the County Court would call said election and expend the county funds for such purpose; and also that the action of the Court in entering said order was void for the reason that the only way the county could pay for the improvement would be under the provisions of Amendment No. 17 to the Constitution; that the amendment does not authorize the reconstruction or remodeling of a court house as provided in said order. The appellant alleged that in proceeding with said project the County Court was illegally expending the county’s funds.
A demurrer was filed by the county to the complaint, the demurrer was sustained by the Chancery Court and the complaint was dismissed. This appeal is from the action of the court therein.
Amendment No. 17 provides for the construction, reconstruction, or extension of any county court house— There is authority for the equipping and furnishing of buildings authorized by Amendment No. 17. See Atkinson v. Pine Bluff, 190 Ark. 65, 76 S. W. 2d 982; Lindsay v. White, 212 Ark. 541, 206 S. W. 2d 762; Railey v. City of Magnolia, 197 Ark. 1047, 126 S. W. 2d 273; Tunnah v. Moyer, Mayor, 202 Ark. 821, 152 S. W. 2d 1007.
It has been the usual thing to include telephones, heating, sower, water and lighting facilities in the construction of court houses. Such additional equipment lias been standard work in the construction of court bouses in the past.' Air conditioning units are fast becoming standard equipment in the borne, the office, business bouses and public buildings. It, no doubt, contributes to the comfort and efficiency of all the people who have occasion to utilize its benefits.
Authority is contained in the amendment for the County Court to proceed to reconstruct the Pulaski County Court House so as to include air conditioning therein. The County Court has proceeded in a legal manner, under the provisions of Amendment No. 17, to date in this matter. The case is affirmed.
Justice McF addin thinks this suit is premature. | [
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Ed. F. MoFaddin, Justice.
Two appeals, consolidated in this Court, stem from the efforts of certain property owners (hereinafter called “appellants”) to enjoin the City of Malvern (hereinafter called “City”) and the Arkansas State Highway Commission (hereinafter called “Commission”), from constructing a viaduct over certain railroad tracks in the City.
In January, 1954, the City adopted its Ordinance No. 494 captioned:
“An ordinance accepting the responsibility and liability fo.r furnishing all required right-of-way free of obstructions and free of property damage for a grade separation (viaduct) on U. S. Highway 270 and Main Street over the Missouri Pacific and Rock Island Railroad Tracks in the City of Malvern, Arkansas.”
The ordinance stated, inter alia, that the Commission had agreed to construct the overpass at a cost of approximately $600,000.00 if the City would adopt and fulfill the provisions of the said ordinance, which included the matters mentioned in the caption.
In keeping with the ordinance, the City on November 27, 1954, filed its complaint in the Circuit Court of Hot Spring County attempting to name as defendants all of the property owners whose property abutted on the street in the area affected by the overpass. The action was a proceeding in eminent domain. The complaint alleged, inter alia:
“That a portion of said viaduct and an approach thereto will be in that portion of Main Street adjacent to the lands described in paragraphs IY and Y hereof, but not actually, physically touching any lands belonging to any of the defendants. Some or all of said property owners are claiming that the proposed construction and grade separation will damage their respective lands, and constitute a technical taking of a portion.”
Instead of filing a pleading in the eminent domain case in the Hot Spring Circuit Court the appellants, on December 3, 1954, filed complaint in the Pulaski Chancery Court, naming as defendants the Commission and the City, and alleging that the appellants’ properties would be damaged in a sum aggregating $70,000.00. The complaint alleged, inter alia:
. . that the plaintiffs have not been compensated by the defendant City of Malvern or the Arkansas State Highway Commission for the taking and damaging of their property for public use; that the City of Malvern is without legal authority and without necessary or sufficient funds legally available or appropriated to compensate the plaintiffs; . . . that defendant Arkansas State Highway Commission has advertised for sealed bids from contractors for the construction of said overpass viaduct, to be submitted and opened by said defendant on December 9, 1954, and unless restrained and enjoined by this Court will enter into a contract with a private contractor for the construction and will go forward with the construction of said overpass viaduct, to the irreparable damage to the plaintiffs and each of them; that the plaintiffs have no adequate remedy at law.”
On December 7, 1954, tlie Pulaski Chancery Court temporarily enjoined the Commission from letting a contract ; but quaslied service on the City and refused to enjoin the City. Prom such order the appellants have appealed. (See § 27-2102, Ark. Stats.) Even if the service of process on the City had been sustained, nevertheless the Pulaski Chancery Court had discretion as to temporarily enjoining the City. The temporary restraining order against the Commission prevented the letting of any contract. The City was left free- — as it should have been — to proceed with its eminent domain case in the Hot Spring Circuit Court. The Pulaski Chancery Court did not abuse its discretion in refusing, on December 7,1954, to issue a temporary restraining order against the City even if the City had been properly summoned.
Case No. 689 in this Court involves further proceedings in the Pulaski Chancery Court. As aforesaid, an order was made on December 7, 1954, temporarily restraining the Commission. The City, being unrestrained by the Pulaski Chancery Court, proceeded in its eminent domain case in the Hot Spring Circuit Court. Appraisers were appointed to appraise the property damage of the appellants and of other abutting property owners. The City deposited in the Hot Spring Circuit Court the sum of $21,505.00 to cover such damages; and this was an amount in excess of the total of all appraised damages. Thereupon the Hot Spring Circuit Court issued an order of immediate possession to the City (see § 35-902, Ark. Stats.). This order, reciting the deposit of $21,505.00, was made by the Hot Spring Circuit Court on January 8, 1955; and all this was made to appear to the Pulaski Chancery Court in the motion filed by the State Highway Commission for dissolution of the temporary restraining order.
On January 24, 1955, the Pulaski Chancery Court dissolved the temporary restraining order of December 7, 1954, thus leaving the State Highway Commission free to proceed. Prom such order of January 24, 1955, dissolving the temporary restraining order, the appellants have appealed to this Court in this Case No. 689 : and the appellants claim, inter alia, that the temporary restraining order should have remained in force. An order dissolving a temporary restraining order is appealable (see § 27-2102, Ark. Stats.); but the test is whether the Trial Court abused its discretion in dissolving the restraining order. See Riggs v. Hill, 201 Ark. 206, 144 S. W. 2d 26.
We see no abuse of discretion in the case at bar. In the original complaint the appellants alleged that the City was without funds to pay the damages that the appellants’ property would sustain. That was a good ground of equity jurisdiction. See Fordyce v. Dallas County, 195 Ark. 552, 113 S. W. 2d 500. To allow private property to be taken, appropriated or damaged for public use, without just compensation would be a violation of the Constitutional guaranties. (See Art. II, § 22, of the Arkansas Constitution.) So the temporary restraining order of December 7,1954, against the Highway Commission was proper. But by the time of the hearing on January 24, 1955, the Hot Spring Circuit Court had required a deposit far in excess of the appraised valuation of damages. The Statute provides for deposit prior to entry. (Section 35-902, Ark. Stats.) Such was .done in the Hot Spring Circuit Court; so there was no reason for any restraining order against the Highway Commission on January 24, 1955, after it was shown that the City had made deposit in the eminent domain proceedings.
Therefore the Pulaski Chancery Court was correct in dismissing the temporary restraining order on January 24, 1955. Any further relief that the appellants may seek against the City of Malvern must be in the proper forum in Hot Spring County. See Selle v. Fayetteville, 207 Ark. 966, 184 S. W. 2d 58; and Burton v. Ward, 218 Ark. 253, 236 S. W. 2d 65.
Affirmed.
We judicially know that the City of Malvern is a City of the first class and is the County seat of Hot Spring County, Arkansas. Lyman v. State, 90 Ark. 596, 119 S. W. 1116.
An amendment was filed to the complaint on December 6, 1954, adding other defendants and property in a further effort to join all parties. This amendment was before any order had been made in the two cases here appealed. All of the appellants in this Court are parties in the eminent domain proceedings.
The prayer of the complaint was: “WHEREFORE, Premises Considered, Plaintiff prays that the Court determine in which instances, if any, the proposed improvement constitutes the taking of the respective defendants property; and in such instances in which it is found that said improvement does constitute a taking, that the court determine by a proper proceeding the amount of damages, if any, due therefor, and enter proper judgment against the plaintiff accordingly.”
The prayer of the complaint was: “Wherefore, Plaintiffs and each of them pray that this Court issue a restraining order restraining and enjoining the defendants and each of them from proceeding further or taking any further action toward contracting for the construction of said overpass viaduct or the approaches thereto, or constructing same, until the issues in this cause have been heard and finally determined and until the plaintiffs and each of them have been fully compensated in damages as by law in such cases made and provided; and for costs herein expended, and all other relief, equitable and legal, to which they may be entitled.”
This order recited: “Defendant, Arkansas State Highway Commission be and it is hereby restrained and enjoined from proceeding further or taking any further action toward contracting for the construction or constructing of an overpass viaduct in the City of Malvern until the issues in this cause have been heard and finally determined and the Court hereby fixes the 12th day of Jan., 1955, at 10:00 A.M. as the day certain at which the causes here presented shall be heard finally.”
The said motion recites in part: “That since the granting of the temporary restraining order in this case the City of Malvern has proceeded with its condemnation proceedings in the Circuit Court of Hot Spring County. That on the 8th day of January, 1955, the Circuit Court of Hot Spring County entered an order condemning said property for this right of way easement and that a sufficient and adequate sum of money was deposited in the Registry of the Court to secure these plaintiffs the payment for any property or damages resulting to them by reason of the construction of this viaduct. A certified copy of said order is attached hereto and made a part hereof and marked Exhibit 2. Further Orders were entered by the Court on the same day, certified copies of which are hereby attached and made a part hereof and marked Exhibits 3 and 4. That the Circuit Court of Hot Spring County has jurisdiction of this subject-matter and that the plaintiffs have a complete and adequate remedy at law and that their complaint should be dismissed.” | [
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Lee Seamster, Chief Justice.
This is an appeal, by appellant, from that portion of the trial court’s decree that denied him the return of $2,500; the sum that he had deposited in the Clark County Bank to the savings accounts of his three minor step children. The appellees have cross-appealed from that portion of the decree that allowed the appellant recovery of $500 from Ivory Littrell.
Eva B. Hopson died intestate on March 18, 1953. She was survived by a husband, appellant herein, and three children, all appellees herein, are, James H. Buford, age 18; Ivory Jean Buford, age 16; and, Carrie Faye Buford, age 14. The maternal grandmother of the children,, Ivory Gatlin Littrell, has been appointed guardian of the two girls and appears as an appellee in the instant case. The older boys custody is vested with his father.
Subsequent to Eva’s death, the appellant, Bale Hop-son, received three (3) checks from an insurance com pany in the total sum of $4,000. This amount represented the face value of two life insurance policies that Eva had carried on her life. The appellant was designated the sole beneficiary under both of these life insurance policies.
On May 2, 1953, the appellant deposited $2,500 of the life insurance proceeds to the savings accounts of his three minor step children, which he established at the Clark County Bank. Two Thousand Dollars of this amount was deposited in the name of Ivory Gatlin Littrell, as guardian of Ivory Jean Buford and Carrie Faye Buford. Five Hundred Dollars was deposited in the name of Ivory Gatlin Littrell for James H. Buford. On the same date, the appellant delivered to Ivory Littrell an additional sum-of $500.
Thereafter, the appellant spent nearly every week end in the home of his mother-in-law, Ivory Gatlin Littrell. There was no discussion between the parties as to the money deposited to the minor childrens accounts, until July 9, 1954. At this time, the appellant told his mother-in-law that he had secured information to the effect that his step children had no interest in the insurance money he deposited to their savings accounts and requested the return of the money. When Ivory Littrell refused the return of the money, the appellant filed the instant suit in the Clark Chancery Court.
The chancellor found that the appellant was entitled to recover the $500 sum of money that he had delivered to Ivory Littrel; but, the appellant was not entitled to the return of the $2,500 sum of money that he had deposited to the accounts of his step children, since this amount was a voluntary gift to the step children.
On appeal to this court, the appellant contends that fraud, misrepresentation and undue influence were utilized by the appellees, especially Ivory Littrell, to induce him to deposit $2,500 to the savings accounts of his three minor step children. It is his contention that the morning after his wife’s funeral, Ivory Littrell brought up the subject of Eva’s property, including the life in surance proceeds. She told him that under the law he was entitled to only one-fourth of the proceeds from the insurance policies; with the remaining three-fourths to be divided equally among his three step children. The appellant earnestly contends that none of this money would have been deposited to the savings accounts of the three children, if it had not been for the false representations of Ivory Littrell. He further contends that his request for return of the money was met with a refusal by Ivory Littrell.
The appellees contend that appellant made a voluntary gift of $2,500 to his three step children, with full knowledge of all of the facts incidental to and surrounding said transaction. On cross-appeal, it is also the contention of the appellees that at this time, the appellant made a gift of $500 to Ivory Littrell, the maternal grandmother of the children. They submit that a preponderance of the evidence shows that the appellant gave the $500 to Ivory Littrell to be used by her for the maintenance and support of the two girls.
After a careful review of the record, we find the preponderance of the evidence supports the chancellor’s findings, that the appellant made a voluntary gift of $2,500 to his three minor step children; and, that the appellant did not make a voluntary gift of $500 to Ivory Littrell.
Fraud is never presumed and the burden of showing the existence of facts which establish fraud is upon the one who asserts fraud as a ground of relief. See, Bush v. Bourland, 206 Ark. 275, 174 S. W. 2d 936. The burden of proof was on the appellant to show that fraud, undue influence or misrepresentation, were utilized by the appellees to induce him to deposit $2,500 to his step children’s savings accounts. Under the facts here presented, we conclude that the appellant has failed to prove his allegations.
"We think that there was sufficient testimony adduced on the trial of this case, relative to the acts, conduct and declarations of Dale Hopson, to sustain the finding of the trial court that he made a voluntary gift of $2,500 to his step children. Mrs. Lillian Edwards, a teller in the Clark County Bank, testified to the following :
‘ ‘ Q. What did he (Dale Hopson) tell you he wanted to do with the checks?
“A. He wanted to leave $2,000 for the two Buford girls with Ivory Littrell, their grandmother, for to take care of for them, and $500 to the Buford hoy.
“Q. I see. Now did you undertake to question him about his desires?
Í£A. Yes, sir.
“Q. Why?
“A. Well, the two checks were made out to him and these were his step children, and I asked him was he sure he wanted to place it in their names.
“Q. What did he say?
“A. He said he did.
‘ ‘ Q. Then, did you undertake to explain the matter to him?
“A. Yes, sir. I told him he was a very generous step father. Then, when he got through with the transaction, I gave up and said, ‘You don’t want your name anywhere on this book?’ He said, ‘I don’t want anything to do with it. I want the grandmother to have it to see to their schooling or clothes or, if there is anything left, I Avant them to have it when they become of age.’
“Q. Hoav long did you take in explaining to him?
“A. I told him to begin with, and I told him at the end of the transaction again.
“Q. You told him what?
“A. That the checks Avere his; made out to Dale Hopson. I said, ‘Now these checks are yours and you don’t have to do that.’ He said, ‘Yes, but I AAmnt to.’ ”
We have held in the case of Williams v. Smith, 66 Ark. 299, 50 S. W. 513, that, “If the gift be intended in presentí, and be accompanied with such delivery as the nature of the property will admit, and the circumstances and situation of the parties render reasonably possible, it operates at once, and, as between the parties, becomes irrevocable.”
On cross-appeal, there is insufficient testimony to show that appellant intended to make a gift of $500 to Ivory Littrell.
No error appearing, the decree of the trial court is affirmed on appeal and cross-appeal.
Justices George Rose Smith and Ward dissent in part. | [
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JIM HANNAH, Chief Justice.
liAppellant James Clemons was convicted by a Union County jury of the capital murder of Billy Ponder and sentenced to life imprisonment without the possibility of parole. On appeal, Clemons contends that the circuit court (1) erred in denying his motion for directed verdict because the State failed to prove by substantial evidence that he committed capital murder, (2) abused its discretion in refusing to allow testimony about a letter written by a jailhouse informant who testified as a State’s witness at trial, and (3) erred in denying his motion to suppress his statement given to police because he was not timely provided with a copy of the statement. Because Clemons was sentenced to a term of life imprisonment, our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(a)(2) (2010). We affirm the circuit court.
Billy Ponder was found stabbed to death on April 28, 1992, at his flower shop in El laDorado. An empty cash-register till and several loose coins were found on the floor of the shop. Police conducted interviews and obtained physical evidence from the scene; however, despite the investigation, the case remained open for several years until DNA tests that were not available in 1992 caused Clemons to be identified as a suspect. In 2006, physical evidence from the crime scene was sent to the Arkansas State Crime Laboratory for retesting. In October 2007, the crime lab informed the police that DNA found at the scene matched Clemons’s DNA, which was on file in CODIS, the national DNA databank.
Clemons first contends that the State failed to prove by substantial evidence that he committed capital murder. He asserts that the State failed to prove he was present when the murder occurred and that physical evidence offered to prove his presence at the crime scene did not constitute proof that he committed the murder. He also asserts that a jailhouse informant’s testimony that Clemons admitted to committing the crime is not credible.
An appeal from a denial of a motion for a directed verdict is a challenge to the sufficiency of the evidence. Adams v. State, 2009 Ark. 375, 326 S.W.3d 764. In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict was supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence that is forceful enough to compel a conclusion one way or the other beyond speculation or conjecture. Id. Circumstantial evidence may be sufficient to support the finding of guilt in a criminal case, but it must exclude every other reasonable hypothesis consistent with | sinnocence. Lockhart v. State, 2010 Ark. 278, 867 S.W.3d 530. Whether the evidence excludes every other reasonable hypothesis is a question for the jury to decide. See Edmond v. State, 351 Ark. 495, 95 S.W.3d 789 (2003). Upon review, this court’s role is to determine whether the jury resorted to speculation and conjecture in reaching its verdict. See id.
Clemons was convicted of murder perpetrated while in the commission of a felony, with attempted robbery or robbery as the underlying felony. At the time of the crime, the capital-murder statute provided, in relevant part, that a person commits capital murder if he commits or attempts to commit robbery and in the course of and in furtherance of the robbery or in immediate flight therefrom, he causes the death of any person under circumstances manifesting extreme indifference to the value of human life. Ark.Code Ann. § 5-10-101(a)(l) (Supp.1991). A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another person. ArkCode Ann. § 5-12-102(a) (Supp.1991).
The record reveals that Ponder was killed some time after 4:15 p.m., on April 28, 1992. Katherine Buzzard testified that, at about 4:15, she went to the drive-through window of Ponder’s flower shop to pay for some flowers. Buzzard stated that Ponder came to the window, and she paid him in bills and coins. According to Buzzard, while speaking to Ponder, she did not observe anything “out of the ordinary.”
Jerry Sandifer, a friend of Ponder’s, testified that he called Ponder at the flower shop at about 5:00, but he got no answer. Ponder’s wife, Rebecca, testified that she called the 14flower shop at around 5:30 after receiving a phone call at home from a customer whose flowers had not been delivered, but no one answered. She said that she called several more times, but never got an answer. She stated that, at first, she was not concerned, but she later became “uneasy” and decided to drive to the shop. She arrived there at around 7:15 or 7:20 and noticed that the back door was open. When she walked to the back door and looked inside the flower shop, she saw Ponder’s body lying on the floor.
Jerald Fifer, who was working at a dry cleaners across from the flower shop on the day of the murder, talked to police during their initial investigation and told them that he had seen a black man on a bicycle around 3:30 that afternoon, but he did not know who it was. Subsequently, in April 2008, police showed Fifer a photo lineup that included a picture of Clemons, and Fifer stated that the man on the bicycle looked like Clemons.
After the crime lab identified Clemons as a suspect based on DNA testing in 2007, it asked for a “known” DNA sample from Clemons to make a comparison. CO-DIS indicated that Clemons was living in Marathon County, Wisconsin, and a judge in Wisconsin issued a search warrant to obtain oral swab and fingerprint samples from Clemons. Chief Ricky Roberts and Sergeant Jamie Morrow of the El Dorado Police Department traveled to Wisconsin in February 2008 to obtain the DNA samples and to interview Clemons. Chief Roberts read Clemons the Miranda warnings, and Clemons signed the waiver form and talked to the officers.
Sergeant Morrow testified about Clemons’s statement, noting that Clemons offered more than one version of events. He said that, at first, Clemons denied knowing Ponder; |fithen, Clemons stated that he knew Ponder and had been in the flower shop and bought flowers. Clemons first said that he was walking when he stopped by the flower shop, but he later said that he was riding a bicycle. Clemons also told officers that Ponder had approached him and asked if he could masturbate Clemons in exchange for money. He told officers that Ponder offered him $25, then he said that Ponder offered him $80. Clemons also stated that he took money from the cash register after Ponder said that he did not have any cash.
Clemons said that the incident took place before 5:00 in April 1992. He said that he had been in town working for a carnival and left town with the carnival the next day. He stated that he stopped by the shop because he wanted to buy flowers for his mother to thank her for “all she had done.” Clemons repeatedly denied killing Ponder.
Chief Roberts also testified about Clemons’s statement. According to Roberts, Clemons stated that he knew Ponder was gay or bisexual and that Ponder offered to pay him if he could masturbate Clemons. Clemons claimed that he and Ponder pulled down their pants, and Ponder masturbated both Clemons and himself. Clemons admitted that he ejaculated, and he said that, after the incident, Ponder gave him money, and he took his flowers and left. Then, Clemons said that Ponder did not have the money, so he told Ponder to get money out of the register. Clemons said that Ponder gave him the money; then, he changed his story and said, “I reached over,” and “I took the money.”
Clemons told Chief Roberts that when he left the shop, he rode his bicycle across town to his mother’s house while carrying a vase of flowers. Clemons’s sister, Alice Clemons Alford, testified that she did not recall her brother ever bringing flowers to their mother.
^Christopher Glaze, a DNA analyst at the State Crime Lab, testified that Clemons’s DNA was present on a Newport cigarette butt found in an ashtray at the crime scene. Forensic DNA examiner Jennifer Beaty testified that DNA from semen stains found on Ponder’s blue jeans matched the DNA of Clemons. Ponder’s wife testified that Ponder changed clothes at least once a day and never would have worn the same pair of pants to work more than once, so anything recovered from the jeans he was wearing when he died would have been placed there that day. She also testified that her husband always carried a billfold, but that his billfold was never returned to her with his personal effects.
Ponder’s daughter, Stephanie Ponder Lacy, also testified that Ponder did not wear his clothes more than one day. She also related that her father liked to have his work clothes, including his blue jeans, dry cleaned, and that he liked them heavily starched. In addition, she stated that, at the time of the murder, her father would not have had pre-made flower arrangements in vases for walk-in customers to purchase.
Wilfred Frazier, an inmate at the Arkansas Department of Correction, also testified for the State. Frazier stated that he met Clemons when they were housed together in the Union County jail. He said that the two discussed their crimes and that Clemons told him he had stabbed Ponder and taken his wallet from him.
Dr. Charles Kokes, Chief Medical Examiner for the State of Arkansas, testified that Ponder sustained a total of nineteen separate stab wounds. Most of the wounds were on the chest, but Ponder also suffered wounds to his hands, arms, shoulder, back, abdomen, and 17thigh. Dr. Kokes testified that, collectively, these wounds were fatal and that the manner of death was homicide.
We begin by addressing Clemons’s argument regarding Frazier’s testimony. Clemons asks that this court disregard Frazier’s testimony because it is not credible. Specifically, he claims that it would have been “physically impossible” for him to have had a conversation with Frazier while in jail. In support of this argument, he points to testimony from a jailer that Clemons and Frazier were housed in different pods at the jail.
We have held that the credibility of witnesses is a matter for the jury’s consideration. • Davenport v. State, 873 Ark. 71, 281 S.W.3d 268 (2008). Where the testimony is conflicting, we do not pass upon the credibility of the witnesses and have no right to disregard the testimony of any witness after the jury has given it full credence, where it cannot be said with assurance that it was inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ thereon. Id.
Moreover, there is further evidence to support Clemons’s conviction. Clemons admitted to police that he was at the flower shop on the day of the murder before 5:00. Ponder was last known to be alive at 4:15, when Katherine Buzzard paid him for flowers at the shop’s drive-through window. Despite the fact that Buzzard gave Ponder cash at 4:15, when police arrived at the crime scene, no money was found in the cash register. In addition, Ponder’s billfold, which he was known to carry in his pocket, was not found in his pocket and was not returned to his wife with his personal effects. The presence of Clemons’s DNA on ^Ponder’s jeans and on a Newport cigarette butt found in an ashtray at the flower shop also link Clemons to the crime scene. And, Clemons stated that he engaged in a sexual act with Ponder on the day of the murder.
Clemons’s statement to the police had many inconsistencies. He denied ever having been in the shop; then, he admitted that he had been there on the day of the murder and had engaged in a sexual act with Ponder. He told police that Ponder paid him $25 for the act; then, he said he was paid $30. He said that Ponder gave him the money, but later told police that he reached for the money and took it out of the cash register. Clemons also told police that, after engaging in a sexual act with Ponder, he left the shop and rode his bicycle to his mother’s house, some four miles across town, all while carrying a vase of flowers, even though Ponder’s daughter said that pre-made arrangements were not available.
Here, the jury was not forced to resort to speculation and conjecture and could infer from the testimony and evidence presented at trial that Clemons robbed or attempted to rob Ponder and that Clemons killed Ponder. There is substantial evidence to support the conviction for capital murder, and the circuit court did not err in denying Clemons’s motion for directed verdict.
hClemons next contends that the circuit court abused its discretion in refus ing to allow testimony about a letter written by an inmate who testified as a State’s witness at trial. A decision to admit or exclude evidence is within the sound discretion of the circuit court. Smith v. State, 2009 Ark. 458, 343 S.W.3d 319. In addition, this court will not reverse an evidentiary ruling absent a showing of prejudice. Sauerwin v. State, 363 Ark. 324, 214 S.W.3d 266 (2005).
As previously noted, Wilfred Frazier, who met Clemons when they were both inmates at the Union County jail, testified that Clemons told him that he stabbed Ponder and stole his wallet. Frazier stated that he wrote a letter about Clemons’s admission to the prosecutor’s office and, after he was sentenced to the Arkansas Department of Correction, he wrote a letter about the admission to Judge Carol Anthony. Frazier testified that he did not write the letter to Judge Anthony in an attempt to receive a reduction in sentence, explaining that he had already been sentenced when he sent the letter.
Clemons called Gregg Parrish, who was Frazier’s attorney. At a bench conference, the prosecutor told the circuit court that Clemons’s purpose for calling Parrish was to show that Judge Anthony had let Parrish see Frazier’s letter to her. The prosecutor argued that, absent Clemons’s defense counsel presenting the letter for authentication, Parrish should not be allowed to testify. Defense counsel stated that he did not have the letter, and the circuit court stated that evidence concerning the letter would not be allowed. To make a record, defense counsel stated that Judge Anthony told him she had received the letter, but had discarded it. 110Defense counsel further stated that, in the letter, Frazier sought a reduction in sentence in exchange for his testimony. Further, defense counsel stated that both Parrish and Judge Anthony read the letter, but neither one of them kept it. Again, the circuit court stated that Parrish could not testify about the letter unless defense counsel had a copy of it. The prosecutor added that defense counsel had the opportunity to cross-examine Frazier and to inquire about his motivation for testifying. The circuit court then concluded that the testimony about the letter would be excluded as hearsay.
We are precluded from addressing Clemons’s argument that the circuit court erred in refusing to allow Parrish’s testimony because Clemons failed to challenge the basis of the circuit court’s ruling. In this case, the circuit court excluded the testimony as hearsay. Hearsay is a statement made by an out-of-court declarant that is repeated in court by a witness and is offered into evidence for the truth of the matter asserted. Bowen v. State, 322 Ark. 483, 911 S.W.2d 555 (1995). Clemons made no argument below, nor does he make the assertion here, that Parrish’s testimony was not hearsay. He does not contend that Parrish’s testimony was not offered for the truth of the matter asserted, nor does he contend that the testimony, while hearsay, was admissible under an exception to the hearsay rule. Addressing a challenge to the exclusion of Parrish’s testimony would require this court to develop an argument on Clemons’s behalf. This court will not research and develop arguments for appellants. See, e.g., Flanagan v. State, 368 Ark. 143, 243 S.W.3d 866 (2006).
In Clemons next asserts that the circuit court erred in denying his motion to suppress a statement he gave to the police because he was not timely provided a copy of the statement. Specifically, he claims that the circuit court should have suppressed his statement because the State committed a discovery violation that caused him to suffer prejudice. Prior to trial, Clemons filed a motion to suppress a DVD of his statement to police, contending that the DVD should be excluded because he had not been timely provided a usable copy of it. Defense counsel stated that, while he had received a copy of the DVD, he had tried to play it on five different DVD players, but he was unable to view it. After Sergeant Morrow and Chief Roberts testified about the statement, the prosecutor showed the circuit court a letter indicating that he had sent a copy of the DVD to defense counsel on January 13, 2009, which preceded an earlier trial date in the case. The prosecutor added that the statement had been available at the prosecutor’s office and the police department. The circuit court viewed the letter and read defense counsel’s mailing address aloud; at that time, defense counsel revealed that the prosecutor had sent the DVD to his former address.
_Jy¡The hearing on the motion took place three days before trial, and defense counsel stated that, at that time, he had still not been able to view the DVD. Defense counsel contended that his lack of time to prepare would prejudice his client, and he urged the circuit court to suppress the statement. The circuit court asked defense counsel if he wanted a continuance due to the problem with the DVD, and defense counsel responded, “No, I am not asking for a continuance. I don’t want a continuance.” Defense counsel again contended that he was being prejudiced by not yet having viewed the DVD. Nevertheless, he again stated, “I don’t want a continuance.”
Clemons argues here, as he did below, that the circuit court erred in denying his motion to suppress because the State did not timely provide him with a usable copy of the DVD. The State counters that, by rejecting the circuit court’s offer of a continuance to give him time to view the statement, Clemons has waived his argument that the statement was not timely disclosed. We agree. In Tester v. State, 342 Ark. 549, 30 S.W.3d 99 (2000), after noting that a discovery violation could be cured by the grant of a continuance, we held that the appellant’s rejection of the offer of a continuance barred his claim that a statement should have been suppressed because it had not been timely disclosed. Here, like the appellant in Tester, Clemons refused the circuit court’s offer of a continuance to afford him more time for preparation. Because Clemons rejected the circuit court’s offer of a continuance, he cannot claim that the circuit court’s denial of his motion to suppress is reversible error.
|,^Pursuant to Arkansas Supreme Court Rule 4 — 3(i), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no prejudicial error has been found.
Affirmed.
. In his brief on appeal, Clemons also asserts that the circuit court erred in denying his motion for directed verdict because the State failed to prove that he acted with premeditation and deliberation. This argument is without merit. Clemons was charged with capital-felony murder, not murder based on premeditation and deliberation. Thus, the State was not required to prove premeditation and deliberation. Compare Ark.Code Ann. § 5-10-101(a)(l) with § 5-10-101(a)(4).
.We note that in Clemons’s reply brief, he contends that the circuit court erred in refusing to suppress the videotaped statement of Wilfred Frazier. We assume that the reference to Frazier was an inadvertent error, as Clemons's motion to suppress refers to his own statement.
. The prosecutor stated that the DVD had to be played on a computer with a media player rather than in a standard DVD player.
. Ultimately, Clemons was tried on March 16, 17, and 18, 2009. | [
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Butler, J.
This is a suit by the appellee for judgment for debt evidenced by promissory notes and for foreclosure of a mortgage on personal property, being certain filling stations and equipment executed by the makers, appellants.
The defense relied upon is alleged in paragraphs 12, 13 and 14 of the answer. A general demurrer was filed to the answer and a specific demurrer to paragraphs 12 and 13, and the court, treating the general demurrer as a specific demurrer to paragraph 14, sustained the demurrers as to each of these paragraphs, the defense of the alteration of the mortgage set forth in the first section of paragraph 12 of the answer being waived. The defendant saved proper exceptions to this action of the court, and, refusing to plead further, judgment was rendered against them for the debt and accrued interest and for foreclosure of the mortgages, and from that the defendants (appellants) have appealed.
The nature of the transaction whereby the debt was incurred sufficiently appears in the following paragraph of the answer: '
“11. Further answering, these defendants state that on or about the 5th day of January, 1931, the defendant, W. Q. Leavitt, was the owner of a certain filling station, bulk sales station and the equipment incident to and necessary for the operation of said station, located and being in the city of Booneville, and county of Logan and State of Arkansas; that said equipment was, at the time, of the reasonable value of $7,500.
“12. That on said date the said defendant, W. Q. Leavitt, being in need of funds, negotiated a loan on said plants and equipment for the sum of $3,500, which was evidenced by five promissory notes of $700 each with 6 per cent, interest thereon, said notes to become due and payable in one, two, three, four and five years from date, and that, to secure the payment of said loan, and as a part and parcel of same transaction, made out and executed and delivered to said plaintiff a chattel mortgage on said retail and wholesale oil and gas stations and the equipment connected therewith, and that said chattel mortgage, together with the notes referred to above, are null and void, first, for the reason that said chattel mortgage was materially changed after its execution and delivery to plaintiff by the insertion therein of the paragraph thereof which reads:
“Party of the second part may at its option purchase fire, tornado and theft insurance upon the property herein mortgaged, charging same to the account of the party of the first part, to be secured by the mortgage as an advancement; that said notes and mortgage are further void, for the reason that at the time of making said loan and the execution of the notes and mortgage referred to, and as a part of the same transaction, the said defendant made out and executed a lease agreement with the plaintiff upon the property described in said lease and in said chattel mortgage, which said lease, among other things, provides for an annual rental for said property of $1 per month or $12 per year, with a further provision that said property was to he maintained and kept in good operating condition by this defendant, lessor, at his own necessary expense for five years, and it is this part of the entire contract which the paintiff is seeking to have enforced in this suit, since it is and constitutes, as hereinabove alleged, a part and parcel of the entire transaction with the exceptions hereinafter stated.
“13. That said lease contract, together with the notes and mortgage referred to herein are fraudulent and void,
“ (a) Because they are unconscionable and are not such contracts as will he enforced by a court of equity.
“(h) Because the same, when construed together with the entire transaction, discloses that the value of said lease or rental upon said property, when added to the interest provided for in the notes and mortgage, produces a rate of interest for the life of the contract, or for any one year embraced therein, of a charge in favor of the plaintiff far in excess of ten per cent, on the amount of money loaned by plaintiff to the defendant, and therefore and for that reason is attainted with usury, and that by reason of said usury said note and mortgage as well as said lease contract are absolutely void.
‘ ‘ 14. That, as an inducement to secure the execution of said notes and mortgage and said lease at the time and in the manner hereinabove stated, the said plaintiff, through its agents and representatives who negotiated said contracts with the defendant, W. Q. Leavitt, M. R. Springer falsely and fraudulently represented to the said W. Q. Leavitt that the $12 rental specified in said lease and the difference between 6 per cent, interest on the loan and of possibly 10 per cent, thereon to the plaintiff was not a sufficient sum to constitute a valid rental on the use of the property which plaintiff was securing under the terms of said lease, but that in addition thereto the plaintiff would allow the defendant the sum of one- fourth, of a cent per gallon on all gasoline handled or sold during the life of the lease by either the bulk sale or retail station covered by said lease, but for certain trade reasons he did not want to include said provision in said contract, but would subsequently have the plaintiff confirm said arrangement by letter, and that the defendant relying upon said representations of said plaintiff and its agents, was thereby fraudulently induced to sign said notes and said mortgage and said lease contract, and that, notwithstanding said understanding and agreement and inducement, thereafter said plaintiff wholly repudiated same and refused to confirm the same or to recognize the same in any way, thereby rendered all of said transaction null and void and of no force and effect.”
The first question to be determined is whether the allegations of paragraph 12 are sufficient to constitute the defense of usury. It is alleged that the lease contract set out was a part and parcel of the same transaction by which the loan was secured. This appellant contends is a sufficient plea upon which to found the defense of usury when there are other averments that the rentals on the property demised, when added to the six per cent, interest the notes carried, made a sum in excess of 10 per cent, per annum on the debt for the entire period before the due date of loan or any one year thereof. Cammack v. Runyan Creamery Co., 175 Ark. 601, 299 S. W. 1023, is cited as supporting this contention. We do not so view that case, which was a suit on an alleged contract of employment, and which was successfully defended on the ground that no employment of the plaintiff was contemplated or any service rendered, but that the arrangement was merely a device to cover a usurious rate of interest on a loan of money made by the. plaintiff, either as the principal lender or as his agent. In upholding the finding of the chancellor as not against the weight of the evidence, the court recited.the settled principle that, to constitute usury, “there must be an agreement between the parties by which the borrower promises to pay and the lender knowingly receives a higher rate of interest than the statute allows for the loan or forbearance of money, or such greater rate of interest must be knowingly reserved, taken or secured for such loan or forbearance. And the wrongful act of usury will not be presumed or imputed to the parties, and it wall not be inferred where the opposite conclusion can be reasonably and fairly reached.”
In the answer in the instant case there was no allegation from which the reasonable intendment could be drawn that a corrupt agreement existed between the parties that would bring its averments within the principle recognized in Cammack v. Runyan, supra, and which was necessary to a plea of usury. Citizens’ Bank v. Murphy, 83 Ark. 31, 102 S. W. 697; Berner v. Wade, 170 Ark. 1020, 282 S. W. 359.
It is the general rule, approved by this court, that an agreement for a loan is not usurious, even though the lender refused to make it unless the borrower would enter into another contract from which the lender might-gain advantage, if the collateral agreement was fair and legal (Simpson v. Smith Savings Society, 178 Ark. 921, 12 S. W. (2d) 890), the reason for which is stated in the recent case of Hogan v. Thompson, emte p. 497, as follows : ‘ ‘ This is based on the- principle that, since the law forfeits the entire loan and interest thereon for an exaction of usurious interest, however small, the intent to exact a usurious! interest must be clearly shown and will not be inferred where, from the circumstances, the opposite conclusion can be reasonably and fairly reached.”
Therefore, the allegation that the lease contract was a part of the transaction of the borrowing of the money does not constitute a defense, in the absence of an allegation that the contract of lease was a device or cloak for usury which the lender intended to exact and the borrower to pay.
2. In determining the correctness of the .court’s ruling on the demurrer to paragraphs 13 and 14, the contention of the appellant raised in the second and third part of counsel’s brief may be considered under one bead. The first is that the “lease contract as a matter of equity was either without consideration or was for such a gross inadequacy as to render the same void/’ and, next, that the lease contract was secured by the false representation that appellant would be paid one-fourth of a cent per gallon on all the gasoline sold on and through the demised premises. The answer to these contentions is that the suit of appellees does not involve the lease, but a recovery on notes evidencing money it loaned appellant and foreclosure of a mortgage given to secure the same. The fact that a lease was fraudulently procured would be no defense to a suit to recover appellee’s debt or for foreclosure on the security, and, as pointed out by counsel for appellee, appellant did not allege any damage for the alleged failure to pay them one-fourth of a cent per gallon on gasoline handled through the filling stations leased or seek to offset the debt or any. portion thereof on account of any damage sustained.
We are of the opinion that no defense was stated in the answer, and the chancellor correctly sustained the demurrer.
The decree is therefore affirmed. | [
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Butler, J.
J. W. DuBose brought this suit in the chancery court of Lafayette County, contending that under a contract entered into with James S. Meriwether the latter and the Meriwether Sand & G-ravel Company were due him as an overriding royalty two cents per cubic yard upon all the sand and gravel which Meri-wether and the Sand & Gravel Company had mined and actually shipped from sand and gravel leases in and around Lewisville, Arkansas. His claim was based on the following contract: -
“State of Louisiana,
“Parish of Caddo.
“This memorandum of agreement, made and entered into by and between James S. Meriwether, a resident of Caddo Parish, Louisiana, hereinafter known as party of the first part, and J. W. DuBose, a resident of Lafayette County, Arkansas, hereinafter known as party of the second part, witnesseth:
“That, whereas, the party of the second part has given his time and attention to the securing of gravel leases in and around Lewisville, Arkansas, for the benefit of the party of the first part, in contemplation of the party of the first part operating the said leases by mining sand and gravel therefrom, and
“Whereas,9 a consideration to the said party of the second part for such services is recognized to be due, therefore,
“It is agreed between the parties hereto that upon all sand and gravel actually shipped by the party of the first part from sand and gravel leases in and around Lewisville, Arkansas, the party of the first part will pay to the said party of the second part an overriding royalty of two cents per cubic yard, the said royalty to be based upon the royalties paid to the landowners under the original leases granted by them to the party of the first part, and shall be paid in the same manner and at the same time and place as specified in said original leases.
“Thus done and signed in duplicate at Shreveport, Caddo Parish, Louisiana, on this the 2d day of February nineteen hundred and twenty-five.
(Signed) “James S. Meriwether,
“Attests: “J. W. DuBose.
“Frank M. Cook,
“Nell Illien.”
In DuBose’s complaint the allegation regarding the liability of the Sand & Gravel Company was that the company, a corporation, knew of the existence of the contract and, with such knowledge, accepted the benefits and profits airsing from the mining and shipping of sand and gravel, and, by its dealings with DuBose, recognized said contract and acted thereunder. It is the contention of Meriwether that the contract, properly interpreted, rendered him liable only for an overriding royalty for gravel mined and shipped from certain leases which had been procured for him by DuBose, and that this royalty had been paid, but that large quantities of gravel had been shipped from other leases, and that as to this DuBose was not entitled to a royalty under his contract.
The Sand & Gravel Company filed a separate answer denying any knowledge of the contract entered into between DuBose and Meriwether, or that it had paid any royalty to DuBose, or that it was obligated in any way under the aforesaid contract.
Prior to the filing of the answers, the defendants filed a motion to transfer the case to the Lafayette Circuit Court. This motion was denied, and on the same day, a motion was filed by the defendants to make the complaint more definite and certain in certain particulars. This motion being overruled, the defendants answered.
At the conclusion of the testimony the court found that it was the intention of the parties to the contract that a royalty was due and payable to the plaintiff on all the sand and gravel mined and shipped from leases in and around Lewisville; that as a matter of fact DuBose procured certain leases for J. S. Meriwether, who then directed him, to take all future leases in the name of the Meriwether Sand & G-ravel Company, a corporation, of which J. S. Meriwether was president, and the then owner of one-half of its capital stock; that at the time Meri-wether entered into the contract with DuBose he had in contemplation the organization of the said corporation for the purpose of mining- and shipping sand and gravel from all leases taken in and around Lewisville, and that said company was organized for that definite purpose; that a short time after the organization of the company J. S. Meriwether became the owner of practically all of the capital stock of the corporation. The court further found that the corporation, with full knowledge of the contract, accepted an assignment of all the leases taken by DuBose in the name of J. S. Meriwether, and a large number of leases taken by said DuBose in the name of the company at the direction of J. S. Meriwether, after the incorporation of the said company; that the corporation made payments to DuBose for royalties on gravel taken from leases taken in the name of J. S. Meriwether, and those taken direct to the Meriwether Sand & G-ravel Company; that the company received and accepted the benefits of the contract with full knowledge thereof; that the total yardage shipped from the time operations began until December 16, 1930, was 549,941.69 cubic yards, and that the defendants were jointly liable to the plaintiff for two cents on each cubic yard of which amount the sum of $1,246.10 had been paid.
The court thereupon rendered a decree against both the defendants for the remainder due the plaintiff, from which judgment is this appeal.
It is first contended that the chancery court was without jurisdiction to try the issues involved, and that it should have transferred the case to the law court upon the motion of the appellant. Without setting out the complaint in detail, it suffices to say there were allegations to justify the prayer for an accounting. That this was obviated by stipulation of counsel during the trial of the case would not defeat the jurisdiction of the court. There was also the allegation that the company was in- eorporated for the purpose of carrying out the contract and to mine the leases procured by the plaintiff, and that, with full knowledge of the contract, the company received the benefits thereunder. This allegation stated an equitable cause of action, and the court did not err in overruling the motion to transfer. Charlesworth v. Whitlow, 74 Ark. 277, 85 S. W. 423; McClintock v. Thweatt, 71 Ark. 323, 73 S. W. 323; L. R. & Ft. Smith Ry. Co. v. Perry, 37 Ark. 164, at page 187.
The next assignment of error is the action of the court in denying the motion to make the complaint more definite and certain. The court did not err in its ruling, for it was apparent that the information sought to be elicited was not available to the plaintiff, but was in the possession of the defendants. Neither did the court err in overruling the renewed motion for transfer to the law court at the conclusion of the evidence, for the evidence accepted by the chancellor tended to establish the facts as alleged.
The fourth and fifth grounds for reversal are (a) that the court erred in its construction of the contract, and (b) in holding the corporation liable thereunder. It was fully established by the testimony that DuBose resided in Lewisville and was well acquainted with the landowners in that vicinity. He had discovered that there was a quantity of sand and gravel in that locality, and had conducted frequent exploratory operations to determine its quality and quantity. Believing that his find was valuable and learning that Meriwether was familiar with the value of deposits of sand and gravel and engaged in the business of mining such, he conveyed to the said Meriwether the information he had gained and of Ms acquaintance with those who owned the lands upon which sand and gravel had been discovered. Meriwether sent an agent with DuBose to go over the prospects, and, being convinced of the value of the find, entered into the contract with DuBose, which was prepared in Shreveport, Louisiana, by the attorney of J. S. Meriwether. At the time of the execution of the contract no leases had been actually procured, but, after it was signed by the parties, DuBose began to secure leases which were taken in the name of J. S. Meriwether, and provided for the payment to the landowner of eight cents per cubic yard for sand and gravel. Within a short time after the contract was executed, Meriwether formed the Meriwether Sand & Gravel Company for the purpose of mining the sand and gravel around Lewisville, and assigned to it said leases. He was president of the company, and, at the time of the .incorporation, the owner of fifty per cent, of the capital stock, and a short time thereafter purchased practically all of it. He was the owner of the company during the time it was engaged in developing the leases and shipping the product.
Without setting out the testimony at length, we deem it sufficient to say that there was testimony tending to sustain the finding of the court that Meriwether directed DuBose to take leases direct to the Meriwether Sand & Gravel Company, and that a number of such leases were procured either entirely by DuBose’s efforts or with his aid, and that the company was called into being for the definite purpose of conducting the mining operations and made payments of the overriding royalties on leases taken in the name of J. S. Meriwether originally and assigned to the Sand & Gravel Company, and also on leases taken directly in the first instance to the company.
In view of the plain language of the operative part of the contract, the dealings between the parties with reference thereto, and the fact that the contract was written by Meriwether’s attorney, we think the construction placed on it by the chancellor is justified.
On the question of liability of the Meriwether Sand & Gravel Company, the evidence supports the finding that the corporation was in contemplation at the time the contract was entered into, and that it was organized to provide in advance the means necessary for the successful operation of the leases; that the contract was for the benefit of the contemplated corporation, and that the corporation received the benefits thereunder with full knowledge of its existence. Therefore, the corporation may be said to have adopted sueb contract as its own, and is liable to tbe same extent as J. S. Meriwether himself. The authorities cited by appellee support this view. L. R. & Ft. Smith Ry. Co. v. Perry, supra; 7 R. C. L. 61.
There is no question raised to the finding of the court as to yardage moved, and, since we think its construction of the contract and its finding of liability correct, the judgment must be affirmed. It is so ordered. | [
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Kirby, J.,
(after stating the facts). It is undisputed that the receiver collected the $5,000 rental as receiver, which he failed to pay into the court, though ordered to do so, and, upon appellee’s motion for judgment against Clark as receiver for $5,000 and Sam Epstein, surety on his bond, for $1,000, the amount of the bond signed by the surety, the judgment was rendered.
Appellant insists that he was not bound, under the terms of the bond, to pay the amount of the penalty thereof for the money collected by the receiver and deposited by him in the bank which failed, resulting in the loss thereof. It is true the condition of the bond is not in the language provided in the statute, § 8600, Crawford & Moses’ Digest, but it is in accordance with the requirements of the provisions of § 8614 thereof, requiring the receiver to execute a bond with one or more sureties approved by the court, in such form as the court shall direct, “to the effect that he will faithfully discharge the duties of receiver in the action and obey the orders of the court therein.” The powers of such receiver are designated in § 8615 of the Digest, to receive -rents, collect debts, etc.; and the receiver and his surety under the bond, conditioned as it is to the effect that he will faithfully discharge the duties, of receiver in the action and obey the orders of the court therein, were hound to the payment into the court of all moneys or assets which shall come into his hands as receiver in the case, according to the order of the court, as though it had been so expressly stipulated in the language of the statute, said § 8600, Crawford & Moses’ Digest.
- If there had been no statement of it relative to the execution of the bond and its liability under the later statute, which is in nowise in conflict, but is in harmony, with the first statute, a surety on a receiver’s bond would have been bound to account for and pay over moneys collected by the receiver upon the order of the court. In National Surety Company v. Byrd, 179 Ark. 688, 17 S. W. (2d) 876, the court held that the receiver and the sureties on his bond were bound to account for and pay into the court, when required by its order, all money and assets coming into his hands as such receiver, and the failure to malee such payment was not excused by the insolvency of a bank in which such funds were deposited. It was there said:
“The receiver is an officer of the court appointing him, and the condition of the receiver’s bond, as prescribed by statute, is different from that required of administrators, the receiver being bound to account for and pay into court all money or assets which shall come into his hands as such receiver, and in that respect like the bonds of public officials, requiring them to account for and pay over money coming into their hands as such. Sections 1096, 2832,10,029, Crawford & Moses’ Digest.
We find no error in the record, and the judgment is affirmed. | [
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Humphreys, J.
TMs is an appeal from a judgment for $2,000, twelve per centum statutory penalty, and an attorney’s fee of $500, rendered in a suit in the circuit court of Pulaski County, Second Division, in favor of appellees against appellant, on a certificate of accident insurance under group policy No. ADD-501 carried by the Missouri Pacific Railroad Company to protect John Barron, husband and father of appellees, as well as its other employees, from death resulting from accidental bodily injuries, effected through external, violent and accidental means independent from all other causes * * *.
It was alleged, and the proof introduced by appellees tended to show, that John H. Barron died from heat prostration induced by working in an engine in a roundhouse of said railroad company within a few hours after he was stricken. The certificate of insurance provided that notice of injury and death should be given to appellant within the time provided in the group policy, and the group policy provided for notice to appellant within 90 days after the loss for which claim is made. Appellees did not know of the existence of the certificate until they obtained pos session thereof in November, 1930. They employed attorneys on December 2, 1930, who proceeded to make an investigation of the facts and the law applicable thereto, and on May 7,1931, notified appellant by letter that death had resulted to the insured through accidental means, and demanded payment of the face of the policy. Appel-lees introduced testimony tending to show that, after discovering the existence of the certificate of insurance, it was a difficult matter to ascertain the real facts surrounding the death of the insured, and to determine Avhether death resulted from natural or accidental causes, dependent to some extent upon expert testimony, and that their attorneys diligently pursued the inquiry during the five months intervening between discovering the certificate and the- demand made for the payment of the face of the policy. Upon receipt of the letter from appellees’ attorneys, appellant answered same, denying liability, in which letter it reserved the right to make any defenses it had or might later ascertain.
Appellant first contends for a reversal of the judgment upon the ground that it did not receive notice that the insured died from heat prostration within a reasonable time after appellees discovered the existence of the certificate of insurance. We are unable, as a matter of law, to say that five months was an unreasonable time to make the investigation and determine whether appellant was liable. There is testimony in the record tending to show that the attorneys prosecuted the investigation diligently, and that, in order to make a thorough investigation, the time consumed was actually required. The dispute in the evidence on this point made the issue one for the jury, and not a question of law for the court. The court therefore properly submitted this issue to the jury. Of course, further and more formal proofs of the cause of the insured’s death were waived by appellant’s denial of liability within the time appellees had a right to give the notice, which was a reasonable time after discovering the existence of the certificate of insurance. Ætna Life Ins. Co. v. Duncan, 165 Ark. 395, 264 S. W. 835. The reser vation in the letter, to make any defenses it then had or might later ascertain, did not qualify the denial of liability. The effect of the unqualified denial made within the period appellees had to make formal proof of the cause of the insured’s death was to waive it, notwithstanding the reservation contained in the letter.
Appellant next contends for a reversal of the judgment because the court gave instruction No. 3, which is as follows:
. “You are instructed that you are the judges of the cause of death of John H. Barron, and, if you find from a preponderance of all the facts and circumstances in evidence in this case that on the 24th day of June, 1929, John H. Barron, a short time after leaving the firebox of a locomotive engine, which was poorly ventilated and unusually hot, suffered from heat stroke, and at the time he suffered from heat stroke Barron was afflicted with a latent or dormant abscess, tumor or growth or formation in the brain, and which abscess, tumor, growth or° formation was affected by the heat stroke and excited and aroused and caused the erosion of blood vessels within the brain of John H. Barron and consequently hemorrhages which resulted in his death on the same day and within a few hours thereafter, independently of all other causes; that is to say, that Barron would not have died as and when he did if the accident had not occurred; that, while death from the abscess, tumor, growth or formation in his brain might have resulted, it would have been deferred until a later period of his life, then heat stroke would be considered the cause of his death within the meaning of the policy and certificate of insurance.”
This instruction told the jury in effect that, if the heat stroke was the proximate cause of the death of the insured, appellant would be liable under the policy, although death might have resulted at a later date on account of an abscess or tumor discovered in his brain by the autopsy, regardless of the heat stroke. This instruction was based upon the following clause found in both the certificate and group policy, to-wit:
“If death, shall result from accidental bodily injuries, affected through external, violent and accidental means, independently of all other causes * *
Appellant admits that this instruction was a correct declaration of law applicable to the language quoted above under the construction placed thereon by this court upon a similar clause in an accident policy in the case of Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A. (N. S.) 493. Appellant argues, however, that the group policy in the instant case contains an exception or exemption clause which brings the case within the rule that there can be no recovery if a disease of the insured cooperated with the accident to produce death. The exception or exemption clause relied upon to differentiate the instant case from the Meyer case, supra, is as follows:
“This insurance shall not cover accidental injuries, e death or loss caused directly or indirectly, wholly or partly by bodily or mental infirmity or by any kind of disease.”
The testimony is in conflict as to whether death resulted to the insured from heat prostration, from an abscess or tumor found in one cell of his brain when the autopsy was made, or from both causes co-operating together. Under instruction No. 3, requested by appel-lees and given by the court, before the jury could return a verdict for appellees they must find that heat prostration was the proximate cause of the insured’s death. As stated above, this was a correct declaration of law as applied to the liability clause pleaded as a basis for the recovery. Liability under said clause was denied, and this was the only issue joined by the pleadings. The exemption or exception clause was not pleaded as a defense. It should have been pleaded specifically, and the failure to do so was a waiver by appellant. 1 C. J. 493; Harrison v. Interstate Business Men’s Acc. Assn. of Des Moines, Iowa, 133 Ark. 163, 202 S. W. 34; National Life & Acc. Ins. Co. of Nashville, Tenn., v. Sherod, 155 Ark. 381, 244 S. W. 436.
Appellant next contends for a reversal of the judgment because instructions Nos. 3 and 5, requested by-appellant and given by the court, conflicted with instruction No. 3, requested by appellees and given by the court. The effect of instructions Nos. 3 and 5, given by the court at the request of appellants, was to tell the jury, if they found that the proximate cause of insured’s death was a disease of the brain, then they should return a verdict for appellant. The instructions stated exactly the converse of the propositions contained in instruction No. 3, given by the court, and were not in conflict with it. Instruction No. 3, given by the court at the request of appellees, presented their theory of the case, and instructions Nos. 3 and 5, given by the court at the request of appellant, presented its theory of the case. Instructions presenting the respective theories of the parties are in no sense conflicting.
Lastly, it is contended that the attorney’s fee of $500 allowed by the court is excessive. We think not, considering the time required to investigate the facts and try the cause, together with the services performed on the appeal of this case. The testimony of learned attorneys of the bar of Arkansas was to the effect that four or five hundred dollars was a reasonable fee for the preparation and trial of the cause.
No error appearing, the judgment is affirmed. | [
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Battle, J.
On the 17th of May, 1896, The Equitable Life Assurance Society of the United States executed a policy of insurance for $3,000, and on the 13th of August issued another policy for $2,000, both on the life of Solomon Goldsmith, and payable to Eugenia Goldsmith, his wife, in case she survived her husband, “or, in the event of her prior death, to the assured’s executors, administrators or assigns, subject to the right of the assured to change the beneficiary.” On the 5th of April, 1898, Solomon Goldsmith and his wife, Eugenia, executed an assignment of these two policies to Sarah Townsend as security for a loan of $5,000 by the assignee to the the assured. On the 10th of June, 1898, Solomon Goldsmith died, and on the day following Mrs. Townsend gave notice to-the general manager or agent of the insurance company for the state of Arkansas of the assignment to her, and on the 13th of the same month mailed a letter to the company notifying it of the same. On the day last mentioned Mrs. Goldsmith assigned these two policies with other policies on the life of Solomon Goldsmith, amounting to $17,000, to Mente & Co., who on the same day notified the company by telegram of the assignment. Mrs. Townsend brought this action to enjoin the insurance company from paying the policies assigned to her to Mente & Co. or Mrs. Goldsmith. The company filed an answer in the nature of an interpleader’s bill, and paid the amount of the policies into court, and asked that the parties claiming it be required to litigate their rights in court, and that it be relieved from further liability.
1. Mente & Co. and Mrs; Goldsmith denied that Goldsmith was indebted to Mrs. Townsend for $5,000 loaned to him by her.
2. They alleged that Mrs. Goldsmith’s signature to the assignment was procured by the misrepresentations of her husband.
3. That if the $5,000 was loaned, it was ata usurious rate of interest.
4. That this assignment was altered after its execution by cutting off words at the end of the paper on which it was written, and by adding words beneath the assignment as follows: “This loan of $5,000 is to be repaid upon notice of 30 or 60 days given by Mrs. S. Townsend.”
5. That the assignment by Mrs. Goldsmith was illegal.
6. That the assignment to them was superior to that of Mrs. Townsend.
The court, after hearing the evidence adduced by all the parties, rendered a decree in favor of Mrs. Townsend for the $5,000 which had been paid into coiirt, and Mente & Co. and Eugenia Goldsmith, who were defendants in this .action, appealed.
1. After a careful examination and consideration of all the evidence in the case, we find and conclude that the policies in controversy were assigned to appellee, Mrs. Townsend, for the purpose of securing the payment of the sum of $5,000 loaned by her to Solomon Goldsmith, deceased, in his lifetime. The instrument of writing adduced by the appellee at the hearing of this cause as evidence of that fact, the execution of which by Goldsmith and his wife is • not denied, supports that conclusion. Other evidence, to repeat which can serve no useful purpose, corroborates that view.
2. But appellants insist that the signature of Mrs. Goldsmith was procured by her husband by means of fraud and misrepresentation. If this be so, there is no evidence that appellee was a party to this fraud, knew or had any notice of it at the time she loaned the $5,000. It was not procured by compulsion. Upon the faith of the assignment appellee loaned a large sum of money. Under these circumstances appellants cannot take advantage of the husband’s misrepresentations. While the wife may avoid a fraud upon her as against all who participated therein, it is a rule that a valuable right of a creditor cannot be prejudiced by any fraud of the husband which procured the wife’s security, if it was without such creditor’s instigation, knowledge or consent. Kulp v. Brant, (Pa.) 29 Atl. 729; Johnston v. Patterson, 114 Pa. St. 398; Schouler, Husband & Wife, § 283.
3. Appellants contend that, if the $5,000 were loaned by appellee to Goldsmith, they were loaned at a usurious rate of interest. But we find that this was not shown by clear and satisfactory evidence. The evidence upon this point is conflicting, and the evidence adduced by the appellants was not clear or satisfactory, and therefore is not sufficient to sustain the contention.
4. It is also contended that the assignment was altered after its execution by the cutting off of words at the end of the paper on which it was written, and by adding the words, “This loan of $5,000 is to be repaid upon notice of 30 or 60 days given by Mrs. S. Townsend.” There is no evidence that any words were cut off, and the words added below the assignment were no alteration, and were nothing more than a memorandum. Walker v. Walker, 5 Ark. 643, 647; American National Bank v. Bangs, 42 Mo. 454.
5. Appellants insist that Mrs. Goldsmith, being a married woman at the time the assignment was made to appellee, could not at that time lawfully assign the policies in controversy to any one. This contention is based in part upon section 4944 of Sandels and Hill’s Digest, which provides: “It shall be lawful for any married woman, by herself and in her name, or in the name of any third person, with his assent, as her trustee, to canse to be insured, for her sole use, the life of her husband for any definite period, or for the term of his natural life; and in case of her surviving her husband the sum or net amount of the insurance becoming due and payable by the terms of the insurance shall be payable to her and for her use; and in case of the death of the wife before the decease of her husband the amount of said insurance -may be made payable to his or her children, for their use, and to their guardian, for them, if they shall be under age, as shall be provided in the policy of insurance; and such sum or amount of insurance so payable shall be free from the claims of the representatives of the husband, or of any of his creditors; but such exemption shall not apply where the amount of premium annually paid out of the funds or property of the husband shall exceed the sum of three hundred dollars.” But sections 4945 and 4946 of the same digest, which were enacted at the same time the section preceding was, give a married woman the power to “bargain, sell, assign and transfer her separate personal property.” We know of no statute prohibiting her from assigning any policy of insurance as a security. We see nothing in the statute relied upon which denies to her this right. But we have a statute which makes “all agreements and contracts in writing for the payment of money or property, or for both money and property, assignable” (Sand. & H. Dig., § 489); and this court has held that a wife can mortgage her separate property to secure her husband's debts. Collins v. Wassell, 34 Ark. 17; Petty v. Grisard, 45 Ark. 117. Under these statutes and other laws of this state, which vest her with all the rights of an unmarried woman as to her separate property, and make no exceptions as to policies of insurance upon the life of her husband, we can see no good reason why she cannot assign such policies as a man or single woman can transfer. Charter Oak Life Ins. Co. v. Brant, 47 Mo. 419; Baker v. Young, 47 Mo. 453; Emerick v. Coakley, 35 Md. 188; Pomeroy v. Ins. Co. 40 Ill. 402; Kerman v. Howard, 23 Wis. 108; Rison v. Wilkerson, 3 Sneed, 565; Williams v. Corson, 2 Tenn. Ch. 269.
The policies in controversy were made “payable to Eugenia Goldsmith, * * * in the event of. her prior death, to the assured’s executors, administrators, or assigns, subject to tbe right of assured to change the beneficiary.” The interest of Mrs. Goldsmith in the same, before the assignment to appellee, was an expectancy. Goldsmith, the assured, could have changed the beneficiaries in the policies at any time without her consent. He, in effect, made such change, to the extent of the assignment to appellee. Hopkins v. N. W. Life Ass. Co. 99 Fed Rep. 199; Splawn v. Chew, 60 Texas, 534; Nally v. Nally, 74 Ga. 669, 670; Martin v. Stubbings, 126 Ill. 387.
6. Appellants, Mente & Co., claim that the assignment of the policies by Mrs. Goldsmith to them is superior to that to appellee, because they had no notice of appellee’s claim until after the policies had been transferred to them for a valuable consideration, and because they notified the insurance company, which executed the policies, of their claims before appellee gave notice to it of the assignment to her. The truth is, the assignment to appellee was executed long prior to the time when the policies were transferred to Mente & Co., and notice of the former was given to the general manager or agent of the insurance company for this state prior to the time when Mente & Co. gave notice of their claim. Goldsmith, in his lifetime, gave notice to the insurance company of his intention to transfer the policies to appellee; and Mente & Co. were put on inquiry before the transfer to them, which, if it had been followed up, would have led to the discovery of the assignment to appellees. Goldsmith, the assured, was indebted to Mente & Co. for about $5,000. When he died, he left no property for the support of his widow. She had policies on his life for $12,000, exclusive of the policies in controversy, and, including them, for $17,000. In three or four days after her husband’s death, when she was overwhelmed by grief caused by his death, Mrs. Goldsmith, in consideration of $2,000 paid to her by Mente & Co., of which firm her- son-in-law was a member, and for the ostensible purpose of paying that firm the $5,000 that her husband owed to it, transferred to Monte & Co. the policies for $17,000. These circumstances were sufficient to put a man of common sagacity upon inquiry to ascertain the reason for such an unreasonable sacrifice, which, if prosecuted with reasonable diligence, would have led to the discovery that it was made for the fraudulent, purpose of defeating the claim of appellee. It would have been natural for such a person to have inquired of the insurance companies if they knew of any reason why the sacrifice should be made. This would have led to the discovery from one that Goldsmith had given notice of an intention to transfer to appellee, and this would have led to an inquiry of appellee, which, if prosecuted, would have led to the discovery of the assignment to her. But it does not appear that any such inquiry was made. Instead of it, a notice of the transfer to Mente & Co. was given by telegram to the insurance company, which showed an effort to be in advance of all others in giving notice. There would not have been any occasion for this hurry if there had not been any fears of adverse'claims. The transfer to Mente & Co. was procured by the son-in-law of Mrs. Goldsmith, who was a member of that firm. All these and other accompanying circumstances, which are unnecessary to mention, indicate that the latter transfer was made for a fraudulent purpose, and that Mente & Co. participated. This being true, it was void as to appellee. Dyer v. Taylor, 50 Ark, 314.
Decree affirmed.
Wood, J., absent. | [
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Kirby, J.,
(after stating the facts). It is undisputed that this writing specifying the purpose for which the notes were delivered to and received by the bank was duly executed, but appellees insist that other terms were agreed upon at the time of such delivery, not shown in the receipt, authorizing the bank to substitute other paper or notes for the ones specified therein at its own option.
Parol testimony was admitted, over the objection of appellant, to show such fact, and it is insisted that the court erred in allowing parol testimony adduced to contradict, vary or add to the terms of the contract or writing. This contention must be sustained.
Although the writing is a receipt for the notes specified therein, the purpose for which the notes were received and held by the bank is also set ont therein as for collection, and there is nothing ambiguous about the instrument. It is a contract for the service to be performed as fully and completely as though it had been written out, and it is no less subject, so far as the purpose therein specified for collecting the notes is concerned, to the parol evidence rule than if the word “receipt” had not appeared therein, so far as it operates as a contract; there being no allegations of fraud or mistake in its procurement. When the bank acknowledged it received the notes for collection, such acknowledgment constituted a contract assuming all the obligations of a collecting agent as fully as if such obligations had been set out in detail, and the rule is that, where an instrument is both a receipt and a contract, as in this case, its terms cannot be varied by parol testimony. Second National Bank of Baltimore v. Bank of Alma, 99 Ark. 386, 138 S. W. 472; Cleveland-McLeod Lbr. Co. v. McLeod, 96 Ark. 405, 131 S. W. 878; Darragh Company v. Goodman, 124 Ark. 532, 187 S. W. 673; Huckins Hotel Co. v. Smith, 151 Ark. 167, 235 S. W. 787; Lister v. First National Bank, 181 Ark. 140, 25 S. W. (2d) 26, 10 R. C. L. 1926.
The execution of the receipt of the notes for collection by the bank through one of its vice presidents, not the official who testified about the agreement to change it, was not denied, and, although this official did testify that such an agreement was made, his statement being denied by the agent of the insurance company, this could not prove any such agreement as against the written terms of the contract contrary thereto. This official testified that he made the substitution of these notes with the knowledge and consent of the agent of the insurance company, and put the substituted notes in a separate envelope to be held by him for delivery to the company, depositing the notes for collection. This statement was contradicted by both the agent, whom he indicated had knowledge of the fact, and he, himself, in his own testimony admitted that he had never talked to the agent, Gulley, of the insurance company about the matter. In explaining his state ment to strengthen it concerning the agreement for the substitution of the notes, he said that Gulley, the insurance company’s representative, agreed to it because he thought the list showed too much of the paper of Banks, the president, held by the insurance company, and that it did not look well, but he further stated that the paper that he selected for the substitution was the very kind of paper the holding of which Gulley thought might be embarrassing to the company. He did not claim to have notified the owners of the notes deposited for collection that there was any agreement for substitution of other notes, or that any attempt had been made to substitute such other notes in accordance therewith, nor did he transfer or indorse any of the claimed substituted paper to the Home Life Insurance Company, owner of the paper deposited for collection. Under the circumstances, his testimony was not entitled to any great weight, being so contradictory, and his unwarranted action in attempting to make such substitution, if it had been successful, could only have resulted in benefiting the bank, whose agent he was.
The chancellor’s finding that the agreement was made by Gulley for the insurance company for the substitution of other securities instead of the ones deposited for collection for the insurance company was contrary to the preponderance of the testimony; the parol evidence, as already said, was inadmissible to contradict the contract, and said testimony was not sufficient, if true, to have authorized the collecting agent, the bank, to take anything else in payment for the notes deposited for collection but money (Darragh Co. v. Goodwin, supra), and the burden devolved upon the bank to show that it had the right to make such substitution and the collection of the notes in other than money, and it has failed to discharge this burden, and the court erred in holding otherwise.
The court correctly held that the interveners should recover from appellees the sum of $7,326.74, an amount collected on some of the notes deposited for collection, and that same was a prior claim against the bank.
It should have held also that all the money collected and realized from the collection of the notes deposited for collection was held in trust and should he paid to inter-vener as a prior claim, and directed the Bank Commissioner to surrender to the appellant company the remainder of the notes still in his possession originally delivered to the hank for collection.
The decree is accordingly reversed, and the cause remanded with directions to enter judgment for the full amount of the collections made on said notes deposited for collection as a prior claim, and direct the return of any of such original list of notes yet in the Bank Commissioner’s possession to the interveners. It is so ordered. | [
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Humphreys, J.
This suit was brought by appellee against appellant in the circuit court of Pulaski County, Second Division, to recover damages for an injury received in the discharge of her duties as a seamstress through the alleged negligence of appellant in furnishing her an improperly constructed folding chair to occupy in operating a sewing machine.
Appellant filed an answer denying the allegation of negligence and, by way of affirmative defense, alleging the assumption of the risk in the use of the chair by appellee.
The trial of the cause resulted in a verdict and judgment against appellant, from which is this appeal.
At the conclusion of the introduction of the testimony, appellant requested the court to instruct a verdict in its favor, and the refusal of the court to do so is the sole ground urged by appellant for a reversal of the judgment.
The record reflects that appellant manufactures coffins, and in connection therewith maintains a sewing room to make inside finishings for them; that the sewing room was equipped with three sewing machines and three folding chairs; that on the day appellee was injured the forewoman and herself were the only two employees at work in the room; that appellee had been in appellant’s employment for about six weeks; that she was directed by the forewoman to change the thread on one of the ordinary machines, and in doing so the chair she sat in slipped from under her, causing her to fall to the floor and permanently disabling her.
The record reflects a dispute in the testimony as to whether a defect in the construction of the chair or the manner in which she sat down in it caused it to slip and result in appellee’s fall and injury. Mrs. Hogan testified, in substance, that the chair occupied by appellee and which slipped from under her was unequally balanced on account of the front legs being straight up and down or constructed at a more acute angle than the front legs of the other two chairs in the room. The chairs, themselves, were introduced for examination by the jury in order that they might determine whether the particular chair in question was defectively constructed. Appellee testified, in substance, that she. sat down in the chair in the ordinary way, and that when she moved forward the chair slipped from under her, causing her to fall and injure herself; that the manner in which she sat down in the chair did not cause it to slip out from under her.
It is argued that a folding chair is a simple instrument or tool like a hoe or spade, and that an employer or master is relieved under the law from an inspection thereof to ascertain whether there are any observable defects in its construction before placing same in the hands of employees for use. We do not think that the folding chair is so simple in its construction that the principles applicable to simple tools should govern the instant case. The testimony detailed above tended to show that there was a discoverable structural defect in the chair, which caused it to slip and result in an injury to appellee, which brings the case within the general rule announced in the cases of St. Louis Stave & Lumber Company v. Sawyer, 90 Ark. 473, 119 S. W. 830, and International Harvester Company of America v. Hawkins, 180 Ark. 1056, 24 S. W. (2d) 340, to the effect that a duty rests upon the master or employer to use ordinary care to furnish an employee with reasonably suitable and safe instruments with which to perform his or her duties.
The testimony also tends to show that the defect in the chair was observable by inspection. It is only defects that are patent of which employees must take notice, and the risk of which they assume in the course of their employment. The duty of inspection for structural defects in the chair did not rest upon appellee; hence she did not assume the risk of using same.
No error appearing, the judgment is affirmed. | [
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Humphreys, J.
Appellant brought suit in the municipal court of the city of Argenta against appellees on seven promissory notes for $50 each, or a total sum of $350 and interest. Appellees answered in substance to the effect that the notes were executed for a balance due on an automobile sold by appellant to appellees; that appellant, through his agent, W. T. Smith, represented and guaranteed that the automobile was, or would be, put in first-class running condition; that neither before nor at the time of the delivery did appellant put the car in running condition; th§t immediately upon discovering the defective condition of the automobile, appellees offered to rescind the contract and return the car, and demanded a return of their notes; that appellant refused to rescind; that thereafter appellees were compelled to expend $225 to put the car in such order as would enable them to make use of it.
Appellees prayed that appellant take nothing by their action and that they have judgment against him for the sum of $225.
Appellant recovered a judgment of $365, from which an appeal was taken to the circuit court, and there the cause was tried and judgment rendered in favor of appellees, from which an appeal has been prosecuted to this court.
On April 29,1914, appellant sold a second hand automobile to appellees for $450. Appellees paid $100 cash, and for the balance of the purchase money executed seven promissory notes of date April 29, 1914, for $50 each, with interest at the rate of 8 per cent, per annum until paid. The last note became due seven months after date. There is a conflict in the evidence as to whether appellant guaranteed that the car was or should be put in good running condition by appellant; also as to whether W. T. Smith was the agent of appellant in making the sale of the ear to appellees; also as to the extent the car was used by appellees after they purchased it.
A short time after the sale and purchase, appellees offered to rescind the contract, claiming that appellant had not complied with his guarantee, and appellant refused to rescind, claiming that he had made no guarantee.
Many assignments of error are insisted upon for reversal.
(1) First, it is said the municipal court had no jurisdiction of this cause, because the amount involved exceeds $300. These notes are numbered from one to seven, inclusive, made payable to the same party and signed by the same parties. The numbers indicate that the notes are of a series, but it was said by this court, in the cash of Brooks v. Hornberger, 78 Ark. 595, that “the fact that the notes were of a series secured by chattel mortgage, and that all were due on default of one at the election of the holder, does not change the rule in the least. The basis of the rule is that each note is a separate cause of action, and the mere fact that several notes may be joined in one suit, instead of a separate suit for each, does not change the nature of the cause of action, or in any way affect anything except the mere procedure/’ It was settled in that case that the separate demand on each note and not the aggregate amount determined the jurisdiction of the court. The municipal court had jurisdiction of appellant’s cause of action.
^2-3) It is insisted that the counter-claim, interposed by appellees as a defense, is in excess of the jurisdiction of the court. The amount specified in the second paragraph of the counter-claim was for $225, an amount within the jurisdiction of the court. The alleged guaranty or warranty to the effect that appellant agreed to place the automobile in first-class condition and the alleged failure to do so was referred to and pleaded as a defense in the first paragraph of the answer, but no amount was mentioned. The same subject matter was pleaded as a defense in the second paragraph of the answer and the first paragraph of the answer was referred to and specially made a part of the second paragraph, and the amount of damages alleged to be sustained by reason of the breach of warranty was $225. Treating the first and second paragraphs as one so far as they refer to and plead the same subject matter as a defense, the amount claimed on account of breach of warranty is within the jurisdiction of the court. An attempt was made to plead rescission in the first paragraph of the answer and cross-complaint. This plea was inconsistent with the plea for damages on account of breach of warranty. Inconsistent remedies can not be pursued by a buyer. 30 Am. & Eng. Enc. Law (2 ed.), 199.
‘ ‘ The bringing of an action on a warranty for damages implies an affirmation of the contract of sale and a prima facie, liability for the contract price, less the damages sustained in consequence of the breach of warranty.” 30 Am. & Eng. Enc. Law (2 ed.), 197.
Treating the answer and cross-complaint as a defense on account of breach of alleged guaranty or warranty, thereby eliminating the inconsistent plea of rescission, no verdict could have been claimed in excess of the amount of damages claimed, towit, $225, an amount within the jurisdiction of the court.
(4) It is insisted that the court erred in submitting the question of rescission to the jury. We are of opinion that the oral instructions, fairly interpreted, did not submit the question of rescission to them. The real issue submitted was whether there had been a breach of warranty or guaranty. The language of the court with reference to a rescission in the connection used eliminated that issue. We do not think the reference made to rescission in the instruction could have misled the jury. The court plainly told the jury that the real issue in the case was the alleged breach of warranty'or guaranty, but we think the instruction on the measure of damages wag erroneous. The maximum amount claimed in the plea for damages on account of the breach of warranty was $225. In instructing with reference to the measure of damages, the court said: “If the amount required to place it (referring to the car) in good running condition was less than the notes, it should be credited on the notes; if it was equal to or more than the notes, it would be a complete defense. ’ ’ The instruction should have limited the maximum amount that could be recovered in any event as a credit on the notes, to the maximum amount pleaded as damages in the counter-claim, which was $225,
This error will necessarily work a reversal of the cause, and ordinarily it would be unnecessary to consider the other assignments of error, but as the points raised may be called in question on a new trial, we deem it best to pass on those of most importance.
(5) Appellant insists that the court committed reversible error in permitting oral evidence tending to establish a warranty or guaranty to the effect that the automobile was in good running condition, or would be put in such condition, and in giving an instruction on that question based on the oral evidence submitted. The case of Hanger et al. v. Evins & Shinn, 38 Ark. 334, is cited in support of appellant’s position. The record in that ease showed that all the contract was included in the notes and a bill of sale. Mr. Justice Eakin, in rendering the opinion, announced the familiar rule, that when the entire contract is reduced to writing, additional matter can not be incorporated by parol evidence. In the instant case, the entire contract was not reduced to writing. The al- ■ leged warranty was by parol agreement, hence provable by parol evidence. The,court did not err in admitting oral evidence tending to show the alleged warranty, nor in giving an instruction on that issue.
(6) Appellant also cites Hanger et al. v. Evins do Shinn, supra, to sustain him in the contention that a warranty is of no value as against patent defects in the automobile. The evidence in the instant case does not show that the defects in the automobile were patent. It rather tended to show that after diligent search the defects could not be found and remedied by skillful machinists. The rule of caveat emptor is invoked and argued as applicable to this case. Appellees tried the cause on the theory that appellant, through W. B. Smith, his agent, expressly warranted the car to be in good running condition or that it would be put in good running condition before the sale was consummated. The rule of caveat emptor is not applicable to sales of articles under express warranty.
It is insisted that the court committed reversible error in submitting to the jury the question of whether or not W. B. Smith was the agent of appellant in making the sale of the automobile to appellees. The express warranty, if made, was made by W. B. Smith. If he was not appellant’s agent, a warranty made by him would not be binding upon appellant. There was sufficient evidence in the record tending to show W. B. Smith was appellant’s agent, upon which to base and submit an instruction on the issue of agency.
(7) It is also insisted that the court erred in permitting that portion of the deposition of Seth Fairmon to be read wherein he testified: “My impression was they were partners, as I understood they had been partners, but nothing was said about it.” (Referring to appellant and Smith by the use of the word they.) The' evidence in this form was objectionable. Witnesses are not permitted to give their conclusions, they should state the facts and permit the jury to draw inferences or conclusions from them. The issue as to whether Smith was appellant’s agent in the sale of the automobile was sharply drawn, and it may be this evidence was prejudicial to appellant.
It is also insisted that the court expressed an opinion on the weight of the evidence by the use of the following language: “It seems from the evidence that Mr. Smith had some connection with the transaction—the relation, if any, that existed between Mr. Smith and Mr. Schneider is a question for you to determine.” W. B. Smith had participated in effecting the sale of the car to appellees, and the relationship between appellant and Smith became an issue in the case. The language quoted clearly submits the question of agency to the jury, and is far from an expression of opinion that Smith was appellant’s agent. The language used is not susceptible of such construction.
On account of errors indicated, the judgment is reversed and the cause remanded for a new trial. | [
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Humphreys, J.
This suit was brought by appellee against appellant in the circuit court of Washington County to recover damages growing out of the shipment of a car of strawberries from Mansfield, Arkansas, to Denver, Colorado.
In addition to alleging specific acts of negligence on the part of appellant as grounds for a recovery, appellee alleged appellant’s negligent failure to deliver the berries in as good condition as they were when it received them for shipment.
Appellant filed an answer denying the material allegations of the complaint.
Before the introduction of any testimony, appellee elected to rely upon its allegation of appellant’s common-law liability, and the case was tried and submitted upon that theory, resulting in a verdict and consequent judgment against appellant for $434.60, from which is this appeal.
The testimony introduced by appellee was to the effect that, when the berries were delivered to and accepted by appellant for shipment, they were firm and otherwise in good condition. According to expert inspection, they were U. S. No. 1, but, when delivered to the consignee, they had deteriorated in quality from ten per cent, in some crates to forty-five per cent, in others. This proof raised the presumption under the allegation of common-law liability that appellant had negligently failed in its duty in properly caring for the berries in transit and cast the burden of proof upon appellant to show that the deterioration was not due to any negligence on its part.
Appellant first contends for a reversal of the judgment on the ground that the undisputed evidence- reflects that it properly iced the refrigerator car containing the berries to maintain the temperature therein to preserve the berries, and that the deterioration in quality was the result of rhizopus and leather rot. The United States expert inspector, as well as other witnesses who made an inspection of the berries when they reached their destination, testified that the tape of the recording thermometer in the car showed a final reading of 44 degrees. This thermometer was placed in the car after it was sealed at Mansfield for shipment one foot above the load and eighteen inches back of the door and registered the temperature on the tape attached during the period of transportation. The tape itself was introduced in evidence and inspected by the jury. According to the registration on the tape, the temperature in the car was reduced to 65 degrees by twelve o’clock on the night of the 10th of May to 60 degrees at noon on May 11, to 52 degrees by midnight, and to 44 degrees at noon May 13, when the ear was delivered to the consignee. After leaving Monett, the car was not re-iced until it arrived in Kansas City, at which time the ice in the bunkers was four inches below the top. It was not again re-iced until the car arrived in Pueblo, twenty-four hours later, at which time the ice was twenty-six inches below the top of the bunkers. D. C. Buel testified, as an expert, that, if the berries had been properly cared for in transit, they would have stood up in good marketable condition for six or eight days.
In view of the testimony detailed above, we cannot agree with appellant that the undisputed evidence reflects that it maintained the proper temperature in the car by sufficient icing to preserve the berries. According to the testimony, for the first thirty hours in transit, the temperature remained above fifty degrees and never did get down to 44 degrees until the car reached its destination. The high temperature maintained in the car, together with the fact that the ice in the bunkers was permitted to sink down four inches at one time and twenty-six inches at another before being re-iced, and together with the further fact that the berries would have remained in good marketable condition for six or eight days improperly cared for in transit, are strong- circumstances in contradiction of the testimony introduced by appellant to the effect that it sufficiently iced the car to have preserved the berries in transit. The verdict and judgment are supported by substantial evidence.
The testimony set out above differentiates the instant case from the case of Railway Express Agency, Inc., v. S. L. Robinson & Company, 184 Ark. 660, 43 S. W. (2d) 543, cited and relied upon by appellant as ruling this case.
Appellant also contends for a reversal of the judgment because the trial court erred in refusing to give its requested instructions Nos. 2 and 7. These instructions relate to negligent delay in delivery of the berries, and were properly refused because appellee elected not to rely upon that specific allegation of negligence and introduced no evidence upon that issue,
Appellant also contends for a reversal of the judgment because the court refused to give its requested instructions Nos. 3 and 4. These instructions relate to negligence in failing to furnish proper equipment. These specific allegations of negligence were likewise abandoned by appellee before any evidence was introduced, so the instructions were properly refused. They were not responsive to either the pleadings or testimony introduced in the case.
Appellant also contends for a reversal of the judgment because the court gave appellee’s requested instruction No." 3 relating to measure of damages. The instruction conforms to the law relative to the measure of dam ages announced in the following cases: C. R. I. & P. Ry. Co. v. Walker, 147 Ark. 109, 227 S. W. 12; M. P. Rd. Co. v. Alma Cash Store, 168 Ark. 823, 271 S. W. 453.
Appellant also contends for a reversal of the judgment because written notice of its claim was not filed within the time specified in the uniform express receipt issued and delivered to appellee by appellant when it received the berries for shipment. The provision provided in the express receipt is as follows:
“Except where the loss, damage or injury complained of is due to delay or damage while being loaded or unloaded, or damage in transit by carelessness or negligence, as condition precedent to recovery claims must be made in writing to the originating or delivering carriers within six months after the delivery of the property, or, in case of failure to make delivery, then within six months and fifteen days after date of shipment.”
The notice given was in the form of a letter and is as follows:
“H. Rouw & Company, Yan Burén, Arkansas.
“Shippers of Fruits & Vegetables, Distributors of Bushel Baskets, Fruit & Vegetable Packages
“Van Burén, Ark., Nov. 9, 1929.
“R. E. Turner,
‘ ‘ Claim Agent Ry. Ex. Agcy.,
“Little Rock, Arkansas.
‘ ‘ This is to notify you that car strawberries IC 4843 from Mansfield, Ark. May 10,1929, to Denver, Colo., was damaged account of improper refrigeration and handling in transit.
The exact amount of loss will be determined as soon as possible, and we request you make thorough investigation, as we will file claim against you for loss sustained.
“Tours truly,
“H. Rouw Company,
“By D. C. Buel.
“Mailed Nov. 9, 1929.”
The letter was written and mailed within six months after the delivery of the berries to the consignee, and within time for appellant to have received it before the time expired. D. C. Buel testified that later he notified appellant of the amount claimed for damages. We think the letter complies substantially with the clause in the receipt requiring notice to be given.
No error appearing, the judgment is affirmed. | [
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Mehaeey, J.
The appellant is a retail merchant at Corning, Arkansas, and the appellee is a wholesale merchant in St. Louis, Missouri. About August, 1929, the appellant wanted to purchase a number of radios to sell to his country trade. Mr. Bond was a traveling salesman for appellee, and appellant ordered through this salesman, Bond, two battery sets, which were received and sold, and proved entirely satisfactory. The appellant then ordered ten other sets of the same kind, and sold some of them, but they were unsatisfactory. Appellant then asked permission to return the radios, which the appellee refused. He then made some efforts to repair the radios or adjust them so that they would perform, and he employed a radio expert, but the expert was unable to adjust them or rebuild them.
Appellant made some payments, paying at one time $268, and at another time $75, leaving a balance of $290, for which suit was brought in the justice of the peace court.
The appellant filed answer, in which he alleged that the radios were worthless, and that he did not owe anything except $14 for some other merchandise, and offered to confess judgment for this amount. The case was tried, and judgment rendered against appellant.
An appeal was prosecuted to the circuit court, where it was tried before the circuit judge, sitting as a jury, and the trial resulted in a judgment in favor of appellee for the amount sued for. The case is here on appeal.
Two witnesses testified on behalf of appellee about the sale of the radios, the price and the payments, and as to the balance due. The appellant testified that appellee first sent him one radio set, and that he, expecting to get similar sets and ones that would perform similarly, ordered the other radios, for the payment of which this suit is brought. He received the radios and sold two of them, but they were returned to him because they did not perform. He then employed Luster King, a radio man, but King was unable to do anything with them. Appellant could not sell the sets because they would not perform. He bought batteries and tubes with the sets, and sold them and remitted to appellee, all except $14, for which he offered to confess judgment. Mr. Bond, appel-lee’s salesman, called on him, and he paid him $75 for batteries and tubes, and told him he would pay the balance in a short time. He had never offered to pay a penny on the account for the radio sets that would not perform; that he was able to sell one of the radios after working with it repeatedly, and able to make it perform to a point where it stayed sold; that the radios were worthless. He never did tell appellee to send a man tó fix the radios, for the reason that before they arrived it was evident from the crop conditions, and from the drouth, and also from the fact that the radios were still cheaper than the year before, that he would be unable to sell the radio sets that fall. If the radio sets had been in marketable condition when he purchased them, he could have sold them, but it was a different story in the fall of 1930. These sets were intended for sale to farmers, and, since it was evident in the summer of 1930 that there would be no crops, he knew he could not sell them; he could have sold them in 1929 if they had been marketable.
Luster King testified that he had had experience with radio sets, and he tried to adjust these, and was unable to make them so they would perform with any degree of satisfaction. There was something lacking which made it impossible to rectify them. They had very little value, if any market value at all.
This was all the evidence, except the correspondence. Appellee wrote numerous letters to appellant, which appellant ignored. It wrote to him on August 16 that it had passed for shipment a day or two prior an order for ten radios, amounting, to approximately $500. It asked in the letter for more information about his business. It again wrote him on August 20th. On August 21 appellant wrote appellee about his financial condition. On November 9,1929, appellee again wrote appellant, calling his attention to his overdue account of $568. On December 17, 1929, appellee again wrote appellant acknowledging receipt of $268, and urging him to pay the balance. It again wrote him on January 13,1930, calling his attention to his account of $312, and asking for payment, and again on February 4,1930, it wrote him about his account. Again on February 25, 1930, appellee wrote appellant urging him to pay his account. On March 11 it wired him that it must have settlement. March 24, 1930, it again wrote him about his account, and on March 25, 1930, appellant wrote appellee, complaining about the defects in the radios, and that they would not stay sold, but in the letter appellant stated that he found one of the ten that performed, and finally made a sale of it. He also stated in this letter that he would be lucky and satisfied if he could get enough money out of them to break even.
On April 3,1930, appellee again wrote appellant and again on April 14, urging the payment of his account, and wired him on April 25 and again on May 1st. On May 8, 1930, appellee again wrote appellant, calling his attention to his account, and on May 8 appellant wrote to appellee, complaining somewhat about the radios, stating that, if appellee undertook to force collection, it would not be able to realize anything.
Appellee again wrote to appellant on May 12, and on May 16 he wrote to appellee, stating that he would like to have appellee’s man come down and fix the sets, if he could make them acceptable so that he would not be held responsible. Appellee again wrote him on May 19 and on Jnne 16. In the last letter it told appellant it could send a man down in the next few days. Again, on July 1, it wrote him, asking if he would he ready for it to send the man down.
On July 14, Bond, the traveling salesman, collected $75, which he sent to appellee. On July 22 appellee wrote to appellant, acknowledging receipt of the $75. On August 6 it wrote him again, urging payment, and also on August 13. It again wrote him on August 28 and on September 15. It again wrote him on September 22 and on September 29 and on October 6.
Appellee did not respond to any of these letters, except as mentioned above. While he complained that the radios were defective, and wanted a man to come down and adjust them, when appellee wrote him requesting him to name the time when it would suit him for the man to come down and adjust the radios, he did not reply to its letter.
Appellant first contends that the sale was made by a sample, and that there was therefore an implied warranty that the radios would be as good as the samples. We think it wholly immaterial whether the sale was made by sample or not, because there would be an implied warranty that the radios were suitable for the purpose for which they were purchased.
A buyer may rescind a contract, but he must do so within a reasonable time after the discovery of facts which justify a rescission. 55 O. J. 286. The appellant in this case did not rescind the contract, but he made payments long after he had complained about the defects. Failure to exercise the right to reject goods purchased within a reasonable time usually implies an acceptance. The implied warranty may be waived by the buyer, either by express agreement or by conduct inconsistent with its assertion. 55 C. J. 798. As to whether there was a waiver, and also as to whether there were defects in the radios, were questions of fact to be determined by the trial court.
When a case is submitted to the trial judge, Ms finding of fact is as conclusive as the finding of a jury. American Ins. Co. v. Brannan, 184 Ark. 978, 44 S. W. (2d) 346; Hargis v. Jordan, 184 Ark. 1136, 45 S. W. (2d) 525; Price-Snapp-Jones Co. v. Brown, 184 Ark. 1143, 45 S. W. (2d) 517; Little River County v. Buron, 165 Ark. 535, 265 S. W. 61; Road Imp. Dist. No. 1 of Howard County v. Bank of Commerce & Trust Co., 169 Ark. 43, 272 S. W. 834; Prairie County v. Harris, 173 Ark. 1182, 295 S. W. 725; C. A. Blanton Co. v. First Nat. Bank, 175 Ark. 1107, 1 S. W. (2d) 558; Arkla Sash & Door Co. v. Fair, 176 Ark. 1203, 5 S. W. (2d) 308.
Appellant, however, contends there was no dispute about the facts, and no facts for the trial .judge to decide.
The testimony of a party to an action who is interested in the result will not be regarded as undisputed in determining the legal sufficiency of the evidence. Elmore v. Bishop, 184 Ark. 243, 42 S. W. (2d) 399; McGraw v. Miller, 184 Ark. 916, 44 S. W. (2d) 366; Warren & Saline River Rd. Co. v. Wilson, 185 Ark. 1063, 50 S. W. (2d) 976.
The trial court not only had a right to weigh the testimony given by the appellant, but it had a right to consider appellant’s conduct and all the attendant circumstances, and like the finding of a jury, if there is any substantial evidence to support the finding of the court, the judgment will not be disturbed.
There appears to be substantial evidence to support the finding of the circuit judge, and the judgment is affirmed. | [
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McCulloch, C. J.
Appellants purchased from tbe board of directors of St. Francis Leveee District on April 4, 1906, certain large tracts of land situated in Mississippi and Poinsett counties, and tbe president of said levee district executed to appellants on that date two deeds conveying to appellants and their heirs and assigns forever “all of tbe right, title and interest of said body politic and corporate in and to” tbe real estate described. Tbe deeds recited tbe consideration to be paid in cash. Tbe lands described in tbe deed were unsurveyed swamp lands which bad never been patented to the State by tbe United States Government, and it is conceded in tbe present litigation that tbe levee district bad no title to or interest in tbe land to convey, but that tbe title was still held by tbe United States.
This action was instituted by appellants against said levee district on July 16,1915, in tbe chancery court asking for a reformation of said deed in order to incorporate therein clauses warranting the title to tbe lands attempted to be conveyed .and to recover upon tbe broken covenants of warranty thus incorporated tbe total sum of $35,186.67, which is the amount of tbe purchase price of the lands and interest thereon and tbe taxes, State, county and levee taxes, paid out.
It is alleged in tbe complaint that at tbe time of tbe purchase tbe president of tbe levee board agreed to incorporate in tbe deeds full covenants of warranty of title, and that when tbe deeds were prepared special clauses were inserted warranting tbe title, but, either by mistake or by design on tbe part of tbe president, tbe said clauses were omitted from tbe deeds at tbe time they were executed. It is further alleged in the complaint that on February 12, 1909, appellants first ascertained that the deeds delivered to them by the president of the levee district were only quitclaims and contained no covenants of warranty and that said president upon their request executed to them an instrument of writing reciting the terms of said purchase and undertaking on the part of the levee board, that in the event title to said lands, or any part thereof, should fail or be found not to have been in the levee district at the time of said conveyances, the levee district should refund to appellants the purchase price so paid, together with interest and all taxes paid out on the lands. Appellee in its answer denied that there was any agreement with appellants to execute deeds containing covenants of warranty or that there was any error or mistake in the execution of the deeds, and the answer also pleaded lack of authority on the part of the president to enter into any such agreement. The answer also contains the plea of the statute of limitations. The chancery court denied the relief prayed for, and entered a decree dismissing the complaint for want of equity, from which decree an appeal has been duly prosecuted to this court.
There is a conflict in the testimony on the issue of whether there was any mistake in the form of the deeds executed by the president of the levee board and as to the agreement concerning the same, but we pass that question and proceed to determine the next one presented in order, whether or not the president of the levee board is clothed with legal authority in conveying the lands of the district to enter into covenants of warranty of title. The levee board derived title to all of its lands (except those purchased at its own foreclosure sales) from the State under a statute which went into effect March 29, 1893, which also prescribes the terms and method of sale by the levee board. Acts of 1893, page 172. .TJhe preamble of that statute reads as follows:
“That for the purpose of assisting the citizens of the State to build and maintain a levee along the St. Francis front in this State, and in consideration of the general good of the State; that all the lands of this State lying within said levee district except the sixteenth section school lands, and all the right or interest the State has or may have within the next five years, by reason of forfeiture for taxes or to any lands within said levee district except said sixteenth section school lands, is hereby conveyed to said levee district under the follow* ing restrictions and limitations.”
Section 1 of the act provides that “said levee district represented by its board of directors shall make a descriptive map of said lands, showing the location and character of same. That lands shall be graded into first, second and third grades, with reference to their relative elevation and timber, and a description of the land and timber given. The said levee district may sell said lands for the minimum prices of $2.50, $1.50 and 50 cents per acre as to grade,” and that “the treasurer of the levee board of said district, upon the receipt of payment of any part or parcel of said lands, shall certify the same to the president of said board, who shall execute a deed in the name of said corporation to the purchaser of said lands, the money arising from such sales or issuance of bonds to be applied solely to the construction and maintenance of the levee of said levee district.” In a subsequent section it is provided that the president of the levee board shall make a bond to the State in the sum of $50,000 “conditioned upon the faithful and honest appropriation of the proceeds of the .aforesaid lands to the building and maintaining the levee of said district.”
(1) It is seen from the terms of this statute that no particular lands were conveyed by the State, but that “all the right or interest the State has or may have within the next five years” in any lands, except said sixteenth section school lands, was transferred to the levee district, and it necessarily follows that there was no authority conferred upon the levee district to undertake to convey anything more than the interest of the State which was thus transferred. The president of the district was authorized to execute a deed, hut that authority could extend no further than the execution of an instrument conveying the interest which the district had received from the State. A covenant of warranty embraced in a deed is not a part of the conveyance itself, and the authority to execute a deed does not carry with it authority to enter into covenants of warranty.
(2) The board of directors St. Francis Levee Dis- • trict is a qitasi-public corporation, a sub-agency of the State, and its officers are clothed with only such authority as is expressly conferred by statute or by necessary implication. Carson v. St. Francis Levee District, 59 Ark. 513; Altheimer v. Board of Directors of Plum Bayou Levee District, 79 Ark. 229.
(3-6) The officers of the State in dealing with lands of the State are not clothed with any greater authority than that of conveying the ' State’s interest in the lands it holds, and there is no language found in the act now under consideration which manifests an intention on the part of the Legislature to confer any other or greater authority on the president of the levee district. Where special authority is conferred by statute it must be exercised only in the manner and to the extent prescribed. It is insisted that the decision of this court in the case of Board of Directors St. Francis Levee District v. Myers, 79 Ark. 14, leads to the conclusion that there was authority on the part of the president to warrant the title of lands which were attempted to be conveyed. The decision on that question was, however, expressly pretermitted in the opinion. In that case there was a special clause in the deed whereby the levee district undertook to refund the purchase price upon failure of title to the lands conveyed, and it was said in the opinion that even if there was no power on the part of the president to bind the district by express covenants of warranty of title, yet the district having received the funds pursuant to the terms of that contract were bound to refund them in the event of the failure of title. The decision was based entirely on the doctrine of estoppel, presumably on the ground that the levee board itself had either authorized the execution of the contract or had accepted the proceeds of the sale with knowledge of its execution. This is made clearer by the opinion in the later case of St. Francis Levee District v. Cottonwood Lumber Co., 86 Ark. 221, where it was held that the district was not bound by the unauthorized promise of the secretary of the board to refund the proceeds of the sale of lands where the title failed. The statute in this respect confers no greater authority upon the president than it does upon the secretary. It provides that the funds shall be paid to the treasurer and that the president “shall execute a deed in the name of said corporation to the purchaser of said lands.” The authority to execute a deed, as we have already said, not embracing the authority to enter into a covenant of warranty, the president was without power to enter into a special contract to refund the money, but the effect of the decision in the two cases just referred to is that where the levee district, through its board of directors^ received the funds with knowledge of the contract to refund in the event of failure of title it is estopped to dispute the authority to enter into the contract. Now, in the present case it is shown affirmatively that there was no knowledge on the part of the levee board of .any special contract being entered into with respect to refund of the money. On the contrary, it appears in the report of the secretary to the board of directors that the title to the lands was in .a state of doubt and that the district had, by the sale, gotten rid of lands to which the title was uncertain. The special contract alleged to have been entered into later by the president with appellant does not appear to have been made by the authority of the board, and in addition it is essential that it should have been based upon an independent consideration in order to bind the district, for the reason that it was not a part of the original transaction.
It is unnecessary to discuss the further question presented concerning the statute of limitations and of laches on the part of appellants for the reason that we have reached the conclusion that there was no authority on the part of the president to warrant the title to the land attempted to be conveyed, or to enter into the special contract with respect to refunding the proceeds of the sale.
The decree of the chancery court is, therefore, affirmed. | [
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Hart, J.,
(after stating the facts). The correctness of the decision of the chancellor depends upon whether or not the lands in controversy in this case were subject to taxation for county and State taxes after they were purchased by the levee district at its own sale for levee taxes. Article 16, section 5, of the Constitution of 1874, provides, that all property subject to taxation shall be taxed according to its value, provided that the following property shall be exempt from taxation; public property used exclusively for public purposes; churches used as such; cemeteries used exclusively as such; school buildings and apparatus; libraries and grounds used exclusively for school purposes, and buildings and grounds and materials used exclusively for public charity.
Section 6 provides that all laws exempting property from taxation other than is provided in this Constitution shall be void.
(1) It is insisted by both parties that this question has already been decided in their favor by a previous decision in this court. Counsel for the defendant rely upon the case of Bonner v. The Board of Directors of St. Francis Levee Dist., 77 Ark. 519. There the court said that the lands in controversy continued subject to taxation after they were acquired by the St. Francis Levee District. The levee district had purchased the lands in that case on the 24th day of January, 1898, for unpaid levee taxes and on the second Monday in June, 1898, Bonner purchased the same land at a sale for State and county taxes. There the assessment had been completed, and the State and county taxes had become a fixed lien on the lands before their purchase by the levee district, and the court simply meant to hold that a change in the use of the property after the State and county taxes had become a lien did not release the land from liability for such taxes. The reason is that to so hold would be to give a retrospective effect to the section of the Constitution above referred to. An exemption from taxes created by the Constitution will not be given a retrospective effect unless an intention that it shall have such an effect is clearly expressed and it is apparent that the section of our Constitution relating to this subject was not intended to operate retrospectively. City of Philadelphia v. Pennsylvania Institution for Instruction of Blind, 214 Pa. St. 138, 6 A. & E. Ann. Cas. 437, and case note. So it will be readily seen that the Bonner case is not an authority for the position taken by counsel for the defendant.
Counsel for plaintiff rely on the case of Miller v. Henry, 105 Ark. 261. There the court, at the end of an opinion, which was devoted almost exclusively to other propositions, said the lands which had been bought in by the St. Francis Levee District at a sale for levee taxes were not subject to taxation while in the hands of the levee district, but no reason was given for such holding.
We now propose to take up the question and decide it anew for the reason that it is now earnestly insisted that such a holding is in direct conflict with the holding of this court in School District of Fort Smith v. Howe, 62 Ark. 481, and Brodie v. Fitzgerald, 57 Ark. 445.
(2) The St. Francis Levee District is a quasi-corporation to which is delegated certain powers as a governmental agency. Carson v. St. Francis Levee Dist., 59 Ark. 513, and Board of Dir. St. Francis Levee Dist. v. Fleming, 93 Ark. 490. The correctness of the chancellor’s holding depends upon whether the lands were acquired by the levee district in its proprietary capacity or in the exercise of its functions as a governmental agency. In the former case the lands would not be exempt and in the latter they would be exempt from taxation. This distinction, we think, has been recognized in our previous de-' cisions relating to the question.
(3) In the case of Brodie v. Fitzgerald, 57 Ark. 445, the court held that the hospital buildings, grounds and materials, under our Constitution, were exempt from taxation, but that the property leased or rented was not exempt though the revenues were applied solely to the subject of the public charity. The reason is that under our Constitution it is only when the property itself is actually and directly used for public charity that the law exempts it from taxation.
In the later case of Hot Springs School District v. The Sisters of Mercy, 84 Ark. 497, we held that a hospital building with the grounds connected therewith which was used in the operation of a public charity was not excluded from constitutional exemption from taxation merely because patients who were able to do so paid for the attention and medicine which they received, if the profits derived therefrom were put back into the opera tion of the public charity. There was a mixed use, so to speak, of the property, but the dominant purpose was the operation of the hospital as a public charity and the receiving of pay patients was merely incidental to the main purpose. So we held that the property was still actually and directly used for public charity, and that the Constitution exempted it from taxation.
In the case of School District of Fort Smith v. Iiowe, 62 Ark. 481, a portion of the military reservation at Fort Smith was donated by act of Congress to the city of Fort Smith to be held in trust for the use of the free public schools of the city. The act provided that within ten years the land should be laid oft into lots, and that the lots be sold at public sale and that the proceeds should be paid to the treasurer of the school board to be used for school purposes. Afterward our Legislature passed an act providing that the School District of Fort Smith be empowered and required to become a purchaser at said sales and to own, lease, control and sell the same. The property involved in that suit was acquired by the school district by purchase under the act. Most of the property consisted of unimproved city lots, but some of the lots had buildings upon them and were rented. The court in its opinion recognized that the property did not contain any scho.ol buildings or libraries and grounds used exclusively for school purposes within the meaning of article 16, section 5 of our Constitution, and proceeded to a discussion of the question of whether it was public property used exclusively for public purposes within the meaning of that section of the Constitution.
The court said that to justify it in holding that the property was exempt there must be found in the Constitution, itself, provision for its exemption. The court further said that it was conceded that the land was public property, but the question of its exemption from taxation was not determined alone by its character as public property, but also by the nature of its use. After a thorough discussion of the question, the court correctly held that .the property was not exempt from taxation under our Constitution because it was held by the school district solely for sale or rent, and for the sale for profit, and was not, in the meaning of the Constitution used exclusively for public purposes, and was therefore subject to taxation. The construction is in accord with the almost unanimous holding of the courts of last resort of other States having a provision of the Constitution similar to our own. The reason for so holding is clearly stated in a quotation by the Supreme Court of Ohio in Benjamin Rose Institute v. Myers, Treasurer, L. R. A. 1916D-1170, from Academy of Richmond County v. Bohler, 80 Ga. 159, as follows: “Property used to produce income to be expended in charity is too remote from the ultimate charitable object to be exempt. If property is allowed to be used as taxed property, it also is to be taxed. If it competes, in the common business and occupations of life, with property of other owners, it must bear the tax which their’s bears.”
There is a material difference between the use of property exclusively for public purposes and renting it out and then applying the proceeds arising therefrom to the public use. The property under our Constitution must be actually occupied or made use of for a public purpose and our court has recognized the difference between the actual use of the property and the use of the income. So it will be seen that in our own cases last referred to, the property itself was not directly occupied or made use of for public purposes, but only the income derived therefrom and for this reason the court held that the property was not exempt from taxation under our Constitution.
(4) In the present case the facts are essentially different. The St. Francis Levee District was created for the purpose of constructing and maintaining a levee along the Mississippi Biver on the eastern border of our State. To accomplish the purpose of its organization it was given the power of eminent domain and of taxation for levee purposes. The district was given the power to in stitute a suit to enforce the collection of delinquent levee taxes and to buy in the lands at a sale therefor when no one else offered to bid thereat, and then to again sell the land so acquired and to devote the proceeds to the use for which the leve'e taxes were intended. The lands in controversy were acquired by the levee district at a sale for levee taxes and were held by the levee district until it could dispose of them. Thus it will be seen that the levee district acquired the land in the exercise of its governmental functions, and during the interval between its purchase and resale of the lands, they were not subject to taxation. If the property should be taxed while so held by the levee district, new taxes must be levied to meet this tax. It is absolutely essential that taxes should be levied in order to carry out the purpose for which the levee district was organized, and if the property, which the levee district, to protect itself, purchased at a levee tax sale, was subject to State and county taxes while in its hands, the property owners of the levee district would have to pay additional taxes. The levee district only held the lands that it acquired at levee tax sale until it was practical to dispose of them again. They were not held for any purpose of gain or as income producing property. When sold, the proceeds took the place of the levee taxes, for the enforcement of which and the expenses incident thereto, they were sold, and in this way we think the lands were directly and immediately used exclusively for public purposes within the meaning of the Constitution, and were not subject to taxation.
Moreover, Judge Cooley says, that exemption from taxation .of property which belongs to the State and its agencies, which are held by them for governmental purposes, rests upon implication. He said that to levy taxes upon such property would render necessary new taxes to meet the demand of this tax, and thus the public would be taxing itself in order to raise money to pay over to itself, and no one would be benefited but the officers employed, whose compensation would go to increase the use less levy. Cooley on Taxation (3 ed.), vol. 1, pp. 263 and 264; Re Hamilton, 148 N. Y. 310, 42 N. E. 717.
Having held that the property is exempt from taxation, the defense of the defendant necessarily passes out of the ease.
It follows that the decree will be reversed and the cause will be remanded with directions to grant the prayer of the complaint. | [
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Battle, J.
The validity of the deed executed by Daniel E. White to W. L. Blanks on the 29th of April, 1893, is involved in this appeal. Daniel E. White conveyed to W. L. Blanks, by this deed, all his estate in the north half of the southwest quarter of section seventeen, and north half of the north half of section eighteen, in township nineteen south, and range four west. The land conveyed formerly belonged to Mary A. Sumner. She departed this life on the 18th of November, 1891, leaving surviving her Daniel E. White, her son, Sallie M. Terrell, her daughter, and J. Sumner White, Bettie White, Turner White and Mary White, the children of her son, W. J. White, deceased, as her only heirs at law. On the 8th of September, 1891, she executed the following will: “Know all men by these presents, that I, Mary A. Sumner, of the county of Ashley, state of Arkansas, being in good health and sound mind and disposing memory, do make and publish this my last will and testament, hereby revoking all former wills by me at any time heretofore made. I will that my burial expenses and just debts of every kind be paid. I will the 80 acres of land in section 7, where I now live, to Fannie Byrd and her bodily heirs. I will to D. E. White 80 acres of land in section 17. I will to Sallie M. Terrell the use and income of 160 acres of land in section 18 during her life. At her death, I will it to D. E. White. At his death I will it to Susan Barlow and her children. If Sallie M. Terrell survives D. E. White, at her death the land will go to Susan Barlow and her children. My four grand children, I will them $5 each, — Sumner White, Bettie White, Turner White, Mary White. In testimony whereof, I hereunto set my hand and seal, and declare this my last will and testament in the presence of the witnesses named below, this September 8, 1891.”
The probate of the will was contested by the heirs, and the contest was taken by appeal to the Ashley circuit court, where on the 9th day of January, 1894, all the devises therein made, except that to Fannie Byrd, were held to be void. While the contest over the will was pending in the circuit court, Daniel E. White executed the deed to Blanks.
On the 30th of March, 1894, J. P. Clark, as guardian of the minor children of W. J. White, deceased, brought an action in the Ashley chancery court against Daniel E. White and ■ William L. Blanks, alleging that Mary A. Sumner died intestate, leaving her surviving, as her only heirs at law, the defendant, D. E. White, and the plaintiff’s wards, and at the -time of her death she was seized and possessed of the land described in the deed of Daniel E. White to Blanks; that in her lifetime she had advanced to her son, Daniel E. White, in lands, money, board and wares, the sum of $3,848.97; and that the real estate and personal property then belonging to her estate amounted to the sum of $3,021.64, which the children of W. J. White, deceased, were entitled to by reason of said advancement; and asked that the entire interest in the land be vested in plaintiff’s wards, and that the conveyance of Daniel E. White to William L. Blanks be held to be a cloud upon the title of his wards, and be cancelled.
On the 11th of November, 1896, Daniel E. White filed an answer, and made it a cross-complaint against his co-defendant, William L. Blanks, alleging therein that the conveyance to Blanks of his interest in the lands in controversy was procured by fraud and deception, and asked that it be set aside.
Blanks answered, admitting the execution of the conveyance to him by Daniel E. White, and denying the other material allegations in the complaint and cross-complaint, and alleging that he was entitled to the interest uin the lands conveyed to him.
The court found that Mary A. Sumner, in her lifetime, advanced to Daniel E. White an amount exceeding the value of the lands in controversy and the personalty in the hands of her administrator; that the conveyance of Daniel E. White to Blanks was executed for an inadequate and fraudulent consideration; that the property received for the conveyance was of the value of $200; and rendered a decree canceling the deed, and vesting the title to the land in controversy in the children and heirs of W. J. White, deceased, the wards of plaintiff, and rendered a judgment in favor of Blanks for the $200; and .Blanks appealed.
Mrs. Sumner having left a last will and testament, the doc trine of advancement has no application in this case; and this is true, notwithstanding a part of her estate was not disposed of by her will. Thompson v. Carmichael, 3 Sandf. Ch. 120; Snelgrove v. Snelgrove, 4 Desaus. Eq. 274, 292; Greene v. Speer, 37 Ala. 532; Bieder v. Bieder, 87 Va. 300, 304; 2 Woerner, Administration, § 553.
In consideration of the sale and delivery to him of a stock of drugs and the furnishing him with a house in which to do business from the 29th of April, 1893, to the first of January, 1894, Daniel E. White conveyed to Blanks all his interest in the lands therein described. White alleged that this conveyance was procured from him by fraud. He says that Blanks induced him to sell his interest for the consideration mentioned by falsely and fraudulently representing the drugs to be worth $800 when they were worth only $60. The burden of proving this allegation rested upon him.
As to the value of the drugs, the testimony of witnesses is conflicting. One witness testified as to the value of drugs which Blanks had in his possession on some day prior to the sale to White. The evidence shows that Blanks purchased other drugs after that time and before he sold. Other witnesses testified as to the value of drugs they saw in the possession of White on a day subsequent to the sale. It is evident that this testimony cannot determine the value of the drugs delivered to White, and that the testimony of those who knew the drugs which were sold and their value at the time of delivery should govern. As to the value of such drugs at such time, White testified that he examined them before purchasing, but that he did not know their value; that Blanks represented that they were worth $800; that he relied upon the representation, but that he had since ascertained from information received from others that they were worth $60. Blanks testified that they were worth from $700 to $800, and another witness testified that they were were worth between $600 and $800. Enough, however, was shown to prove that the representation as to the value of the drugs was only an expression of an opinion, and the evidence fails to show that the opinion was simulated.
At the time the conveyance to Blanks was executed the contest against the will of Mrs. Sumner was pending. The most valuable part of the land was devised to Sallie M. Terrell for her life, and after her death to Daniel E. White for his life. Mrs. Terrell was then 42 years old, was living, and in good health. The land devised to her was worth $1,600; the other was worth $600. In the event the devises to her and White were sustained, Blanks acquired the tract worth $600 and a very uncertain interest in the other. On the other hand, if these devises were held to be void, he was entitled to only one-third of the land described in his deed, Mrs. Terrell being entitled to one-third, and the children of W. J. White, deceased, to the other part. According to the preponderance of 'the evidence, it is evident that the value of the estate or interest in the lands conveyed did not so far exceed the value of the consideration received therefor as to raise a presumption of fraud. The chancery court, therefore, erred in setting aside the deed.
There is nothing in the contention that Blanks sold White the drugs and furnished him with a house for the purpose of assisting him in the illicit sale of liquor. The preponderance of the evidence clearly proves the contrary.
The decree of the chancery court is therefore set aside, and the cause is remanded, with directions to the court to dismiss the complaint of appellees and the cross-complaint of White, and for other proceedings consistent with this opinion.
Wood, J., did not sit in this case. | [
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McCulloch, C. J.
This is an action under the statute for unlawful detainer of land. Possession was delivered under the writ to the plaintiff at the commencement of the action. The facts are undisputed, so far as they relate to plaintiff’s right to recover possession of the land, and the court gave a peremptory instruction in favor of the defendant on that issue, but submitted to the jury the question as to the rental value of the land during the pendency of the action. The jury returned a verdict in favor of the defendant, and assessed damages in the sum of $120, and judgment was rendered on the verdict in defendant’s favor, from which plaintiff has prosecuted this appeal.
(1) Defendant Hawkins was originally the owner of the land and executed a deed of trust to one Stacy, as trustee, to secure a debt due to T. D. Wilkes. The deed was foreclosed under the power therein contained'^ and Wilkes purchased the land at the sale and conveyed it to the plaintiff. It is alleged in the complaint that the defendant occupied the land as tenant of plaintiff, and had refused to deliver possession thereof. Plaintiff attempted to prove at the trial that defendant attorned to it as landlord after the purchase from Wilkes, but the effort to make such proof was a failure, and the court gave the peremptory instruction to the jury on the theory that there was no proof that the relation of landlord and tenant subsisted between the plaintiff and defendant. The instruction was correct, for it is well settled that the relation of landlord and tenant must subsist between the plaintiff and defendant in order to support the action of unlawful detainer, the mere right of possession being insufficient to support the action. Dortch v. Robinson, 31 Ark. 298; Necklace v. West, 33 Ark. 682.
(2) There is, however, no dispute about the plaintiff’s right of possession, and the question arises whether, under those circumstances, defendant is entitled to judgment over, for the amount of the rents of the premises accruing during the pendency of the action. The form of the action is purely statutory, and the right to recover damages, either by the plaintiff or defendant depends upon the language of the statute which creates the remedy. In the absence of a statutory provision expressly authorizing it, damages can not be recovered by either party. 19 Cyc., p. 1169.
The statute provides that in actions of forcible entry and unlawful detainer “where the defendant disputes the plaintiff’s right of possession, it shall be lawful for such defendant to introduce before the jury trying the main issue in such action evidence showing the damage he may have sustained in being dispossessed of the lands and premises mentioned in the writ and declaration in the cause, and the jury, if they find the issue for the defendant, shall at the same time find what damage the defendant has sustained by being dispossessed under the provisons of this act.” Kirby’s Digest, section 3646.
(3) According to the undisputed evidence in this . cause the defendant was not entitled to the possession of the land in controversy, and the failure of the defendant to recover possession was due entirely to the forpa of action in which he sought relief. Plaintiff was the owner of the land under his purchase from Wilkes, who held title by purchase under the mortgage executed by the defendant. Under those circum stances, the defendant’s occupancy being without right, he is not entitled to recover damages from the true owner. The statute does not authorize it, for it is only where the defendant disputes the right of possession that he can introduce before the jury evidence showing damages he has sustained by reason of being dispossessed. The judgment in defendant’s favor should, therefore, have only been for the restitution of possession of the property and for recovery of the cost of the action. To that extent only will the judgment be affirmed, and the judgment for recovery of damages will be reversed. It is so ordered. | [
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Smith, J.
Property belonging to appellants was sold under a consent decree of foreclosure pursuant to the following notice of sale:
“COMMISSIONER'S SALE.
“no. 4145.
“Pursuant to a decretal order, dated March 23,1931, and entered at page 385 of the chancery record No. 10, for the Western District of Craighead County, Arkansas, wherein the Equitable Life Assurance Society of the United States was plaintiff and John C. Knight, Wren-nie Knight, his wife, et al., were defendants, the said decree being for the sum of $3,300.01, with interest from January 7,1929, at six per centum per annum, and which decree had been credited with various sums paid thereon, as shown at page No. 385 of said chancery record No. 10, the undersigned will offer for sale at the east door of the courthouse in the city of Jonesboro, Arkansas, on the 29th day of August, 1931, the following described real estate, to-wit:
“All of lots 3 and 16 and the west half of lot 2 and the west half of lot 17 in Markle’s Addition to the city of Jonesboro, Arkansas.
“Terms of Sale: Upon a credit of three months, purchaser to give bond, with approved security, and a lien to be- retained on the property sold.
“Witness my hand, and the seal of said court, this 3d day of August, 1931.
“Spurgeon Clark,
(Seal) “ Commissioner.”
Exceptions were filed to the commissioner’s report of sale, and from the order of the court overruling these exceptions and approving the report is this appeal.
The exceptions to this report raised the following questions:
First: The notice failed to state the amount due under the decree at the time of the sale. It is stated in 2 Freeman on .Executions (3d ed.), p. 1641, in discussing “G-eneral Requisites of Notice of Sale,” that: “while it is usual to state the amount of a judgment or decree to satisfy which the sale is to be made, this statement in the notice of sale is entirely unnecessary.” Cer tainly, no prejudice resulted here to the appellants from the failure to state the balance due under the decree, as the notice did state the debt as adjudged, and that various sums had been paid thereon as_ shown by marginal indorsements on the record of the decree. Any interested person could have ascertained the amount of these credits by examining the record to which reference was made.
Second: It was objected that the description of the property was fatally defective for the reason that it did not give the county nor subdivision thereof in which the property was located. The property was described, however, as being in the city of Jonesboro, and this description definitely located the property as being in Craig-head County, and it cannot be material that a prospective purchaser should have known in which district of Craighead County, Jonesboro was located. It was said in the case of Woods v. Hayes, 85 Ark. 166, 107 S. W. 387, that: “the object of giving notice of sales under execution is to inform the debtor that his property is about to be sold and also to inform the public so that attendance of purchasers may be attracted and competitive bidding be induced. It necessarily follows from this that the desired object is accomplished if the description of the property be sufficient in the notice to identify it with reasonable certainty, so that no one may be misled thereby. Tiede-man on Sales, § 260; 2 Freeman on Execution, § 285b.5 ^
Third: Objection is made that the property is described as lots and parts of lots in Maride’s Addition to the city of Jonesboro, Arkansas, but that the block number of such lots is not given. This objection is answered when it is observed that no showing was made that this addition was laid off into blocks, and appellee asserts that it was not. We are unable, therefore, to say that the description employed does not correctly describe the property sold according to the survey of the addition of which it was a part.
Fourth: It is also objected that the notice “fails to state the hour when or within which the property would be sold.’] In 2 Freeman on Executions (3d ed.), § 285C, page 1646, it is said: “It would seem that the notice ought to name the very hour at which the sale will commence, so that persons having any inclination to attend will not be deterred from doing so by the fact that they might be kept waiting during all the business hours of the day. The authorities, however, sustain notices which declare that the sale will be made between certain designated hours, provided that both hours are in the business part of the day. It has also been held that if the statute designates the hours between which a sale may be made, they need not be mentioned in the notice of sale.”
In his excellent work on Arkansas Mortgages — at § 412 thereof — Judge Hughes says: “The statutes of Arkansas do not prescribe the time or place of foreclosure sale, nor the notice thereof that shall be given. The statute relating to notice of sale under order of court (Crawford & Moses’ Digest, § 4323) refers only to sale by the sheriff under execution and not to foreclosure sales. In foreclosure in equity, the time and method of giving notice and the date and place of sale are in the discretion of the court.”
Section 4317, Crawford & Moses’ Digest, prescribes the time and mode of sale under executions, and directs such sales to be had between the hours of 9 a. m. and 3 p. m. "While this section does not refer to sales by commissioners under orders of the chancery court, it is a matter of common knowledge that all judicial sales, unless otherwise ordered, occur between these hours; nor is it asserted here that the sale under review did not occur between those hours. On the contrary, it appears that, by an agreement made on the day of sale between the commissioner and the appellant, J. C. Knight, the sale was had at 10 a. m. on that day. We think, therefore, that the failure to designate the hour of sale in the notice thereof was not prejudicial. Henderson’s Chancery Practice, §§ 571-575.
Fifth: It is insisted that the notice was defective because it failed to describe the improvements on the lots. The character of these improvements does not appear, but it was stipulated that the rental value of the property was $27.50 per month. There is nothing in the record to indicate that any prospective bidder at all familiar with the property would not have known what those improvements were. There are States having statutes requiring notices of sale of real estate to describe the improvements thereon; but we have no such statute, and the general rule appears to be, in the absence of such a statute, that a description following the language of the instrument foreclosed is sufficient if the description identifies the real estate itself. 42 C. J., title “Mortgages,” page 195; Jones on Mortgages, vol. 3, § 2459; Austin v. Hatch, 159 Mass. 198, 34 N. E. 95; Guarantee Safe & Trust Co. v. Jenkins, 40 N. J. Eq. 451, 2 Atl. 13; Thompson v. King, 2 Mann. (Del.) 358, 43 Atl. 168; Wiltsie on Mortgage Foreclosure (4th ed.), vol. 1, § 643, page 826.
Sixth: The final objection to the confirmation of the report of sale is that, because of the alleged defects in the notice of sale, the property sold for a grossly inadequate price. The property sold for $3,368.86, which was the balance then due under the decree of foreclosure, and the plaintiff in the case was under no obligation to bid anything in excess of its debt, nor to bid that. Moreover, there is no showing that the price for which the property sold was in fact grossly inadequate.
The report of sale was therefore properly confirmed, and the Recree so ordering it is affirmed. | [
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Hart, J.
Bryan Jones, a minor, by Mrs. Dora Jones, as next friend, sued the Van Veneer Company to recover damages sustained by him while in the employment of the defendant, alleged to have been caused by its negligence. There was a trial before a jury which resulted in a verdict and judgment for the plaintiff in the sum of $500. The defendant has appealed.
The principal assignment of error relied upon by counsel for the defendant to reverse the judgment is that the evidence is not legally sufficient to warrant the verdict.
Bryan Jones testified in his own behalf substantially as follows: In January, 1915, while in the employ of the Van Veneer Company at Malvern, Arkansas, I was injured, having the forefinger of my right hand cut off by a clipper or jointer, a heavy machine used in veneer mills to cut the veneering into given widths. At that time I was eighteen years and two months old. I had worked around the plant for about eight months at the time the injury to my hand occurred. At the time I was injured, I was working .at the clipper where I had been placed by the defendant’s foreman, and had been working for two or three weeks. The clipper, is a large machine with a heavy knife ninety inches long used for cutting veneering. It was my duty to stand at the side of the clipper and control the stroke of the knife and the width of the strips of veneering to be cut by throwing the machine in and out of gear by means of a lever. The clipper would run automatically, if so set. It was the custom for the person operating the clipper to go around in front of the machine to help take out the veneering as it was cut by the knife and pushed on the table. There was a man there to do that work, but the clipper man often helped him, and the foreman knew it. The clipper sometimes became choked or clogged by reason of splinters and small pieces of stock catching in a groove or throat in which the big knife of the clipper worked. When this happened it was my duty to free it by removing the obstruction, and I always did this without stopping the knife. It often choked up when narrow strips were being put through it. At the time I was hurt, the machinery was working on automatic feed. We were cutting narrow strips about one inch wide. I was helping the off-bearer remove the strips from the table when the machine choked up and I attempted to release it by removing the obstruction as usually done. The machinery was still running and caught my finger and cut it. My finger was bent at the time and was cut into two pieces. It had to be amputated and I suffered con* siderably. It was ten or twelve weeks before it was entirely well. I had never been told to stop the machine to take the obstruction out when it became choked up. I had never been instructed about how to operate the machine or to reprove the obstructions, and had never been cautioned or warned by the foreman or any one else. I had never- seen or worked at a machine like it before. The witness was asked if he could see the knife, and if he did not know it would cut. He replied, “Yes, of course, I knew it would cut. I knew it would cut off my finger if it got caught in there. Anybody would know that, but I did not think about that.”
On cross-examination, the witness admitted that the machine was in a well-lighted place, and that he could see the knife, and it worked up and down cutting veneering. He admitted that he knew that it would cut his hand if it should be caught, and that on the same day the top of the finger of his glove had been cut off by the knife. He stated that .the foreman had-seen him remove the obstructions without stopping the machine, and knew it was the custom for the obstructions to be removed in that way.
Other witnesses for the plaintiff testified that it was the custom in that mill for the operator of the clipper machine to help the off-bearer remove the veneering.
Another witness testified that he had had about thirty years’ experience as a millwright and machinist, and was familiar with veneering mills and with the machinery used in such mills, called a clipper; that he knew and had examined the machine in which Bryan Jones was injured; that he had never seen but one other such machine, and that it was fitted .up with a guard and wooden filler to prevent the operator from getting hurt. He said he thought the machine in question could be fitted with a wooden filler of some hardwood to fill up the groove to prevent the veneering from being caught in the groove; that this would make a smooth surface for the veneer to pass over instead of the groove in which it would sometimes catch. He also stated that the machine could be fitted with a guard which would keep any one from being cut, and that this could be done at a small expense.
On the other hand it was shown by witnesses for the defendant that the plaintiff had been warned about removing the obstructions while the machine was in motion, and that it was not practical to operate the machine with a guard and by filling up the groove with hard wood. The witnesses explained in detail and gave their reasons therefor. They were men of many years’ practical ex perience in machinery of this kind, but we. need not set out their testimony; for the legal sufficiency of the evidence to support the verdict must be tested in the light most favorable to the plaintiff.
It is strongly insisted by counsel for the defendant that the danger was known by Bryan Jones, and that he fully appreciated and understood the dangers to be apprehended in removing the obstructions while the machine was in motion. They insist that he had acquired the information by practical experience, which is the best teacher, and that he knew therefore all that the instructions or warning of the defendant would have imparted to him.
(1) Plaintiff admits that he knew the knife would cut his finger if it got caught in removing the obstructions, but said that he did not think about his finger getting caught. He stated that it was the custom of the operator of the machinery to remove the obstructions as he was doing when hurt, without stopping the machine. Knowledge of the danger was a question of fact. Bryan Jones was only eighteen years of age, and had never worked at a machine like this before. It is true he had worked around the mill for eight months, but he says that he had not worked around this machine and did not appreciate the dangers from removing the obstructions without stopping the machine. He said that it was the custom to do it that way, and that the foreman knew of this fact, and that no warning had been given him by the foreman or any one else. It is conceded that in all cases where there is a duty to warn a servant, it would be a breach of such duty to expose him to such dangers without giving him such instructions and caution as would, in the judgment of men of ordinary minds, understanding and prudence, be sufficient to cause him to appreciate the dangers and the necessity for the exercise of due care and precaution. So under all the circumstances we do not think the court erred in not taking the case away from the jury.
Again, it is insisted that the court erred in giving instruction No. 5y2. The instruction reads as follows:
“If you believe from the evidence that there were other standard veneer machines which would be reasonably safe, and if you find that the machine used was not reasonably safe, then you are instructed that it was the duty of the defendant to have installed a reasonably safe machine or to have so altered and equipped the one used as to have made it reasonably safe.”
(2-3) The instruction in the precise language given was erroneous and was so held in the case of Holmes v. Bluff City Lumber Co., 97 Ark. 180. The court should-have told the jury in the instruction that it was the duty of the defendant to have used ordinary care to have installed a reasonably safe machine, etc. It does not follow, however, that because the court held such an instruction to be erroneous in Holmes v. Bluff City Lumber Co., that the judgment in the present case must be reversed. It is the well settled rule of this court to reverse only for errors prejudicial to the rights of an appellant.
(4) In the Holmes case the court was dealing with a different state of the record to that in the present case. There an instruction similar to the present one was requested by the defendant and the trial court refused to give it. This court refused to reverse the judgtnent because the defendant did not ask the instruction in proper f orm. Here we have the converse of the proposition. The court gave the instruction at the request of the plaintiff. If counsel thought the instruction was open to the objection now made to it, they should have made a specific objection to the instruction, and not having done so, they are in no attitude to ask for a reversal of the judgment on this account. St. Louis, I. M. & S. Ry. Co. v. Barnett, 65 Ark. 255; Western Union Tel. Co. v. Wilson, 97 Ark. 198, and St. Louis, I. M. & S. Ry. Co. v. Stovall, 98 Ark. 425.
Moreover, the defendant itself asked for an instruction on this point which contained the same defect. He asked and the court gave instruction No. 10, which, reads as follows:
“The court instructs you that it is not the duty of the defendant company to insure the safely of its employees, but it has performed its duty to its employees when it provided them with a reasonably safe place to work, and reasonably safe appliances with which to work. You are instructed that if the defendant provided a machine of standard make, of a type suited to the work it was required to do, and provided with such safety appliances as machines of its sort are usually provided with, defendant had performed its duty to the plaintiff so far as any duty rested upon it to provide plaintiff with a reasonably safe place in which to work, and reasonably safe appliances with which to work.”
A comparison of this instruction with the one under consideration shows the instruction asked by defendant to contain the same defect and counsel for the defendant having asked fqr an instruction containing the same defect, can not complain of the one given by the court.
It follows that the judgment must be affirmed. | [
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McHaNey, J.
This is an appeal from an order of the circuit court setting aside a judgment in appellant’s favor against appellee on .a motion for a new trial filed by it. Appellant failed to file a stipulation on his part to the effect that, if the order of the circuit court he affirmed, judgment absolute may be rendered by this court against him, as provided by § 2129, Crawford & Moses’ Digest. The applicable portion of the second subdivision of the above section reads as follows: “But no appeal to the Supreme Court from an order granting a new trial, in a case made or bill of exceptions, shall be effectual for any purpose, unless the notice of appeal contains an assent on the part of the appellant that, if the order be affirmed, judgment absolute shall be rendered against the appellant.”
No final judgment has been rendered in the lower court from which to appeal, and this court has many times held in such cases that an appeal which failed to comply with the above-quoted provision of the statute must be dismissed. Osborn v. LeMaire, 82 Ark. 490, 102 S. W. 372; St. L., I. M. & S. R. Co. v. Hix, 101 Ark. 90, 141 S. W. 492; McPherson v. Consolidated Casualty Co., 105 Ark. 324, 151 S. W. 283; Yowell v. Ft. Smith Pure Milk Co., 118 Ark. 448, 177 S. W. 4; Matyski v. Buczkowski, 152 Ark. 89, 237 S. W. 694.
Appellant has, since the original submission of this case, petitioned the court to permit him now to file such stipulation, or to permit him to file same in the trial court and bring up an amended record. Neither course could avail appellant anything, for it was held in Osborn v. LeMaire, supra, that such course was not available to appellant. "We there said: “Appellant now asks that such assent he noted of record, and consents that judgment absolute shall be rendered against it in the event that judgment should be affirmed. Without determining whether such assent can be made in this court after appeal has been granted by the circuit court, it is sufficient to say that it is more than one year since the appeal was granted and before such assent is filed herein. An appeal must be taken within one year.” Citing cases. “If it were proper to perfect this appeal in this court in the manner now sought, it is too late to do it. The statute requires the noting of assent to judgment absolute as a condition to obtain an appeal from such order, and it must be complied with. ’ ’
The statute now requires an appeal to be taken within six months. Therefore appellant could not now file the stipulation here, as more than six-months have expired from the date of judgment. Nor could he accomplish anything by filing it in the court below, as the time for appeal has long since expired.
Appellant’s case is still pending in the court below for a new trial. The appeal will be dismissed. | [
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McHaNey, J.
Appellant sned appellees to recover damages for personal injuries received by liim while in their employ as a log-hauler in the woods. He was driving a four-mule team hitched to a log wagon, riding the lead mule of the rear span, and, while avoiding an obstruction in the log road, the wagon ran over a sapling which was dragged down onto appellant, striking him on the back and neck with such force as to crush him down on the pommel of the saddle, break three of his ribs and otherwise seriously injure him. Negligence of appellees was alleged to be that they failed to furnish him a safe place to work — failed to furnish him a safe road over which to haul logs. The particular allegations from the complaint in this respect being as follows: “That it was the duty of defendants to furnish plaintiff with a reasonably safe road over which to travel to said log yard, they having cut out said road and furnished it for plaintiff’s passage thereover. That defendants, in -cutting said road, failed to exercise ordinary care, but cut said road hurriedly and carelessly, leaving it narrow, crooked and dangerous. That plaintiff had used said road only on a few occasions, and at most of those times only for the purpose of taking his team alone to and from his work. That he had suggested to defendants that said road was not wide enough to haul logs over. That on said date plaintiff advised defendant, Weidman, when directed to go for said load of logs, that he, Weidman, according to his information, had recently, and since plaintiff had been over said road, cut certain special order logs along the course of said road and thrown some of the tops thereof in said road, which tops had not been entirely removed, thereby causing said road to be dangerous for the purpose of driving a wagon and team thereon. That defendant, Weidman, thereupon advised this plaintiff that he could get over said road and directed him to go for said load of logs. That plaintiff, without fault or carelessness on his part in carrying out said orders and attempting to pass around a tree top thrown in said road by defendant, Weidman, the said road thereby being made narrow, caught the bumper on the front end of said log wagon against a sapling, frightening the teams, one of which he was riding, throwing said sapling against his back and neck, crushing him down against the pommel of the saddle, breaking three of his ribs, and severely injur-1 ing his back and neck, causing him great physical pain and mental anguish.”
Appellees interposed a general demurrer to this complaint, which the court sustáined, and upon his declining to plead further, his comjplaint was dismissed.
We think the court was correct in so holding, and that this case is ruled in principle by the recent case of Williams Bros. v. Witt, 184 Ark. 606, 43 S. W. (2d) 237. We think the complaint fails to allege any negligent act upon the part of appellees. An experienced log-hauler, such as appellant alleges himself to be, knows without investigation that in hauling logs from the woods he doesn’t have an improved highway to travel over, and that the roads are crooked by reason of the necessity of avoiding obstructions. All these facts are known to the employee, as well as to the employer. He simply took the trail through the woods as he found it and voluntarily assumed all the risk and hazard in passing over it. The complaint shows that appellant knew and appreciated the danger incident to driving over the road. The driving of the team over or upon the sapling which was dragged down and struck appellant was his own act, and was not participated in by the appellees in any respect whatever. He was simply instructed to haul the logs and necessarily had to use his'own judgment in doing so. His employers were not present and were not immediately directing his actions. If there was any negligence, it was that of appellant himself. In Williams Bros. v. Witt, supra, we said: “The right-of-way where appellee received his injury was his accustomed place of work. Its condition was open to his observation when he took the job. Appellee had been engaged in farming and logging all of his life, and the work he was performing was no different from hauling wood on a farm or in hauling logs. An unavoidable accident is a complete defense against liability.”
So here, appellant’s injuries were not caused by any negligence of the appellees, but was simply an unavoidable accident, for which no person is responsible.
The court correctly sustained the demurrer, and the judgment of the court must be affirmed. | [
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Smith, J.
Appellant was engaged in constructing a concrete highway near Prescott, and was operating under the trade-name of D. H. Dalton Construction Company— not incorporated. A concrete, mixer was placed on the highway, and a number of trucks hauled sand, cement and gravel to it. At a distance of about 150 feet from tbe mixer there was what was called a “turn-around,” at which point the trucks were driven on to the highway, which was 18 feet wide, and were then backed down to the mixer. About half way between the mixer and the turn-around, at a curve in the road, the plaintiff was engaged in lining up the forms. He described his work as follows: “My duties were as form liner. The 'forms were on each side, about 18 feet across, and they are first pinned down in a straight line. It was my job to go back and straighten them out and make them cross-section straight, and make them 18 feet in between forms, and then level them up on top, and the forms are 10 feet long and 9 inches high. ’ ’
To do this work it was necessary for plaintiff to lie down so as to sight along the forms and to signal to his helpers to raise or lower the forms in order to level them. There was a constant stream of trucks backing down to the mixer or going back to the turn-around. While plaintiff was lying down in the performance of his duties, as stated, a truck was backed from the turn-around upon him, inflicting the serious injuries, to compensate which this suit was brought.
There was a verdict and .judgment for the plaintiff, and for its reversal it is insisted, among* other assignments of error, that the testimony is not sufficient to sustain the verdict. We do not pass upon this question, for the reason that the testimony does not appear to have been properly and fully developed upon this controlling question of fact. Indeed, the judgment must be reversed for this failure.
The defendant offered several witnesses by whom he proposed to prove that Deaton, the driver who ran over appellee, was a good, capable and efficient driver, but the court only permitted these witnesses to answer that Deaton drove the truck in the same manner that the other drivers customarily drove their trucks.
We think the court should have permitted the defendant to prove that Deaton was careful and efficient. In the case of Missouri Pacific R. Co. v. Riley, 185 Ark. 699, 49 S. W. (2d) 397, a headnote reads as follows: “On the issue of contributory negligence, evidence of witnesses acquainted with the skill and experience of plaintiff automobile drivers that they were careful and competent drivers, held admissible.”
In the instant case the issue is not whether Deaton, the truck driver, was negligent, for, being plaintiff’s fellow-servant, no liability would arise from that fact. The plaintiff, to establish his case, must prove something additional, and that is, that the master knew, or, in the exercise of ordinary care, should have known, that Dea-ton, the driver, was inexperienced or incompetent, or so reckless that a careful man would not have employed him as a truck driver. In other words, that it was negligence to have employed such a driver.
It was said, in the case of Duff v. Ayres, 156 Ark. 17, 246 S. W. 508, that the common-law rule as to responsibility for the negligent acts of fellow-servants has not been changed by statute, so far as concerns individuals who are employers of servants, but the master is liable for the act of an unskillful fellow-servant where he has been negligent in the employment, on the theory that the negligence in employing such a servant is the proximate cause of the injury. Certainly, upon such an issue it was competent to prove that the driver was efficient and careful.
It is insisted that this error of the court was invited by the defendant, in that the court excluded testimony offered by the plaintiff on this issue upon the motion of the defendant. In developing his case in chief, the plaintiff called Mr. Blakely, the foreman of the truck drivers, who testified that he did not think Deaton had had any experience in driving such a truck as the one which inflicted the injury, and that he knew he had not been using such a truck. The witness was then asked: “Did you think it would be dangerous to turn that boy loose?” An objection was sustained to the question, and the court also excluded the following question and answer: “Q. Ton then say he was too small to look over and properly operate that truck? A. Yes, sir.” Other questions and answers to which objections were sustained appeared to be directed to the alleged negligence of Deaton at the time of the injury.
The excluded testimony was to the effect that Deaton lacked only a few days of being 19 years old, and had been driving trucks for from '2% to 3y2 years to the knowledge of the witnesses, and that they regarded him as a capable and efficient driver. The father of Deaton would have testified that his son had been driving trucks since he was 12 years old, and had driven many different kinds of trucks.
The defendant should have been permitted to offer testimony tending to show that he was not guilty of negligence in giving young Deaton employment as a truck driver, and, for the error in excluding this testimony, the judgment must be reversed, and the cause will be remanded for a new trial; | [
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Smith, J.
Appellant resides on an improved road eight miles from Bentonville, and has his mail delivered daily by a rural route mail carrier. Appellee is his neighbor and first cousin. On Tuesday, December 2, 1930, ap-pellee purchased certain cattle from appellant, and in payment therefor gave a check for $600! on the Benton County National Bank, located in Bentonville. Appel-lee did not have this amount of money on deposit with the bank at the time he delivered the cheek, but he had arranged with the bank for its payment, and he told appellant that he could get his money at any time. The cattle were loaded in a truck by appellee and taken to Kansas City, Missouri, where they were sold, and the pro ceeds of the sale were deposited by him to the credit of the Kansas City correspondent bank of the Benton Connty National Bank.
Appellant is á farmer, and it was his custom — known to appellee — to go to Bentonville to sell produce and to uake purchases on Saturdays, and, except in eases of emergency, he did not go on other days.
On the Saturday following the sale of the cattle appellant went as usual to Bentonville, and upon arriving there he found that the bank upon which his cheek was drawn had closed its doors that day, and it has not since reopened.
The parties had several conversations about the check, and appellant has at all times demanded that ap-pellee pay it. The position of the latter was that they should divide the loss between them. Finally appellee paid appellant $200, which the latter refused to accept in full settlement of his demand, but when this payment was made appellee stated that he would pay nothing more unless the court compelled him to do so.
This is a suit on appellant’s part to recover the balance of $400, and is defended by appellee upon two grounds: (a) that appellant had negligently delayed to cash the check, and (b) that an accord and satisfaction had been accomplished.
The court found there had been no accord and satisfaction; and we concur in that view.
The difficult question is, whether, as found by the court below, appellant, by his delay, has not himself sustained the loss.
The law of the subject was reviewed in the recent case of Federal Land Bank of St. Louis v. Goodman, 173 Ark. 489, 292 S. W. 659, where the court quoted as follows from the case of Burns v. Yocum, 81 Ark. 127, 98 S. W. 956: “ CA cheek, like a bill of exchange, must be presented for payment within a reasonable time, and what is a reasonable time will depend upon the circumstances of each particular case. ’ ’ ’
It was said in the Goodman ease, supra, that what was a reasonable time in any case depends on the circumstances of the particular case, and “means such time as a prudent man would exercise or employ about his own affairs. ’ ’
The instant case is on the border line, hut, when the situation and circumstances of the parties are taken into account, we have concluded that the check was not held for a time so unreasonable as to require the payee to sustain the loss. The payee was a farmer, not engaged in a commercial business. He resided eight miles from the trading town, in which the bank was located upon which his check was drawn, and only three days intervened before the check was presented for payment. Under all the circumstances we have concluded that appellant was not guilty of unreasonable delay in presenting the check for payment.
Having found that appellant had negligently failed to present the check within the time required by law, the court below decreed that appellant be subrogated to the rights of appellee in the deposits of the latter with the insolvent bank, to the extent of $400.
The entire decree will be reversed, and the cause will be remanded with directions to enter a personal judgment against appellee for the unpaid balance of $400 with interest. | [
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Bunn, C. J.
On the 1st of November, 1894, the appellee, Smith, sold to the appellant the land in controversy for the sum of $275, payable in three annual installments, two for $92 each, and the third for $91, for which he took his three several promissory notes, each bearing interest at the rate of six per centum per annum from date until paid, and put the appellant in immediate possession, which the latter held until some time in August, 1897, making some improvements thereon in the meantime, and then abandoned the same to appellee, never having paid anything towards the satisfaction of said indebtedness.
In September, 1897, appellant purchased the outstanding title from the only heirs at law of Elizabeth Ballew, deceased, who appears to have been the original owner of said lands, having entered the same from the state under an act authorizing the sale of swamp and overflowed lands granted by the United States government to the state under the act of congress of September 28, 1850, and continued to own the same until sometime in the year 1883, when these lands were forfeited and sold to one Bennett for the non-payment of the taxes due thereon for the year 1882, and Elizabeth Ballew died without having redeemed the same from said forfeiture and sale. The appellant purchased from Word and Patterson, the only heii’S of Elizabeth Ballew,. in September, 1897, and at once took possession again, this time under this last purchase; said heirs in the meantime, to-wit, in June 1897, having, as such heirs, purchased said lands from the state land commissioner in right of the said Elizabeth Ballew, which carried with it the right of redemption from said tax sale, if any such right existed. The appellee, Smith, purchased from Bennett, and held under him at the time of his sale to appellant in 1894, and made his deed to appellant just prior to or at the time of the institution of the suit.
The complaint set up the sale of the lands from appellee to appellant, and the taking of the promissory notes, and the putting of appellant in possession, and his refusal and failure to pay anything on the notes, and prayed judgment for the amount of the notes and for other relief.
The appellant (the defendant in the court below) answered, and subsequently filed an amended answer, which seems to have been a substitute for the original answer, and was so treated by both parties and the court. This amended answer alleged that plaintiff had no title to the lands when he sold to defendant, and never had 'any title at any time. It, however, sets up that plaintiff held under said tax sale. And in said amended answer defendant asked that he, as the grantee of said heirs of Elizabeth Ballew, be allowed to redeem the lands from said tax sale of 1883, averring that they had but recently arrived at their majorities, and were not yet barred by statute in such cases made and provided, or language to that effect. Said amended answer, however, did not set up any objections to the regularity of said tax sale, nor did it state the date of the death of said Elizabeth Ballew. A demurrer was orally interposed to said amended answer, and was sustained by the chancellor; and, the defendant failing and refusing to answer over, the. chancellor took testimony of the counsel for plaintiff and of the defendant, and decreed for plaintiff for want of an answer, and on said testimony; and defendant appealed.
This suit was instituted in the chancery court for the western district of Craighead county, for the recovery of the purchase money of land, and decree for the amount, and vendor’s lien established, and order of sale. The only issue made is one of law raised by the demurrer to the amended answer. From what has been stated, it is evident that the said amended answer was not sufficient to constitute a defense, under the peculiar circumstances of the case. No legal objection was made or offered to be shown to the validity of the tax sale, in said amended answer, and the date of the death of the owner of said land — -Elizabeth Ballew — is not shown; and, of course, it does not appear, therefore, that any right of redemption descended to said heirs, or that they had acquired any such right by purchase from the state in right of their said ancestor. It devolved upon defendant to show a superior title in himself to that of plaintiff under an unquestioned tax sale, there being no charge of fraud made against him. Walker v. Towns, 23 Ark. 147; Desha v. Robinson, 17 Ark. 228.
The chancellor allowed defendant credit of forty-five dollars, the amount he paid for the title of the heirs of Elizabeth Ballew, and rendered decree for the balance, amounting to the sum of $264.50, and declared the same to be a lien on the land, and ordered their sale by the clerk, as special commissioner, to satisfy the amount of the decree.
For reasons above given, the decree is affirmed. | [
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Bunn, C. J.
The appellee, Pat Haynes, sued appellant company on an open account, claiming judgment for a balance of $750 in his favor. Prior to the institution of this suit, another suit was pending in the court below in replevin for several head of oxen (also involved in some way in this suit),wherein the Ozan Lumber Company was plaintiff and Pat Haynes was defendant; and on motion of the Ozan Lumber Company the two were consolidated, and the consolidated suit was transferred to the equity docket. The case is one of fact mostly, and there are about four items of account about which the parties are contending, namely, the construction of spur-track, a matter of interest, the value of certain houses for laborers and corrals for cattle built by appellee on appellant’s land, and the price of hauling saw logs, the difference being the alleged difference in the measurement of the same, or, as it is called among mill men, “the scaling.”
There is a controversy as to which of the parties should pay for the spur-track, the appellee contending that each should pay half, according to agreement, while the appellant company contends that it had no interest in it, but* that the spur track was altogether for the benefit of the appellee, and that it therefore should not be required to pay anything for its construction. Appellee valued it at $300, and charged appellant $150 on that item. It seems that appellant caused another party to cut some of the timber, which appellee claimed the right to cut and deliver to appellant company under their con - tract, and, to do so, would have to carry it over this spur track. At least, that is the contention* of appellee. When appellee discovered that appellant was permitting a third party to cut this timber, he refused to carry out the contract, and the appellant agreed to bear a part of the expense of constructing the spur track if appellee would continue to carry out his part of the contract.
Appellant claimed that appellee should pay it interest on the price of the oxen, amounting to the sum of $230.50. The whole question .turned upon whether appellee had really bought the oxen from appellant company at the time claimed, and whether any interest was contemplated under the transaction. These were the oxen for which appellant had brought his suit in replevin against appellee.
Appellant contends that the allowance made to appellee for the houses and corrals was illegal, and appellee contends that it was a proper charge for hire and against appellant, claiming that the lumber in the houses belonged to him, and that appellant took possession of same without his permission, and moved the houses off, appropriating the same to his own use.
In the matter of the logs, the contention of appellant is that the log hauling should be paid for by the scaling at its mill, and by that only, because in their contract they had agreed to make the scaling at the mill the criterion by which the hauling should be estimated; and that evidence of scaling made elsewhere would be inadmissible. It is contended by appellee, in effect, that the correctness of the scaling at the mill may be impeached by correct sealing elsewhere, and that his testimony was for that purpose, and to that effect. The rule laid down in Hot Springs Ry. Co. v. Maher, 48 Ark. 522, is applicable to a question like this. Where a question as to quality, quantity or manner of construction of work to be done is left to be decided by an engineer in charge, and it is agreed that his decision shall be final, his decision cannot be questioned by either party, except for fraud or such gross mistake as would necessarily imply bad faith or a failure to exercise an honest judgment. The same would be true of an agreement as to one person to scale, or one place of scaling. Notwithstanding the agreement, neither decision nor manner of estimating is conclusive on the parties, but evidence may be adduced to show fraud, gross mistake or bad faith, and the matter corrected in this way, so as to do justice. This appellee claims to have sought to accomplish in introducing his testimony on the subject, and we see no error in it.
These items of account were all referred to a master, who took testimony and made his report to the chancellor, and, this being excepted to, the same was by the chancellor approved, and, making this report the basis of his findings, the chancellor rendered the decree from which this appeal is taken.
We see nothing to justify us in reversing the decree, and the same is affirmed.
Wood, J., not participating. | [
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Hart, J.
Mrs. E. J. Vaught instituted this action against W. A. Martin, as constable, to recover the possession of two cows. There was a verdict and judgment for the plaintiff in the justice court where the suit was commenced, and the defendant appealed to the circuit court. In the circuit court there was again a verdict and judgment for the plaintiff and the defendant has appealed to this court. The material facts are as follows:
Mrs. E. J. Vaught owned a homestead in Montgomery County, Arkansas, upon which, among other personal property, there were the two cows involved in this suit. Her son, Garland Yaught, and Liza Yaught, his wife, resided on the place, and the cows in controversy were in their possession for several years. Garland Yaught died and at the time had an account for merchandise with W. C. Green. After his death Mrs. Liza Vaught assumed the account of her dead husband and continued to trade with Mr. Green. When the account became due she refused to pay it. Mr. Green sued her and obtained judgment against her for the amount of the account. An execution was issued on the judgment and placed in the hands of W. A. Martin, constable of the township in which she resided in Montgomery County. He levied the execution on the cows involved in this suit as the property of Mrs. Liza Yaught, and Mrs. E. J. Yaught instituted an action in replevin against the constable to regain possession of the cows.
According to the testimony of Mrs. E. J. Vaught, she owned the cows and had loaned them to her son Garland, who resided on her place. She stated that he did not own the cows and never claimed to own them.
Another son also testified that she owned the cows and only permitted her son Garland to keep them for their milk, and that he did not claim the cows at all.
Evidence was adduced by the defendant tending to show that the cows had been in possession of Garland Vaught and his wife for more than five years and that he had mortgaged the cows every year and had always claimed to be the owner of them. Other circumstances were adduced in evidence tending to show that the cows belonged to Garland Vaught.
In rebuttal, Mrs. E. J. Vaught testified that she signed a mortgage with her son at one time. She denied knowing that he had ever mortgaged the cows any other year. It was shown by her son that she had paid taxes on the cows.
The defendant claimed that he was entitled to a verdict under section 3661 of Kirby’s Digest, which provides in substance that a pretended loan of chattels for five years without demand shall be void unless such loan was in writing as required by the statute. The court properly submitted the theory of the defendant to the jury and there was sufficient evidence to sustain the verdict for the plaintiff. The defendant asked the court to give instruction No. 5 to the jury, which is as follows:
“No. 5. The court instructs the jury that the preponderance of the evidence is not necessarily determined alone by the number of witnesses testifying to any fact or facts, but in determining where the preponderance is, you may also take into consideration the opportunities or occasions of the witnesses for seeing or remembering what they testify to or about, the probability or improbability of its truth, the relation or connection, if any, between the witnesses and the parties, their interest in the result of the case, and their conduct and demeanor while testifying. ’ ’
The court refused to give the instruction and error calling for a reversal of the judgment is predicated upon the ruling of the court. We think the assignment of error is well taken. An instruction in all respects similar to the refused instruction was approved by the court in Newhouse Mill & Lumber Co. v. Keller, 103 Ark. 538. In the present case the court did not give any instructions on this phase of the case. Two of the witnesses for the plaintiff were her sons, and they were material witnesses in her behalf and their testimony strongly tended to corroborate her testimony. 'Hence it was prejudicial error not to give any instruction on this question. The defendant having asked a correct instruction, it was prejudicial error to refuse to give it.
The defendant also asked for a reversal of the judgment because the court failed to give an instruction asked by h'im that the burden of proof was upon the plaintiff. The instruction asked for was correct, but if this was the only assignment of error relied upon for a reversal of the judgment, the court would not reverse it because the instructions of the court in effect cast upon the plaintiff the burden of proof in the whole case. It would have been better, however, for the court in plain terms to have told the jury that the burden of proof was upon the plaintiff and that it devolved upon her to establish her case by a preponderance of the evidence.
For error in refusing instruction No. 5, asked for by the defendant, the judgment will be reversed and the cause remanded for a new trial. | [
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Humphreys, J.
Appellee intervened in the proceeding to liquidate the assets of the American Exchange Trust Company of Little Rock pending in the chancery court of Pulaski County to obtain judgment for $34,506.40 against the Bank Commissioner and liquidating agent, in their official capacities, for an alleged trust fund derived from the sale of bonds of Sevier County issued for the' purpose of building a courthouse, and to have the amount allowed as a preferred claim.
Appellant filed a response, denying the alleged indebtedness and the right of appellee to have any amount allowed as a general or preferred claim.
The cause was submitted upon the pleadings and testimony, which resulted in a finding and decree against appellants in their respective capacities as State Bank Commissioner and liquidating agent of the American Exchange Trust Company for the total sum of $33,649.67 as a preferred claim to he paid out of any funds in their hands for the payment of preferred claims, and that bonds substituted for Sevier County bonds and delivered to appellees should be returned to appellants, from which findings and decree, adverse to the respective parties, each appealed.
The following facts are reflected by the record:
Bonds legally voted and issued in the sum of $110,-000, to obtain money with which to build a new courthouse in Sevier County, were sold on June 2, 1930, to M. W. Elkins & Company, of Little Rock, Arkansas, which sale was confirmed and approved by the county court of Sevier County. The county judge addressed a- letter to the American Exchange Trust Company in the following words and figures:
“De Queen, Arkansas.
“June 14, 1930.
“Mr. J. B. Webster, Trust Officer, American Exchange Trust Company, Little Rock, Arkansas.
“Dear Sir:
“We are shipping to you $110,000 Sevier County, Arkansas, 5 per cent, courthouse and .jail bonds to be delivered to M. W. Elkins & Company at par flat, as the full purchase price of the issue is $110,000 flat. The bonds are to be delivered to M. W. Elkins & Company as follows:
“When they receive the approving opinion of B. H. Charles, St. Louis, they agree to take up $3,000 of the bonds and balance on architect’s monthly estimates for work done. You are further authorized and instructed to deliver, all or any part, any maturities, of the bonds to M. W. Elkins & Company at the above price from time to time, as they may request. You are to allow M. W. Elkins & Company to substitute this account with bonds of the county or other municipal bonds of equal par value.
“When you have received the first cash payment, please deposit same in your bank. The balance of -the funds are to be drawn out on architect’s estimates for work done by drafts on M-. W. Elkins & Company, care of your bank, signed by the county judge, with a copy of the architect’s estimate attached, once each month, beginning thirty days from the date the work starts.
“Yours very truly,
“J. C. Arnold,
“County Judge of Sevier County, Arkansas.”
This letter of instructions was enclosed in a letter from the attorney employed by Sevier County to the American Exchange Trust Company and mailed to it on June 16,1930. The letter of the attorney is as follows';
“American Exchange Trust Company,
“Little Rock, Arkansas.
“Dear Sir:
“Attention, Mr. J. B. Webster, Trust Officer.
“I am shipping you under separate coyer, by prepaid express, $110,000 of Sevier County, Arkansas, 5 per cent, courthouse and jail bonds, and I am handing you herewith a letter of instructions, signed by the county judge, a nonlitigation certificate and a treasurer’s receipt. You will note in the letter of instructions that you are requested to deposit the cash payment of $3,000 in your bank. Please advise me promptly as soon as this money is deposited.
“Very truly yours,
“Abe Collins.”
Elkins & Company sold the Sevier County bonds from time to time and deposited the cash received from them in the trust department of the American Exchange Trust Company, under an agreement with it that the money might he withdrawn by substituting other bonds for the amounts drawn out. Some of the money was paid out on the county judge’s drafts drawn on Elkins & Company with architect’s estimates attached. The result was that, when the American Exchange Trust Company closed its doors, practically all the money derived from the sale of the Sevier County bonds which had not been expended for the construction of the courthouse and to pay the fiscal agent’s fee to Elkins & Company had been converted by Elkins & Company into bonds of little value, some of which were entirely worthless. Later, the Bank Commissioner and liquidating agent of the American Exchange Trust Company refused to act further in collecting the bonds which had been substituted for the money derived from the sale of the Sevier County bonds, and, by agreement, said substituted bonds were transferred to a depository bank in Sevier County, where a portion of them were sold. The original Sevier County bonds were sold to Elkins & Company, supposedly at par, but a fiscal agent’s fee was allowed to a man by the name of Toland, and was paid to Elkins & Company ont of tlie funds derived from the sale of the bonds, so that in fact they were sold to and purchased by Elkins & Company below-par. On the day the defunct bank closed its doors, there was enough cash on hand to pay all preferred claims, and also to pay the balance due Sevier County, if classed as a preferred claim.
The trial court found that the letter of instructions only authorized the substitution of other bonds for Sevier County bonds by Elkins & Company, and did not authorize Elkins & Company to substitute other bonds for money derived from the sale of the Sevier County bonds, and we agree with the court’s interpretation of the letter of instructions. The only object in selling the Sevier County bonds was to obtain money with which to build a courthouse. Such purpose was accomplished when the Sevier County bonds were converted into money. It would have been beside and beyond the object .and purpose to be attained if the letter of instructions meant that Elkins & Company might purchase other bonds with the money derived from the sale of the 'Sevier County bonds. Such interpretation would have permitted Elkins & Company to use Sevier County money derived from the sale of its bonds to speculate in the bond market. The only authority in the law for handling the proceeds from the sale of the Sevier County bonds was to pay the public fund thus derived to the treasurer of Sevier County for the purpose of placing it in the county depository, all in accordance with the provisions of act 163 of the Acts of 1927 and act 139 of the Acts of 1931.
We also agree with the chancellor that appellants were entitled to an accounting for the amount of the fiscal agent’s fee paid, indirectly to Elkins & Company out of the funds derived from the sale of the bonds of Sevier County. The constitutional amendment under which the bonds were issued and sold inhibited a sale of them below par, and to deduct and pay a fiscal agent’s fee indirectly would permit a sale of them below par.
"We also agree with the chancellor that the amount of the public fund derived from the sale of the Sevier County bonds was and is a trust fund. The trust department of the American Exchange Trust Company accepted the bonds for collection and thereby agreed in writing to pay over the fund collected to the county judge of Sevier ■County on his drafts, in such amounts as- were needed, monthly, to pay for the construction work on the courthouse as it progressed, according to architect’s estimates attached to drafts. No authority was given in the letter of instructions to deposit more than the $3,000 first collected to the credit of Sevier County, which amount was drawn out long before the doors of the American Exchange Trust Company were closed. According to the authority in the letter of instructions, the balance of the fund was to be held to pay drafts drawn on Elkins & Company with architect’s estimates attached. This fund therefore was necessarily a trust fund in the hands of a trustee for a particular purpose, evidenced by writing, and was not to be mingled with the general funds of the American Exchange Trust Company. Under subdivision 5 of § 1, act 107 of the Acts of 1927, the fund became an express trust to which appellees were entitled to the exclusion of general creditors.
We also agree with the chancellor that the transfer of the substituted bonds by agreement to the depository in Sevier County and a sale of a part of them did not estop the county from claiming the balance of the trust fund rightly belonging to it. The fund was a public trust fund, and there was no authority in the law for the county judge or any other public official to waive the county’s right to it.
It follows, as a matter of course, that the county has no rig’ht or title to the substituted bonds. The chancellor correctly ordered that they be returned to appellants.
The decree is affirmed on both the appeal and cross-appeal.
Smith and McIíaNey, J J., dissent. | [
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Riddick, J.,
(after stating the facts.) The question raised by this appeal has ali’eady been considered by the court. In the recent case of Jamison v. Adler-Goldman Com. Co. 59 Ark., 548, we held that the assets of an insolvent decedent’s edate are to be apportioned among creditors of the same class in proportion to the amounts severally due them at the time of the apportionment, and that, in ascertaining the amounts due to secured creditors, any sums realized by them on their securities since obtaining their judgments in the probate court should be deducted. Now, at the time the order of apportionment was made in this case nothing had been paid on the claim of Lofland. The fact that it was secured by a mortgage on real estate was a matter of no moment, so far as the apportionment was concerned; for, as we stated in the Jamison case, “secured and unsecured claims are classed and paid on the same basis.” The mortgage given to secure the debt did not constitute a payment, either in whole or part, and, as no part of his judgment is paid, Lofland is entitled to a pro rata on the whole amount thereof, in accordance with the order of the probate court.
Whenever the debt is paid in full, the mortgage will of course be discharged, and the property, relieved of the lien, will belong to the estate; but the court cannot, after the apportionment has been ordered, compel the creditor to foreclose his mortgage, and credit the proceeds on his debt, in order to reduce his claim, and lessen the amount of the apportionment due theron. Jamison v. Adler-Goldman Com. Co. 59 Ark. 548; Erle v. Lane, 22 Col. 273; Philadelphia Warehouse Co. v. Anniston Pipe Works, 106 Ala. 357.
Whether this could have been done before the order of apportionment was made is a question we need not consider in this case. For the reasons stated the judgment of the circuit court will be reversed, and the cause dismissed for want of equity. | [
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Hart, J.
The American Freehold Land Mortgage Company of London, Limited, instituted this action in the chancery court against T. C. Wimberly and Jennie Wimberly, his wife, to recover judgment for the balance alleged to be due them and to foreclose a mortgage on land given to secure the debt.
A. H. Scoggin, receiver of the Egleton Lumber Company, intervened in the action and set up that he sold Ezra J. Morgan some of the assets of the lumber company, and on May 21, 1913, received certain notes executed by Thomas C. Wimberly to E. J. Morgan as collateral security therefor. He alleged that Wimberly sold the land to Morgan, and that there was a resale of the land by. Morgan to Wimberly, and that the notes were given by Wimberly to Morgan as part of the purchase money of the land. He prayed that he be permitted to pay whatever judgment that might be rendered in favor of the mort gage company, and that he be subrogated to all the rights of the mortgage company, and that he have an enforcement of the lien of Morgan against Wimberly on the purchase money notes given by the latter to the former.
Gfoodbar & Co. also filed an intervention in the action. It stated that on May 27, 1914, it filed suit in the Pulaski Circuit Court against Ezra J. Morgan, and obtained a writ of attachment which was levied upon the lands involved in this suit; that on October 21, 1914, judgment was rendered in its favor against Morgan in the sum of $471.53, The hearing of the attachment branch of the case was continued to November 3, 1914, at which time the attachment was sustained by the court, and it was ordered that the lien of said attachment take effect from and after date of the issuance and levy on May 27, 1914. The prayer of the complaint was that it should be declared a superior lien to that of A. H. Scoggin, receiver, etc., and that its lien be declared second only to that of the mortgage company.
The defendants, T. C. Wimberly and Jennie Wimberly, filed an answer in which they admitted the debt to the mortgage company, and that its mortgage was a valid lien on their land. They denied, however, that the land had been sold by them to Ezra J. Morgan, and set up that the deed to him, though absolute in form, was only intended to secure a loan of money made by Morgan to Wimberly. They also pleaded that the mortgage debt to Morgan was usurious and void. They prayed that the interventions of Scoggin, as receiver, and of Gfoodbar & Co., be dismissed; that the notes executed by Wimberly to Morgan be cancelled and the transaction between them be declared a mortgage.
The court found that Wimberly owed the mortgage company the sum of $879.45 with interest from July 1, 1916, until paid at the rate of 10 per cent, per annum, and the mortgage on the land was ordered foreclosed. The court also found that the deed executed by Wimberly and wife to Morgan and the contract of sale from Morgan back to Wimberly was only a mortgage to secure the amount of money loaned Wimberly by Morgan. The court further found that Morgan transferred to Scoggin, as receiver, the notes of Wimberly to secure the payment of an amount due by Morgan to the receiver. The court further found that Morgan never paid off the plaintiff’s mortgage as he agreed to do and that the sum of $877.45 should be deducted from the amount of the notes of Wimberly held by Scoggin, as receiver. It was decreed that Scoggin, as receiver, should recover from Wimberly the sum of $1,611.77 with interest from that date at 10 per cent, per annum, and that there should be a lien upon the lands involved in this suit to secure the payment thereof subject to the debt of the mortgage company.
The cross-complaint of Groodbar & Co. was dismissed for want of equity. The defendants, T. C. Wimberly and Jennie Wimberly and Groodbar & Co. have appealed. The material facts are as follows:
T. C. Wimberly is a colored man, and in 1901 owned eighty acres of land on the Arkansas River, in Pulaski County, not far from Little Rock. On the 20th of March, 1901, he mortgaged his land to the American Freehold Land Mortgage Company of London, Limited, for $1,304, to be paid in yearly payments of $100 each. He kept up his payments for several years, but finally got behind. In February, 1912, he owed the mortgage company $839.77, which he was unable to pay, and the mortgage company threatened him with foreclosure proceedings. There was also a judgment against him in the Pulaski Chancery Court in the sum of $544.10, and there were levee taxes due on the lands to the amount of $183. Being unable to pay these amounts, on the 26th day of February, 1912, Wimberly went to the office of Walter J. Terry in Little Rock, to seek his assistance in borrowing money to meet these obligations, and also an additional amount of $100 with which to make a crop. Terry had been the attorney of Wimberly in the past, and was also the attorney for the Southwestern Telephone & Telegraph Company. This company had just purchased the telephone lines of another company, and Ezra J. Morgan had received as com missions for making the sale, between fifty and sixty thousand dollars. He came into Terry’s office while Wimberly was there. Terry suggested that Morgan might lend Wimberly sufficient money with which to meet his obligations. The result of the transaction was that Wimberly and wife executed a deed to Morgan to the eighty acres of land above referred to, and Morgan advanced him $835 in money. A written contract was then entered into between them, whereby Morgan agreed to convey the land back to Wimberly in consideration that Wimberly should execute to him one note for $335 due and payable December 1,1912, with interest at the rate of 10 per cent, per annum from date until paid, and eleven notes for $270 each, one due every year f .ir the eleven years. These notes were to bear interest at the rate of 10 per cent, per annum from maturity until paid.
W. J. Terry testified that he had known Wimberly for twenty years, and that he was a reliable old negro; that he had assisted him in looking after his business; that the mortgage company was threatening foreclosure proceedings; that he remembers the transaction between Morgan and Wimberly; that the reason he remembers it so well is that his telephone company had purchased property from another telephone company by which Morgan had made fifty or sixty thousand dollars in procuring the sale; that it was explained to Morgan that Wimberly would need $1,674.79, which included the debt due by Wimberly to the mortgage company; that Morgan agreed to pay off the debt of the mortgage company and also to advance Wimberly the amount necessary to pay off the judgment against him, the levee taxes, and one hundred dollars with which to make a crop; that the amount so advanced was $835; that to secure Morgan, it was agreed that Wimberly and his wife should deed to Morgan the eighty acres of land in controversy, and that at the same time Morgan should enter into a written contract of sale with Wimberly, whereby he agreed to convey the land back to him upon the repayment of the money loaned by him to Wimberly, and of the amount which he should pay to the mortgage company to secure the release of the mortgage which it held on the land; that he, Terry, did not have time to draw up the instruments of writing necessary to carry out the agreement of the parties, and that his partner, John P. Streepey, was called in, and the agreement was stated to him. Streepey prepared the deed from Wimberly and wife to Morgan, and the contract of re-sale from Morgan to Wimberly. He said it was the intention to calculate in advance the interest which' would become due on all the notes, and add it to the principal, and for this reason the notes should only bear interest after maturity.
Streepey testified that he prepared the papers according to directions, and stated that his understanding was that the transaction was intended to be a loan from Morgan to Wimberly.
Wimberly testified in his own behalf, and in all respects corroborated the testimony of Terry. He further stated that he paid the $335 note and the accrued interest to Morgan at the time it became due, and that he paid two of the $270 notes about the time they became due; that he thought that Morgan had paid off his debt to the mortgage company until about two years afterward; that when he found out Morgan had not done this, he filed his contract for record on July 2, 1914; that his land was worth $5,000, and that he had been offered $4,000 for it a good many times. The record shows that Wimberly received $835 from Morgan, and that Morgan did not pay off Wimberly’s debt to the mortgage company.
Morgan testified that he bought the land from Wimberly subject to the mortgage on it, and that he paid him therefor $835. He stated that nothing was said about a re-sale until after he had purchased the land from Wimberly; that the question of re-sale came up then, and he agreed to sell it back to him for the amount stated in the written contract. His testimony flatly contradicted the testimony of the witnesses for Wimberly.
(1) While a deed absolute on its face is presumed to be an absolute deed, equity will permit parol evidence to be introduced to show that it was intended as a mortgage ; but to overcome the presumption of law, and establish the character of a mortgage, the evidence must be clear, unequivocal and convincing. Hays v. Emerson, 75 Ark 551; Rushton v. McIllvene, 88 Ark 299, and Gates v. McPeace, 106 Ark. 583.
Tested by this rule, the finding of the chancellor that the deed of Morgan to Wimberly was intended as a mortgage, and not as an absolute conveyance, is sustained by the evidence. It is true that according to the testimony of Morgan himself, the transaction was an absolute sale, but Morgan is flatly contradicted, both by Terry and Wimberly, as well as from circumstances in the case. It is pointed out that there are some inconsistencies in the testimony of Streepey. These alleged inconsistencies are clearly shown to have been due to the witness not having a clear recollection of the matter when he first testified. His testimony was taken several years after the transac-. tion occurred, and when he refreshed his memory by looking over some letters and other files in his office, his testimony is consistent in itself and tends to corroborate the testimony of Terry and Wimberly.
All that Morgan ever gave Wimberly was $835, and that was paid out by Streepey as follows: $544 was applied to cover a judgment against Wimberly in the circuit court; $4.50 to cover abstract expenses; $183 for delinquent levee taxes; $63.40 paid to Wimberly in cash and $40 of it was paid to Terry’s firm for their services. Morgan never did pay off the debt to the mortgage company.
(2) For the purpose of ascertaining the true intention of the parties, it is a well established rule, that courts will not be limited to the terms of the written contract, but will consider all the circumstances connected with it; such as circumstances of the parties, the property conveyed, its value, the price paid for it, defeasances verbal or written, as well as the acts and declarations of the parties, and will decide upon the contract and the circumstances taken together. Scott v. Henry, 13 Ark. 112.
(3) In a case note to 20 A. & E. Ann. Cas., at page 1199, numerous decisions are cited to the effect that the adequacy of the price has been recognized as a circumstance to be considered in determining the question whether the transaction was a sale or a mortgage. Several decisions there are also cited to the effect that gross inadequacy of price is given great weight in determining the question whether the transaction was intended as a sale or a mortgage.
(4) According to the testimony of Wimberly, himself, his land was worth $5,000, and he had been offered $4,000 for it a number of times. No attempt was made to contradict his testimony in this respect. The fact is undisputed that he went to the office of Terry, who had been in the habit of attending to his business for him, for the purpose of borrowing money to pay off the mortgage on his land, as well as to pay his other debts. He resided on the land, and it was not subject to the payment of any of his debts without his consent, except the debt of the mortgage company. His land could only have been sold for the purpose of paying that debt. It is true he wished to pay his other debts, but his land could not have been sold against his will for the purpose. Indeed, the whole amount of his debts was only about one-third of the value of his land. He readily entered into the agreement with Morgan without making any further attempt to borrow money. Therefore, under all the facts and circumstances introduced in evidence, we think, as above stated, the chancellor was right in holding the transaction to be a mortgage, and not an absolute sale of the land.
(5) We think, however, the chancellor erred in not sustaining Wimberly’s plea of usury. The total principal which Morgan agreed to lend Wimberly was $1,674.79. $835 of this was furnished in cash, and the balance was to be paid toward the satisfaction of the debt of the mortgage company. Wimberly executed to Morgan one note dated February 27, 1912, and payable December 1, 1912,» with interest at 10 per cent, per annum from date until paid, and eleven notes for $270 each, dated on the same day, and one payable on the 1st of December of each year for eleven years, with interest from maturity. It is perfectly evident that this amounted to more than 10 per cent, interest on the amount of money which Morgan agreed to furnish Wimberly. According to the testimony of the witnesses for Wimberly, it was Morgan’s intention to do this, and Morgan prepared the amount and number of notes which were recited in the contract. The notes and contract, being usurious, were void in the hands of Scoggin, as receiver. German Bank v. Deshon, 41 Ark. 331.
Moreover, the notes which Wimberly executed to Morgan, referred to there being a series of- notes mentioned in the contract of the same date. They thereby became a part of the contract itself, and inasmuch as we have held the transaction to be a mortgage, the notes would be subject to the same defenses in the hands of Scoggin that they would have been in the hands of Morgan. Morgan only advanced $835 on the transaction. The proof shows that $40 of this was paid to Terry’s firm for legal services by agreement, and this left $795, which went into the hands of Wimberly. Wimberly paid to Morgan the $335 note with accrued interest when it was due, and two of the $270 notes about the time they became due. So that it will be seen that he paid back to Morgan more than he received from him with interest on the same.
Having held that the transaction between Wimberly and Morgan was a mortgage, and not an absolute sale, it follows that the land did not belong to Morgan, and that Goodbar & Co. did not acquire any lien on the land by virtue of its attachment.
It follows that the chancellor erred in not sustaining Wimberly’s plea of usury, and in rendering judgment in favor of Scoggin, as receiver, against Wimberly. The decree, will, therefore, be reversed, and the cause remanded for further proceedings in accordance with this opinion. | [
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Smith, J.
This suit was brought to foreclose a mortgage executed by N. J. England and Mary J. England, his wife, on November 17,1907, to secure certain notes which matured February 16, 1911. N. J. England died some time prior to November 16, 1910, this being the date of the letters of administration which were granted to his wife on his estate; the exact date of his death is not shown by the record. This suit was filed September 23, 1915, which was within less than five years from the date of the maturity of the notes, but more than two years after the issuance of letters of administration. The defendants de murred to the complaint upon the ground that the cause of action was barred; but the demurrer was overruled. Defendants stood on their demurrer, and have appealed from the decree of foreclosure, which was rendered upon their refusal' to plead further.
The parties agree that the decision of this case turns upon the construction to be given Act No. 260 of the Public Acts of 1911, page 256. The history of this legislation has been recited in former opinions of the court, and may! be here summarized as follows: In the case, of Mueller v. Light, 92 Ark. 522, it was held (to quote the syllabus) that “where the mortgagor dies before the statute bar of five years applicable to the mortgage note has attached, the statute of limitation which applies to the mortgage is thb statute of nonclaim,” and that the right to foreclose was barred when the debt itself was barred by the statute of nonclaim. Culberhouse v. Hawthorne, 107 Ark. 462; Rhodes v. Cannon, 112 Ark. 6.
The opinion in the case of Mueller v. Light, supra, was delivered November 29,1909, and the act of 1911 was' passed at the first session of the Legislature thereafter, for the manifest purpose of changing the law as announced in that opinion. This result was accomplished by amending section 5399 of Kirby’s Digest, this being a section which prescribed the time within which suits td foreclose mortgages and deeds of trust should be brought. By a comparison of the act of 1911 with this section of; Kirby’s Digest, it will be seen that section 5399 of Kirby’s Digest is re-enacted with the addition of the following; proviso:
“Provided, that in all cases where any indebtedness has been or may hereafter be secured by any mortgage or deed of trust, such mortgage or deed of trust may be enforced or foreclosed at any time within the period prescribed by law for foreclosing mortgages or deeds of trust so far as the property mentioned or described in such deed of trust or mortgage is concerned; but no claim or debt against the estate of a dead person shall be probated against such estate whether secured by mortgage or deed of trust or not, except within the time prescribed by law for probating claims against estates. ’ ’
In construing this act of 1911 in the case of Rhodes v. Cannon, supra, we said: “A reasonable interpretation of it is that it only refers to debts that have been contracted and their payment secured by mortgage or deed of trust prior to its enactment, but which were not barred at that time, and to such as might thereafter be executed, and gave to the creditor the right to go into the probate court and present his claim in the usual way against an estate generally, or to foreclose his lien in a chancery court, or by sale under the power, or to pursue both reriie-. dies; and since the enactment of this amendment any creditor may or may not, as best suits him, probate his. claim. If he prefers to collect it within the period of administration he will probate it. If the security is ample and he prefers the interest, he can let the claim run and foreclose his lien, as he could do if the obligor had not died.”
It is now argued that the statement in that opinion that the creditor could, if he so elected, postpone the foreclosure of his lien, without reference to the statute of non-claim, and that the applicable statute is the statute of limitations which would have applied if the obligor had not died, was obiter, as the controlling questions in that case were, whether this act of 1911 was retroactive, and whether one can have a vested right in the defense of the statute of limitations when the bar of the statute had once attached. However that may be, the question is now squarely presented by the record in this case, and we now approve the statement of the law quoted from that opinion.
It is argued that the obligor died prior to the enacrt ment of the act of 1911, and that letters of administration upon his estate issued November 6,1910, and that there-; after the statute of limitations commenced running against any action to foreclose the mortgage given by1 him, this statute being the statute of nonclaim, and that; this act of 1911 did not, and could not, change this statute so far as it related to that cause of action. As we have' said, however, in Rhodes v. Cannon, supra, the purpose and effect of this legislation was to provide that thereafter the period of limitations governing the foreclosure of mortgages and deeds of trust, either by suit in chancery, or by proceedings under the power of sale incorporated in such instruments, should not be that provided by the statute of nonclaim, but should be the general statute of limitations applicable to the debt for which the-security was given, had the debtor not died.
Appellant’s construction of the act would render it nugatory as applied to the facts of this case. Indeed, the contention is made that the act did not, and could not, change the statute of limitations which was set in motion upon the death of the obligor. While we said, in the case of Rhodes v. Cannon, supra, that one may have a vested right in the defense of the statute of limitations, of which he can not be deprived by subsequent legislation, we have never held that this right becomes vested before the statute has fully run. We have held to the contrary. The period of limitations may be shortened, provided a reasonable time is allowed, after the act accomplishing that result is passed, in which an interested party may prevent the consequences of the act falling upon him. So, also, the time for the falling of the bar of the statute may be postponed. That the power to enact such legislation exists, see Wood on Limitations (4 ed.), § 11; Dyer v. Gill, 32 Ark. 410; Hill v. Gregory, 64 Ark. 317; Tipton v. Smythe, 78 Ark. 392; Pope v. Ashley, 13 Ark. 262; Sadler v. Sadler, 16 Ark. 628; Towson v. Denson, 74 Ark. 302.
The mortgage was not barred when the act took effect, the administration having commenced about six months prior thereto, and, upon its enactment, the act of 1911 became applicable, and the period of limitation became five years, the debt secured being a promissory note.
' The demurrer was properly sustained, and the judgment is affirmed. | [
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McCulloch, C. J.
Appellees owned a farm in Matagorda County, Texas, containing 149.10 acres of the value of about $8,000, and on June 29,1916, they entered into an agreement with appellants to exchange said farm for two tracts of land in Washington County, Arkansas, containing in the aggregate 558 acres, then owned by appellants. Deeds were exchanged between the parties conveying to each the respective lands to be received. The contention of appellees is that the deeds were not delivered in consummation of the agreement, but merely to be held by each party for the inspection of their respective attorneys and until abstracts of title could be furnished; that appellants, by willful misrepresentations concerning the location and character of lands to be conveyed, deceived them and thereby fraudulently induced them to enter into the bargain, and that as soon as they discovered the fraud they offered to return to appellants the deed executed for the Washington County lands and demanded the surrender of the deed executed by appellees to the Texas lands.
This action was instituted by appellees in the chancery court of Washington County on July 5, 1916, to compel appellants to accept a surrender of the deed to the Washington County lands and to restore to appellees the deed executed by them to the Texas lands, or to require appellants to execute to appellees a deed reconvey ing- the Texas lands. Appellants contend, and so allege in their answer, that there was no fraud or misrepresentation practiced by them on appellees; that the bargain was entered into and consummated by them in good faith, andi without any misrepresentations concerning the land, and that the deeds were not, as alleged in the complaint, merely handed over to be held until the abstracts of title should be completed, but were delivered in consummation of the bargain. The chancellor on the final hearing of.the cause decided in favor of appellees and rendered a decree requiring appellants to execute to appellees a deed reconveying the Texas lands.
It is seen from the above recital of facts that this suit was commenced with unusual promptness after the alleged cause of action arose, and that it was heard in the chancery court and decided without delay. The chancellor heard the testimony of the witnesses, delivered orally at the bar, and reached the conclusion that gross fraud had been perpetrated and granted appropriate relief. The question presented for us is whether or not the finding of the chancellor is against the preponderance of the evidence.
Appellees, A. L. Anderson an.d wife, resided in Texas, where their farm was situated, but sought a new home on account of the ill health of the wife. Through the suggestion of some one, Anderson went to Washington County, Arkansas, to find a home, and was directed to a man in the town of Prairie Grove, in that county, who was engaged in the real estate business, and who it appears had the lands of appellants listed for sale. Those lands consisted of a farm containing 198 acres a few miles distant from Prairie Grove, and a tract of wild land containing 360 acres situated about fifteen miles from Prairie Grove. Anderson left his wife at Benton, Arkansas, and visited Washington County alone without having any acquaintances there. Appellants, Fegan and wife, resided at Prairie Grove, and the negotiations were conducted by Fegan through a real estate agent, Edmiston, the man to whom AndersoD was directed. Anderson was turned over to Edmiston and was taken out to see the 198-acre tract, which he found to be satisfactory, but he did not see the other tract. He testified that Edmiston stated to him that the other tract contained 100 acres of good tillable land lying in the valley, and was covered with good merchantable saw timber, the timber being reasonably worth $12 an acre and could be readily sold for $7 per acre—that an offer of $5 per acre had been made for it. He testified also that Fegan told him that the 360-acre tract was covered with good timber—that part of the timber consisted of large trees which might be a little worm-eaten, but that there was plenty of good merchantable timber on the land. This occurred during the early part of June, somewhere between the 5th and 9th of that month, and a tentative agreement was entered into for the exchange of the properties, conditioned upon Fegan becoming satisfied after making inquiry concerning the Texas land owned by the Andersons. Anderson testified that he entered into this agreement without going to see the 360-acre tract in reliance upon the representations made to him by Edmiston and Fegan. . Proceedings were suspended until Fegan could inquire about the Texas lands, and Anderson went back to Benton, Arkansas, to rejoin his wife. There was correspondence between Edmiston and Anderson, in which Anderson appeared anxious to make the trade and Edmiston urged him to hurry up, and to do so for the reason that, as he stated, the oil men were seeking leases on the 198-acre tract and that sawmill men were seeking to buy the timber on the 360-acre tract, and that Fegan might back out of the trade; that being thus urged, Anderson wrote to Edmiston to close the trade and that he would forward his deed to a bank at Prairie Grove to be held until he got there. The Andersons went to Prairie Grove, reaching there on June 29, and Fegan, having satisfied himself about the Texas land, agreed to proceed with thé bargain. They went to the office of an attorney in Prairie Grove, who prepared the deeds, and the Andersons executed the deed to the Texas land and handed it over to Fegan, but they testify that the execution of the deed was not acknowledged and that the deed was not delivered in consummation of the bargain, but to be held until each party could have the deeds examined by their respective attorneys, and abstracts of title could be furnished. The Andersons both testified that on this occasion the aforesaid misrepresentations concerning the character of the 360-acre tract were renewed by both Edmiston and Fegan, who assured them that the land contained about 100 acres of good tillable land and was covered with valuable merchantable timber. After the deeds were passed the suggestion was made to the Andersons by a man in Prairie Grove, to whom the prospective trade was mentioned, that they had better make a trip out to see the 360-acre tract, for it was thought to be of little or no value. After the Andersons reached Prairie Grove they made a trip out to see the 198-aere tract and were satisfied with that, ibut they had not seen the other tract. As soon as this suggestion was made to them, however, they drove out to see the land. This was on June 29, the same day on which the deeds were exchanged. They found the tract of land to be worthless, that it contained practically no tillable land at all, and that all of the merchantable timber had been removed. The testimony shows conclusively that the tract of land had no timber on it of any value and that the tract of land itself was of very little value, containing scarcely any tillable land. It is shown to be exceedingly rough and hilly or mountainous. In fact, appellants do not attempt to show that this land had any substantial value, but their contention is that there were no misrepresentations, but that this tract was merely thrown into the bargain, the principal element of the trade being the 198-acre' tract. As soon as the Andersons returned from inspecting the land they went to Fegan’s office and informed him that they had ascer tained the truth about the condition of his land and offered to surrender the deed thereto and demanded 'a surrender of their own deed to the Texas land. This was the next morning after the execution of the deed, and Fegan informed them that he had already forwarded the deed to Texas to be recorded and refused to comply with the request of the Andersons, or to accept the surrender of the deed to the Arkansas lands. The Andersons then employed attorneys, and this litigation followed a few days thereafter.
Appellants deny that there were any misrepresentations, and they offer testimony which tends to support their contention. Edmiston and Fegan both deny that they made any representations at all concerning the character of the land, except as to the 198-acre tract which the Andersons examined for themselves. Edmiston testified that he introduced Anderson to Fegan for the purpose of bringing about the exchange of 198-acre tract, which was known as the Jones land, and that after Anderson and Fegan had conversed about the matter off to themselves Anderson returned greatly pleased and said that he and Fegan had about “fixed it” and that he (Anderson) wanted to go and see the Jones tract the next morning. He testified that he did not know at the time that the 360-acre tract was to be considered in the bargain, but that after they had returned from inspecting the other tract Anderson said something about the 360-acre tract, and he merely replied that he did not know that that place was to be in the bargain, stating to Anderson at the time that “if you get that place you are that much ahead. ’ ’ He testified that after they went back to Fegan’s office he remarked to Fegan in the presence of Anderson and Hale, the attorney, that he had told Anderson .“that it was a devil of a rough proposition.” He testified that he said this to Anderson: “You will have to go through this man’s field; that von will have to go down a terrible mountain; you will think you are going down to China when you get there; you will have to go down this way a while and down that a while; there is a little two-room house, barn and a good garden spot, then you turn back to the small place.”
Fegan denied that he made any representations at all to Anderson concerning the large tract. He said that he had recently purchased the land and had never seen it. He and the attorney both testified that Anderson stated that “he. guessed it would make a good goat ranch and asked if it would be good to raise goats on.”
There is a very sharp conflict in the testimony so far as the number of witnesses is concerned, but there are many circumstances which strongly corroborate appellees in their narrative of the facts. The written correspondence between Edmiston arid Anderson affords strong corroboration of the latter’s testimony. Edmiston was urging him to close the trade and gave no reason for it except that oil men were trying to lease the 198-acre tract and sawmill men were trying to buy the timber on the larger tract—a statement which finds very little support in the record. In fact, the very conclusive proof that there was no merchantable timber at all on the large tract absolutely refutes the statement that there was any one trying to purchase the timber on the land. Appellants contend that Anderson was anxious to exchange his Texas land for the 198-acre tract and gladly went into the bargain merely for that tract without placing any substantial value on the larger tract, all of which is denied by Anderson, and the proof shows that just as soon as he received the suggestion from a responsible party that this land was probably of no value he hurried out to look at it, and when he found out the true situation he went to Fegan and demanded a rescission. It is not contended that the suggestion was made to Anderson by the man at Prairie Grove with any desire to interfere with the trade, and the circumstances give no color to the claim that the Andersons merely changed their minds and used this as a pretext to rescind the bargain. They acted very promptly, not only in go ing out to inspect the land and demanding a return of the deed, but also in instituting this action to get relief from the fraud which they say has been practiced upon them. Their promptness is undoubtedly a strong circumstance in support of their contention that misrepresentations were made to them concerning the value of the land, and that they relied upon those representations, and would not have entered into the bargain if they had not accepted the representations as the truth. It is true that appellees could have visited the land before they entered into the bargain, but they were, according to the testimony, induced not to do so on account of the fraudulent representations made to them concerning the character of the lands and the quantity of timber thereon.
(1-2) We think the evidence clearly establishes the fact that those misrepresentations were made and relied on and it does not lie in the mouths of appellants to say that appellees should not have relied upon the statement, but should have looked to satisfy themselves concerning the truth of the representations. Neely v. Rembert, 71 Ark. 91; English v. North, 112 Ark. 489.
(3-4) The evidence also supports the contention of appellees that the deeds were not finally delivered but that appellants, wrongfully and in violation of the agreement, hurried off the deed to Texas without furnishing abstract to the Arkansas land. The chancery court of Washington County had no jurisdiction to adjudicate the title to the Texas land, but it had jurisdiction over the appellants themselves with power to require restitution of the deed wrongfully misappropriated, or to require the execution' of ■ a reconveyance to appellees as Evidence of their title. Pillow v. King, 55 Ark. 633; King v. Pillow, 6 Pickle (Tenn.) 287; Carpenter v. Strange, 141 U. S. 105.
The decree of the chancery court is found to be correct in all things, and the same is, therefore, affirmed.
Humphreys, J., disqualified. | [
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Butler, J.
The undisputed facts are as follows: Appellant school district hied a petition, under § 55 of act 169 of the Acts of 1931, signed by a majority of the qualified electors of the district, requesting that it be dissolved and the territory embraced therein annexed to appellee school district. In accordance with said § 55, the hoard of directors of appellee school district filed its written consent to the consolidation with the county hoard of education. Thereafter, and before the county board of education entered its final order, a number of the signers of the petition first mentioned filed a written demand that their names be stricken from the petition. With the names of the patrons stricken off as requested, there remained less than a majority of the qualified electors on the petition first filed.
There was a stipulation in the ag’reed statement of facts that “no notice was published in any newspaper published in Columbia County, Arkansas, which was filed by the county school superintendent, or otherwise, or by orders of the board of education giving notice as to the time and place that the board of education would hear and determine the petition, or that it was published once a week for two weeks.”
The county board refused to entertain the request of the electors that their names be stricken from the petition first filed and entered an order dissolving appellant' district and consolidating it with the appellee district as prayed in the first petition. On appeal to the circuit court, that order was upheld, and to review this action comes this appeal.
Section 55, supra, is as follows: “The county board of education may dissolve any school district and annex the territory thereof to any district, when petitioned to do so by a majority of the qualified electors of the district to be dissolved, and the board of directors of the district to which the territory is to be annexed. Provided further, that no district shall be attached to another district without the consent of the board of directors of the district to which the dissolved district is to be annexed.”
Section 48 of that act, which the appellant contends is the section regulating the procedure,- is as follows: “When a petition is filed for the formation of a new school district and the dissolution of other districts, or for the annexation of territory to any district, purporting to be signed by a majority of the qualified electors in each district affected, notice thereof shall be given by publication in a newspaper having bona fide circulation in the county, to be given by the county superintendent on order of the .county board of education, and published once a week for two weeks, giving the date of the hearing of such petition. At such' hearing the county board of education shall consider whether the petition is signed by the requisite number of electors, provided that, for the purpose of determining whether said petition contains a majority of the qualified electors of each district, a majority shall be determined as of the date said petition is considered by said county board of education, and if it finds that it is, it may grant the prayer of the petition if it deems it best for the interests of the inhabitants of the territory affected, provided that any elector signing said petition may have his name stricken from said petition, upon written demand, at any time prior to the final action of said county board upon said .petition. Appeals may be taken to the circuit'court from the findings of the board on the ground that the requisite number of electors have not signed the petition, or because the notices herein required were not given. The findings of the county board of education otherwise will be conclusive provided this section shall not apply to suits now pending or on appeal from the county board.”
It was and is the insistence of the appellee that § 55 is entirely independent and in no way connected with the procedure provided by § 48. It is a familiar rule of statutory construction that any section of a statute shall be interpreted in the light of the entire act. Act No. 169 was a comprehensive statute enacted for the purpose of providing for a complete system for the organization and administration of the public common schools. * Section 55 of that act authorized the county board of education to dissolve any school district and annex its territory to another district upon petition of the majority of the qualified electors of the district to be dissolved, with the consent of the board of directors of the district to which the dissolved district was to be annexed. Section 48 prescribes the procedure where a new district is sought to be established and a district is to be dissolved, or, where territory is sought to be annexed to any district, notice is required, and the manner in which it is to be given is provided for. Provision is made that any elector signing a petition for the purpose first mentioned in the section may have his name stricken from said petition upon written demand at any time prior to the final action of the board upon said petition. That section also provides “that appeals may be taken to the circuit court from the finding of the county board.” It gives the board the discretion to grant or withhold any order petitioned for named in the section, as it deems best for the interest of the inhabitants of the territory affected and prescribes that the question of a majority shall be determined as of the date said petition is considered by the board.
We are of the opinion that, when all of these provisions are considered, it is clear that the power of the county board is fixed by § 55 with respect to the dissolution of school districts and the annexation of territory to any other school district, and the procedure is given by § 48 preceding. Therefore, the notice provided by the last-named section was a prerequisite, and any petitioner was entitled to have his name stricken from the petition upon written demand made before the final action of the board. Since it appears that with the names deleted from the original petition there would be less than a majority and the notice was not given as required, the action of the board in granting the prayer of the petition first filed was, and is, void, and the trial court erred in not so finding.
The judgment is therefore reversed, and the cause remanded with directions to enter an order in conformity with this opinion. | [
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Humphreys, J.
This suit was brought by appellant against appellee in the second division of the circuit court of Ouachita County to recover $1,784.99 for Red Goose shoes .sold and shipped to appellee by appellant.
The defense interposed to the action was that appellant breached its contract with appellee by allowing the business firm of West Brothers in Camden, Arkansas, to advertise the same line of shoes in violation of an agreement that appellant should sell no one else, nor permit any one else to advertise the line of shoes known as the Red Goose shoe in Camden except appellee, and that when appellant thus breached the exclusive contract, appellee repacked and shipped back to appellant all the shoes not disposed of, in the total invoice sum of $1,517.19, for which amount he was and is entitled to credit, leaving a balance due on account of $267.80, which was tendered to appellant in full settlement. The cause was submitted upon the pleadings, testimony adduced by the respective parties, and instructions of the court, resulting in a judgment against appellee for $267.80 and interest, from which is this appeal.
There is no dispute in the testimony about the value of the goods shipped or returned, or that appellant’s agent made the exclusive contract and that same was breached. The only issue in the case was whether appellant’s agent had the authority to enter into the exclusive contract with appellee before the goods were sold and shipped. This issue was submitted t#the jury by the court, over the objection of appellant, and a reversal of the judgment is sought upon the alleged ground that no substantial evidence was introduced in the case tending to show that appellant’s agent had such authority. After the exclusive contract was breached by appellant, a correspondence ensued between appellant and appellee, in which the authority of appellant’s agent to make exclusive contracts was admitted by appellant, but in which it took the position that its agent did not inform it that such a contract had been made by him with appellee, and that he made, the contract in ignorance of the existence of the contract between it and West Brothers in Camden for the purchase and advertisement of the same line' of shoes. It also contended in the correspondence that the contract was not made by its agent with appellee until the 21st day of August, 1930, and that it was not bound under the contract to take the shoes hack that were sold and purchased before that date. Three witnesses, on behalf of appellee, testified that the exclusive contract was made before any goods were purchased from appellant by appellee. On account of this dispute in the evidence, it was proper to submit the issue of whether the agent had authority to make the exclusive contract before the goods in question were sold and shipped by appellant to appellee.
Appellant also contends for a reversal of the judgment because the court, refused to give its requested instructions Nos. 2 and 4, relative to the authority of an agent. The court gave an instruction fully covering the issue of authority of the agent to make the contract, so did not err in refusing appellant’s requested instructions Nos. 2 and 4.
Appellant also contends for a reversal of the judgment because, even though the contract was made with authority, it was not mutual, and therefore not binding on appellant. The argument is made that the contract did not attempt to bind appellee to buy shoes in any definite quantities for any definite length of time, and to buy them exclusively from appellant. Appellant requested two instructions, Nos. 5 and 6, on mutuality of contracts, which the court refused to give. The doctrine of mutuality of contracts is not applicable, in so far as same have been executed or operated under. El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184, 131 S. W. 460; Weil v. Chicago Pneumatic Tool Company, 138 Ark. 534, 212 S. W. 313. It was not error to refuse instructions touching the question of the necessity of mutuality of contracts, same not being applicable to executed contracts.
Appellant also contends that the trial court erred in rendering a .judgment against it for all costs. We are unable to find in tbe record where tbe costs were adjudged against appellant, and appellee concedes that be is liable for tbe costs in the case under tbe judgment rendered.
No error appearing, tbe judgment is affirmed. | [
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Butler, J.
The Harahan Viaduct Improvement District was created by an act of the General Assembly of 1923 for the purpose of constructing and maintaining an approach to the Harahan bridge spanning the Mississippi River opposite the city of Memphis. This approach is in Crittenden County, and is known as the Harahan Viaduct. Shortly after the creation of the district, its commissioners met, and Renfrow Turner was elected chairman, and, on the first day of November, 1923, by resolution duly passed, it employed the appellant and M. B. Norfleet, Jr., attorneys, to represent the said district for an agreed sum of $7,500 and other necessary expenses while engaged in the discharge of their duties. Sixty per cent! of the fee was to be paid upon the completion of the transcript of the proceedings of said district for the bond issue, and the balance due and payable at the discretion of tlie board. It developed that the commission was unable to function under the act, and the board met on October 28, 1924, for the purpose of arranging for the obligations it had incurred, which included some preliminary expenses for engineering and legal services. On that occasion the board passed the following resolution:
“In consideration of legal services performed to date by J. C. Brookfield and M. B. Norfleet, Jr., attorneys for the district, the district having heretofore issued to them certificates of indebtedness in the total sum of two thousand dollars ($2,000) on their fee, as provided by contract between the district and them, in the total sum of seventy-five hundred dollars ($7,500), it being now the purpose of said district to suspend further expenses for legal services until hereafter decided by a majority of the board of commissioners of the district. It is hereby ordered by the board that the president and secretary issue certificates of indebtedness of $500 each to said attorneys in consideration of their preliminary legal services to date.
‘ ‘ That this provision of the board shall not be deemed to effect said contract of said attorneys as to the cancellation thereof, but the board, in its best judgment, deems said attorneys fully paid to date for their services.
“It is agreed that, in the event said district does not operate further and function, that said legal services have been fully paid to date.”
On the 24th of March, 1925, the board had a meeting and adopted a resolution reciting the fact that the district had been unable to function, and that certain necessary preliminary steps had been taken and expenses incident thereto incurred, including engineering, legal and incidental services, in a total amount of $15,698.59; that the Supreme Court had held that such preliminary expenses are binding liens upon all the real property within the district, and provided for the payment of these from tolls to be collected under the supervision of the county court of Crittenden County.
There were some other meetings of the board, the final meeting appearing to have been on the 16th of October, 1926, at which time the preliminary expenses referred to in the resolution of March 24, 1925, had been paid. The Harahan Viaduct, in the meantime, had been taken over and constructed by the State Highway Department, and the cost of constructing the same and the preliminary expenses had been paid out of tolls collected from the wooden structure, and the structure as finally completed became a part of the State Highway system, and, as such, is now maintained by the Highway Commission. It is undisputed that the appellant, Brookfield, has received the amount authorized by the resolution of October 28,1924. The last payment of $500 was in the form of a voucher which was issued to him on October 28th, following. On the 27th day of November, 1929, the appellant filed suit against the improvement district in the chancery court of Crittenden County, Arkansas, (cause No. 3830) in which he sought to recover judgment against the defendant district in the sum of $2,366 as balance claimed by him under his contract of employment aforesaid. On March 17,1930, the court rendered judgment by default against the district for the sum sued for and retained jurisdiction of the cause, for the purpose of fixing a lien and appointing a receiver to enforce the same if the judgment was not paid within sixty days, and for that purpose, continued the cause.
On the 14th day of July of the same year the appellant filed a separate complaint in the said court (cause No. 3939), setting up the judgment he had previously obtained, and asking for a receiver and that a tax be levied upon the lands to pay his judgment. Judgment was rendered on the supplemental complaint by the chancellor in vacation in conformity with its prayer. Various newspapers, having a circulation in eastern Arkansas, published the action of the court as a news item, and by this means it was brought to the attention of the interveners, who are landowners and taxpayers within the boundaries of the district and against whose lands the tax was to be levied. This action was instituted by the St. Francis Levee Board, and two of its members, as taxpayers, to vacate the decrees aforesaid, on the grounds that they were rendered without notice, and that there was a valid defense to the claim of Brookfield. Testimony was taken, and, by agreement, this case was submitted to the chancellor on the pleadings and testimony adduced, who entered a decree finding that, at the time of the rendition of the decree in the case of Brookfield v. Imp. Dist., cause No. 3830, the court was without jurisdiction of the. defendant district, and appellees were without knowledge of the suit prior to the rendition of the decree, and that “the court was not correctly advised as to the service of summons on it and waivers by the commissioners of defendant district, and was not advised of the circumstances under which the defendant had paid to the plaintiff the sum of $1,500; that there is a valid defense to the original cause of action, as alleged, in which judgment was rendered herein, against said Harahan Viaduct Improvement District, ’ ’ and, in accordance with these findings, a decree was rendered cancelling’ and setting* aside the judgment complained of and all subsequent proceedings had thereunder, and holding “that said original complaint be not dismissed, but left to the end that the said J. C. Brook-field may, if he so desires, cause proper service to be had upon said Harahan Viaduct Improvement District.”
From that decree this appeal is prosecuted, and for a reversal it is contended, first, that the board of directors of St. Francis Levee District, J. L. Williams and H. N. Pharr, being strangers to the original suit, did not have the legal right to bring an action to set aside the .judgment obtained by the appellant. The facts are that the St. Francis Levee District and the two individuals named are large landowners and taxpayers within the boundaries of the improvement district, and, while not parties to the original action by name, they are in fact the real parties in interest. In the pleading filed by them it is alleged, as a ground for the vacation of the decrees complained of, that they are such landowners and taxpayers, and the facts alleged show that the burden sought to be placed npon their lands was an illegal exaction.
Section 13, article 16, of the Constitution provides that: “Any citizen of any county, city or town may institute suit in behalf of himself and all others interested to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” Courts of chancery are vested with the jurisdiction in actions under this constitutional provision. Harrison v. Norton, 104 Ark. 16, 148 S. W. 497. And in Seitz v. Merriwether, 114 Ark. 299, 169 S. W. 1175, cited by appellee, we held: “That provision of the Constitution does not include improvement districts, but the principle is the same, and it is the duty of the court of equity to mold a remedy for taxpayers whose interests are involved in the operation of improvement districts.” Therefore the appellees were justified in instituting suit to protect themselves and others from the alleged unlawful exaction.
It is next insisted that suits to set aside a judgment may only be for the causes mentioned in § 6290 of Crawford & Moses’ Digest, and only in the manner provided in § 6292, id., and that the allegations in the pleading filed by the appellees do not sufficiently allege the rendition of the decree for want of service of summons, and, because of that, the judgment is void. It is immaterial by what name the pleading be designated; if it contains the elements required by § 6290, it will be sufficient. The allegation of the complaint regarding the procurement of the decree without service is as follows:
“Your interveners allege that the judgment rendered in favor of the plaintiff and against the viaduct district is void for following’ reasons:
“1. That, although said judgment recites that service of personal process was had upon all of the commissioners of said district, said statement is false and untrue, and the true facts are that said commissioners of said district were not personally served with any personal process whatsoever, and that they, your interveners herein, had no knowledge that said cause of action was pending in the chancery court until notices appeared in several papers stating that all the property in said district would be sold to satisfy said judgment. ’ ’
Section 6238 of the Digest is as follows: “All judgments, orders, sentences and decrees made, rendered or pronounced by any of the courts of the State against any •‘one without notice, actual or constructive, and all proceedings had under such judgments, orders, sentences or decrees, shall be absolutely null and void.”
The proceeding in this case is for the purpose of vacating the decree complained of, and is therefore a direct attack. Hall v. Huff, 122 Ark. 67, 182 S. W. 535; Morgan v. Leon, 178 Ark. 769, 12 S. W. (2d) 404. And the allegation is sufficient to allege a fraud practiced by the successful party within the meaning of the statute. “A judgment by default, procured through the representation of plaintiff’s attorney that there was a return of service of process, when in fact there had been no service and no return of service by the officer, is a judgment obtained through ‘fraud practiced by the successful party,’ within the meaning of the fourth subdivision of § 3909, Mansf. Digest, though the attorney acted under a mistake.” Chambliss v. Reppy, 54 Ark. 539, 16 S. W. 571.
It is contended by the appellant that the proof was insufficient on the question of notice and the defense alleged, to justify the setting aside of the decree. The decree complained of, as to the service of summons, recited as follows: “And the defendant, although duly served with summons upon Renfrow Turner, chairman, and other members of its board of commissioners, as required by law, came not but made default.” On the question of service of summons, a number of witnesses testified. Appellant testified that he had caused service of summons to be had upon Renfrow Turner as chairman of the board of commissioners, and upon J. T. Robinson and R. M. Barrett, two other members of the board, and that he obtained the waivers in writing of four other of the commissioners upon the back of copies of the summons. Renfrow Turner stated that he did not remember; R. M. Barrett was not questioned about tbe service of summons; and tbe others disputed tbe testimony of tbe appellant. Tbe officers, whose duty it was to serve tbe various summons, were not called, and did not testify. Appellant testified that be bad taken all of tbe original papers to bis office to prepare tbe decree, and, after tbe same bad been approved by tbe chancellor, be bad mailed tbe decree and exhibits back to tbe clerk, but none of tbe summons could be found in the files of tbe court. There was testimony also which tended to show that Renfrow Turner was not the chairman or a member of tbe board of commissioners at tbe time of the alleged service of summons upon him, and bad not been for a considerable length of time, having resigned upon bis appointment to tbe office of county judge, and Z. T. Bragg being appointed by tbe Governor in bis stead. It therefore appears that tbe chancellor was justified in bis finding* that the court was without jurisdiction because of want of service.
There was also testimony tending to establish tbe defense alleged, but, as the chancellor did not dismiss the complaint, it would be premature to discuss that testimony or indicate our view of its weight, as under tbe decree appellant may proceed upon proper service obtained to have bis claim adjudicated.
On tbe whole, we are of tbe opinion that tbe decree of the chancellor was correct, and it is therefore affirmed. | [
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McHaNey, J.
Appellants, husband and wife, on-March 9,1927, executed their promissory note for $6,500, secured by a mortgage on 320 acres of rice land in Arkansas County, to the American Investment Company, who, for a valuable consideration, sold and assigned same to appellee. The principal note was made due and payable April 1, 1937. Attached to said note were ten interest coupons for $390 each, representing the annual interest on the principal note, and one became due on the first day of April each year until the principal note became due. Default was made in the payment of the interest coupon due April 1, 1930, and on March 12, 1931, appellee, under the power contained in both the note and mortgage, elected to and did declare the whole amount due and payable, there being an acceleration clause in both the note and mortgage. Thereafter ap-pellee brought this suit to foreclose the mortgage and prayed for judgment against appellants for the debt and interest, which then amounted to $7,035.02 together with interest from April 1, 1930, (the date default was made in payment of the coupons) at 10 per cent, per annum until paid. There is a clause in the coupon notes providing that interest might be charged.at 10 per cent, after maturity. A decree was rendered in conformity with the prayer of the complaint, fixing a lien upon the land and ordering same sold in satisfaction of the debt.
Appellants, although personally served with summons, did not appear in the lower court but wholly made default.
The only question raised on this appeal is that the court erred in rendering a decree for the debt with 10 per cent, interest from the accelerated maturity, April 1, 1930, and they rely upon the authority of Jewell Realty Co. v. Kansas City Life Ins. Co., 182 Ark. 397, 31 S. W. (2d) 521, where this court had occasion to pass on a similar question. We think appellants are not in position to question the validity of the decree against them for several reasons/one of which will be sufficient. The record shows that appellants have recognized the validity of the decree. While they did not appear in the trial of the cause, filed no pleading and made no objection in the lower court to the decree in any manner, they did, at a later date, appear and ask the court to postpone the date of sale, which the court did, appellee consenting thereto. Thereafter appellants came into court and petitioned the court to appoint a receiver to take charge of said lands and rent same for the year 1932. This order was made, appellee consenting, the sale being postponed until December 1, 1932, and appellants agreed to cultivate 129 acres of the lands in rice and to pay appellee one-fifth of said crops as rents. These were inconsistent positions with the right now asserted for appellants to assume, and as said in Jones v. Hall, 136 Ark. 353, 206 S. W. 671: “He waives Ms right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal.” By asking for and obtaining a postponement of the sale and by asking for the appointment of a receiver to rent the land and actually renting a portion of it for the year 1932, without raising any question in the lower court as to the validity of the decree or the amount of the judgment against them, they are precluded' from raising the question in this court for the first time.
Affirmed. | [
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Butler, J.
This suit was instituted by tbe appel-lee to recover .benefits for total and permanent disability under tbe terms of a policy of insurance issued to bim by tbe appellant company. In tbe complaint appellee alleg’ed in substance that tbe policy sued on bad been at all times since tbe date of issuance and delivery to bim in full force and effect, and that, while it was in force and effect, be became totally and permanently disabled so as to prevent bim from engaging in any remunera tive occupation or performing any work; that the appellant company had denied liability, and that under the terms of the policy he was due the sum of $25 per month from the date of his disability. He prayed judgment for that amount and 12 per cent, penalty and reasonable attorney’s fee.
The appellant answered denying the material allegations of the complaint and specifically denying that the appellee had at all times done and performed all things required of him to keep his policy in full force and effect, and that, since the date of the issuance of the policy or at the time of the filing of the answer, it was in full force and effect. The appellant subsequently filed an amendment to the answer in which it alleged that the policy was obtained through fraud on the part of the appellee, in that he had made false statements in his application on June 20, 1930, wherein he stated that he was in good health on that date; that this statement was not true as the alleged injury to the appellee was sustained on June 18,1930, before the date of the application for, and issuance of, the policy.
On these pleadings and the testimony adduced the case was submitted to the jury which returned a verdict for the appellee for the sums sued for. Thereupon the court entered judgment for the sums found by the jury and for a 12 per cent, penalty and attorney’s fee. From that judgment is this appeal.
One of the contentions made by the appellant is that the undisputed testimony shows that the injury out of which appellee’s disability grew occurred on a day in June before the application was made for insurance and before the policy was issued and delivered, and that therefore, under the terms of the policy, no recovery could be had, and, if the evidence as to the date of the injury was not wholly uncontradicted, the great preponderance of the testimony was to the effect that the injury occurred before the date of the application, and that appellant was entitled to have that issue submitted to the jury under its requested instruction No. 2 which in effect told the jury that, although the appellee (plaintiff) was wholly and permanently, disabled within the meaning of the policy, yet, if the cause for said total and permanent disability resulted from an injury receivéd prior to his application, there could he no recovery.
We have examined the contract of insurance with care, and are of the opinion that the construction placed ■ upon it by appellant is not warranted by its terms. That part of the clause of the policy on which this suit is predicated provides as follows: “After one full annual premium shall have been paid upon this policy, and before default in the payment of any subsequent premium, if the insured shall furnish the company with due proof that he has since such payment * * * become wholly disabled by bodily injury or disease, not occasioned by military or naval service # * *, so that he is, and presumably will be, thereby permanently, continuously and wholly prevented from engaging in any occupation for remuneration or profit, or performing any work, and that such disability has then existed continuously for not less than ninety days, * * * the company will pay to the insured * * * a monthly income of $10 for each one thousand dollars face amount of insurance.”
The above clause does not provide for exemption from liability where the cause of disability occurred prior to the date of the policy. If the insurer had so desired, it could have in plain terms made the provision for which it now contends, but, for us to sustain the contention made, we would have to write something into the policy which it does not in fact contain. It is well settled that policies of insurance must be interpreted according* to the plain import of the language used, and where there is an ambiguity or a question of doubt arises, it must be construed in favor of the policyholder. McClain v. Reliance Life Ins. Co., 170 Ark. 478, 280 S. W. 15; Great American Cas. Co. v. Williams, 177 Ark. 87, 7 S. W. (2d) 975; Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S. W. (2d) 611. Therefore, although the injury which after resulted in total disability occurred before the application for insurance was made, this would not of itself prevent a recovery.
We are of the opinion, however, that the court erred in the giving of its instruction No. 1, which in effect told the jury that it should determine from all the facts and circumstances in evidence whether the policy of insurance was delivered to the plaintiff while he was in good health, and that the burden was upon the defendant to establish the fact that he was not in good health when the policy was delivered. It must be remembered that the defendant denied in its answer that the policy was in force, and that, by the terms of the entire contract, in order for the policy to be effective, the insured must have been in good health at the time of the delivery of the policy. In the case of New York Life Ins. Co. v. Mason, 151 Ark. 135, 235 S. W. 422, 19 A. L. R. 618, the court said: ‘ ‘ The plaintiff alleged in the complaint that the policy was executed and put in force, and this was denied in the answer, and it was an essential part of the plaintiff’s case to prove that there had been a delivery of the policy in compliance with the stipulation that the policy should not be in force until delivery to the assured while in good health and upon the payment of the premium.” Under the authority of that case it is clear that the burden rested upon the plaintiff not only to prove delivery of the policy and payment of the premium, but that the assured was in good health at the time of the delivery of the policy.
The court gave instruction No. 3 over the objection of the appellant, as follows: “You are instructed that if you find from a preponderance of the evidence that the application .for insurance issued by defendant to plaintiff was prepared by the agent for the insurance company and the doctor selected by the insurance company; and, if you believe that the plaintiff truthfully answered all questions asked him by the company’s agent or examining physician, or if you find that the material statements appearing in said application which it is now claimed are false, were written into said application by said agent or doctor for the insurance company, and were statements not made by plaintiff, or if you believe that the true facts alleged to be false statements were known to the doctor or agent of the insurance company, then you are told that such misstatements will not avoid the policy of insurance sued on.” It will be seen that in the above instruction the jury was told that if the statements in the application were not made by the plaintiff, or if made and if false and known to the doctor or agent of the insurance company, then such misstatements would not avoid the policy. In response to that instruction, after it was given over the objection of the appellant, the appellant requested an instruction to the effect that if the agent and the applicant entered into a collusion to conceal facts with reference to a prior injury the verdict should he for the defendant. In commenting upon this instruction counsel for the appellee insist that it was properly refused because there was no evidence in the record showing’ that there was any col-lusion between the appellant’s soliciting agent and the applicant, or any effort made by any one to conceal any facts from the insurance company. This contention we find to he correct. There is no evidence that there was any collusion between the doctor or agent of the insurance company and the applicant to conceal the facts or any knowledge on the part of the agent or doctor that any misstatements were made. Neither was there any evidence that either of them wrote any answers to the nuestions in the application not made by the applicant himself. On this branch of the case, the applicant testified that he did not remember what the statements were, but simply stated that whatever statements he made were true. He also testified that he did not remember the date of his injury. Therefore, that part of instruction No. 3 was abstract, and we are unable to say how it might have influenced the jury. It would indicate to the jury that there was in the mind of the presiding- judge some evidence to the effect that the agent did not write the answers as made by the applicant, and also that, if the applicant did make the answers as written, the agent knew they were false. This might have had a tendency to mislead the jury and induce them to indulge in conjecture. Therefore, we think the error was prejudicial. Schirmer v. Hallman, 135 Ark. 5, 204 S. W. 606; St. Louis, S. F. R. Co. v. Townsend, 69 Ark. 380, 63 S. W. 994; Mo. Pac. Rd. Co. v. Kirby, 152 Ark. 90, 237 S. W. 687; Wisconsin & Ark. Lbr. Co. v. McCloud, 168 Ark. 352, 270 S. W. 599.
For the errors indicated, the judgment is reversed, and the cause remanded for a new trial. | [
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Riddick, J.
The defendant in this case was indicted and convicted of the crime of grand larceny, and sentenced to be imprisoned in the state penitentiary for a term of three years. Before the trial of the case he made an application for a change of venne on the ground that the minds of the inhabitants of Lee county were so prejudiced against him that a fair and impartial trial of this cause could not be had in that county. Both the petition for a change of venue and the supporting affidavits made by two witnesses are in proper form, and set out the facts required by the statute in order to obtain a change of venue. The record recites that when the petition for a change of venue came on for hearing the prosecuting attorney asked leave of the court to call upon the witness stand the two supporting witnesses to the petition, for the purpose of examining them in order to determine their credibility, but the presiding judge declined to permit this, and stated that it was unnecessary, as he knew that the defendant could get a fair and impartial trial in Lee county, and that he would not permit two persons to come into court and recklessly swear to the contrary, The court thereupon overruled the petition for a change of venue, and the defendant excepted.
The attorney general has on this point filed a written confession of error, on the ground that this was “an arbitrary refusal of the court to grant a change of venue on a proper showing. We are of the opinion that this confession of error should be sustained. The defendant made affidavit to the facts set out in his petition, and the allegations of his petition were supported by the affidavits of two persons, who make oath that they are qualified electors and actual residents of Lee county, and not related to the defendant in any way. It is time that the prosecuting attorney offered to show that these affiants were not credible persons, as required by tbe statute, but the presiding judge refused to allow this, on tbe ground that be knew that tbe facts stated in the affidavits were not true. But tbe presiding judge was not a witness, and tbis knowledge that be possessed was not evidence. As there is nothing in tbe record to contradict tbe facts stated in tbe petition and in tbe supporting affidavits, we must take it that tbe witnesses were credible, and tbe facts stated true.
For tbe error confessed tbe judgment is reversed, and a new trial granted, with an order to permit tbe prosecuting attorney to introduce .evidence touching tbe credibility of tbe supporting witnesses. | [
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Bunn, C. J.
This is a bill in equity to partition the lands mentioned and described therein, between the plaintiff, Henry C. Dunavant, and the defendants, Georgia L. Fields, nee Lanier, and Julia Pelham, nee Dunavant, and to state an account between them, involving rents and profits, on the one hand, and expenses of improvements, taxes, etc., on the other. The lands were partitioned, and a decree entered by the Hon. E. D. Robertson, chancellor of the fifth chancery district, in favor of the defendant Georgia L. Fields, and against the plaintiff, for the sum of $454.54 and in favor of defendant Julia Pelham, and against the plaintiff, for the sum of $2,835.37.
This litigation grew out of the following state of facts, to-wit: Hattie C. Dunavant,- the wife of the plaintiff, and mother of Georgia L. by her first husband, and of Julia by the plaintiff, on 7th of March, 1878, made her last will and testament, and departed this life in 1879, and her will was duly and in due time admitted to probate. The testatrix, by her said will, devised all her property of which she might die seized and possessed, consisting of the lands described in the complaint herein and 640 acres of other lands, equally between plaintiff and defendant Geoi*gia L. Lanier, and a son, Harry Dunavant, and it was provided also that after-born children should come in and take equal shares with those named. Harry C. Dunavant died, unmarried, without issue and intestate, and his share went to the other devisees. Julia Dunavant was born after the making of the will. The plaintiff, Georgia L., and Julia became thus the sole devisees. The lands were to be partitioned when the defendants should reach their majorities, and until then the plaintiff was to have the sole management and control of the property devised. When the younger of the two children, Julia, hadreached her majority, being unable to effect a partition otherwise, the plaintiff filed this bill for that purpose, asking to be reimbursed for the value of the improvements he had made on the lands described in the bill, and for the expenditures he had made for taxes, and so forth, and for his costs, in excess of rents and profits he had received from the property, to the amount of six thousand dollars, two-thirds of which he claimed the defendants owed him, and that said two-thirds of that amount be paid by them, or that additional property to that extent be allotted to him in the partition.
Warning orders' were duly issued for the defendants, who were both non-residents of the state at the time, and an attorney was appointed to defend for them as such, and afterwards, to-wit, on October 1, 1897, the defendants appeared by their solicitors, and filed their joint answer to the bill of the plaintiff, and, among other things, set up that for the ensuing year (1897) plaintiff had rented out the farm on said lands to various tenants (naming them) for the aggregate sum of $1,875, and averred that, if plaintiff should be permitted to collect said rents, they would lose their share of the same, as he had no property out of which the same could be made. Therefore they prayed an injunction against said renters, prohibiting ■them from paying said rents to plaintiff, and asked that a receiver be appointed to receive and collect the same, all of which was done. The injunction was issued by the county and probate judge of the county in the absence of the chancellor therefrom. In their answer the defendants deny that all the lands of which the testatrix had died seized and possessed were included in the complaint, but that 640 acres had been sold ■soon after the death of the testatrix, by the plaintiff, for the sum of $3,240, which he had never accounted for. They say ■also that, while the greater part of the lands were wild and unimproved, yet that there were thirty acres cleared and in good state of cultivation, when the plaintiff took charge of the lands described in the complaint. They deny that they are indebted to the plaintiff in the sum of $4000 ($6000) for costs and expenditures in making improvements on said lands, or in any •other sum, but, on the contrary, the plaintiff is indebted to them for lands and timber sold and 'rents in the aggregate sum ■of $26,838, naming the several items. Defendants further .allege that plaintiff had theretofore mortgaged his share of the estate to one W. P. Hale for an amount equal to its full value. They pray for general relief.
Thereupon plaintiff filed an amendment to his bill, to the effect that, by the terms of said will, he was vested with the sole management and use of the lands in controversy until his co-devisees, the defendants herein, should become of age, at which time said lands should be divided between them, and that therefore he is not chargeable with nor accountable for any rents and profits (other than for lands and timber sold) arising from said lands, but that he is entitled to the full value of his improvements for taxes and other expenditures, amounting to the sum of $20,000. That he had expended upon defendant, Georgia L. Fields, the sum of $3,200 on acount of her education and maintenance, which he claims is a charge against her separate estate, and should be deducted out of anything he may owe her by way of rents and profits. Wherefore he asks that said will be construed to ascertain whether he is chargeable with the rents and profits; and, if not so, that he be allowed the sum of $3,200 against defendant Georgia L. Fields in adjusting the amounts that are due him under this controversy, and for general relief.
Thereupon defendants filed an amendment to their answer, in which they deny that the will contained the words set out in the amended complaint, and say that, on the contrary, said will did not devise the use of the lands, but only gave the management and control of same to plaintiff during their minorities. They say further that for more than eleven years after the death of the testatrix plaintiff charged himself and credited them each with one-third of the rents and profits, and on the 20th of November, 1889, rendered an account between himself and them, in which he showed defendant Georgia L, Fields to be indebted to him on a balance struck in the sum of' $268. They say that plaintiff is estopped from going behind said stated account, and is estopped from adopting any other mode of charging and crediting either of these defendants. They say that, since the rendition of said stated account, plaintiff has collected the sum of $12,000 in rents; that he had already sold land to the amount of $3,200, making in the aggregate tbe sum of $15,240, and has not accounted for the same, one-third of which belongs to each of these defendants; that is, each is entitled to the sum of $5,080 from the plaintiff. They deny that plaintiff had power, under the will, to make the improvements for which he makes his claim, and allege that he agreed with the testatrix that he would support and educate the defendants, and she gave him a valuable consideration therefor, to-wit, a residence and lot. They deny that he has paid over to Georgia L. Fields anything except her share of a $1,030 claim against the United States government. They say that plaintiff had no right nor intention to charge for his personal services in managing said property, and deny that he had expended any money in improvements upon the lands, except in horses, well, fencing, etc.
The clerk of the trial court was appointed special master to take and state an account between the parties upon the evidence in the case, which was done, and to the master’s report both parties excepted; the defendants taking exception to most of the items in it. The commissioners to partition the lands made their report, and this was excepted to by defendants on various grounds, and the receiver to collect the rents for 1897 also made his report, and this was not the subject of exceptions on the part of either, and was treated as correct.
The chancellor held, in construing the will, that plaintiff was not entitled, by its terms, to the use of the lands during the minority of the defendants, but only to their management and control, and therefore chargeable with rents and profits. He also held that the account or statement made on the 20th of November, 1839, should be treated as a stated account, and he therefore sustained the exceptions to the master’s report as to all matters arising before that date, except such as were admitted to be true and correct, and should have been included therein, and that said stated account showed the state of-account between the parties up to that date by which all parties are bound, and accordingly found and decreed that plaintiff was indebted to defendant Georgia L. Fields in the sum of $454.54, and to defendant Julia Pelham in the sum of $2,835.37, and judgment was rendered therefor, and execution awarded as at law, and said judgments were declared to be liens on tbe plaintiff’s share and interest in said property. The chancellor also overruled the objections to the report of the commissioners to partition the lands, and confirmed the same.
There is apparently no discrepancy between the finding of fact by the master and the chancellor. The. chancellor held that one or more items arising before the stated account, and not included therein, were improperly considered by the master as reopening the stated account. He also held that no interest pro and con should be taken into account in such a settlement as this, whereas the master had included interest pro and eon in his statement, of the account between the parties. There was evidence to sustain the chancellor in his finding, as there was also to sustain the master’s report. In fact, the difference between the two was not one of fact, but one of law; that is, as to what was and was not allowable as credits to plaintiff. The chancellor was correct in his construction of the will, for by its terms neither the word “use” nor any equivalent is employed therein, and the plaintiff was chargeable with the rents and profits.
Whether or not the statement furnished Georgia L. Fields in 1889'should be treated as a stated account binding all the parties presents another question of law. “Where parties have had mutual dealings, and one renders to the other a statement purporting to set forth all the items of indebtedness on the one side and of credit on the other, the account so rendered, if not objected to in a reasonable time, becomes an account stated, and cannot afterwards be impeached except for fraud or mistake.” Lawrence v. Ellsworth, 41 Ark. 502. This definition of a stated account is taken from Oil Co. v. Van Etten, 107 U. S. 325. The same doctrine is held in Weed v. Dyer, 53 Ark. 155, and in fact is universally so held, so far as our researches go. Under that rule the account rendered by the plaintiff to defendant Georgia L. Fields has all the essential elements of an account stated, and, unless there is something else to affect its character as such, it must be so treated.
It is not precisely stated anywhere in the record, but we infer that the defendant Georgia L. Fields at the time of the rendition of this stated account to her was of age, and her failure to make objection to it estops her from objecting to it now, except on the ground of fraud or mistake; and by the same rule the plaintiff is also bound by it; and we may well conclude that the charge for proceeds of land sale, not found in the stated account, but which plaintiff concedes to be a proper charge against him, was left out by inadvertence or mistake.
But the stated account was not rendered to the defendant, Julia Pelham, for at the time she was a minor, and could not be bound by any implied assent to the correctness of it. But she was of age when this suit was instituted, and when she answered jointly with her co-defendant. If, in said answer, she in effect relied upon the statement as an account stated, and conceded it to be a settlement of all matters between the parties up to that time, — in other words," if, after becoming of age, she ratified the same as a settlement of all matters, subject to correction for fraud or mistake only, — then it is'but fair to conclude she is also bound by said stated account in so far as the same effects her. Prior to the 20th of November, 1889, her individual account was little or nothing, and she is only interested in matters arising upon the care, improvement and renting of the farm and the sale of lands and timber up to that time.' In our view of the subject, it matters little whether or not the items accruing prior to the making of the stated account, but which were not included in it, should not be left out under the rule stated, for the only remaining ones left in this situation were the items for clearing, fencing and putting the 450 acres of the land in a good state of cultivation at the rate of $30 per acre; and this is not, and could not be, a proper charge against the defendant, for another and distinct reason— that is, because it is, in effect, a charge for the personal services of one sustaining a fiduciary relation not provided for by law against minors who are incapable of making contracts to that effect.
In his relation as tenant in common one has a right to make improvements on the land without the consent of his co-tenants, and, although he has no lien in such case upon the land for the value of the improvements, yet he will be indemnified for them, whether made by himself or those holding under him, in a proceeding in equity to partition the lands between himself and co-tenants in common, either by having the part upon which are the improvements allotted to him, or by compensation, if thrown into the common mass. The reason of the rule is that the common estate is permanently benefited and enhanced in value, and all should contribute to it. Drennen v. Walker, 21 Ark. 539. That is the rule where the tenants in common are 'sui juris, and it is doubtless more liberal towards the claimant for improvements, since the others interested in such case are the better able to guard against abuses in this direction than minors are.
In Clements v. Cates, 49 Ark. 242, this court said: “The law forbids a trustee, and all other persons occupying a fiduciary or quasi fiduciary position, from taking any personal advantage touching the thing or subject as to which such fiduciary position exists; or, as expressed by another, ‘wherever one person is placed in such relation to another, by the act or consent of that other, or the act of a third person, or of the law, that he becomes interested for him or interested with him in any subject of property or business, he is prohibited from acquiring rights in the subject antagonistic to the person with whose interest he has become associated.’ * * * This rule applies to tenants in common by descent with the same force and reason as it does uto persons standing in a dii'ect fiduciary relation to others.” There is no perceptible difference, in this regard, between the case of tenants in common by descent, and that of tenants in common by devise. Moreover, the plaintiff in this case occupied not only a fiduciary position as tenant in common, but by direct appointment of the testatrix, the common source of title. In Trimble v. James, 40 Ark. 393, this court said: “It is an inflexible rule that all profits made by a trustee must enure to the benefit of the cestui que trust; and if an administrator or his attorney buy up claims against the estate at a discount, the profit enures to the heir, although the purchase be made by borrowing money at ruinous rates of interest and the sale of his own property, and the estate be thereby saved from insolvency.” ' Such is the strictness of the rule.
In the ease at bar, the plaintiff was allowed for his outlay of money in making improvements, but he was not allowed for his personal services, which he insists should be paid him. This charge for services consists in an item as follows: Thirty dollars per acre for clearing and putting in a good state of cultivation the 450 acres included in said farm — that is to say, a mere estimated amount. He could not thus speculate upon tne estate, or take an advantage of the kind to himself in relation thereto. Imboden v. Hunter, 23 Ark. 622. The law would not permit him to go further than to seek reimbursement for money actually paid out on the improvements, in the absence of a contract authorizing him to make them. This item for personal services the chancellor disallowed, for the r’eason, apparently, that they were not included in the stated account. They were not allowable for the other reason just stated.
The item of $3,240 for land and timber sold, we infer, was left out of the stated account by oversight. At all events, it was finally admitted by the plaintiff to be a correct charge against him.
The master charged interest pro and con on all items of credit and debit, which the chancellor declined to do, holding that the circumstances showed this to be a case in which interest would not be allowed for or against either party. These constitute the substantial differences between the findings of the master and those of the chancellor. We have seen that the chancellor was correct as to items for personal services; and as to the interest, the error, if it was an error, is not insisted on by the defendants, and is to the benefit, if anything, of the plaintiff.
Therefore, as to the balance struck and the decree therefor, the same is affirmed, as is the decree as to the report of the receiver and the commissioners to partition the lands. Also as to the mortgage of the defendants. But, in so far as the decree seeks to make the balance due from plaintiff to defendants a lien on the plaintiff's interests in the*land, the decree is reversed, since there is no lien on lauds for rents by operation of law in this state, and for other reasons there is no lien in favor of the other tenants in common upon the interest of the co-tenant for any sum he may owe them. Hamby v. Wall, 48 Ark. 135; Bertrand v. Taylor, 32 Ark. 470; Brittinum v. Jones, 56 Ark. 624; McKneely v. Terry, 61 Ark. 527.
The decree is affirmed in all things except as to the lien in favor of the appellees on the interest in the lands of appellant to secure the amounts decreed. It is reversed as to that, and the cause is remanded, with directions to foreclose the mortgage to Hale and the others. | [
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Hughes, J.,
(after stating tbe facts.) The appellant in Ms motion for a new trial says that the court erred in, its written instruction to the jury of its own motion. That instruction is as follows: “If you find from the evidence in this case that the plaintiff and defendant mutually agreed to submit a matter in controversy between them to arbitrators, and to abide by their award, and that said arbitrators did meet under said agreement and render an award, you should find for the plaintiff. You are further instructed that if you find from the evidence that after said arbitrators had the matter under investigation they adjourned, and notified the parties that they could not agree and had adjourned, then your verdict should be for the defendant, unless you further find from the evidence in the case that the parties afterwards agreed to submit to and abide by any award they might render. You are further instructed that it is not necessary that the evidence show that the parties plaintiff and defendant actually agreed in so many words to submit the matter in controversy to and abide by the award, but such agreement may be inferred by you from the acts and conduct of the parties plaintiff and defendant, and all the facts and circumstances introduced as evidence must show that both parties agreed to submit the matter and to abide by the award; for, if one of the parties agreed, and the other did not, the verdict should be for the defendant. You are further instructed that the plaintiff is required to make out his case by a preponderance of the evidence.” We do not think there was any error in this instruction, and there was evidence upon which it seems to have been based. It was a question of fact whether there was a submission to arbitration by the parties; and whether there was an arbitration and an award, were questions of fact which were submitted to and determined by the jury, and there is evidence upon which their verdict was doubtless based.
The appellant complains of the first instruction given for the appellee, which reads as follows: “If the parties agreed to submit and did submit a dispute to arbitration, and an award was made, the law will imply that there is an agreement to abide by such award.” If this is not the law, it would be a farce to agree to arbitrate a matter. In this case there was an express agreement to abide by and perform the award alleged in the complaint, and it seems to be borne out by the facts and circumstances, though denied in the answer.
The defendant asked the court to declare in his second instruction “that the arbitrators must hear the parties in each other’s presence,” which was refused, and defendant (appellee) complains at this. If the parties demand this, it is their right, and it would be error to refuse it; but there are few rights a party may not waive, and if he is notified, and has the opportunity to be present, it is his own fault if he is absent, and he cannot take advantage of it. The testimony here tends to show that appellant was voluntarily absent when the arbitrators acted in the evening. The evidence tends to show that he was consulted from time to time, while the arbitration was going on, and made no objection. “It has been held that a party after receiving notice may stay away, without vitiating the award.” 2 Am. & Eng. Enc. Law, (2d Ed.), 655n.; Whitlock v. Ledford, 82 Ky. 391.
The third instruction asked by the appellant and refused by the court is as follows: “When arbitrators have once acted, either by making an award, or declining to do so, their power ceases, and they have no power to re-investigate the matter, unless requested by both parties to do so.” It seems, under the circumstances of this case, that this instruction would have led the jury to understand that theie could be no resubmissiou of the case except by express agreement of the parties in so many words. Besides, the court had instructed upon this phase of the case in the written instruction given of its own motion. The fourth instruction asked by defendant was that the court take the case from the jury. There was no error in refusing these instructions.
There is no reversible error in the court’s declarations of law. The other matters in the case are questions of fact, which were submitted to and decided by the jury, and we caunot say that the evidence does not support their finding.
But objection is urged to the verdict and the judgment because the verdict is general, and does not specify the amount of the jury’s finding, and the judgment is for $247,38 and 6000 staves, whereas the complaint did not demand any judgment for the staves, but only for the $247.88. It seems the plaintiff had the staves in his possession, and, as no demand was made for them or their value, no judgment should have been given for them, and the judgment of the court is so modified as not to include them. As to rendering judgment for $247^38 when the verdict did not specify the amount of the jury’s finding, we think there is no reversible error in this case. As a rule, .the verdict should be for a certain amount named in it. But this was a suit to enforce an award of arbitrators, whose award was in favor of the appellee here for $247.88. There was no uncertainty, therefore, in the general verdict. It was easy, as shown by the record, to ascertain the amount of the verdict. “The maxim, Id cerium est quod cerium reddi potest, is readily applicable to verdicts.” 28 Am. & Eng. Enc. Law, (1st Ed.), 300, and cases cited.
The judgment is affirmed.
Battle, J., did not participate. | [
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Battle, J.
Appellants brought this action in the Prairie circuit court to confirm the title to certain lands, acquired under a sale thereof that was made for the purpose of collecting the taxes assessed against them for the year 1890; describing the lands in their petition, and alleging that they had been purchased at the tax sale by the Hammett Grocer Company, which had sold to George C. Cooper, who had sold to petitioners, the appellants.. Appellees answered the petition of the appellants, and claimed a part of the lands purchased at the tax sale, and traced their title to the same through various persons to the state of Arkansas; the purchases from the state by the persons through whom they claim title being made in 1862. They also alleged that the lands in controversy were not advertised to be sold for the taxes of 1890 by weekly publications in a newspaper for two weeks between the second Mondays in May and June, 1891, as required by law, and that the sale of the lands for such taxes .was consequently void. The appellants replied to the answer, and alleged that the purchases from the state or entries through which the appellees claim title were illegal and fraudulent; that the parties claiming under said purchases failed to comply with an act entitled “An' act to define the condition of certain state lands, and for other purposes,” approved March 23, 1871; that the said purchases or entries, by reason of such failure, became void on the 31st day of March, 1872; and that, on the first day of April, 1872, D. C. Duell entered the lands in controversy in the land office of the state, and received a certificate of purchase, which he after-wards assigned to B. D. Williams, to whom the state of Arkansas issued a patent therefor, and that Williams afterwards conveyed the lands to the Hammett Grocer Company, which conveyed them to George O. Cooper, who conveyed to appellants.
Evidence was adduced at the hearing of this cause tending to prove that the lands in controversy were purchased by various persons from the state of Arkansas in the year 1862, and were conveyed by them to other persons, and by them and others, through deeds and a will, to the appellees; that D. C. Duell entered these lands as swamp lands, in the land office of the state, on the first day of April, 1872, and received a certificate of purchase, and afterwards assigned it to B. D. Williams, to whom the state of Arkansas issued a patent; that Williams afterwards conveyed the lands to the Hammett Grocer Company, and it conveyed them to George C. Cooper, and he conveyed to appellants. Evidence was also adduced for the purpose of showing that the lands were never occupied by the persons who entered them in 1862, and that there were no ditches on them in 1862, 1865 and 1866, and in those years there were no indications that any ditches had been made on them; and it was proved that the list of lands returned delinquent on account of the non-payment of the taxes of 1890, of which the lands in controversy were a part, was not - published weekly for two weeks between the second Monday in May and the second Monday in June, and was published only eleven days.
The circuit court did not decide whether the appellees had a valid claim, but found that the sale of the lands for the taxes of 1890, which appellants asked the court to confirm, was void, and refused to confirm the same as to the lands in controversy, because only eleven days’ notice .of the sale was given; and, finding that the petitioners and their grantors paid a certain sum as taxes, interest and costs, for which the lands were chargeable, declared it a lien upon them, and ordered the lands sold to pay the same. No order was made as to the lands which were not in controversy. Petitioners appealed.
The list of lands returned delinquent on account of the non-payment of the taxes of 1890, of which the lands in ques tion were a part, was not published in the manner prescribed by law. This rendered the sale which the appellants asked the court to confirm null and void. Pennell v. Monroe, 30 Ark. 661; Townsend v. Martin, 55 Ark. 192; Martin v. McDiarmid, 55 Ark. 213.
Should the sale have been confirmed, notwithstanding its nullity? In speaking of what shall be done in the hearing of a petition for confirmation of sales, the statutes say: “On the trial of the cause, the petitioner shall exhibit to the court the tax receipts showing the payment of the taxes for at least three successive years and the deed or deeds under which he claims title, or the record thereof, or a certified copy or copies of the record, and oral or written proof by one or more witnesses acquainted with the lands, showing that no one is in possession claiming adversely to the petitioner. * * * If the deed or deeds are in proper legal form and properly executed, and the tax receipts show payment of the taxes, and if the evidence shows that no one is in possession adverse to the petitioner, then, in case no one has appeared to show cause against the prayer of the petition, the petition shall be taken as confessed, and the court shall render final decrees confirming the sale in question. In case any person or persons claiming title to the land oppose the confirmation of sale, then the court shall try the validity of the sale, and, if valid, confirm it; but if the sale has been made contrary to law, the court shall annul it.” Sand. & H. Dig., §§ 633, 635, 636.
The proceeding to confirm sales of land is not authorized by the statute when any one is in possession of the land claiming adversely to the person seeking confirmation. If no one claiming adversely is in possession, and the other conditions prescribed by the statute are complied with, and any one claiming title to the land opposes the confirmation of the sale, then it is the duty of the court to try the validity of the sale. No investigation or inquiry into the validity of the title of the person opposing confirmation is required by the statute. The person claiming title must, however, do so in good faith. He should not be permitted to contest the validity of the sale solely for the purpose of defeating its confirmation. The privilege granted to him is for the purpose of enabling him to protect his interest in the land; and it is necessary and sufficient for him to allege and prove such a state of facts as will show that he might claim in good faith some interest in or right to the land.
The evidence adduced at the hearing of this cause was sufficient to prove that appellees claimed title to the lands in controversy through the last will -and testament of Eliza T. Hays, and that she acquired title to the same through various conveyances from the original purchasers from the state, who entered the lands on the 12th of February, 1862. They were “swamp and overflowed lands,” and the parties who entered them did so under the act entitled ‘--An act amendatory of existing laws regulating the landed interests of this state,” approved 12th January, 1853. The evidence shows that they applied to the land agents of the state for the privilege of purchasing the lands at private entry, and offered to pay for the same at the rate of fifty cents p,er acre in reclamation certificates; and that they purchased and paid for the same in that manner; and that certificates of purchase were severally issued to them by. such agents. So far their purchases seem to have been in substantial compliance with the statutes in such cases made and provided. Gould’s Digest, p. 717, sec. 1; p. 719, see. 6. But appellants say that these entries or purchases were afterwards canceled, and the lands were lawfully sold to D. C. Duell on the 1st of April, 1872, by authority of an act entitled “An act to define the condition of certain state lands and for other purposes,” approved March 23, 1871, which provides in part as follows:
“Section 1. That any person claiming, holding or occupying any lands belonging to the state of Arkansas, under and by virtue of any pretended sale made to such party by any’pretended authorities of the state after the 5th day of May, 1861, and before the 18th day of April, 1864, may present their claims to the commissioner of immigration and state lands on or before the 31st day of March, 1872. Upon the presentation of any such claims to said commissioner, he shall proceed immediately to investigate and make record of the same. If upon such investigation it appears that the person-making said claim is en titled to a certificate of purchase for any land belonging to the state by reason of labor performed for the redemption of swamp lands, the said commissioner shall issue a certificate of sale to such person for the same, and said certificate shall be of like effect as though no action had been taken by any pretended authorities as aforesaid.
“Section 2. That all lands claimed, held or occupied under any pretended sale, as aforesaid, and no certificate issued therefor, as provided in section 1 of this act, before the 1st day of April, 1872, shall be sold and disposed of as other state lands; provided that any person holdiüg any pretended certificate or patent from any pretended state authority for any lands shall have a pre-emption right thereto until the 31st day of March, 1872.”
This view of the act may be reasonably entertained: it treats the sale of lands by the state after the 5th day of May, 1861, and before the 18th day of April, 1864, as void, and the land sold as still belonging to the state, and gives to the persons holding certificates of purchase or patents from the state for the same the right to pre-empt until the 31st day of March, 1872. It denominates all such sales as “pretended sales” by “pretended authorities of the state.” It did not call in the certificates of purchase or patents issued by the state for these lands for the purpose of ascertaining whether they were valid or not. But the commissioner of immigration and state lands was required to investigate the claims of persons holding under such certificates and patents which were presented, and if he found that such persons were entitled to a certificate of purchase by reason of labor performed for the redemption of swamp lands, he was directed to issue certificates of sale to such persons; and the act declares that such certificates so issued by the commissioner “shall be of like effect as though no action had been taken by any pretended authorities as aforesaid.” He was not authorized by the act to issue certificates of purchase to persons who had purchased and paid for land with money. The intent and effect of the act, if enforced, -was absolutely to annul all sales by the state between the dates named. If this view of the act be correct, it was void.
We therefore think that appellees claimed such title to the lands in controversy as permitted them to oppose the confirmation of the sale thereof, and the decree as to such lands is affirmed.
Riddick, J., did not participate. | [
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Battle, J.
W. T. Cornwell was indicted for carrying a pistol as a weapon, and was convicted.
The facts in the case are substantially as follows: He was seen with a pistol on the premises of J. W. Pearce. He carried it there from his residence, a distance of three miles. In going to that place he traveled through (the woods and along the railroad track, by-roads and trails’ Although he could have done so, he did not travel the public road. He carried the pistol to Pearce's premises to kill hogs, which he did, and, after he had done so, he carried it back to his home, where he put it away, as he had no further use for. it.
Upon these facts the court instructed the jury, at the request of the state, over the objections of the defendant, as follows:
“1. The jury are instructed that if a man carry a pistol loaded in his pocket, not on his own premises, he is guilty of carrying a weapon.
“2. In saying to you that the state must prove that the defendant carried the pistol as a weapon, the court does not mean that he must have carried it for the purpose of killing or injuring some human being. A weapon may be used for other purposes; and if you believe, beyond a doubt, that it was carried in a way that it could be used as a weapon as charged in the indictment, you will convict the defendant.”
And refused to instruct the jury, at the request of the defendant, as follows:
“8. If the jury believe from the evidence that the defendant carried the pistol for the sole purpose of killing hogs, and not for use against any individual, they will acquit him.”
The instructions given to the jury at the request of the state are not the law. The second instruction asked for by the defendant and refused by the court should have been given. So much of the statute as is applicable to this case is as follows: “Any person who shall wear or carry in any manner whatever as a weapon * * * any pistol of any kind whatever, except such pistols as are used in the army or navy of the United States, shall be guilty of a misdemeanor.” Sand. & Dig.,- § 1498. The object of this part of the statute, as said by the supreme court of Tennessee of another statute, “is to prevent the carrying a pistol with a view of being armed and' ready for offense or defense in case of conflict with a citizen (person) or wantonly to go armed.” Moorefield v. State, 5 Lea, 348. The carrying of a pistol partly or 'entirely with this view or purpose is a violation of the statute; otherwise, it is not.
Reversed and remanded for a new trial. | [
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Bunn, C. J.
The material part of the indictment charges that “the said Josephus Williams, being a man, and May Hite, being a woman, in the county and state aforesaid, on the 1st day of November, 1898, did unlawfully cohabit together as husband and wife, without being married.” Upon a plea of “not guilty,” a jury was impaneled to try the issues, and the state offered the following testimony: Monroe Claxton testified that he was acquainted with defendant Williams; that he did not know a woman by the name of May Hite, but he knew May Hyde; that defendant and the woman Hyde lived together in the same house in the bottom during part of the year 1868. On being questioned by the court, witness said the woman’s name was spelled “Hyde.” The court then ruled, over the objections of the state, that the two names Hyde and Hite are not idem sonms, and refused further testimony on the part of the state, unless it could show that May Hite was in fact the same as May Hyde, the state having offered to prove by two other witnesses the acts of cohabitation, and by one other (the clerk of the county and probate court)that, so far as his records showed, the defendant had never been married to May Hyde or May Hite, all of which testimony the court refused to admit, because witnesses did not identify the woman as May Hite as named in the indictment, but referred to May Hyde only. The defendant objected to all testimony referring to May Hyde, and not to May Hite, for the same reason, and his objections were sustained by the court.
The foregoing being all the testimony in the case, the court gave the following charge to the jury: “Gentlemen of the jury: It is conceded by the state that, under the rulings of the court, the state has failed to make out a case, and your verdict will be ‘Not guilty.’ The thing falls simply from the ruling of the court that the name of the woman is wrong. The proof shows that the name of the woman is May Hyde, while the indictment charged May Hite, and for that reason defendant is not convicted.” All proper exceptions were saved. The jury returned a verdict of not guilty, in obedience to the direction of the court, Motion for new trial was filed and overruled, and state took her bill of .exceptions and appealed.
The court directed the verdict because of a variance between the proof and allegation in the indictment as to the name of the woman jointly indicted with the defendant, who, however, was not arrested. It is well to state, also, that the doctrine of idem sonans may not necessarily have the same effect in the case against the woman as in this case, as the name of the woman in this case against Williams is merely descriptive of the offense, while in a case against her it would but denominate the pai’ty defendant. The state sought to have the court declare that the two names are idem sonans, and therefore the same in law. This declaration the court declined to make, but, on the contrary, declared that the two names are not idem so-nans. The rule in questions like this is thus stated in the American Encyclopedia of Law, vol. 4, pp. 769 and 770: “Where two names, though spelled differently, necessarily sound alike, the court may, as matter of law, pronounce them to be idem sonans; but, if they do not necessarily sound alike, the question is for the jury. A literal variance in the spelling of the word is not alone fatal, when the omission or addition does not make it a different word; and this diversity in the spelling of a name is not material where it is idem sonans.” This is the rule laid down also in Commonwealth v. Warren, 143 Mass. 568.
The letter “d” and the letter “t” are both dentals, but have not necessarily the same sound, by any means. The “d” has a broader and (we may say) a more lengthened sound, ordinarily, than “t,” which has a sharp, shorter sound, and yet the difference grows less, according to their places in a word or name. Thus Wadkins and Watkins have been held to be idem sonans, because in casual pronunciation there is scarcely any difference in the sounds. But this similarity of sound does appear in the words “ride” and “rite,” because there is a prominence given to the two letters which brings out their nominal difference in sound. So it is in the names involved in this case. There is not the same sound necessarily in Hyde and Hite, as there is in “Hyde” and “Hide”, where the play is upon ‘y’ and ‘i,’ two letters which have identically the same sound where used in such a connection.
There ai’e many cases where it is held that, notwithstanding the doctrine of idem sonans does not strictly apply, yet the doctrine of interchangeability of names applies, as was applied in Commonwealth v. Warren, 143 Mass, supra, where the controversy arose as to the two names of “Oelestia” and “Celeste,”— the name of one of the witnesses in the case, — as the first wife of defendant, in a trial for polygamy. That rule is not sought to be applied in this case, however, and is only applied in cases to be submitted to the jury to determine the fact of whether or not the person is known by one name as well as the other.
Our conclusion is that Hyde and Hite are not idem sonans, and that the trial court did not err in that regard. The judgment is therefore affirmed.
Battle, J., absent. | [
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Hushes, J.,
(after stating the facts.) We are of the opinion that the evidence in the case shows that the appellant Mignon Culberhouse received from her father one horse of the value of $125 and an insurance policy upon his life in the sum of $4,000, upon which she received $4,000; that it does not clearly appear that said horse and said policy of insurance were intended as gifts, and they must be held to be advancements to the said Mignon Culberhouse. Robinson v. Robinson, 45 Ark. 481; White v. White, 52 Ark. 188.
The material question in this.ease is, how shall the value of the advancement be estimated. Shall it be at the date of the insurance policy, at the date of the payment of the last premium, or at the death of insured? Section 2486 of Sandels & Hill’s Digest, under the head of Advancements, provides that “the value of any real or personal estate so advanced shall be deemed to be that, if any, which was acknowledged by the person receiving the same by any receipt in writing specifying the value; if no such written evidence exists, then such value shall be estimated according to its value at the time of advancing sucb money or property.” We are-of the opinion that the value of the advancement of the policy of insurance should be estimated as of the time of the right of possession or beneficial interest accrued, which was at the death of the insured, the father of the beneficiary. We think this view of thq case is in consonance with equity, and what is presumed from the facts in this case to have' been the intention of the father, and that it is supported by the case of Cazassa v. Cazassa, 92 Tenn. 576. Not until the death of the insured did the beneficial interest in the policy accrue, and the beneficiary thereafter received $4,000 upon the policy. There are only two cases upon this question, it seems, — the one cited here from 92 Tenn. and the other is Rickenbacker v. Zimmerman, 10 So. Car. 110, in which latter ease it is held that the value of the insurance at the time it was taken out, and the first premium paid, together with all premiums subsequently paid, must be treated as an advancement. Reported in 30 Am. Rep. 37, and cited in 1 Am. & Eng. Enc. Law, p. 217.
The decree of the chancellor is affirmed. | [
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Battle, J.
On the 14th day of September, 1896, Allen Davis brought a suit against Meyer Brothers Drug Company, J. D. Kimbell, and others, in the Garland circuit court, on a note executed to them for $800, payable to plaintiff, “Allen Davis, constable of Hot Spring township, Garland county, Arkansas.”
J. D. Kimbell filed an answer on the 30th of September, 1896, and an amended complaint and cross-complaint on the 23d of the following October. As a defense he stated that the note was given for the purchase price of a stock of drugs and fixtures which had been seized by the plaintiff, Allen Davis, as constable, in pursuance of certain orders of attachment against O. A. Johnston, and had been sold under an order of .court, and purchased by the defendants, who sued out the orders of attachment, and their attorneys.
Kimbell moved the court to transfer the action to equity, which was done. After this, S. A. Sammons and others, on their application, were made parties plaintiff to the action. They stated, by way of amendment to the original complaint, that they were the sureties on the official bond of Allen Davis; that Nancy Davis, who claimed to be the owner of the property seized by the constable under said orders of attachment, had sued the constable, and them as his sureties, for the value of the property so attached and sold; that at the trial in the suit brought by Nancy Davis judgment was rendered in her favor, against the constable and his sureties for the sum of $1,200, the value of the property attached; that they, as the sureties of the constable, had been compelled to secure the payment of the judgment by giving a stay bond; that Allen Davis, in order to indemnify them against loss on account of the judgment recovered against him by Nancy Davis, - sold and transferred to them the note sued on, together with certain indemnity bonds given to him, as constable, by the attaching creditors; and that Allen Davis was insolvent, and had died since the commencement of this action.
The facts connecting Meyer Brothers Drug Company and J. D. Kimbell with this action, as shown by the evidence, are as follows: On the first day of July, 1895, Meyer Brothers Drug Company sued out an order of attachment in an action instituted by it against O. A. Johnston, and then pending in the court of common pleas of Garland county; the said action having been commenced on the 24th day of May, 1895. This order of attachment was directed to the sheriff of Garland county, and was by him executed by levying upon certain fixtures, shelving and counters, which belonged to Nancy Davis, as the property of O. A. Johnston, the same then being in the possession of the constable under prior orders of attachment, which had been placed in the hands of the constable, and by him served by levying on a stock of drugs, the property of Nancy Davis, and upon the fixtures, counters and shelves; all of which drugs and other property were seized and held by the constable as the property of O. A. Johnston. Meyer Brothers Drug Company recovered a judgment for the full amount of its claim against Johnston, and its attachment was sustained by the court.
On the 16th of December, 1895, the drugs, fixtures, counters and shelves attached as the property of O. A. Johnston were sold under an order of the court by the constable, Allen Davis, for the sum of $800. Meyer Brothers Drug Company and the other attaching creditors were the purchasers, and they and J. D. Kimbell and others executed the -note sued on for the purchase money, and made it payable to “Allen Davis, constable of Hot Springs township, Garland county, Arkansas.”
During the pendency of the attachment proceedings, Nancy Davis instituted an action in the Garland circuit court against Davis, the constable, and the sureties on his official bond, for the value of the property seized, and on the 15th of October, 1895, recovered a judgment against the defendants sued by her for the sum of $1,200, as the value of the property attached. The sureties stayed the execution of the judgment, and after-wards paid the amount for which it was rendered. During the pendency of this action, Davis, the constable, transferred the note sued on and certain indemnity bonds which he had taken from the attaching creditors, to his sureties, for the purpose of holding them harmless against the judgment recovered by Nancy Davis. Allen Davis was insolvent, and died after making the transfer; and his sureties, after his death, prosecuted this action to judgment.
The chancery court found the facts to be substantially as stated above; that the makers of the note sued on executed it with the understanding that each attaching creditor “was to pay his proportional amount, and be interested in the purchase to the extent of the amount of his or their respective demands against O. A. Johnston; that each of the purchasers of the property sold were responsible and liable to the constable for their proportional amount of the purchase money; and that the proportional amount of Meyer Brothers Drug Company was $172.40;” and also found that the sureties on the constable’s bond were entitled to be subrogated to the rights of their principal, and to recover of Meyer Brothers Drug Company and J. D. Kimbell, its surety, the $172.40; and rendered a decree accordingly.
The decree was based upon a correct theory. Upon the satisfaction of the judgment recovered against him and his sureties by Nancy Davis for the value of the property attached, the constable would have been entitled to the property so seized. The judgment and satisfaction thereof would have vested the title in him, and he could have recovered the proceeds of the sale in lieu of the property, if he so elected. Lovejoy v. Murray, 3 Wall. 1; Elliott v. Hayden, 104 Mass. 180; Dow v. King, 52 Ark. 282; 1 Freeman on Judgments, § 237. But, inasmuch as he did not pay the judgment, and his sureties have, they are entitled to the same right by subrogation.
There is no error in the decree prejudicial to appellants.
Decree affirmed. | [
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Riddick, J.
This is an appeal from a judgment against the railway company for damages caused by its train striking two mules belonging to plaintiff. The first contention is that the circuit court had no jurisdiction, for the reason that the complaint does not ■ allege that the injury occurred in the county where the action was brought. But the complaint alleges that the injury occurred on the White River branch of the defendant’s road near the town of Newark. The evidence shows that the train at the time of the accident was going from Batesville to Newport, and the • accident took ■ place west of Newark, as the train was approaching 'that place from Bates-ville, and so close to the town that persons at the station saw the mules at the time they were struck by the train. Now, it is a matter of general information that Newark, a town of several hundred inhabitants, with express and post offices, is located in Independence county, on the line of defendant’s road between Batesville and Newport. The courts will take judicial notice- of the fact that it is located in Independence county, and that the circuit court of that county has jurisdiction to try an action for damages for injuries occurring there. Central Railroad & Banking Co. v. Gamble, 77 Ga. 584.
The contention that the court erred in instructing the jury as to the lookout to be kept by employees in charge of a train must be overruled. The engineer, according to his own testimony, saw the mules when they were five hundred yards away from the approaching train. They were at that time within fifty feet of the track, and, having discovered them, the engineer was bound to use ordinary care to avoid injuring them. The question was not whether he kept a proper lookout, but whether he used due care after, he discovered the mules near ■the track. While the instruction as to the duty of the employee to keep a lookout may be abstract, we cannot see that it could in any way prejudice the rights of appellants.
On the facts the case is somewhat doubtful, but our conclusion is that the judgment should be affirmed. | [
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Bunn, C. J.
This is a suit by appellant, F. M. Duncan, as county clerk of Scott county, for certain fees alleged to be due him for official services in the matter of calling in the county scrip of said county for examination, cancellation or re-issuance, under the statute. The claim was allowed in the county court, and H. N. Smith, a citizen and taxpayer of said county, for himself and all other taxpayers of the county, took an appeal from the allowance and judgment of the county court to the circuit court, where the claim was disallowed, and Duncan appealed to this court in due form.
The defense was that the appellant had agreed with the county judge, before the order calling in the scrip was made, that he would make no chai’ges for his fees. This agreement was also made by the sheriff, and the saving of these fees to the county seems to have been one of the inducements which led the county judge to call in the scrip. The sheriff made no charges for his services, but the appellant, as clerk, claiming that he had made no definite agreement on the subject, filed his claim in due form, and that was the beginning .of this suit.
The circuit court made the following declaration of law on the subject: “The court declares the law to be that F. M. Duncan is estopped from claiming anything for services rendered touching the order for and the reissuing the county scrip of Scott county; that the county judge relied on his promise not to charge anything for his services, and, if he was permitted to charge for such services, it would result in an injury to Scott county, which would not have resulted but for the promise of gratis services on the part of Mr. Duncan. He, with a full knowledge of all the facts touching a matter, cannot mislead another to his injury, and then recover on a claim based on and growing out of his own wrong. The law allows a county judge to make au order calling in county scrip and reissuing the same. Hence it may be well assumed that the legislators, when enacting the law, supposed it would be beneficial. The presumption is, such an order is beneficial to the county. This being true, it enures to the benefit of each citizen alike. Hence it enured to the benefit of F. M. Duncan, as a citizen of Scott county.”
While it may be a presumption that the calling in the scrip was a benefit to all the citizens of Scott county, that presumption does not arise from any concession Duncan may have made as to his fees, nor from any bargain the county judge may have made with him in relation thereto, but rather from the fact that the county court, exercising a sound discretion as to whether or not' the occasion demanded the calling in of the scrip, made the order for that purpose. Whether or not the question before the county court was such as to call for the saving of the fees of the clerk and sheriff as a proper consideration in the matter, we will not stop here to discuss. All we wish to say in this connection, and all that is necessary for us to say, is that the alleged agreement was without consideration, and certainly without mutuality. Duncan could not have compelled a specific performance of the agreement on the part of the county judge, had he refused to perform his part of it. If there was any consideration accruing to the appellant, it was an illegal one, and therefore no consideration. Otherwise, it was a mere voluntary agreement on the part of the appellant, having no binding force in law. He was by law entitled to the fees allowed by the county court, and he is estopped by no antecedent agreement to waive them.
The judgment is reversed, and the cause remanded, with directions to be proceeded with not inconsistently herewith.
Wood and Riddick, JJ., did not participate. | [
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Battle, J.,
(after stating the facts.) The greatest estate which N. B. Pearce could have acquired, by virtue of the relation of husband and wife, in the land in controversy was an estate for and during the term of his natural life. The fact that his wife acquired the lands by purchase during coverture did not increase that estate; neither did her failure to file a schedule have that effect. Chapter 111, of Gould’s Digest, which is relied upon by appellant, in no ease imposed such a penalty upon a married woman for such a failure. The object of these statutes was to increase her rights by the filing of the schedule, and at the same time protect the rights of her husband’s creditors.
Pearce’s creditors could not sell under execution any greater interest in his wife’s lands than he had. When he died, his interest expired with him.
Judgment affirmed. | [
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Hughes, J.,
(after stating the facts.) There is evidence to sustain the finding of the court that the bond for costs was delivered to the clerk on Saturday, the 15th of September, 1894, and by him filed on Monday, the 17th of September, 1894. Was the judgment rendered without notice? When the sureties signed and delivered the bond, they were in court, and were bound to take notice of any proceedings in the case that affected them. Section 2704, Sandels & Hill’s Digest, provides that “if, upon the trial of any such suit as is mentionod in section 2702 [contests for offices named], judgment shall be rendered against the contestant, judgment shall be immediately rendered against him and his sureties in the bond for costs in favor of the contestee or defendant in the action, and the officers of the court, for the amount due them as costs in the case.” Act February 24, 1879, §§ 1, 2 and 4.
The general statute is found in section 796, Sand. & H. Dig., and provides that “in all cases where there is security for costs * * * in which the plaintiff shall be adjudged to pay the'costs, judgment may be rendered against such security * * * on motion of the party entitled to such costs, notice of such motion having first been given to such security,” etc. Rev. Stat. chap. 34.
There is no conflict between the two sections. One applies in actions at law generally, while the other applies in contested election cases, and is a special statute enacted to be applied specially in reference to contested election eases. The general act applies in all actions at law, whenever there is not a special statute. Where there is a special act made to appl; in particular cases, it only applies, and not the general act Endlich, Interp. of Statutes, § 223 et seq.
The judgment of the court in sustaining the demurrer to the second paragraph of the petition is correct, and the findings of the court and judgment upon the facts is sustained bj the evidence.
The judgment is in all things affirmed. | [
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Bunn, C. J.
This is an indictment for practicing dentistry without first obtaining a certificate from the board of dental examiners. The evidence showed that defendant was, at the time of the commission of the alleged offense, a student under I)r. Milam, a regular practicing dentist of the city of Arkadelphia. The evidence also showed two instances in which defendant while so engaged had performed dental work, and both apparently under the advice of Dr. Milam, defendant performing the mechanical work — one in extracting teeth, and the oilier in filling teeth — and that for the first work nothing was charged or received by him, but that for the latter work he charged and received the sum and fee of $10.
The court instructed the jury as follows, to-wit: (1) If you believe from the evidence that this man practiced dentistry without obtaining license, as the law directs, within twelve months before the finding of this indictment, you should find the defendant guilty, and assess his punishment at not less than $10 nor more than $100. (2) If, upon the other hand, you believe the defendant was in there learning dentistry, and was working under Dr. Milam’s direction and advice, it will be your duty to say, ‘We, the jury, find the defendant not guilty.’ (3) If the defendant had set up as a regular practicing dentist, he would be guilty; but if he were there learning the business under Dr. Milam, practicing under his directions and his advice, he is not guilty.”
These instructions, it will be observed, leave out the charging and receiving pay for the work as an element of the crime. The statute (Sand. & H. Dig.), defining the crime is in these words: “Section 4973. It shall be unlawful for any person to practice or attempt to practice dentistry, or dental surgery, in the state of Ai’kansas, without first having received a certificate from the board of dental examiners; provided, this shall not be construed as preventing any regular licensed physician from extracting teeth, nor to prevent any other person from extracting teeth when no charge is made therefor by such persons.”
From the language of the act under which this indictment was found, it is impossible to escape the conclusion that the performance of dental work, and charging and receiving pay therefor, is practicing dentistry. The theory of the trial court seems to have been that, notwithstanding this, yet, as the defendant was, when he did this work, a mere student, and doing his work under the direction of Dr. Milam, a licensed dentist, he was not answerable to the law on the subject. It must be noted, however, (if this is any defense at all), that while this relation existed between the defendant and Dr. Milam at the time, so far as the dental work was concerned, yet the charge for the same was not made in the name of Dr. Milam, nor was the pay received for him. The charge was made by the defendant for himself, independent of Dr. Milam, and so was the pay received by him. The second and third instructions given by the court were therefore erroneous, and, being excepted to by the prosecuting attorney, a new trial should have been granted for that reason.
The refusal of the court to give an instruction in the language of the statute at the instance of the state was not error, for two reasons: First, the first instruction given was substantially the same as if. it had been expressed in the language of the statute. Secondly, an instruction ' merely in the language of the statute, under the circumstances, would not have been any assistance to the jury, for the object was to instruct them as to the legal meaning of certain words in the act,— that is, to inform them what constituted a practicing of dentistry under the act.
But for the error named in the outset the judgment is reversed, and the cause remanded for a new trial. | [
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Battle, J.
B. F. Nance and the Southern Savings Fund & Loan Company instituted an action against the Planters’ Mutual Insurance Association upon an insurance policy executed by the defendant to Nance on the 15th day of April, 1896, in which it insured a certain dwelling house of Nance for $1,500 against fire for the term of three years. They alleged in their complaint that Nance, on the 9th of June, 1896, executed to Charles B. Stark, trustee for the Southern Savings Fund & Loan Company, a mortgage on the property upon which the dwelling house was located; that the defendant, on the 2d day of May, 1896, entered into a contract with the Southern Savings Fund & Loan Company to the effect that, in case, any loss should occur under the contract for insurance, the defendant would pay to it, as mortgagee or beneficiary, as its interest might appear; that Nance was indebted to the loan company in the sum of $975; that the dwelling house was destroyed by fire on the 28th of January, 1897; that Nance forthwith gave notice of the loss, and would have proved the same, had the plaintiffs not been prevented by the written refusal of the defendant to pay either of them.
To this complaint the defendant filed an answer, the substance of which we give in the language of the abstract of the appellant, as follows: “It admitted the contract of insurance with Nance, but it denied the execution of said mortgage to the appellee, the Southern Savings Fund & Loan Company, and alleged that the said Nance executed a mortgage on the 9th day of June, 1896, to Chas. B. Stark, of the city of St. Louis,' as trustee. It admits it entered into a contract with the appellee, the Southern Savings Fund & Loan Company, to the effect that, in case any loss should accrue under said contract of insurance, it should pay the said appellee as its'interest might appear. The defendant denies that the sum of $975 is due from the said Nance to the said appellee, and it says that, if the said Nance was indebted to the said company in any sum whatever by virtue of said mortgage, it was not due and payable at the time of the commencement of this suit, nor was it due and payable at the time of the filing of said complaint, and it says that the said appellee could not recover in said cause: First. Because the said debt from said Nance to said appellee, if any, was not due and payable. Second. Because it expressly stipulated in said contract of insurance No. 1340 “that there was a premium note .for $73.75 due December 1, 1896, which said note at the time of said alleged fire and loss was past due and unpaid, and under the terms of said policy this contract was thereby rendered null and void.” Third. Because it expressly provided in said insurance contract “that, should any loss or damage accrue to the property insured in such case — that is, where a note, or any part thereof, remains past due and unpaid at the time of said loss or damage, — then said contract shall be null and void, and if any loss accrue to the property insured, and said note for $73.75 was past due and ' unpaid at the date of such alleged loss, then said contract of insurance is null and void,77 and the plaintiff is not entitled to recover on the same; and it further states that the said appellee at the time of such alleged loss had knowledge of the fact that said note of $73.75 was due and unpaid long before the time of said alleged loss; that said insurance contract, by reason thereof, was null and void, and that no recovery could be had thereon. Fourth. The defendant also alleges that the plaintiff, the Southern Savings Fund & Loan Company, cannot maintain this action because said policy of insurance sued on was assigned to it merely as collateral security on the mortgage on said property and the real estate on which it was situated, and it was expressly provided in said insurance contract ‘that, should any loss or damage accrue to said property insured, the mortgagee shall not be entitled to demand or recover any part of the amount until he, she, or they have enforced and collected such a portion of the debt as can be collected out of the primary security to which this contract is collateral,7 and the defendant says that said Southern Savings Fund & Loan Company has not exhausted its security, and that the value of the real estate upon which it holds said mortgage is largely greater than' the amount claimed by it under this contract, and is amply sufficient to protect said plaintiff, the Southern Savings Fund & Loan Company, against any loss by reason of said fire. Fifth. The defendant, further answering, states that the note and mortgage executed by B. F. Nance to the plaintiff, Southern Savings Fund & Loan Company, on the 9th day of June, 1896, and the mortgage executed by B. F. Nance to said Chas. B. Stark as trustee of the same date, and to secure said note, being the note and mortgage upon which the plaintiff sues on herein, are both usurious and void, and both said note and mortgage were executed in this state, and are Arkansas contracts, and are to be construed in accordance with the laws of this state; that in said note and mortgage the said B. F. Nance agrees to pay the said plaintiff, the Southern Savings Fund & Loan Company, interest at the rate of $5 per month on $1,000, which amounts to 6 per cent, per annum, and he also agrees to pay on said note and mortgage a premium of $6 per month on the $1,000, which amounts to per cent, per annum on said amount, thus making interest charged on said note and mortgage amount to 13| per cent, per annum; that the monthly payment of $6 as a premium mentioned in said note and mortgage is only an additional interest charged, and is a mere sham, device and subterfuge to cover up the charge of usury; that the said Southern Savings Fund & Loan Company unlawfully and corruptly demands, exacts and receives of and from the said Nance interest on $1,000 at the rate of 13^ per cent, per annum, and is therefore usurious and void, and the said company is not entitled to recover thereon.”
The plaintiffs filed a demurrer to so much of the answer as sets up usury, which was sustained by the court. After this they filed a supplemental complaint, in which they alleged that the loan company had collected $250 upon the mortgage by accepting a deed to the mortgaged premises at that price, and had thereby exhausted all security for the payment of the debt of Nance, except the policy sued on; and the defendant answered and denied these allegations.
A jury was impaneled to try the issues in the case; and the plaintiffs introduced and read as evidence the policy sued on, which contained the following clauses: “Planters’ Mutual Association of Arkansas, * * * by this contract of insurance, in consideration of note for $73.75 due December 1, 1896, and the stipulations herein contained, do insure B. F. Nance against loss or damage by fire * * to the amount of fifteen hundred dollars as follows: On his dwelling house, $1,500, situate on lots Nos. 10, 11 and 12, block No. 401, Corning, county of Clay, Arkansas, * * * and the said association hereby agrees to make good unto the said assured, his executors, administrators and assigns, all such immediate loss or damage, not exceeding the amount of the sum insured, nor the interest of the insured in the property, nor to exceed three-fourths of the cash value of any building or other property, at the time of loss, as shall happen by fire * * to the property above specified from the fifteenth day of April, 1896, at 12 o’clock noon, to the fifteenth day of April, 1899, at 12 o’clock noon, except such portions of the above-mentioned period of time as this association shall hold against the assured any promissory note past due and unpaid, in whole or in part, given by the assured for the assessment charged for this contract or any part thereof, and during such portion of time this contract shall be null and void, and so continue until such promissory note is fully paid. * * * The amount of loss or damage to be estimated according to the actual cash value of the property at the time of the loss, and to be paid in ninety days after notice and due and satisfactory proof of the same shall have been made by the assured and received at the association’s principal office at Little Rock, Ark., in accordance with the terms and provisions of this contract hereinafter named. ■ '* * * When a membership contract is issued upon the interest of a mortgagee, or other creditors, or is held as collateral security to a mortgage or any other debt or demand, the assured shall not be entitled to demand or recover any part of the amount insured until he, she, or they shall have enforced and collected such portion of the debt as can be collected out of the primary security to which this contract is collateral. * * * It is mutually agreed that no suit or action against this association upon this contract shall be sustainable in any court of law or equity, unless commenced within six months after the loss or damage shall occur. And if any suit or action shall be commenced after the expiration of said six months, the lapse of time shall be taken and deemed as conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.”
And they also read as evidence an indorsement upon the policy as follows:
“Policy No. 1340, in the name of B. F. Nance. Loss if any payable to the Southern Savings Fund & Loan Company •of St. Louis, Mo., mortgagee, or beneficiary or assigns as hereinafter surviving. It is hereby agreed that this insurance, as to the interest of the mortgagee or trustee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy. It is further agreed that the mortgagee or trustee shall notify said company of any change of ownership or increase of hazard which shall come to his knowledge, and that every increase of hazard not permitted by the policy to the mortgagor or owner shall be paid for by the mortgagee or trustee, on reasonable demand, according to the established scale of rates for the use of such increase of hazard during the then current year. It is also a.greed that whenever the company shall pay the mortgagee or trustee a sum for loss under this policy, and shall claim that, as to the mortgagor or owner, no liability thereof exists, it shall at oiice be legally subrogated to all the rights of the mortgagee or trustee under all the securities held as collateral to the mortgage or trust debt to the extent of such payment, or at its option may pay to the mortgagee or trustee the whole principal due or to grow due on the mortgage or trust deed, with interest, and shall thereon receive a full assignment of the transfer of the mortgage or trust deed, and all other securities held as collateral to the mortgage or trust debt, but no such subrogation shall impair the right of the mortgagee or trustee to recover the full amount of his claim. The foregoing provisions and agreements shall take precedence over any provision or condition conflicting therewith and contained in said policy. This clause is attached to and made a part of said policy from the 2d day of May, 1896.
“In witness whereof, the duly authorized agent of the said insurance company has hereunto set his hand of said day.
[Signed] “M. Miles, General Agent.”
They read the bond of Nance to the loan company, and the mortgage executed to secure the same. The bond was in the-sum of $1,000, and contained the following recital and covenant: “Whereas the said B. F. and Lettie J. Nance are the owners and holders of one share of the capital stock of said Southern Savings Fund & Loan Company; and whereas, at the request of said B. F. and Lettie J, Nance, the said company had loaned the sum of one thousand dollars ($1,000) to said B. F. and Lettie J. Nance, * * * the said B. F. and Lettie J. Nance, in consideration of such loan, * * * do covenant and agree that they will henceforth well and truly pay to said company, its successors or assigns, on or before the 15th day of each month, the sum of fifty cents as a monthly installment on each one hundred (dollars) of stock above named, and also on the same day the sum of five ($5) dollars as monthly interest on said loan, and also the monthly sum of six ($6) dollars as premium on said loan; such payments to continue until each full share of said stock shall be worth on the books of said company the sum of one thousand dollars, according to the by-laws of said company; and that then the sum so expended and loaned as above set out by said company shall be repaid to it by the absolute surrender to and cancel-" lation by said company of said share of stock.” The mortgage was executed to secure the performance of the covenants in the bond, and for that purpose conveyed to a trustee certain lots and the dwelling house thereon, which was insured by the defendant. It provided “that if at any time default should be made in the payment of dues, premium, interest, fines, or either of them, and the same shall remain unpaid for a space of six months after payment thereof .shall fall due, or if the balance due by the obligors in said bond shall be allowed to accumulate until it equals the sum of six months’ dues, interest and premium, then the whole principal debt shall, at the option of said company, or its successors, immediately become due and recoverable, and payment of said principal sum and all interest thereon, as well as the dues, premiums and fines then due, may be enforced and recovered at once by sale of the property described in the mortgage. The mortgage also provided that “B. F. Nance and wife will, during the continuance of the mortgage, keep the building insured in some responsible insurance company or companies in a sum satisfactory to said company, and keep the policy or policies issued thereon constantly assigned to the party of the third part, or to its successors or assigns, as its or their interest in that behalf may appear, for further securing said loan; and any and all moneys which shall he collected under such policy or policies, less expense of collecting thereof, shall be applied towards payment of said principal debt mentioned in said bond, unless said improvements and buildings be replaced.”
Evidence was adduced tending to prove the following facts: The dwelling house insured was totally destroyed by fire on the 29th of January, 1897. In due time the plaintiffs-notified’the defendant that the house was destroyed. It responded, and refused to pay anything as indemnity for the loss, because Nance failed to pay his note for the premium due for the insurance, and because the same was dueand unpaid at the time of the loss. The house was reasonably worth the. sum of $2,000. Nance, during the pendency of this action, conveyed the lots described in the mortgage to the loan company, and-was credited on the debt secured by the mortgage with the sunn of $250. This was the price agreed upon, and the credit for the same was the consideration of the deed, and was all the-lots were reasonably worth. The amount of the indebtedness, of Nance to the loan company, which was secured by the mortgage, and left unpaid after the credit for $250, was $908.70, There was no security for the payment of this sum, except the policy sued on. Nance paid the sums he agreed to pay monthly on the mortgage debt until December, 1896, or January, 1897, when he made the last monthly payment.
The court refused many requests of the defendant for instructions to the jury, and gave many directions over its objections.
The jury returned a verdict in favor of the loan company for $787.47, and found in favor of the' defendant as to the right of Nance to recover; that is, Nance was not entitled to-recover anything on the policy. Judgment was rendered in favor of the loan company for the $787.47, and the defendant, appealed.
Appellant insists that the judgment against it should be reversed because this action was commenced before the debt of' Nance to the loan company was due and payable. This debt was to be satisfied by monthly payments. The mortgage pro vided that, if default should be made in these payments and should continue for six months, the whole debt should become due. The last monthly payment was made in December, 1896, or January, 1897, about two or three months before the commencement of this action, which was instituted on the 27th of March, 1897. No default in the payment of the monthly dues occurred six months before that time. But this did not fix the time within which this action should be brought. The amount due on the policy on account of the loss by fire should have been paid, according to its terms, within ninety days after notice and due and satisfactory proof of the loss should have been made by the assured and received at appellant’s office at Little Rock, Arkansas. It was mutually agreed by the parties to the policy that no action upon the contract of insurance should be sustainable in any court of law or equity unless commenced within.six months after the loss or damage should occur. The policy fixed the time when the right of action aecrfied, and the time-within which it should be commenced.
Appellant also insists that this action was prematurely instituted, because the policy sued on provides that “the assured shall not be entitled to demand or recover any part of the amount insured until he, she, or they shall have enforced or collected such portion of the debt as can be collected out of the primary security to which this contract is collateral,” and that was not done in this case. That is true. But, in the indorsement made upon the policy at the time it was formally assigned to the loan company, it was agreed that whenever the appellant “shall pay the mortgagee or trustee a sum for loss under” the policy sued on, “and shall claim that, as to the mortgagor or owner, no liability therefor existed,” it may “pay to the mortgagee or trustee the whole principal due or to grow due on the mortgage or trust deed, with interest, and shall thereupon receive a full assignment of the mortgage or trust deed, and all other securities held as collateral to the mortgage or trust debt.” Appellant claimed that it was not liable to the mortgagor, Nance, for any loss under the policy. According to its agreement with the loan company, it had the option to pay the whole mortgage debt, and to have the mortgage assigned to it. Until it deter mined whether it would exercise this right, the loan company could not foreclose the mortgage after the loss by fire without vio - lating its contract. But it renounced this right when it denied its liability under its contract to compensate the appellees for the destruction of the dwelling house by fire, and waived those conditions made necessary by the contract of insurance for appellees to perform in order to vest them with the right to sue upon the policy. The denial made the performance of the conditions unnecessary, and was virtually a notice to the assured that they need not perform them as a prerequisite to the right to sue, and was a waiver of the ninety days in which appellant could pay the loss. German Ins. Co. v. Gibson, 53 Ark. 494. All that could have been accomplished by the foreclosure of the mortgage has been done during the pendency of this action. By agreement of the parties, the mortgage debt has been credited with the value of the property held as security for the payment of the same. It does not appear that appellant has been prejudiced by the course pursued. There is no complaint that it has been, and there is no reversible error on this ground.
The parties to the policy agreed that it should be null and void for such portion of time as any note given for the assessment “charged for the insurance should remain” past due and unpaid, in whole or in pai't, and should so continue until the note should be fully paid. The note executed by the assured for the assessment charged was “past due and unpaid” at the time the dwelling was destroyed by fire. Appellant insists that it was relieved by this failui’e from liability for the loss. Was it relieved?
Whenever the owner sells property against the loss or damage of which he has been insured, and assigns his policy to the purchaser, “and this is made known to the insurer, and is assented to by him, it constitutes a new and original promise to the assignee to indemnify him in the manner and upon the conditions his vendor was insured; and the exemption of the insurer from further liability to the vendor, and the premium paid for insurance for a term not yet expired, are a good consideration for such promise, and constitute a new and valid contract between the insurer and the assignee.” Wilson v. Hill, 3 Met. 66. In that case he will not be affected by the subsequent acts or neglect of his assignor. If the transfer be made by a mortgagor to a mortgagee of the insured premises as a collateral security, without any new consideration moving from the assignee to the insurer, the assignee can only recover where his assignor could have done so, had no assignment been made. “Such an assignment does not convert the policy into a contract of indemnity to the mortgagee. It is the interest of the mortgagor alone that is covered by it. The assignee takes it subject to all the express stipulations contained in the policy, and he cannot recover in ease of subsequent breach” by the mortgagor of the conditions which render the policy void. State Mutual Fire Insurance Company v. Roberts, 31 Pa. St. 438; The Buffalo Steam Engine Works v. The Sun Mutual Insurance Company, 17 N. Y. 401; Illinois Mutual Fire Insurance Company v. Fix, 53 Ill. 151; Edes v. Hamilton Ins. Co., 3 Allen, 362; Swenson v. Sun Fire Office, 68 Texas 461; 1 Biddle on Insurance, §§ 321 and 322, and cases cited. But where the assignment is based upon a contract between the insurer and the assignee, which is supported by a new and distinct consideration, such contract will govern. Foster v. Equitable Ins. Co., 2 Gray, 216; Hastings v. Westchester Ins. Co., 73 N. Y. 141; Davis v. German Insurance Co., 135 Mass. 251.
In the ease before us, Nance, the mortgagor, in consideration of a loan of a certain sum of money, agreed to have the dwelling which was included in the mortgage insured, and to assign the policy to the loan company. He did' so. At the time of the assignment the appellant and the loan company en - tered into the contract which was indorsed upon the policy. In consideration that the loan company would notify appellant of any change of ownership or increase of hazard which should come to its knowledge, and pay for every increase of hazard not permitted by the policy to the mortgagor, it was agreed that the interest of the loan company in the insurance could not be effected by any act or neglect of the mortgagor. At the time this agreement was made the dwelling was in sured for about three years, subject to the power of the insurer reserved in the policy to cancel the insurance at any time upon written notice to the assured. Nance had executed his note for the premium charged. The policy was dated the 15th of April, 1896, and the note which was the consideration upon which it was based matured in the following December. At the time the policy was assigned it had not matured, and the insurer, having the power to cancel the policy, deemed it a sufficient consideration. In addition to it, the loan company agreed to pay for all increased risks, and to give notice of any change of ownership and increase of hazard which should come to its knowledge. This notice was important, because it afforded the appellant means of protecting itself to some extent by the exercise of the reserved right to cancel. In view of these facts, we think that the contract of the appellant which was indorsed upon the policy was based upon a valuable consideration, and was valid and binding. Both parties were satisfied with the consideration, and no reason is shown why it was not sufficient. The right of the loan company to recover in this action was not, therefore, affected by the non-payment of the note of Nance at the time of the loss.
The demurrer to so much of appellant’s answer as pleaded usury was properly sustained. There was no usury in the contract for insurance or its assignment. Appellant was not surety or guarantor for the payment of the debt contracted by Nance with the loan company, and had no right to plead usury against such debt. Warner v. Gouverneur, 1 Barb. 36; Stevens v. Reeves, 33 N. J. Eq. 427.
Judgment affirmed.
Hughes, J., absent. | [
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Hughes, J.
This is a suit in which appellee seeks to partition a ranch jointly owned by him and Husted Osterhaudt, and to charge Osterhaudt’s half interest with half of the money expended by appellee in the defense of the title and in the repair of the ranch. Appellee alleged that he and Osterhaudt were partners in the purchase of the ranch; that, in pursuance of their agreement, he (appellee) took charge and possession of the ranch and of the defense of several suits which were instituted against them by parties holding tax titles; that he expended in looking after and taking care of the ranch, in payment of back taxes, expenses of litigation,-and current taxes, $1,424.02. He attached an itemized statement, which showed in detail expenditures aggregating the above amount, one half of which, to-wit: $702.01, was claimed to be due from Osterhaudt, less a credit of $289.01, leaving balance due appellee of $423, with interest. Appellee further alleged that Osterhaudt on February 7, 1897, conveyed the ranch to appellant Bowman; that said conveyance was without appellee’s knowledge or consent, and was made with fraudulent intent to defeat appellee out of the sum now sued for; that Bowman had notice of the partnership, litigation, etc.; that he (appellee) had a lien upon all of said lands for the payment of said $423, and that Bowman, took subject to it. Appellee prayed for partition, and that Bowman’s half interest be sold to satisfy his claim and lien.
Bowman, appellant, answered, consenting to a partition, but denying the partnership between appellee and Osterhaudt, denying that appellee had made advancements for which Osterhaudt was liable, and claiming to be an innocent purchaser. Husted Osterhaudt did not answer. Appellee filed a motion and amended complaint, asking that Mrs. Osterhaudt be made a party defendant, and for cause of action against her alleged that appellant Bowman, as part of the purchase price of the half interest from Osterhaudt, executed a mortgage for $400 to Mrs. Osterhaudt, the mother of Husted Osterhaudt; that Mrs. Osterhaudt gave no consideration for the mortgage; that Osterhaudt caused the mortgage to be executed to his mother to prevent appellee from collecting the sum due' him; that Osterhaudt was a non-resident, and had no property of any kind in this state except the mortgage. Appellee prayed that Bowman be restrained from paying anything on said mortgage, and that any judgment that might be rendered for appellee be declared a lien upon said mortgage, and for all other proper relief. Mrs. Osterhaudt did not answer.
Pettit and Bowman each testified in his own behalf. Their testimony, with some documentary proof, was all the evidence in the ease. A decree by default was rendered against the Osterhaudts, declaring the mortgage to Mrs. Osterhaudt void, and a decree was rendered in favor of appellee against appellant, Bowman, declaring appellee’s claim of $423, with in-interest, a lien upon the half interest of Bowman, and ordering it sold to satisfy the lien. The court in its decree found as follows: “Plaintiff had full charge and control of said lands; that there was considerable litigation over said land, in regard to the title, and that improvements were made on said land, and that the plaintiff paid out in cash, in defending the title to said land and in making improvements, the different items set out in the account filed with the complaint, and offered in evidence, to the amount of $1,424.02, of which amount Osterhaudt has paid $289.01, leaving abalance due plaintiff from Osterhaudt the sum of $423, with legal interest on same. That defendant Oster haudt had full knowledge of the expenditure so made, and consented to the same, and agreed to pay to the plaintiff half of said money so paid out by the plaintiff in perfecting their title to said lands, defending the suits growing out of said lands, and the improvements made on same. The court further finds that the defendant B. F. Bowman purchased Osterhaudt’s one-half interest in said land, and took a quitclaim deed for same, and that said Bowman had notice and knowledge at the time he made said purchase that said Osterhaudt was indebted to the plaintiff for expenditures on account of said lands, as above stated, and took the land subject to plaintiff’s claim for one-half of the amount so expended by him as aforesaid, and .the court further finds that plaintiff has a lien on the half interest in said land purchased by Bowman of Osterhaudt as aforesaid.”
Appellee Pettit and Osterhaudt were shown by the evidence to have been tenants in common, before the sale to Bowman, of the lands partition of which is sought. By consent of Osterhaudt, Pettit, the appellee, made the expenditures upon and for the benefit of the property owned by them as tenants in common. Bowman, the appellant, at the time he took a quitclaim deed to the one half-interest in the land from Osterhaudt, and at the time of his purchase from Osterhaudt of said interest, knew that said Osterhaudt was indebted to Pettit, the appellee, on account of expenditures by appellee as aforesaid. It seems to follow as a clear proposition that in equity Bowman took, the land subject to the right of Pettit to reimbursement for one half the expenditures made by Pettit by the consent of Osterhaudt. It is the doctrine of the decisions of the' court that where one tenant in common expends money on the common property with the consent of the cotenant, the former has a lien on the share of the latter for his advance. Cocke v. Clausen, 67 Ark. 455, and cases cited.
We are of the opinion that the findings and judgment of the court are warranted by the evidence.
The decree is affirmed. | [
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Battle, J.
John King was indicted by a grand jury of the Pulaski circuit court for murder in the first degree, committed by unlawfully, wilfully, feloniously, with malice aforethought and with deliberation and premeditation, killing and murdering William Davenport with an ax; and he pleaded not guilty, and was tried and convicted of the degree of homicide charged against him, and was sentenced to be hung.
In the trial of the defendant the wife of deceased testified, substantially, as follows: Her husband died on the 6th of February, 1900. The defendant was at her house on that day and the day before. Her husband owed him thirty cents, and paid him twenty-five cents, and still owed him the remainder. The defendant promised to return the day after this, the 6th of February, 1900, and work for her husband. He did so, and on the morning of that day went to the woods carrying an ax furnished him by the deceased to cut wood. About a half hour after this her husband left her house to hunt his mules. About an hour afterwards, in the absence of her husband, the defendant returned with the ax, and inquired where her husband was. She told him, and he asked her to tell her husband that lie would return on tomorrow to work. In ten or fifteen minutes lie left, leaving the ax. In a short time afterwards she became uneasy about her husband, and looked for him, and found him within three or four hundred yards of her house, lying in a thicket, dying. Her husband was nearly blind, but could see well enough to find his mules in the wood and identify them. The defendant had worked for him about two weeks before his death. They were apparently friendly. At the time her husband paid him her husband had four dollars, and she thinks that defendant saw them.
John Fountain testified as follows: He knew the deceased. He went with his wife to the place where he was found in a thicket, dying. He found four wounds on him. There was a “split” across the nose; a deep “gash,” three or four inches long, on the back of the head, from which his brains ran out; one across his forehead and temple, and one under his right ear; and all appeared to have been made-with an ax.
Bob Jones testified: He was a deputy constable. He was at the Klondyke saloon in Argenta, Ark., and had a conversation with the defendant, in which he (the defendant) said he knew the deceased, “and had been out to his house.” Witness offered “to treat the defendant with beer, but he dashed off and got away.” Did not let him know that'he was an officer.
J. H. Nowlin testified: “I am constable of Big Rock township. I remember the time William Davenport was killed. I received a telephone from Bob Jones, one of my deputies, who had located a man answering the description of the‘(one wanted for killing William Davenport. When I got over in Argenta, Ark., Mr. Walpole and I went in search for defendant. I saw him running and jumping fences, and I went near him and ordered him to stop. I drew a six-shooter, and told him to throw up his hands, which he did, and I arrested him. * * * I then asked him what made him kill William Davenport, and he said, if he had not killed Davenport, he would have killed him. I asked defendant how it happened. Defendant said while he was in the woods Davenport came to him, saying he wanted to see the ax. Defendant handed him the ax, which deceased took and struck at him, and that he dodged the blow, and Davenport started to leave with the ax in his hand, and that he slipped np behind him, and snatched the ax ont of his hand, and struck him on the back of the head, and after he fell that he struck him twice more. I asked the defendant how far the deceased (Davenport) had gotten from him with the ax before he (defendant) went after him. Defendant pointed out the distance, which was about sixty or seventy-five feet. * * * This was at the time of his arrest, and before taking him to jail. I offered the defendant no inducement to make the confession or a statement made in jail in presence of Sam Speight. * * * The defendant seemed to be excited, for a large crowd was gathering, and talking of lynching, and I hurried across the river, and put him in jail. This was after the defendant was first arrested, and made his statement.”
Sam Speight testified: “I know the defendant and heard him make the confession to Mr. Nowlin, stating he killed William Davenport in the manner told by Mr. Nowlin, after he got to the county jail.”
John King, the defendant, testified: “I am fifteen years old. I worked for Mr. Davenport two weeks. On the morning of February 6, 1900,1 was at Mr. Davenport’s house, and went out to cut wood with an ax, and Mr. Davenport came to where I was working. I asked him for the nickel which he owed me. He then cursed me, and asked me to let him see the ax, if it was sharp. I handed it to him, and the next thing I knew he struck at me with the ax, and I ran out from under it, and dodged around, while he still held the ax on the side of him, aud took the ax away from him, and struck him on the back of the head, and he fell, and I struck him twice more. I took the ax back to the house, and went away. I never told Mr. Bob Jones, the gentleman who testified on the stand, anything whatever, and never saw him before. I never told Mr. Nowlin anything about slipping up behind Mr. Davenport and snatching the ax and killing him with it. I did not tell him that I killed him (Mr. Davenport) to keep him from killing me, and that I grabbed the ax while he had it drawn on me. I was born in Arkansas, October, 1885, and was never in trouble before. I never had any malice against Mr. Davenport. I never saw any money or change. Mr. Davenport gave me groceries for my work, and he owed me five cents. While in jail, the officers took me on the gallows, and put a rope around my neck. I refused to make any statements, so they swung me, and then I said what Mr. Constable Nowlin testified to awhile ago, and that was when Sam Speight, Jailer Nowlin and other officers who were unknown to me [were present].”
Nowlin and Speight testified that the confession about which they testified was made before the defendant was taken to the gallows or the rope was put around his neck; that the gallows and rope were used to elicit information about another matter, but not about the killing of Davenport.
It was proved that Davenport was killed in the county of Pulaski and state of Arkansas.
The defendant contends that this evidence was not sufficient to convict him of murder in the first degree. Is it sufficient?
In Green v. State, 51 Ark. 192, it is said: “In order to constitute the killing of a human being murder in the first degree, there must be a specific intent to take life formed in the mind of the slayer before the act of killing was done. It is not necessary, however, that the intention be conceived for any particular length of time before the killing. It may be formed and deliberately executed iu a very brief space of time. If it was the conception of a moment, but the result of deliberation and premeditation, reason being on its throne, it would be sufficient. The law fixes no time in which it must be formed, but leaves its existence as a fact to be determined by the jury from the evidence.” Bivens v. State, 11 Ark. 455; McAdams v. State, 25 Ark. 405; McKenzie v. State, 26 Ark. 339; Fitzpatrick v. State, 37 Ark. 256; Casat v. State, 40 Ark. 524; State v. Wieners, 66 Mo. 13; Com. v. Drum, 58 Pa. St. 9; People v. Majone, 91 N. Y. 211; Bishop, Crim. Law (7th Ed), § 728; Wharton, Crim. Law (9th Ed.), § 380.
In Ex parte Brown, 65 Ala. 446, it is said: “The law has declared, and can declare, no length of time within which the manslayer must deliberate, or premeditate, to raise the offense to the highest grade of homicide, murder in the first degree. If the mind reasons about or resolves upon the act before committing it, or if the purpose be formed, no matter for how brief a period, on an event then future, or on a contingency that may happen, to use a deadly weapon, this is deliberation, premeditation; and a homicide committed pursuant thereto is murder in the first degree.”
In State v. Wieners, 66 Mo. 27, it is said: “A purpose to kill may be conceived and deliberately executed, although but a very brief time elapse between the conception and the execution of the purpose. Deliberation does not mean brooded over, considered, reflected upon for a week, a day or an hour, but it means an intent to kill, executed by the party, not under the influence of a violent passion suddenly aroused, amounting to a temporary dethronement of reason, but in the furtherance of a formed design, to gratify a feeling of revenge or to accomplish some other unlawful purpose.”
In the ease before us the evidence was sufficient to prove that William Davenport, the deceased, was killed with an ax; and a part of it tended to prove that the defendant confessed that the deceased first attacked him with an ax„but failed to strike him; and then walked away, with the ax in his hand, about sixty or seventy-five feet, when he, the defendant, approached him stealthily, seized the ax, took it from his hand, and slew him. These acts were evidence of a brief premeditation and deliberation. They show that he conceived the intent to kill; determined to kill with the ax; resolved how he would get possession of the ax; and, when all this was done, deliberately proceeded to carry his plan into execution by stealthily approaching Davenport and seizing the ax and slaying him. They show a formed design, reason, self-control, premeditation and deliberation — all the essentials of murder in the first degree. This evidence, however unsatisfactory it may be to us, is sufficient to sustain the verdict of the jury in this court.
Judgment affirmed.
Bunn, C. J., dissents as to degree. | [
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Hughes, J.,
(after stating the facts.) Prior to the passage of the act of March 15, 1889 (Sandels & Hill’s Digest, §§ 5094, 5095), the limitation of actions to foreclose mortgages or deeds in trust upon real estate was seven years, the period allowed by the statute within which to bring ejectment for the possession of the land. Section 4815, Sandels & Hill’s Digest, as to limitation of right to bring ejectment (act of January, 1851). “Seven years continuous adverse possession against the mortgagee will bar his action for the recovery of the mortgaged premises, or for foreclosure of the mortgage; but to constitute adverse possession against a mortgagee it is not sufficient that the mortgagor, or those holding under him, occupy, use, improve and pay taxes on the premises as their own absolute property, but the possession must be in open denial of the mortgagee’s title, and accompanied with such acts or declarations of the holders as are sufficient to put the mortgagee on notice that they claim and hold in hostility to his rights, and adversely to him. Until then the possession is consistent with his rights, and not adverse, and the statute does not begin to run.” Ringo v. Woodruff, 43 Ark. 469; Whittington v. Flint, 43 Ark. 504. This statute as to the question of limitation of the right to bring this action controlled until the passage of the act of March 15, 1889, which provided that “in suits to foreclose or enforce mortgages or deeds of trust it shall be sufficient that they have not been brought within the period of limitation prescribed by law for a suit on the debt or liability for the security of which they were given, etc.” Actions on promissory notes not under seal are barred if not brought within five years after the cause of action shall accrue. Section 4827, Sandels & Hill’s Digest.
The debt in this case was evidenced by a promissory note due on the 1st of August, 1887, secured by a trust deed upon the lands in controversy, and bearing date 13th of July, 1882, in which deed of ti’ust there was an express covenant to pay said debt. This trust deed was properly acknowledged and recorded on the 26th day of July, 1882, in the office of the clerk and recorder of Benton county, in which county said lands are situate. The note was assigned by Leonard, the payee, to the appellee, Steele, without recourse. On 20th October, 1883, Phoenix and wife conveyed of said real estate to Bichinger the southeast quarter of the southeast quarter of section 21, and the northeast quarter of the northeast quarter of section 28, in the aggregate 80 acres, in township 20 north, range 33 west. This piece was afterwards conveyed to the appellant, Austin.
The other 80 acres, the southwest quarter of the southwest quarter of section 22, and the northwest quarter of the northwest quarter of section 27, township 20 north, range 33 west, was, on the 8th of June, 1890, conveyed by Baker Phoenix and wife to Emily Halpin, to whom a properly executed and acknowledged deed was made on the 8th day of June, 1890, which was duly recorded in the office of the recorder of Benton county on the 31st of January, 1896. On the 29th of January, 1896, Emily Halpin conveyed the same tract to appellant, Austin, and on 31st January, 1896, the deed to him therefor was recorded in the office of the recorder of Benton county, and the appellant entered into possession of the laud, and was in possession thereof when this suit was commenced. This possession was, however, not adverse.
On the 11th day of July, 1887, before the debt secui’ed was due, and before the statute had begun to run, and the debt being unpaid, by an agreement in writing between Baker Phoenix and W. F. Leonard, the payee and owner of the note, the time for the payment of the same was extended ñve years, or until the 1st of August, 1892. This made the date at which the right of action would have been barred after the 1st of August, 1897, and this suit was brought on the 6th of January, 1897, nearly seven months before the right of action to foreclose the mortgage was barred.
We need not, therefore, notice the extension of the time of payment, made by Leonard at the instance of McAnally. It is true the extension of the time of payment made by agreement between Phoenix and Leonard was made after Phoenix had sold one 80 acres of the land, but Phoenix was liable to pay the note at the time of the extension of payment, and the purchasers from Phoenix had constructive notice of the mortgage on record, and in contemplation of law bought subject to it; in other words, bought only the equity of redemption. Barrett v. Prentiss, 57 Vt. 300; Hughes v. Edwards, 9 Wheaton (U. S.) 489, 498. His grantees could stand in no better condition than Phoenix himself. Hughes v. Edwards, 9 Wheaton, 489.
The statute requiring indorsement of payment on the record to prevent the bar of the statute does not apply. The mortgage was kept alive by written agreement, and in fact the covenant in the mortgage was not barred until 1897, the period of limitation on that covenant being ten years, it being a covenant in the mortgage under seal to pay the debt.
The decree is in all things affirmed. | [
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Wood, J.,
(after stating the facts.) 1. The policy under which the premium loans accrued was an Ohio contract, and the rule prevailing there for the computation of interest, when the contract was executed, is applicable. It was shown that Ohio had no statutory rule upon the subject. It was, therefore, proper to prove the unwritten law, custom, usage, or practice obtaining in Ohio upon the subject by one skilled in or familiar with it. Barkman v. Hopkins, 11 Ark. 157; McNeill v. Arnold, 17 Ark. 154; Bowles v. Eddy, 33 Ark. 645; Blackwell v. Glass, 43 Ark. 209. Taking the figures furnished by the secretary of the company, and applying the Ohio rule for the calculation of iuterest, we have the following result:
Loan July 7, 1869 .............................$ 63.00
Iuterest July 7, 1869, to July 7, 1871, two years..... 7.56
Loan July 7, 1870 ............................. 63.00
Iuterest on same to July 7, 1871, one year......... 3.78
$137.34
Less credit by dividend.........................$ 16.88
Balance due July 7, 1871...............$120.46
Loan......................................... 63.00
$183.4 6
Interest July 7, 1871, to July 7, 1872, 6 per cent..... 11.01
$194.47
Less credit by divideud......................... 14.89
$179.58
Loan......................................... 63.00
$242.58
Interest July 7, 1872, to July 7, 1873............. 14.55
$257.13
Credit by dividend............................. 20.82
$236.31
Loan......................................... 63.00
$299.31
Interest July 7, 1873, to April 12, 1894, twenty years, nine monlhs, five days, at 6 per cent........... 372.89
$672.20
Less dividends................................. 276.31
Due April 12, 1894.....................$395.89
This calculation does not allow interest on dividends. No interest should be allowed on these, because until declared they were not due the company, and when declared they were applied on the principal. But the amount of premium loans -for which, the note was executed was $487.80, which amount, it appears from the figures given by the secretary of the company, was ascertained as follows: In the years where the annual interest on the principal exceeded the dividend for those years, the excess was added to the original principal, and interest computed on this new principal for the next year, and so continued until the result ($487.80) was reached. This was the reverse of the rule that obtained in Ohio; for Mr. Meehem says: “If there was a partial payment made, and it was less than the amount of interest at the time it was made, it would not affect the principal. The principal would go on drawing its rate of interest.” And interest on the principal would not itself draw interest from year to year because no time was fixed for the principal to mature. The contract was “until paid by profits or otherwise.” So, according to the most liberal calculation that could legally be made for the company, Mrs. Caldwell, at the time the note was executed, owed it on premium loans $395.89, instead of $487.80. The difference, $91.91, represents the amount of cash which she should have received in addition to the $312.20 in order to have made the cash and premium loans, for both of which the note was executed, equal to the consideration named of $800. Can the appellee claim the benefit of this $91.91 in this proceeding? Proof of the' giving of a promissory note by one person to another, without anything else appearing, is prima facie evidence of an accounting and settlement of all demands between the parties, and that the maker at the date of the note was indebted to the payee upon such settlement to the amount of such note. But this is a mere presumption, which may be repelled by proofs of the consideration of such note, and the occasion for and circumstances attending the giving of same.” 1 Dan. Neg. Ins. § 71; Costar v. Davies, 8 Ark. 213; Carlton v. Buckner, 28 Ark. 66. Now, the occasion for and the circumstances attending the execution of this note show that the intention of Mrs. Caldwell, primarily, at least, wás to obtain an additional loan on her policy to that which she already had. As incidental to this, she, by signing the note, indicated that she was willing to acknowledge her indebtedness for the loans which had already accrued, and to pay an increased interest on same. The company rendered a general statement of- the amount of such loans, without itemizing or disclosing the methods by which it was ascertained. She had no access to the books of the company. The company had once before (July 1873), when her policy became a paid-up policy, indorsed upon the same total loan against the policy at that time of $299.63, showing substantially the correct amount, as per calculation supra. Mrs. Caldwell had the right to suppose that the same method of calculation was used in arriving at the amount which had accrued in the succeeding years. No statement of the amount of dividends for all those years from 1873 to 1894 was rendered her. She had no notice of a change in methods of calculation, by which a different amount was shown on the books of the company to be due in 1873 than that indorsed on her policy.
This is not like the case where there are disputed matters of account between parties, and a note is given to evidence the settlement of such account. The company was purporting to claim only that which was due, and Mrs. Caldwell was proposing to promise to pay only that. The company was not proposing to charge her a bonus for the additional loan. If so, it did not reveal the matter to Mrs. Caldwell. The company was representing that $487.80 was the true amount of the premium loans due, and Mrs. Caldwell, without knowing, or having the means of ascertaining, accepted that as the correct amount. But it turns out that, by an erroneous method of calculation, compounding interest, she was charged $91.91 more than she owed, which was carried into the note and collected by the company. It is unimportant to consider whether the mistake was wilful or occasioned by ignorance or inadvertance. It was a mistake for which the company, and not Mrs. Caldwell, was responsible, and she cannot be held to have acquiesced therein by merely signing the note. Acquiescence implies a knowledge •of the facts.
Then how stood the account between them April 12, 1895, when the first installment of interest was due? At. that time Mrs. Caldwell was due the company $64 interest, and the company was due her $91.91, aud also $18.34 dividend declared July 7, 1894. For the alleged default in the payment of this interest, the company proceeded to declare the whole amount of $800 due under the contract, and sold the policy having a cash value of $380 more than the amount of the debt, and closed up the account between them. Appellee shows that he had no notice of the proceeding until the death of his mother. Equity will not permit a forfeiture of his rights under the policy. To do so, under the circumstances, would be rank injustice.
But, to entitle him to the relief sought, it is insisted that he should have manifested a disposition to do equity himself by seeking earlier to undo that which had already been done, and making a tender of the amount due. Mrs. Caldwell died February 5, 1897, and the suit was begun in March following. The suit was begun in apt time. The correspondence shows that, after the sale, a tender of less than the full amount of the principal and interest would not have been accepted; and even this amount would not have been accepted unless accompanied by a certificate of good health. A tender does not have to be made where it is made clear beforehand that if made it would be rejected. Manhattan Life Ins. Co. v. Smith, 44 Ohio St. 170.
But, if there was no breach of the contract, no tender of any amount was necessary. In April, 1896, Mrs. Caldwell owed $64 interest. After paying the interest of 1895 out of the $91.91 and the $18.34 dividend, she would have a balance to her credit with the company of $46.25, and in May, 1895, she had paid the company $23 cash. These sums make $69.25, leaving an excess of $5.25 due her after paying the interest of April 12, 1896. So that there was no failure to pay the interest due April 12, 1896, and there could have been no breach of the contract at that time if it was proper to apply the declared dividend to the payment of interest on the loan note. This brings us to consider that question.
2. The company was a mutual company. The policy provides that the assured should participate in the profits. A by-law of the company shows that dividends were to be ascertained and declared yearly. The proof shows this was done. There is a clause in the policy to the effect that the premium loans ‘.‘are a just indebtedness against this policy until paid or cancelled by profits or otherwise.” The secretary testified “that the policy, application, and the loan note evidenced the contract relations between Mrs. Caldwell, and defendant. This was true in law, as well as fact. The-giving of the note for the premium loans did not abrogate the provision of the policy, “until paid or cancelled by profits or otherwise.” There is no provision of the note in conflict with this clause of the policy. The giving of the note ivas not in any sense a payment of the premium loans. These would not be paid until the note itself was paid. The note was but the receipt, pro tanto, for the premium loans already had, or an acknowledgment, in a new and different form, of an indebtedness to the company for premium loans, and the additional loan in cash. We think, therefore, that the assured may very well insist that the policy itself contained an express direction 'that the profits or dividends should go to pay the premium loans. Of course, if we are right about this, equity would compel the application of the dividends to the interest to prevent a forfeiture of the rights of the beneficiary under the policy.
But, if we concede that the policy is silent as to the application of dividends to premium loans, equity would still compel their application in this case to the payment of the interest on,the note. This, too, notwithstanding the “uniform practice and custom of the company to use the dividends to increase the-policy, unless requested or directed by the assured to apply otherwise.”
The proof showed that the assured had the right to have* the dividends applied otherwise. In the absence of any stipulation in the policy, and of any directions otherwise by the assured as to the application of dividends which have been declared, it is the duty of a mutual company to apply such dividends to the payment of interest on loans made on the policy,, when by so doing a forfeiture of all rights and benefits under-the policy will be prevented. This is the rule in the case of premiums to keep the policy in force from year to year, and, of course, would be for the payment of interest on an ordinary-loan, which prevents a sale of the policy. Chicago Life Ins. Co. v. Warner, 80 Ill. 410; Franklin Life Ins. Co. v. Wallace, 93 Ind. 7; Girard Life Ins. &c. Co. v. Mutual Life Ins. Co. 97 Pa. St. 15; Mutual Life Ins. Co. v. Girard Life Ins. &c. Co. 100 Pa. St. 172; Hull v. Northwestern Mut. Life Ins. Co. 39 Wis. 397; Northwestern Mut. Life Ins. Co. v. Fort, 82 Ky. 269: Phœnix Ins. Co. v. Doster, 106 U. S. 30; Manhattan Life Ins. Co. v. Smith, 44 Ohio St. 156; Home Life Ins. Co. v. Pierce, 75 Ill. 426; Eddy v. Phœnix Ins. Co. 65 N. H. 27; Smith v. St. Louis Mut. Life Ins. Co. 2 Tenn. Ch. 727; Van Norman v. Ins. Co. 51 Minn. 57; 1 Biddle, Ins. § 363; 2 May, Ins. §§ 345a, 572; 2 Joyce, Ins. §§ 1166, 1235; 2 Bacon, Ben. Soc. & Life Ins. § 365; 1 Beach, Ins. §§ 117, 118.
Most of the above cases are cited in the brief of counsel for the appellee. The learned counsel for appellant says: “These cases all arise under very different facts from those existing in the case at bar, and these differences are so vital and essential in their nature as to make them valueless as authorities.” We will not review them here. But in our opinion the difference in the facts does not destroy the application or'lessen the efficacy of the principle. It is true that in some of them there was a contract, custom or course of dealing. But because insurance companies enter upon contracts or establish a usage iu conformity to the doctrine above announced, from which they have not been allowed to deviate, does not prove the unsoundness of the doctrine itself, but, rather, the contrary. The doctrine does not arise out of the peculiar facts of any particular case. It does not depend upon contract, custom or course of dealing for its existence and potency. It has its oi’igin in that fundamental principle of justice which will compel one who has funds in his hands belonging to another, which maybe used, to use such funds, if at all, for the benefit, and not to the injury, of the owner; for his consent to the one, and dissent to the other, will be presumed. The language of Judge Cooper in Smith v. Ins. Co., supra, is pertinent here: “ I am of the opinion,” says he, “that the company was bound, upon the plainest principle of equity, to apply the dividend first in such manner as to save the forfeiture. The usage of the company in deducting the dividends from the principal in caues where the insured elects to continue the policy, even if uniform and unvarying, cannot control ivhere the Insured ceases to pay, and the contract is silent as to what should be done with the dividend. The law, which tempers justice tvith mercy, makes the proper application. * * * The dividend, as the property of the insured, should be applied to what he is bound to pay— the interest.”
3. The authorities also establish the rule that it is the duty of the company, before taking a forfeiture for default in the payment of a maturing obligation, to notify the assured or beneficiary of the amount of declared dividends where such dividends are insufficient to meet the obligation. See some of cases, supra. These principles are founded upon reason and common fairness and honesty, and they will have application wherever it becomes necessary to prevent a forfeiture, which is favored neither at law nor in equity. See following cases cited in appellee’s brief where the doctrine that forfeitures are not favored is applied to insurance cases: Chicago Life Ins. Co. v. Warner, 80 Ill. 410; Franklin Life Ins. Co. v. Wallace, 93 Ind. 7; Northwestern Mut. Life Ins. Co. v. Fort, 82 Ky. 269; Girard Life Ins. &c. Co. v. Mutual Life Ins. Co. 97 Pa. St. 15; St. Louis Mut. Life Ins. Co. v. Grigsby, 73 Ky. 310; Eddy v. Phœnix Ins. Co. 65 N. H. 27; Home Life Ins. Co.v. Pierce, 75 Ill. 426; Mutual Life Ins. Co. v. French, 30 Ohio St. 240; Froelich v. Insurance Co. 47 Mo. 407.
4. A more righteous application of these principles than to the case at bar would be difficult to conceive. For more than twenty years the uniform practice of the company under the policy had been to apply the dividends to the loan. The only statement of her account ever rendered showed that they had been so applied. If the giving of the note abrogated the provision of the policy requiring this to be done, then it left the parties without any contract upon the subject. How could Mrs. Caldwell know what had been the custom of the company except as to her own policy? The company does not bring home to her any knowledge of what its custom was. Only one dividend was declared after the note was signed and before the sale of the policy. She had no notice that the company would proceed differently under the policy from what it had done for all those years with reference to dividends. She would be justified in concluding that the company would do as it had done before — credit the loans with the dividends. She had no knowledge of what the dividend was. Without consulting her as to her wishes about her own money in its hands, the company, assuming to act for her, proceeds to make a contract with itself for increasing her policy and its own security. Leaving out of view for the moment the $91.91, which the company disputes, on April 12, 1895, the company had in its hands $18.34 of dividends which belonged to Mrs. Caldwell. True, it claims it had appropriated this to the purchase of additional insurance. But this purchase was made of itself, aud the whole matter was in its hands. It was a matter of bookkeeping. When it saw that Mrs. Caldwell “ had overlooked the items of premium loans,” and understood, as its letter of May 25, 1895, indicates, that she was probably confused as to the amount of interest she ought to pay, what was 'its duty! Clearly to inform her of the true status of her account; to notify her that she had $18.34 to her credit which might be used, if she so elected, to pay interest on her note. Mrs. Caldwell paid to Yowell & Williams $23, and, it seems, notified the company that she had paid the interest, thus indicating that she thought that the interest would be $23. The company realized that she seemed to be in error and confusion about the matter. Under the circumstances, a notice to her of the amount of the declared dividends was imperatively demanded.
The clause of -the contract providing for sale of the policy in case of non-performance of the stipulation for the payment of interest, making the whole debt due, etc., if not a forfeiture in the strict technical sense, certainly lias that similitude, and should be treated accordingly. Pom. Eq. Jur. § 437; Chicago & V. R. Co. v. Fosdick, 106 U. S. 47; Noyes v. Clark, 7 Paige, 179; Wilcox v. Allen, 36 Mich. 160-169, A court of equity will relieve against the effect of such provision where the default of the debtor is the result of accident or mistake, and a fortiori when it is procured by the fraud or other inequitable or improper conduct of the creditor. 1 Pom. Eq. 439; 2 Jones on Mortgages, § 1185. No fraud is charged or proved. But the facts do show that the sale of the policy was compassed by a mistake of the appellant, and by conduct which was improper and inequitable, for which the sale should be set aside. We conclude, therefore, that there was no breach of the contract for failure to pay interest for the years 1895 and 1896. Hence there could have been no forfeiture for either of those years, and no tender was necessary.
Other interesting questions are elaborately presented in the excellent briefs of counsel. But wu pretermit a discussion of them, as it becomes unnecessary, in the view we have taken. The court made an allowance of $.65.78 of dividends up to February 5, 1897. We have only taken into consideration the declared dividend July 7, 1894, and in rendering the decree for the amount due under the policy the dividends which should have been declared July 7, 1895 and 1896, should also be considered. The dividend estimated for 1895 was $18.72, and, considering that it would be the same for 1896, the total amount of these dividends would be $55.78 or a difference of $10. But this difference would be a little more than offset in the interest of $91.91 for one year which the company received the benefit of, and in the small balance that would have remained to her credit after the payment of the installments of interest which had accrued before the death of the assured.
The decree upon the whole is therefore correct, and is in all things affirmed.
Battle, J., dissenting | [
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Battle, J.
This action is based upon sections 6238 and 6239 of Baudels & Hill’s Digest, which are as follows: “It shall be the duty of all railroad companies organized under the laws of this state, which have constructed, or may hei’eafter construct, a railroad which may pass through or upon any enclosed lands of another, whether such lands were enclosed at the time of the construction of such railroad or were enclosed thereafter, upon receiving ten days’ notice in writing from the owner of said lands, to construct suitable and safe stock guards on either side of said enclosure where said railroads enter said enclosure and to keep the same in good repair. Any railroad company failing to comply with the requirements of the preceding section shall be liable to the person or persons aggrieved thereby for a penalty of not less than twenty-five dollars nor more than two hundred dollars for each and every offense, to be collected by a civil action in any court having jurisdiction thereof.”
Plaintiff, C. F. Pirtle, alleged in his complaint that he was the owner of a certain tract of land; that the defendant, Kansas City, Pittsburg & Gulf Railway Company, in the years 1896 and 1897, constructed their railroad upon and over the same, which was at the time enclosed; that the defendant, when constructing its road, built stock guards at the entrance of said enclosure, which at all times thereafter have been insufficient and unsafe; that he caused written notice to be served upon the defendant, as required by section 6238 of Sandels & Hill’s Digest, but the defendant wholly failed and refused to construct safe and suitable stock guards on either side of said enclosure where the railroad enters and keep the same in good repair; and for such failure and negligence he asked for a judgment for a penalty of $200. The defendant answered and denied these allegations.
After hearing the evidence the jury returned a verdict in favor of the plaintiff for $75. Judgment was rendered accordingly; and the defendant appealed.
In the progress of the trial the plaintiff read as evidence a notice in writing in words and figures as follows: “To the Kansas City, Pittsburg & Gulf Railway Company, Greeting: I ain the owner of the southwest quarter of the southwest quarter of section 23, township 25, range 31 west, Polk county, Arkansas; that the said railroad company, the Kansas City, Pittsburg & Gulf Railway Company, passes in, through and out of said above-described land, which is enclosed. Therefore you will take notice to construct suitable and safe stock guards at points where your said railroad passes in and out of said lands on either side of said enclosure, and keep the same in good repair. [Signed] C. J. Pirtle.” Over the objections of the defendant the following return on the notice was read as evidence: “This came to my hand on October 23, 1897. I duly served within Kansas City, Pittsburg & Gulf Railway Com - pany by handing a true copy of the same to D. J. Cavit, agent of within railroad company, at their station in Mena, Arkansas, on the 23d day of October, 1897. S. H. Smith, Constable.” The court erred in permitting it to be read. The law does not make it the official duty of constables to serve such notices; and hence a statement by them in writing, saying how they have served the same, is not competent evidence. Kansas City, Pittsburg & Gulf Ry. Co. v. Lowther, ante, p. 238. As there was no evidence adduced at the trial tending to show that the defendant received ten days’ notice in writing from the plaintiff to construct suitable and safe stock guards, the error committed by the permission to read the return of the constable as evidence was prejudicial to the appellant.
The appellant insists that the word “aggrieved” in the statute allowing the penalty “shows that before any person is entitled to recover he must prove that he is damaged.” But we do not so understand it. The statute makes it the duty of any railroad company, which has- constructed a railroad through or upon any enclosed lands of another, upon receiving ten days’ notice in writing from the owner of the land, to construct suitable and safe stock guards on either side of the enclosure and keep the same in repair. Upon giving the notice the owner is entitled to the guards, and he is aggrieved if the railroad company fails to construct them, and is entitled to the penalty. The amount of the penalty to which he is entitled depends upon the circumstances of each case, the extent of the wrong he has suffered by the failure to construct the stock guards.
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Battle, J.
A. E. Daniels commenced an action against the Little Rock & Fort Smith Railway Company, before a justice of the peace of Crawford county, to recover damages caused by the killing of his cow. He recovered a judgment, and the defendant appealed to the Crawford circuit court, and he recovered judgment against the company in the latter court for thirty five dollars.
The issues in the case were tried, and the judgment was recovered, upon the following agreed statements of facts: “It is agreed that the Little Rock & Fort Smith Railway is a railway corporation, organized under the laws of the state of Arkansas, and that the Little Rock & Fort Smith Railway owns a line of railroad extending- from Little Rock, Ark., to Fort Smith, Ark., and through Crawford county; that the animal herein sued for was killed by the operation of a train on the line of said road, under such circumstances as to make the company operating the train liable to' plaintiff for the amount sued for. That the St. Louis, Iron Mountain & Southern Railway is a corporation organized under the laws of the state of Arkansas, and that it owns various lines of railroad in the slate of Arkansas; that on the 1st day of January, 1890, the Little Rock & Fort Smith Railway leased its aforesaid line of road regularly and lawfully to the St. Louis, Iron Mountain & Southern Railway Company for the term of fifty years. * * * It is admitted that since the 1st day, January, 1890, the St. Louis, Iron Mountain & Southern Railway Company has operated the lines of railroad known as the Little Rock & Fort Smith Railway, and was so operating it at the time of the injury herein complained of, and that the train and engine which caused the injury herein complained of was operated by the employees of the said St. Louis, Iron Mountain & Southern Railway Company. It is admitted that the Little Rock & Fort Smith Railway corporation is still in existence, but has not been engaged in operating its line of road since the aforesaid 1st day of January, 1890; that the animal killed was the property of the plaintiff, and of the value sued for.”
According to this statement of facts, the judgment was improperly rendered against the Little Rock & Fort Smith Railway Company. That company was empowered by the statutes of this state to lease its road, with all the property, rights, privileges and franchises thereto pertaining. Sandels & Hill’s Digest, secs. 6321, 6338. In the exercise of this power, it leased to the St. Louis, Iron Mountain & Southern Railway Company its railway, extending from its terminal point in the town of Argenta, to Fort Smith, in this state, together with all the branch roads and sidings, depots, stations, buildings, equipments, machine and other shops, machinery, tools, appurtenances, and property, real and personal, to the demised road belonging and appertaining. After this it was not responsible for injuries caused by the negligence of its lessee in the operation of trains on its railway, or in the omission of any statutory duty connected with the management of the road— matters over which it had no control. We are aware that there is a wide diversity of opinion upon this subject. But we think that the weight of authority and reason sustain the view we have expressed. In granting the authority to lease, the statutes empowered it to transfer the possession and control of the demised property, together with the duty of operating the road, to the lessee, to the exclusion of the lessor; and this transfer carried with it to the lessee the responsibility for injuries caused by its negligence in the discharge of such duty, and exonerates the lessor from the same. The authorities which hold to the contrary do so upon the ground that the legislature must expressly exempt the lessor from responsibility, in order to exonorate him from liability. They concede that the legislature may by express enactment exonerate the lessor, and, in the absence of such enactment, they limit the effect of the lease ivhen the legislature or the parties have not done so. They grant the right to a railway company to relinquish control of its railroad under the authority vested in it by the statute to lease, but hold that it is still liable for the injuries caused by negligence in the exercise of such control, unless the statute expressly exempts them from such liability on account of the lease. They tacitly assume “that, in granting authority to lease, the legislature granted something less than an authority to lease. We believe that the only theory that can be defended on principle is that, in granting authority to execute a lease, the legislature conferred authority to execute an effective in* strument, with all the qualities and incidents with which the law invests a lease. If this be true, then the lease does transfer possession and control from one party to the other for the term of the lease, and the rights and obligations of the parties are such, and such only, .as the law annexes to the relation of lessor and lessee. For negligence in managing and using the demised premises the lessor is not responsible.” Railway Co. v. Curl, 28 Kas. 622; Nugent v. Railroad Co., 80 Me. 62; Arrowsmith v. Railroad Co., 57 Fed. Rep. 165; Elliott on Railroads, § 469, and eases cited.
While the lease of a railway relieves the lessor from liability for injuries caused by the negligence of the lessee in operating it, the railway is responsible for the damages resulting from such injuries to persons or property. The constitution of this state declares: “All railroads which are now or may be hereafter built and operated, either in whole or in part, in this state shall be responsible for all damages to persons and property, under such regulations as may be prescribed by the general assembly.” Section 12, article 17, of the constitution of 1874. The statute of this state enacted for the purpose of carrying into effect this section of the constitution provides: “All railroads which are now or may be hereafter built. and operated in whole or in part in this state shall be responsible for all damages to persons and property done or caused by the running of trains in this state.” Sandels & Hill’s Digest, § 6349. The word “railroads,” used in the constitution, does not mean railroad corporations or companies, but the railroad owned or operated by them. The words “built and operated in whole or in part,” used in connection therewith, show that such is its meaning. Corporations and companies are not built in part. They never become corporations and companies in part in one state or in different states. They are organized under the laws of one state, and not under the laws of two or more, and they are not built. The object of the constitution and the statutes was to subject the railroad, the property itself, whether it be operated by the owner or another, to liability for all damages to persons and property done or caused by the running of trains, for which the law made the company operating it at the time of the injury liable, to the end that the person damaged might not be defeated in the recovery of his damages by any selling, leasing or conveying the road. If this was not so, “a corporation might own a fully equipped railroad, it might convey the road and the prop - erty used upon it and with it to a lessee corporation owning-no property whatsoever, and leave the conduct and operation of its property entirely to the lessee. A judgment creditor seeking to make good his claim against the operating company would find no property owned by it upon which it could levy. To prevent this and many other such evasions as might bo instanced, the constitutional provision in question was adopted. So far as the case at bar is concerned, it can have but this application, and no more. It would enable the plaintiff injured by the negligence of his employer, the lessee, to make good his judgment, under appropriate procedure, out of the. leased property; but it would not operate to give the plaintiff * * * a right of action against the lessor company.” Lee v. Southern Pacific Railroad Company, 7 Am. & Eng. R. Cases (N. S.) ,656.
The sections of the constitution, and statutes in question have been construed in part by this court in other cases. In Little Rock & Fort Smith Railway Company v. Payne, 33 Ark. 816, this court held that, under these sections, railroads were responsible for injuries and killings done or caused by the running of trains in a negligent manner, and for no others, and that, the injury or killing by the running of a train being shown, the presumption is that it was caused by the negligence of the company operating the train which caused the injury or killing, and that the burden was upon the company to prove the contrary. Under these sections the company has been held liable only for such injuries and killings, and it has been held, in actions against the company on account thereof, that the presumption is that the same were the result of negligence, until the contrary is shown. This necessarily follows, because the object of the statute is to subject the railroad to the same liability for damages on account of such injuries and killings as the. company whose negligence eaused them is, and because the presumption as to negligence applies only to the company which operated the train causing the injury or killing; the railroad, an inanimate thing, being incapable of negligence.
In an action to subject the Little Rock & Fort Smith railroad to seizure and sale to satisfy a judgment for damages in in this case, the lessor and lessee, the Little R.ock & Fort Smith Railway Company and the St. Louis, Iron Mountain & Southern Railway Company should be made parties defendants. Both have interests in the road liable to be affected by the sale of the road, and both should be made parties for the purpose of giving them an opportunity to protect the same, if they can.
The judgment of the circuit court is therefore reversed, and the cause is remanded for proceedings consistent with this opinion. | [
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Hughes, J.,
(after stating the facts.) We are of the opinion that the court committed no error in refusing to per mit Holmes to testify, on the trial of the attachment, as to statements made by the son of the defendant Tymich, while in his father’s store, as to the whereabouts of his father, and as to his father’s wanting to sell out, and that he, Holmes, could get things cheap, etc. The son was keeping his father’s store in his father’s absence, but was not authorized to bind his father by any admission or any statement he might make. “The declaration or admission of an agent are never competent evidence against his principal, nor anything he may say before or after making the contract or the doing of an authoritative act, unless it forms part of the res gestee, or has some necessary connection with it, and is a part of the contract or act itself.” Byers v. Fowler, 14 Ark. 86. Holmes’ testimony as to what the son said his father wanted to do would have been hearsay. The son himself was a competent witness. State Bank v. Woody, 10 Ark. 638; Sadler v. Sadler, 16 Ark. 628.
The court committed error in refusing to permit the plaintiff to prove that the defendant Tymich tried to collect claims from persons who had been garnished in , the action, and that he offered to give receipts for payment antedating the garnishment. True, this was subsequent to the affidavit for and issuance of the attachment. The affidavit for the attachment stated that the defendants were about to sell and dispose of their property with the fraudulent intent to cheat, hinder and delay their creditors. Trying to collect from persons garnished in the action, with an offer to receipt for payments of a date prior to the date of the garnishment, was a circumstance that should have gone to the jury for what it was worth, and it was error in the court to exclude the proof of it, for which the judgment on the attachm'mfc is reversed, and said cause No. 3818 is remanded for a new trial.
In case No. 3737, of Tymich & Hobart v. Milwaukee Harvester Company it is contended that the court erred in allowing Griffith, the agent for the appellee, to use a balance sheet to refresh his memory in testifying. This balance sheet had been compared by Griffith and Tymich with the books of Tymich, and had been found by them to agree in all respects, and it was agreed between them to be correct. This was shown in evi dence. The balance sheet used was taken from the books of the Milwaukee Harvester Company, and was furnished Griffith but was not made ¡by him. Under the circumstances, there was no error in the court’s allowing Griffith to refer to the balance sheet to refresh his memory in testifying.
The plaintiffs offered to and did prove that the defendant Tymieh had violated his contract with them by selling their machinery, etc., to irresponsible parties, to be paid for at times different from the times provided in the contract. The defendant offered to prove that, under a similar but different contract, he had departed from the contract in selling the plaintiff’s machinery in 1894 and 1895, and that no complaint had been made of this. The court excluded this testimony, and the defendant excepted, and insists here upon his exceptions. We fail to see that a violation of a contract at one time will justify or excuse the violation of another and 'different contract at another time. Besides, the notes taken in 1894 and 1895 may have been on solvent parties. To so hold would be neither good logic nor good morals.
The instructions of the court are not set out in the abstract, and we take it therefore they are correct. This we presume where the instructions are not shown in the abstract. But it is urged that the court erred in instructing the jury to return a verdict for the plaintiff in any amount they might find due. There was no error in this. This was what the jury were bound to do. They were not told that anything was due, or that they might so find. The violation of the contract was undisputed, and the court had the right to construe the contract. If the court saw that there was an undisputed liability of the defendant under the contract, it was competent for the court to tell the jury to return a verdict for any amount they might find to be due.
The judgment in this case (No. 3737) is affirmed. | [
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Butler, J.
For many years prior to the year 1930 the appellee, plaintiff below, was an orehardist near Cen-terton, Benton County, Arkansas. The appellant company for several years was operating’ a cold storage plant in Bentonville, in said county. It had been a custom for orchardists to place apples in the appellant’s storage with instructions to sell them at the prevailing market price. During those years the appellee had placed apples in the appellant’s storage, and, when they were sold, the appellant had remitted the proceeds of sale, less storage charges. Appellee delivered certain apples to the appellant during the year 1930. Thereafter the appellant sold the apples to one W. M. Zimmerman, a defendant below, on credit. Suit was instituted in the Benton Circuit Court against the appellant and Zimmerman for $309.25, the value of the apples. Upon a trial, judgment was entered in favor of the appellee for said amount, from which the appellant has duly prosecuted its appeal.
The complaint in effect alleged that the apples had been sold to the appellant company. There is no evidence, however, to establish a sale to the appellant, but all of the evidence is to the effect that the appellant company acted as the agent for the appellee in the sale of his apples. At the close of the testimony, the appellant asked for an instruction directing the jury to return a verdict in its favor. This request was refused by the court, and exceptions saved, but, whether or not the exceptions were saved in the motion for a new trial, we are unable to say, as that motion is not abstracted or referred to in appellant’s abstract and brief.
Counsel for the appellee say that in all previous years the appellant had sold the apples of appellee for cash, and that appellee had never authorized the sale to be made in any other manner, and that the apples were sold on a credit to an insolvent person upon an indefinite credit arrangement. The evidence as abstracted does not justify that statement. The appellee testified that he placed his apples with the appellant company with instructions to sell the same, as in previous years, and, when asked upon what terms appellant was authorized to sell the apples, he answered: “The only terms I have recollection of is as I had done before. I simply told them to sell the apples for me if an opportunity might come up for a sale. So far as I know that is the only instruction. ’ ’
The manager of the appellant company testified that the quality of the apples was not as good — not as good a size as usual; that they were small and would not be a No. 1 apple; that he found a cash buyer for the apples, but the appellee was not willing to accept the price offered. The appellee, in testifying about this matter, stated in effect that the testimony of the manager regarding the cash buyer and his refusal to accept because of the price offered was true. The manager also testified that the appellee’s apples remained unsold at about the close of the storage season, and that the company had to sell them; that it was trying to handle the apples to the best advantage for the appellee, and that Zimmerman, the man to whom the apples were finally sold, on a credit basis, was the only buyer that could be found.
The evidence fails to disclose what had been the custom regarding the sale of apples during the time ap-pellee had done business with the appellant, or what was the financial responsibility of Zimmerman, the buyer, known to the appellant or which, in the exercise of ordinary care, it should have known. Neither was there any express direction given the appellant as to how the apples should be sold. In the absence of any proof of custom, or of the express direction of the owner, an agent must be reasonably diligent and exercise reasonable care in the selection of responsible purchasers, and to sell the commodity for its fair value or market price for cash, or upon a reasonable term of credit, and to exercise reasonable diligence in collecting the purchase money when intrusted with the collection, and to promptly account to the owner for all money and property which has come into its hands during, and by virtue of, the agency. Ark. Fertilizer Co. v. Banks, 95 Ark. 86, 128 S. W. 565. Of course, an agent is bound to make sales in accordance with the express direction of the owner (Sledge & Norfleet Co. v. Mann, 166 Ark. 358, 266 S. W. 264), and is liable for any damage resulting from a failure to obey the direction of the owner, or for failure to exercise proper care in the absence of such direction. Houston Rice Co. v. Reeves, 179 Ark. 700, 17 S. W. (2d) 884; Marks v. F. G. Barton Cotton Co., 170 Ark. 637, 280 S. W. 674.
"We are of the opinion that our cases support the majority rule declared in 25 C. J., paragraph 16, page 350, cited by the appellant, as follows: “That, in the absence of specific instructions to sell only for cash, appellant had implied authority to sell upon a reasonable credit, provided he exercised due care in doing so.”
The appellant requested three instructions: the first was for a directed verdict, heretofore referred to; instruction No. 2 was in effect that, in the absence of express direction to sell for cash, appellant was not liable if it sold the apples on a credit and the buyer failed to pay for them; instruction No. 3, as requested, was as follows: “If you find that the plaintiff stored the apples in question with the defendant, Bentonville Ice & Cold Storage Co., with instructions to sell said apples, and you further find that the apples were sold by the company as agent or broker for plaintiff, you will find for the defendant, Bentonville Ice & Cold Storage Co.”
The court refused the instruction as asked, hut qualified it as follows: “Unless you further find that the broker, Bentonville Ice & Cold Storage Co., sold said apples contrary to the agreement and understanding between it and the plaintiff, Anderson, or that it sold said apples on a credit without authority,” and gave same as qualified, over the objection of defendant, appellant. There appears to have been no specific request for instructions made by the plaintiff.
On consideration of the authorities, supra, we think both instruction No. 2 and No; 3 might have been properly refused, as they overlooked the duty of the agent to use reasonable diligence to find purchasers and exercise reasonable care in the selection of responsible ones, but the qualification of instruction No. 3 was also erroneous because there was no evidence (or at least none abstracted) tending to show that the sale was made contrary to any agreement between the parties, or that it was the understanding that the apples were to be sold for cash.
The judgment must be reversed, and, as it appears from the evidence abstracted that the case might not have been fully developed, the cause is remanded with leave to amend the complaint and take further testimony if appel-lee is so advised, and for further proceedings in accordance with this opinion. | [
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Mehaeey, J.
The Oil Fields Corporation is a Delaware corporation authorized to do business in Arkansas, its principal place of business being in Union County.
Appellee, George L. Hess, was a director and president of the Oil Fields Corporation from May, 1925, until the latter part of August, 1928, and he was general manager of the corporation from December, 1925, until the latter part of August, 1928.
Appellee, W. E. Knappenberger, was elected a director in August, 1926, and was superintendent of production at a salary of $450 a month, which was afterwards increased to $500 a month.
On December 4, 1925, the board of directors of the Oil Fields Corporation passed a resolution authorizing and directing appellee Hess to manage the affairs of the corporation subject to the orders of the board of directors, and authorized and directed him to employ such assistants as might be necessary for the producing properties of the corporation, and fix the compensation therefor subject to the approval of the board of directors, and said resolution provided that any contract of employment made by Hess should set forth that the employee consents that he may be discharged at any time by vote of the board of directors or the person employing him, and that the only liability of the corporation shall be for actual compensation for the time such employee has actually been in the service of the corporation. The business of the corporation was producing crude oil.
Under the authority given Hess by the resolution of the board of directors, he, on December 15, 1925, employed W. E. Knappenberger as his assistant as the superintendent of production, with the understanding that Knappenberger should devote his full time to the business of the corporation.
The board of directors approved the employment of Knappenberger by Hess, and in August, 1926, elected Knappenberger a member of the board of directors, at that time fixing his salary at $500 per month.
Albert L. Wilson was a director and general counsel for the corporation at a salary of $1,000 per month.
The evidence introduced by appellees tended to show that it was the custom of the corporation to give employees a vacation with full pay; that the board of directors had discussed this and agreed to it, although no formal resolution was adopted.
The evidence offered by the appellants contradicts this evidence on the part of the appellees and tends to show that there was no discussion by the board, and that it was not the custom to give an employee leave of absence or vacation with pay.
It would serve no useful purpose to set forth the testimony. The testimony is in conflict, and it was a question for the jury to determine what the truth was.
A verdict 'based on conflicting evidence, if there is any substantial evidence to support it, is conclusive here, although we might believe that the verdict was against the preponderance of the evidence.
It is contended by appellant first that a contract with Knappenberger to give him a vacation on pay would, in effect, be giving away $500 of the money belonging to the corporation to one of its directors, and that such contract would be void. It is argued at some length by appellant that a director cannot contract with the corporation, and numerous cases are cited and relied on by appellant. It appears that several of the directors were employed by the corporation and received salaries.
Mr. Wilson, the general counsel, is a director, has been for a long time, and has been receiving a salary of $1,000 a month. Mr. Hess, as general manager, was a director, and received a salary of $1,000 a month.
The general counsel, Mr. Wilson, was not only a director and stockholder, but held proxies for four-fifths of the stock of the corporation.
The evidence shows that in July, 1928, Knappen-berger ’s father was sick in Pennsylvania, and Knappen-berger came to Hess and told him about his father being sick, and that he, Knappenberger, had never taken a formal vacation, and that he would like to take his vaca tion and go back to see bis father, who was very ill and getting old.
Hess, the president and general manager, bad some work to do in Texas in July, and asked Knappenberger to wait until be got back from Texas, and be could then take bis vacation. After Hess came back from Texas, Knappenberger, about July 28th, left on bis vacation.
Hess testified that when Knappenberger was planning bis vacation, be told Knappenberger to go to Judge Wilson and tell bim about it, so that there would be no misunderstanding. Witness told Knappenberger that Mr. Wilson understood the conditions, and that Knappen-berger went to Wilson’s office, which was connected with Hess ’ office, beard bim tell Wilson that Hess bad granted bim a vacation.
Witness testified that, when Knappenberger took the matter up with Wilson, be was very gracious, and that witness said to Judge Wilson: “You understand be is taking bis vacation like all the other employees and officers have taken their vacations.” Witness then testified that Wilson bad taken vacations on full pay, and that witness also bad. He testified Judge Wilson laughed, and said: “Of course, it is expected that he would do that.” This evidence on the part of appellees was denied by Mr. Wilson.
Knappenberger went on bis vacation and got back to El Dorado on the night of August 26th. Wilson bad directed Hess to discharge Knappenberger, but Hess did not do this, but wired bim to ascertain when be would return. After bis return Wilson told Hess that be intended to take the matter up with the board of directors, and ask them to discharge both Hess and Knappenberger. Suits were brought to prevent this, and for the appointment of a receiver for the corporation, but this suit was withdrawn, and the suit for the purpose of getting a receiver appointed was filed.
The board of directors met in their regular meeting on Monday. Neither Hess nor Knappenberger attended the meeting. Judge Wilson attended and reported on Hess and Knappenberger, and asked that they he removed from the board of directors, and the 'board adopted a resolution removing them.
Knappenberger then claimed that appellant owed him salary for the month of August. The corporation declined to pay this salary, and Knappenberger, for the consideration of $1, assigned his claim to Hess.
On August 14, 1931, the appellees, Hess and Knapp-enberger, filed suit in the Union Circuit Court against the appellant, Oil Fields Corporation, for $500 salary. The appellant, Oil Fields Corporation, filed answer denying the material allegations in the complaint, and alleged that Knappenberger was discharged for inefficiency ; denied that it was indebted to appellees or either of them in any sum, and denied that Hess had any authority to give Knappenberger a vacation on pay, and also alleged that, since the removal of Hess and Knappen-berger as directors, Hess had been filing fictitious suits against appellant, and that Hess took the assignment from Knappenberger with the full knowledge that appellant was not indebted to Knappenberger in any amount. The assignment showed a consideration of $1, but Hess testified that there were some matters between them; that they had not had a settlement yet. Judgment was asked in favor of Hess for $500 and costs. There was a jury trial and a verdict in favor of Hess for $500. The case is here on appeal.
Counsel have furnished the court with excellent briefs citing many authorities, but we do not deem it necessary to review or call attention to all these authorities.
Appellant, in support of its contention that a director cannot deal with a corporation, calls attention to several authorities. We think, however, the law is settled that a director may be employed and paid a salary to perform services for the corporation. He could not, of course, vote on the proposition himself, but, if the other directors, constituting a quorum, voted to employ him to perform certain services at a fixed salary, the contract would be valid, and, if be voted himself, it would not make the contract invalid, if a majority other than himself voted for the proposition.
“The rule obtaining in a majority of jurisdictions is that a director may deal or contract with the corporation where he acts in good faith and the corporation is represented by a quorum of disinterested directors or other independent officers or agents authorized to contract for it. Such a contract is not void per se nor is it voidable, except for unfairness or fraud, for which it will be closely scrutinized in equity. Similarly an officer may deal with the corporation if his acts are open and fair and known to the directors and stockholders; but all dealing between an officer of a corporation and the board of directors must be'scrutinized carefully, and to bind the stockholders must bear evidence of having been in the interests of the corporation.” 14a C. J. 118.
In the instant case the directors were employed as general counsel, general-manager and superintendent, etc., and there is nothing in the record to indicate that the director in each instance was not employed by a majority of the board other than himself. Their compensation was fixed, and the board had a right to make these contracts.
“A director or other fiduciary officer of a corporation presumptively serves without compensation. He is entitled to compensation for performing the usual and ordinary duties of his office when and only when there is a valid express agreement therefor; he cannot recover on an implied contract.” 14a C. J. 136.
Here all the evidence shows there was an express contract employing Knappenberger at a fixed salary, and nothing to indicate that Knappenberger himself took any part in voting for his employment, or in fixing his salary.
“An officer is without authority to fix or increase his own salary. Directors are precluded from fixing, increasing, or voting compensation to themselves for either past or future services by them as directors or officers, unless they are expressly authorized to do so by the charter or by the stockholders. The director who claims compensation for his services, being disqualified from voting on the question,- if he is necessary to make up a quorum of the board, or if his vote is necessary to the result, the resolution will be void. But where his vote is not necessary to the adoption of such a resolution, it will not necessarily be void, although he may have voted for it, or although he may have been present when the vote was taken.” 14a C. J. 143-144.
We think therefore, the general rule is that a director may be employed to perform services for the corporation, to act as general manager or superintendent or to perform other duties. His employment, however, must be voted for by a quorum of the directors other than himself.
There is evidence in this case that officers and employees were granted leave of absence or vacations with pay, and that this was known to and acquiesced in by the board of directors.
This court, in passing on the question of whether a reward offered by the general manager of a railroad company was binding on the company, said: “The proof showed that one who had acted for more than three years under the title and in the capacity of general manager of the road, with the knowledge of the president, had posted the reward. He had received the card offering the reward by express from the office of the vice-president in St. Louis, with instructions to post same. This was done at every station, and the president of the road passed over it as often as every ten days. * * *
“The company can only act through its representatives. The president of the company, as we have said, went over the road every ten days, and these rewards were posted at every station. This and other evidence, such as the fact that the reward came from the office of the vice-president, was entirely sufficient to show that the company had knowledge of the act of Kress in offering the reward.” Arkansas Southwestern Ry. Co. v. Dickinson, 78 Ark. 483, 95 S. W. 802.
It seems to be well settled that a director of a corporation may make a valid contract to perform services for the corporation, and.this contract may be made with the general manag’er if he is authorized, as he was in this case, to hire and discharge employees.
The next question is, can the corporation make a contract allowing the employee compensation for the time he is on a vacation or leave of absence ¶
“Where an employee is given a vacation with pay, or a leave of absence is granted, or where the employee’s absence is involuntary, as where the employer fails to furnish work, the employee is entitled to his wages for the time off.” 39 C. J. 148; Thompson on Corporations, 3 Edition, vol. 3, 461, § 1869; Fletcher, Cyclopedia of Corporations, vol. 4, 424, § 2766; M. K. & T. Ry. Co. v. Bryant, (Tex. Civ. App.) 178 S. W. 685.
If the testimony of appellees is true, then the board of directors fixed the compensation of Knappenberger, and also authorized pay during leave of absence or vacation. As we have already said, this evidence is contradicted by the evidence offered by appellant, but it was a question of fact properly submitted to the jury, and its verdict on these matters is conclusive. There is no question in this ease of giving away the company’s money. Of course, the board would have no right to do this, but they may have thought they would get better service from an employee by giving him a vacation on pay than they would otherwise. Many corporations permit their em-nloyees to take vacations on pay, and doubtless believe that this secures better service, and is not giving away money of the corporation.
As we have already said, the law is well-established that a director may make a valid contract -with a corporation at a salary fixed by it. He cannot, of course, himself vote for his employment nor in fixing his salary. The law seems also tc be well settled that an employee may be granted a vacation on pay.
Whether the corporation did employ Knappenber-ger, and whether they agreed to give him a vacation on pay, were questions for the jury.
There was substantial evidence to support the verdict, and the judgment is affirmed. | [
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Mehaeey, J.
The appellee, Alex. Montgomery, on June 7,1930, was in the employ of the appellant, Missouri Pacific Bailroad Company, as a brakeman on a freight train running from Monroe, Louisiana, to El Dorado, Arkansas. While in the service of appellant as such brakeman, he was under the direction of the conductor, who was in charge of the train, getting out a switch list, sitting down at the conductor’s desk in the caboose. He had been called by the conductor and directed to do this work. While engaged in this work, he was thrown against the desk by a violent jerk of the train and injured. The appellee was at the time of the injury engaged in interstate commerce, assisting in operating a train which was carrying interstate commence, and this suit was therefore brought under the Federal Employers’ Liability Act, and a recovery for his injury sought under the provisions of that act. Appellee alleged that he was injured by the negligence of the engineer in stopping the train in an unusual and violent manner; that he was thrown against the desk and permanently injured; that the engineer, in a sudden and violent manner, checked the train without notice or warning, throwing him against the writing desk, injuring his right side, fracturing five or six ribs and otherwise injuring him, and that he is in constant pain and suffering. At the time, and since his injury, he has suffered great and excruciating pain of body and mind, and will continue to suffer throughout the remainder of his life. He further alleged that, at the time of his in .juries, he was a strong, able-bodied man, 38 years of age and was earning $200 per month; that since bis injury be has suffered great pain of body and mind and will continue to suffer, and that bis injury is permanent; that since bis injury be has not been able to perform any labor of any kind, and alleged that be was damaged in the sum of $25,000, for which he prayed judgment. The appellant answered, denying all the material allegations in the complaint as to negligence, and as to bis injuries, and interposed the defenses of contributory negligence and assumption of risk. The undisputed evidence showed that the appellant was engaged in interstate commerce at the time of the injuries, and that appellee was engaged in interstate commerce. There was a verdict and judgment for $12,500, and the case is here on appeal.
Appellant’s first contention is that the court erred in not giving instruction No. 1, requested by appellant, which directed the jury to return a verdict for the appellant. Appellant insists that this instruction should have been given because it says that the evidence is not legally sufficient to sustain the verdict; that evidence of the violent jerk of the train injuring appellee is not evidence of negligence. We have held that, under the Federal Employers ’ Liability Act, it is necessary for the injured employee to prove that the railroad company was negligent, and that its negligence was the proximate cause of the injury. The burden is on him to prove these facts, and, if he fails to prove either, he cannot recover. The negligence of the railroad company must in whole or in part cause the injury.
Appellant first calls attention to St. Louis-San Francisco Railway Co. v. Smith, 179 Ark. 1015, 19 S. W. (2d) 1102. We said in that case: “No witness was able to say just how the accident happened.” We said further: “There was no evidence which tended to prove how the accident happened. As we have stated, it might have occurred in one of several ways.” Appellant calls attention to several cases decided by courts of other States, but it is unnecessary to review them. In numerous cases decided by this court, we have announced the rule contended for by the appellant. Appellant cites the case of Patton v. T. & P. Ry. Co., 179 U. S. 658, 21 S. Ct. 275. That case was decided before the Employers’ Liability Act, but in that case the court said: “It is undoubtedly true that cases are not to be lightly taken from the jury; that jurors are the recognized triers of questions of fact, and that ordinarily negligence is so far a question of fact, as to be properly submitted to and determined by them. ’ ’ In that case the court also said: “The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence.” This is the well-established rule of this court. Appellant cites other cases to the same effect.
Attention is also called to A. T. & S. F. Ry. Co. v. Toops, 281 U. S. 351, 50 S. Ct. 281. It was held in that case that the injured employee must not only prove negligence of the company, but that the negligence proved was the cause of the injury. This suit is brought under the Federal Employers ’ Liability Act, and, since this act does not define negligence, the question of whether the acts complained of amount to negligence is to be determined according to the common law and according to the rules prevailing in the Federal courts as to what constitutes negligence under the common law. However, there is no difference between the decisions of the Federal court and of this court as to what constitutes negligence. Missouri Pacific Rd. Co v. Shipper, 174 Ark. 1083, 298 S. W. 849.
Moreover, the court gave the jury the following instruction, among others: ‘ ‘ The court instructs you that mere proof of a violent or unusual shock, jar or jerk on a freight train is not sufficient to show that it was caused by the carelessness of the engineer, and the fact that the brakeman suffered an injury caused by such operation of a freight train does not give rise to any presumption of negligence.”
The undisputed evidence shows that appellee was injured by being thrown against the desk at which he was sitting at work in the performance of his duty. The ap-pellee testified: “At the time I was injured I was getting-out a switch list, and was sitting down at a writing desk. The conductor had requested me to do this, and I was engaged at that when I was injured.” He also testified that it was the most violent “run-in” he had ever experienced. He had been engaged in railroading for about twenty years. Had fired and run an engine. He said the violent jar was caused by the improper application of the air by the engineer. He was asked on cross-examination: “In stopping a freight train of that length you would have more or less jerks in the caboose as the slack works out?” and he answered: “Not like the one when I got hurt.” Appellee further testified that the bump in the caboose was caused by the improper application of the air. If it had been applied properly, it wouldn’t have occurred. He said he was certain the brakes were released. He heard the air released through the retainer valves. The air had not gone in the usual way. Another hrakeman, Charles E. Seal, was riding in the cupola of the caboose and could see the slack running in, and he prepared himself. He saw the violent movement of the train and was protecting himself against getting hurt. In that way he avoided injury. The movement was violent.
J. W. Barnard, who had had experience in handling all kinds of trains and who had worked for appellant for thirty years, from 1899 to 1929, testified that, with a train of 97 cars going 25 miles an hour and a “run-in” of sufficient violence to injure appellee and throw another man from a standing position in the caboose to the floor, in his judgment, the violent “run-in” would be caused by improper handling of the train. If stopping is properly done, there will not be any jar in the caboose of a train that has 100 box cars on it. The train can be stopped so that there will not be any jar. While the engineer, Y. L. Brown, testified that he did not put on the brakes at all, lie also testified that lie could not tell bow there would be a jar; that it was bis business to keep it from being a jar. He also said, if be bad bandied the train in the manner be said, there would be no jar that be knew of. The conductor, a witness for appellant, testified that there was a jolt, and that he bad never seen any worse; that the brakes were applied. He knew the brakes were applied because be beard the air released. He was standing in the caboose, and was thrown down by the violent jar.
Some of appellant's witnesses testified that there was no violent jar, but all admit that, if the brakes were applied, that it was improper handling of the train. ' Not only do the witnesses testify that the air was applied improperly, but appellant’s witnesses testify that there was trouble after this ‘ ‘ run-in. ’ ’ They bad to get out and release the brakes by band. This testimony is not contradicted. There was substantial evidence of negligence, and the court did not err in refusing to give appellant’s requested instruction No. 1.
Appellee and other witnesses bad made statements which were introduced in evidence. We will not set forth this evidence. The credibility of witnesses and the weight of the evidence are questions for the jury. There was substantial evidence of negligence.
Appellant next contends that appellee assumed the risk. If the injury bad been caused by an ordinary or usual jar, appellee could not recover. The court gave to the jury the following instruction: ‘ ‘ The court instructs you that the plaintiff, by entering the service of defendant as a brakeman, assumed all the risks ordinarily incident to that employment, and, if you find from the evidence that be was injured by a cause ordinarily incident to bis employment, that is one that in the performance of bis duties it was contemplated he would meet and encounter, then be cannot recover in this action, and your verdict will be for the defendant. ’ ’ This instruction was given at the request of the appellant. When one enters the employ of another, be assumes all the risks and hazards ordinarily incident to the employment, and the mas ter is not liable for injury resulting to the servant if the injury to the servant was caused by one of the ordinary or usual risks or hazards of the employment; but the servant does not assume the risk of the negiigence of the master for whom he works or any of its servants, unless he knew of the existence of the negligence. Miss. River Fuel Corp. v. Morris, 183 Ark 207, 35 S. W. (2d) 607; Aluminum Co. of N. America v. Ramsey, 89 Ark. 522, 117 S. W. 568; S. W. Power Co. v. Price, 180 Ark. 567, 22 S. W. (2d) 373; C., R. I. & P. Ry. Co. v. Allison, 171 Ark. 983, 287 S. W. 197; Western Coal & Mining Co. v. Burns, 168 Ark. 976, 272 S. W. 357; C., R. I. & P. Ry. Co. v. Daniel, 169 Ark. 23, 273 S. W. 15; St. L. S. W. Ry. Co. v. Martin, 165 Ark. 30, 262 S. W. 982; M. P. Rd. Co. v. Remel, 185 Ark. 598, 48 S. W. (2d) 548.
It would, of course, have been impossible for the appellee to have known of the existence of the negligence of the engineer, because he was in the caboose sitting and could not have .seen any evidence of the negligence before his injury. The brakeman riding in the cupola saw the effect of the brakes and knew the danger and prepared himself, but the appellee and conductor, who were in the caboose, could not know this.
Appellant’s next contention is that the method used to stop or slow down the train at the point of accident, is not negligence on his part. The engineer testified that he did not use the brakes at all. Several witnesses testified, not only that he did, but that he jammed the brakes so that they had to get out of the train and release them by hand. Moreover the engineer’s testimony shows that, if he used the brakes, as the witness testified, it would have been improper. The engineer testified, as we have said, that he did not use the brakes at all. Other witnesses testified that he did, and the circumstances show that the brakes were used.
Appellant contends that the court erred in refusing to give instructions requested by it. The instructions requested by appellant and refused by the court were some of them peremptory, and the others were all covered by other instructions given by the court.
There was evidence of the serious injury of appellee and of his pain and suffering, and substantial evidence that this was caused by the negligence of the appellant. We find no error, and the judgment is affirmed. | [
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McCulloch, C. J.
Sanders Williams, an aged negro, who died in the latter part of the year 1913, owned and resided upon a small tract of farm land in Prairie County, Arkansas, and also owned several horses and mules and some cattle. He was seventy years of age when he died, and had been very feeble for several years, according to the testimony in the case, and was unable to do very much work in the cultivation of the crops or otherwise. He died unmarried and without issue. The plaintiff, Jake Williams, Jr., was a nephew of Sanders Williams, and after the latter’s death he instituted this action in the chancery court of Prairie County against the heirs at law of Sanders Williams, alleging that in the month of February, 1911, said Sanders Williams entered into an oral agreement with him whereby he was to take care of said Sanders Williams during the remainder of his lifetime in consideration of which the latter was to convey to him said lands and personal property. The plaintiff alleged further that at the time the said agreement was entered into with his uncle he was residing at DeValls Bluff, where he had permanent and lucrative employment, and that in consideration of said agreement he gave up said employment and moved to his uncle’s farm', and during the lifetime of the latter took care of him and made valuable improvements on the place. The relief sought was the specific performance of the agreement on the part of Sanders Williams to convey to plaintiff said lands and personal property.
The heirs of said decedent, among whom was Jake Williams, Sr., the father of plaintiff, answered the complaint, and denied the allegations with respect to the agreement on the part of said decedent to convey said lands and personal property to the plaintiff, and also denied that the plaintiff had made any substantial improvements on the said farm. On the trial of the case the chancery court decreed in favor of the plaintiff for the specific performance of said agreement to convey the land. The personal property had been mortgaged by Sanders Williams and the mortgage debt remained unpaid, but the title to the personal property was decreed to be in plaintiff, subject to the said mortgage, and he was decreed the privilege of redeeming from the mortgage, and defendants have appealed to this court.
The testimony in the record is quite voluminous, and we find it unnecessary to review the same at length. Many witnesses testified concerning the physical and mental condition of Sanders Williams during the last few years of his life, and there is a conflict in the testimony, not only on that particular feature of the case, but also on the question whether or not the plaintiff lived with, Sanders Williams pursuant to an agreement on the part of the latter to convey the land and personal property to him, either by conveyance during his life or by last will and testament.
After consideration of the testimony in the case, we are of the opinion that it clearly establishes the fact that plaintiff went to live with his uncle under an agreement' that the latter was to convey the property to him in consideration of care and attention to be bestowed during the latter’s lifetime, and that the plaintiff occupied the premises pursuant to that agreement and made substantial improvements. The rule in such cases is that in order for a court of equity to grant relief in requiring specific performance of a contract the evidence must be clear and satisfactory so as to be substantially beyond doubt. We think this rule has been fully met in the present case and the testimony is altogether convincing that Sanders Williams entered into such an agreement with the plaintiff, his nephew, and that the latter performed the agreement. There is indeed some doubt whether the agreement was that the old man was to convey the land to plaintiff during his lifetime or was to convey it by last will. We do not; think it is necessary that the testimony should be free from conflict or variance on that issue, since it is fully established that the property was to be conveyed by some' mode* and it is immaterial whether it was to be done by conveyance during the lifetime of the grantor or by last] will and testament. The basis of the plaintiff’s claim is that there was a contract whereby he was to get the property in consideration of his services ren-i dered to his uncle, and it is entirely unimportant as to the particular method in which the property was to be conveyed. The proof having established the contract and a performance of its terms by1 the plaintiff, it follows that a court of equity should grant him relief. We need go no further than our own] decisions in finding authority on this question. Hinkle v. Hinkle, 55 Ark. 583; Naylor v. Shelton, 102 Ark. 30; Fred v. Asbury, 105 Ark. 494. The law stated in the syllabus of the last case is peculiarly applicable to the facts of the present case and reads as follows: “Where intestate verbally agreed that, if plaintiffs would give up their employment, change their residence and take care of him for the rest of his life, he would leave them all of his property, real and personal, at his death, and plaintiffs complied therewith, their conduct was such a performance as would take the contract out of the statute of frauds. ’ ’
In that case the elements forming the consideration were about the same as in the present case, except that one of the contracting parties removed to Arkansas from the State of Indiana for the purpose of performing the contract. It is urged that that element does not enter into the present case, and that the change of residence in the* present case was not a substantial one in that he did not remove from his State or county. The proof does show, however, in the present case that the plaintiff was enjoying lucrative employment, and was held in high esteem by Ills employer when he gave up his work in DeValls Bluff, and he did so with reluctance in order to go to live with his uncle and take care of him. In order to assume the obligations imposed upon him by the contract, he made an entire change of his surroundings and changed his occupation and place of residence. He gave his services to his uncle for more than two years before the latter’s death, and continued in the performance of his contract until his obligation was fully discharged. The evidence shows, therefore, that the contract was made and that the plaintiff has earned the enjoyment of its fruits. His rights are not to be defeated because there may be some doubt as to the mode in which he was finally to secure the enjoyment, and we are of the opinion that the chancellor was justified from the evidence in decreeing, the performance of the contract and in quieting the title of the plaintiff. The decree is, therefore, affirmed. | [
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Minor W. Millwee, Justice.
The parties to this suit are residents of the Dixie Addition to North Little Dock, Arkansas, where the appellant, Sam Jefferson, operated a café and beer tavern. When appellee, Prank Nero, entered appellant’s place of business on December 13, 1952, the two men engaged in an altercation in which appellant shot and critically injured appellee. Trial of an action for damages brought by appellee resulted in a verdict and judgment in his favor for $8,000.
There is a sharp dispute in the testimony concerning the shooting and the incidents leading up to it. According to the testimony of appellee, the parties were good friends and there had been no prior trouble between them when he went to appellant’s place of business about 3 P. M. on the day in question for the purpose of purchasing a package of cigarettes. The business consisted of two rooms, 14 ft. x 20 ft. each, facing East on “D” Street with the café located in the South room and the beer parlor in the North room. Appellee entered the café where appellant was sitting in front of the counter and the two exchanged greetings. Appellee then handed appellant a one-dollar bill to change so that he could get the cigarettes from a vending machine. Appellant went out the back door and returned shortly through the front door with a shotgun. When appellee started out the front door appellant drew the gun and told him to get back. When appellee backed up a few steps appellant made two or three motions with the gun which discharged and shot appellee at close range on the side of the face, seriously injuring him.
Appellee denied appellant’s testimony to the effect that the two had quarreled on the morning of the shooting and at other times previously because of appellee’s misconduct; and that appellee had been warned to stay away from appellant’s place of business. According to appellant the shooting occurred when appellee insisted on playing a coin operated music machine, or nickelodeon, after appellant had told him not to do so. Appellant testified that appellee then advanced toward him with his hand in his pocket; that he was nervous and did not intend to shoot or hurt appellee but only to stop him; and that it was just an accident that he hit him.
I. The Statute of Limitations. The shooting occurred December 13, 1952, and this suit was filed March 19, 1954. Appellant pleaded, and now contends, that the action was one for assault and battery which must be brought within one year under Ark. Stats., § 37-201. The trial court agreed with appellee’s contention that it constituted an action for negligence founded on an implied liability growing out of the proprietor-invitee relationship which may be brought within 3 years under Ark. Stats., § 37-206.
The amended and substituted complaint contained allegations as follows: “The plaintiff further states that when the defendant so shamefully thus shot and injured Mm, lie was a business visitor, an invitee, in defendant’s café and beer tavern; that said business was open for business at the time; that plaintiff had entered for the sole purpose of buying a package of cigarettes; that at the time he was exercising due care as such business visitor and conducting himself as is customary for good customers; that the defendant owed him a duty to exercise ordinary care towards him, and not unlawfully, or otherwise, to injure him; that the defendant defaulted in such duties, and while in the course of his duties as café and beer tavern operator, did with willful and unlawful negligence injure the plaintiff as aforesaid; and as a direct and proximate cause thereof the plaintiff was rendered totally and permanently disabled . . .”
“That while the relationship of proprietor-invitee existed between the parties hereto, the defendant proprietor attempted to eject plaintiff invitee from said beer tavern café, and in doing so used more force than was necessary, and thereby proximately injured the plaintiff.”
Appellant relies strongly on the case of McAlister v. Gunter, 164 Ark. 611, 262 S. W. 636, in which the court held that an action for shooting and wounding the plaintiff was barred by the one-year statute. The effect of our holding in that case was that an assault and battery was the only cause of action relied upon by the plaintiff, and that no special relationship, like that of proprietor-invitee asserted here, was alleged or proved. We think the principle followed in the earlier case of St. Louis, I. M. and S. Ry. Co. v. Mynott, 83 Ark. 6, 102 S. W. 380, is applicable and controlling here. There the plaintiff-passenger was allegedly assaulted, beaten and forcibly ejected from defendant’s train by one of its trainmen. In rejecting the defendant’s plea that the action was for assault and battery, hence barred by the one-year statute, the court held that the carrier-passenger relationship gave rise to an implied liability of the railway company for the wrongful acts of its servants in forcibly expelling plaintiff from the train. See, also, St. Louis, I. M. and S. Ry. Co. v. Robertson, 103 Ark. 356, 146 S. W. 482, where the one-year statute was held inapplicable even though the relation of passenger and carrier might not have existed, provided the trainman used more force than necessary in expelling plaintiff as a trespasser.
Another well settled rule is stated in 53 C. J. S., Limitations of Actions, § 107, as follows: “If there is doubt as to which of two or more statutes of limitation applies to a particular action or proceeding, and it is necessary to resolve the doubt, it will generally be resolved in favor of the application of the statute containing the longest limitation. ’ ’ See, also, 34 Am. Jur., Limitation of Actions, § 50.
In determining the applicable statute of limitations in the case at bar, we think the trial court correctly construed the instant proceeding as an action growing out of the implied liability of appellant as a proprietor in either wrongfully and negligently injuring appellee, an invitee, or in using more force than was necessary in attempting to eject him as a trespasser.
II. The Instructions. Appellee’s Requested Instruction No. 1 given by the court reads: “This is a case in which the plaintiff alleges a proprietor-invitee relationship between defendant and him and that under such relationship the defendant owed him a duty under an implied contract to be careful toward him and not to injure him negligently. You are instructed that when an owner sets up shop and opens his doors for the business of selling wares, services, or entertainment he is then a proprietor and such act is his general invitation for the public to enter, look, and buy, and any person who enters with an intention of probable buying is an invitee. So, in this case, if you find from the preponderance of the evidence, that on December 13, 1952, at or about 3:10 P. M. Sam Jefferson, the defendant, had his café-beer tavern open for business, and at that time the plaintiff, Prank Nero, entered said shop for the purpose of making a purchase, then said defendant was a proprietor and said plaintiff was an invitee, and at that time the relationship of proprietor-invitee existed between the defendant and the plaintiff, and it is the law that the defendant owed the plaintiff a duty to exercise ordinary care towards him under such circumstances and conditions. ’ ’
Appellant objected to the instruction generally, and specifically because the word “negligently” was not defined. It is now argued that the instruction is inherently erroneous because it assumed and told the jury that the relationship of proprietor-invitee existed between the parties at the time of the shooting. We think it is clear that the instruction merely set forth appellee’s allegation in regard to the relationship and the state of facts under which the jury might find that it existed. Other instructions given by the court make this very clear. It is also well settled that the failure to instruct on a question is not ground for reversal, where no request is made therefor. See cases cited in West’s Ark. Digest, Appeal and Error, § 216. Instructions defining such terms as “negligence” and “ordinary care” are usually given separately. If appellant felt the word “negligently” should have been more specifically defined it was incumbent upon him to request such an instruction before he could complain on appeal. The court defined ‘ ‘ ordinary care” in a separate instruction and appellant’s liability was predicated upon his alleged failure to use such care toward appellee. When the instruction in question is considered along with other instructions given, as the jury were told to do, the meaning of “negligence,” or the failure to use “ordinary care,” is made manifest.
Appellant also contends the court erred in givingappellee’s Requested Instruction No. 2, which, reads: “You are instructed that a proprietor owes an invitee on his premises a duty to exercise ordinary care not to injure him negligently. Such duty arises from an implied contract on the part of the proprietor when he opens his shop and thus invites customers to enter that the shop is safe to enter and that he will exercise ordinary care for such customer-invitee’s safety, and that he will not negligently injure him. So, in this case, if you find from a preponderance of the evidence that the plaintiff, while exercising dne care entered and was an invitee upon the premises of the defendant and the defendant in the capacity of proprietor negligently injured the plaintiff as charged, then and under such findings you should bring in a verdict for the plaintiff and award him a judgment commensurate with his proved damages.”
Specific objections to this instruction were that ‘ ‘ negligence ’ ’ and ‘ ‘ ordinary care ’ ’ were not defined and that the instruction failed to state that an invitee must enter a place of business “in a lawful manner.” We think this instruction correctly submitted appellee’s theory of the case to the jury. Under the instruction the jury were required to find not only that appellee was an invitee but that he entered appellant’s place of business “while exercising due care.” The defense theories of appellant to the effect that appellee was a trespasser, that appellant used no more force than necessary to eject him, or to protect appellant from bodily injury, were submitted under instructions requested by both parties which clearly and correctly defined such issues to the jury.
In connection with this instruction appellant again argues that appellee sought recovery for assault and battery only, which he asserts must be done intentionally, and not negligently; and that there is no proof of negligence in the case at bar. As previously indicated, appellee’s complaint clearly stated a cause of action on an implied liability growing out of the proprietor-invitee relationship. Even if it be conceded that assault and battery were also involved in the proceeding, the trial court correctly applied the longer rather than the shorter period of limitations. The jury were also warranted in finding that appellant acted negligently, and not intentionally, in the shooting under his own version of the incident. Besides, if appellant thought the jury were not sufficiently advised on the issue of whether the shooting was intentional, he should have requested a proper instruction on the matter and cannot complain on this appeal in the absence of such request. Western Coal and Mining Co. v. Jones, 75 Ark. 76, 87 S. W. 440.
On the whole case we find no prejudicial error, and the judgment is affirmed. | [
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Robinson, J.
The pleadings in this case give rise to the issue of the ownership of 80 acres of farming land. The cause is here at this time on the point of whether the Chancellor erred in appointing a receiver to take charge of the property and rent it out until the case can be decided on its merits.
The complaint filed by appellee alleges, inter alia, “that unless a receiver is appointed to take charge of said property immediately, to make necessary arrangements for farming same for the year 1955, to secure the proper allotment and to protect said property, the plaintiff will suffer irreparable injury.” The hearing was held before the Chancellor on March 4, 1955 on the question of appointing a receiver. At that time, plaintiff J. B. Lambert testified that the condition of the farm was just about as bad as it could be. No effort had been made to put the land in shape for planting. Last year’s cotton stalks were still standing and the Johnson grass was so bad one could hardly see the old stalks. Pictures were introduced in evidence showing the condition described. The witness J. B. Lambert, Jr., also corroborated the testimony of his father. On the other hand, appellant Alex Bragg testified that he had prepared several acres of the land and that he was equipped to make a crop.
The witnesses were before the trial court, and that court was in a much better position than is this court to judge their credibility. In making the decision to appoint a receiver the court said: “It would be for the protection of all parties that a receiver be appointed to insure a crop being made on this land this year. The defendant will not be disturbed in the possession of the house. Farming time is here — and it will be well to have a crop made on the land. . . . That is my greatest concern here. This is March 4 and the land must be prepared and planted soon if a crop is to be made at all.” Ark. Stats., § 36-112, provides: “Appointment of receiver pendente lite. In an action . . . between partners or others jointly owning or interested in any property or fund, on the application of plaintiff or of any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being-lost, removed or materially injured, the court may appoint a receiver to take charge thereof during the pend-ency of the action and may order and coerce the delivery of it to him. ’’ This court said in Ford v. Moore, 212 Ark. 248, 205 S. W. 2d 209: ‘‘ The general rule governing appointment of receivers 'is that the action of the court must be governed by a sound and judicial discretion.’ ”
We are unable to say there was an abuse of discretion by the trial court. Appellant argues the merits of the case, but on this appeal the only issue involved is the action of the Chancellor in appointing a receiver.
Affirmed.
Mr. Justice McFaddin concurs. | [
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J. Seaborn Holt, Associate Justice.
This is a suit by appellee, Angelo, to recover alleged salary due him, as City Marshal, for Augusta, Arkansas, a city of the second class. The parties have stipulated that:
“Ordinance No. 232, referred to in plaintiff’s complaint was duly passed and published as required by law at the regular October, 1952, meeting of the City Council of said city and by its provisions did not take effect until January 1st, 1953.
“Ordinance No. 231, referred to in plaintiff’s complaint, was duly passed and published as required by law at the regular September, 1952, meeting of the City Council of said City and by its provisions did not take effect until January 1st, 1953.
“Plaintiff was duly elected Marshal of the City of Augusta for a two year term ending January 1st, 1953; that plaintiff was duly elected over an opponent in the November 4th, 1952 General Election for the two year term ending January 1st, 1955, and duly qualified for said office, and was paid and accepted $2.00 per month during said period.
“Ordinance No. 226 referred to in plaintiff’s complaint was duly passed and published and became effective January 1st, 1951, and under said ordinance plaintiff was paid a salary of $150.00 per month for the years 1951 and 1952.
‘ ‘ The respectively numbered exhibits attached hereto are true and certified copies of the original ordinances passed by the City of Augusta.
‘ ‘ The question of law herein presented is the validity of Ordinances No. 231 and 232, and in particular whether said ordinances are void or invalid as constituting an indirect abolishment of the office of City Marshal.”
Ordinance 231 provides in part: “That the office of City Marshal shall not be abolished hereby, but all duties heretofore performed by the City Marshal shall be transferred to and become the duties of the Chief of Police under the direction of the Police Commission and City Council. The compensation to be received by any and all officers appointed hereunder shall be determined by the police commission with the approval of the City Council . . . All legal process issued by the Mayor shall be directed to the Chief of Police . . . All fees, rewards, and other special remuneration received by the Police Department or any member thereof, shall be deposited with the City Treasurer and credited to the general fund of the city . . . The Chief of Police shall take over and perform all duties in connection with said court that have been performed by the City Marshal.”
Ordinance 232 provides: “Section 1: Beginning January 1, 1953, the salary of the various elected offices and officers shall be in amounts and payable at the time and in the manner set out as follows:
“Marshal — $24.00 per year payable $2.00 per month.
‘ ‘ Section 2: The provisions of this ordinance shall come into effect and be in force on January 1, 1953.”
Trial resulted in a judgment for appellee in amount of $3,552 with 6°/o interest and costs. The judgment contained these findings by the court:
“The court finds that the said ordinances No. 231 and 232 are void, invalid and of no legal effect and their attempted adoption by the City Council was an ultra vires act, because the passage of the ordinances was an attempt to abolish the office of City Marshal of the City of Augusta by indirect means, the finding of the court being that the said two ordinances are void, invalid and of no legal effect only to the extent that they affect the office and salary of the City Marshal of the City of Augusta.
“The court finds that the City of Augusta paid to the plaintiff, Jack M. Angelo, the sum of $2.00 on his salary for each of the months of 1953 and 1954, or a total of $48.00, and that the City of Augusta is thereby estopped to introduce testimony and to contend that the plaintiff, Jack M. Angelo, abandoned or vacated his office at any time during the years 1953 and 1954.
“The court finds that the plaintiff is entitled to recover the salary of $150.00 per month, as provided in ordinance No. 226 introduced herein, for the twelve months of 1953 and the twelve months of 1954, less the $2.00 per month paid in each month of the two years, or he is entitled to recover the sum of $3,552.00.”
This appeal followed.
The question presented is one of law. The facts were undisputed and the trial court based its judgment solely on the pleadings and stipulation of facts above. We held in McGill v. Miller, 183 Ark. 585, Head Note No. 2, 37 2d S. W. 689: “Where testimony was undisputed and the conclusion deducible therefrom was one of law, the appellate court was not bound by the trial court’s finding.”
At the time the above ordinances were enacted the following sections of our statute were in effect and controlled: § 19-1103, Ark. Stats., 1947 “Marshal, recorder, and treasurer to continue in office until successor qualified — (The qualified voters of each city of the second class shall, at the same time, elect a city marshall [marshal], city recorder and treasurer.) Each of said officers shall continue in office until his successor is elected and qualified, and shall have such powers and perform such duties as are prescribed in this act, or as may be prescribed by any ordinance of such city, not inconsistent with the provisions of this act.”
Section 19-1104, Ark. Stats., 1947 “Marshal — Powers and Duties — Appointment of Duties — Fees — The Marshal of cities of the second class shall execute and return all writs and process to him directed by the mayor, and, in criminal cases or cases of a violation of the city ordinance, he may serve the same in any part of the county; it shall be his duty to suppress all riots and disturbances and breaches of the peace, to apprehend all disorderly persons in the city, and to pursue and arrest any person fleeing from justice in any part of the State; to apprehend any person in the act of committing any offense against the laws of the State, or ordinances of the city, and forthwith to bring such persons before the mayor, or other competent authority, for examination or trial; he shall have power to appoint one or more deputies, for whose official acts he shall be responsible; he shall, in the discharge of his proper duties, have like powers, be subject to like responsibilities, and shall receive the like fees as Sheriffs and Constables in similar cases.”
Clearly it appears under § 19-1103 that the office of City Marshal was an elective office by the qualified electors of Augusta. See Thomas v. Sitton, 213 Ark. 816, 212 S. W. 2d 710. The City Council at the time Ordinance 231 was enacted [which was prior to the effective date of Act 172 of 1953 which gives cities of the second class authority to appoint the City Marshal instead of electing] was without power to abolish the office of City Marshal and the ordinance was, therefore, void. See City of Berryville v. Binam, 222 Ark. 962, 264 S. W. 2d 421.
We think, however, that Ordinance 232 above is a valid enactment. As we construe § 19-1103 and § 19-1104 above, the City Council was not required to pay the duly elected City Marshal any certain or stated salary, or in fact, any salary at all. It could, however, if it so elected, pay him some salary, as the $2.00 per month here, in addition to “the like fees as Sheriffs and Constables in similar cases,” received as provided in § 19-1104 above. Here appellee, Angelo, had been duly elected to the office of Marshal by the people. There was no vacancy in the office and he was not a “hold-over” officer. As pointed out, the City’s authority to fix appellee’s salary was unrestricted except that it could not change his salary during any certain term once it had been fixed. We conclude, therefore, that appellee has been paid by the City all the salary ($2 per month) that the city agreed to pay him under Ordinance 232 during his elected term 1953 and 1954. The judgment is reversed and the cause remanded with directions to proceed not inconsistent with this opinion. | [
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Paul Ward, Associate Justice.
On this appeal we seek to distinguish between the meaning of the word “possession” as distinguished from the word “custody” as applied to an exclusion clause in a policy insuring against theft. The facts are undisputed.
Appellant, Phillips Motor Company, is a corporation engaged in the business of automobile dealer in the City of Helena. On November 4, 1952, late in the afternoon, a man named Edd Martin came to appellant’s place of business and began negotiations to purchase a 1950 Dodge automobile valued at $1,425.00. After E. 0. Phillips, manager of appellant, and Martin had taken a short drive in the automobile to try it out, Martin stated that he had about decided to buy and asked Phillips if he would take his check, stating that he would like to keep the automobile over night to further try it out. Phillips at first replied that he would under no conditions let him use the car over night. A short time later however, after Martin had given Phillips his check for $1,550.00 on the First National Bank of DeWitt [marked in the left hand corner “for 1950 Dodge”] and after Phillips’ insurance agent had issued a liability policy on the automobile to Martin, for which Martin paid $100.00, Phillips allowed Martin to take the automobile and drive it until the next morning. It was understood that Martin would return the automobile the next morning and, if he liked it, the check would be cashed and title papers to the automobile would be made out to him. Thereupon Martin drove away in the automobile and has not been heard from since. When his check was presented to the bank it was dishonored for lack of funds.
At all times mentioned herein, and in the ordinary course of business, appellant held an insurance policy [No. GWB 4905630] issued to it by appellee, insuring against any damage or loss by reason of theft of any automobile owned or held in connection with the operation of its business.
On the above state of facts appellant filed suit against appellee on said mentioned policy to recover the value of the Dodge automobile. For its answer appellee admitted the issuance of the policy but denied that plaintiff had suffered any loss insured against therein, affirmatively stating that said policy contains, among other provisions, the following exclusion:
“2. Exclusions — Such Policy Does Not Cover: (d) under the theft, larceny, Bobbery, or pilferage coverage (if such policy covers these perils) — loss suffered by the insured in case he voluntarily parts with title to, or possession of • any automobile at risk hereunder, whether or not induced so to do by any fraudulent scheme, trick, device or false pretense or otherwise.”
After the introduction in evidence of oral testimony, excerpts from the said policy and the above mentioned check, the trial judge directed a verdict in favor of appellee.
In its brief appellant very clearly states the issue presented to us in these words:
“The question now before the court is whether or not, under these circumstances, which are undenied and unquestioned, the appellant delivered the lawful possession of the car to Edd Martin or whether, on the other hand, ho delivered merely the custody of the car for the purpose of permitting him to try it out during the night.”
It is, of course, the contention of appellant that it merely delivered custody of the automobile to Martin, and that therefore the exclusion clause copied above does not apply. We agree with appellant that if it did merely deliver custody to Martin and did not deliver possession to him [as these words are later interpreted], then the judgment of the trial court should be reversed.
To sustain its contention that only custody of the automobile was delivered to Martin appellee refers us to several decisions from other jurisdictions which we will mention later. However after careful consideration of the numerous decisions dealing with the question here presented we have concluded that, under the factual situation above stated, appellant delivered possession of the Dodge automobile to Martin, and that, consequently, the judgment of the trial court must be sustained.
In the case of Galloway v. Marathon Insurance Company, 220 Ark. 548, 248 S. W. 2d 699, where the same exclusion clause mentioned above ivas considered under facts somewhat similar to the facts in the case at bar, this court made a clear distinction between possession and custody as applied to this kind of a case. It was there stated:
“Construing the clause against the insurer, the courts hold that for the exception to apply the insured must part with possession as distinguished from mere custody. Thus where the insured’s salesman entrusted the custody of the car to a hotel employee so that it could be driven to the hotel garage, it was held that possession had not been relinquished.” [Citing Bennett Chev. Co. v. Bankers and Shippers Ins. Co., 58 R. I. 16, 190 A. 863, 109 A. L. R. 1077.] “But when the dealer voluntarily parts with actual possession rather than mere custody, the loss is excluded from the coverage of the contract.” [Citing Jacobson v. Aetna Cas. & Surety Co., 233 Minn. 383, 46 N. W. 2d 868.]
In the Galloway case, supra, the court held that the exclusion clause prevented recovery, but that opinion is not decisive of the question we are considering here, first because in that case title as well as possession had passed to the purchaser which is not true here, and second because that case did not announce any rule by which to distinguish between possession and custody, as it was not necessary to do so. The decisions of other jurisdictions however have pointed out rather consistently the way to make such distinction, and they have construed facts analogous to the facts here as indicating a departure with possession and not with custody. We will now examine some of these cases.
In the Jacobson case, supra [cited in the Galloway case, previously discussed] the court dealt with the identical exclusion clause and essentially the same facts as are present in the case under consideration, and the court held that the dealer parted with possession and not merely with custody, relieving the insurance company of liability. In a well written opinion the court pointed out the features which distinguished possession from custody. In general terms it was stated that if the dealer turns the car over to another person so that that person may render some service or benefit for the dealer, then the dealer parts only with custody and the insurance company is liable, but if the dealer allows a person to take an automobile for his own use and benefit then the dealer has parted with possession and the insurance company is not liable. In making this distinction the court there used this language:
“In other words, a voluntary surrender of possession, within the meaning of the policy’s exclusionary clause, is effected only when the surrender of physical control is accompanied by an intent that the control so surrendered, though it be of only temporary duration, shall be exclusively vested in the recipient and shall by him be exercised, at his pleasure, for the immediate and direct accomplishment of a purpose or use belonging to such recipient. ’ ’
The same exclusion clause and essentially the same set of facts pertaining here were considered in McDowell Motor Company v. New York Underwriters Ins. Co., 233 N. C. 251, 63 S. E. 2d 538, and the court, in holding the insurance company not liable stated: “. . . we think the exclusion clause does relieve the insurer from liability for theft where the possession of the car was voluntarily surrendered to another with the right to exercise control thereof for a purpose of his own.” The purpose for which the automobile was turned over to the prospective customer in that case was to test it and show it to his wife for her approval or disapproval.
In the case of Boyd v. Travelers Fire Ins. Co. 147 Neb. 237, 22 N. W. 2d 700, the court held there was no liability on the insurance company under an exclusion clause exactly like the one in the case at bar and where the facts in all essentials were also the same. The same conclusion reached in the above case was reached in Nelson v. Pennsylvania Fire Ins. Co., 154 Neb. 199, 47 N. W. 2d 432. The exclusion clause was exactly the same and the facts were in all essentials the same as those in the case at bar, although the case was reversed against the insurance company for an entirely different reason. One of the most recent cases affirming the holding in the cases above referred to is Harry Dinkin, et al. v. The American Insurance Company, 268 Wis. 138, 66 N. W. 2d 681. Not only is this decision based on the same kind of an exclusion clause and on essentially the same set of facts as those under consideration here hut the opinion sets forth a clear statement of the reasons for the rule announced. In summing up these reasons the court said:
“We prefer the rule of the cases in which it has been held that if an owner voluntarily surrenders physical control of his automobile to a third party with the intent that the third party shall exercise exclusive dominion of the vehicle solely or primarily for the recipient’s direct use or purpose as distinguished from a use or purpose for the benefit of the owner, the insured has voluntarily surrendered possession within the meaning of the exclusionary clause of the policy and there is no coverage.”
Appellant relies very strongly on the case of Tripp v. United States Fire Ins. Co. of New York, 141 Kan. 897, 44 Pac. 2d 236. We agree with appellant that the exclusion clause and the facts in that case are practically and materially the same as those in the case at bar, and also agree that the holding in that case cannot be reconciled with the holdings above mentioned. However that case was decided in 1935 and it has been considered and rejected in many of the cases to which we have referred. Apparently the court reached the conclusion it did largely by a reliance on the general rule that language in insurance policies should be construed most favorably to the insured. While we recognize this rule as sound and well established we do not feel at liberty to apply it here. The reason is that the particular exclusion clause we are dealing with has been so many times uniformly interpreted [in connection with practically the same factual situation obtaining here] that all doubt as to its meaning has been eliminated. Since the policy under consideration is standard and since the exclusion clause is so widely used we think it better for all concerned to maintain a uniform interpretation than to inject confusion by holding contrary to the clear weight of authority.
Affirmed.
Justice Holt concurs.
Justice Millwee dissents. | [
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George Rose Smith, J.
This is a suit by the appellee, A. M. Marks, for specific performance of a contract by which he agreed to purchase certain real property from the appellants, Mr. and Mrs. Hoyt B. Moore. The negotiations leading up to the contract were conducted through a real estate dealer, Harward Barry. The pivotal question, upon which the validity of the contract depends, is whether Barry was acting as agent for the buyer or as agent for the sellers. The chancellor found that Barry was representing the sellers, and upon that finding the court granted the prayer for specific performance.
In August of 1954 the Moores attempted to sell this property themselves by advertising it in a Fort Smith newspaper. Barry saw the advertisement and called on Moore, for whom he had previously bought and sold property. Barry testifies that he was employed by Moore and that his commission was discussed and agreed upon. It cannot be said that Moore denies this testimony; to the contrary, he pretty well admits it. These are excerpts from Moore’s testimony:
“Q. Did you put the property in Ms hands to sell!
“A. Yes, sir, we had talked it over.
if* ^ ^ ^ #
“Q. Did you authorize, or employ, Harward Barry to sell your property . . . ¶
“A. (Pauses) Well, at that time I did.”
Barry testified that after his employment by Moore he approached Marks as a prospective purchaser; Barry states positively that he had no agreement with Marks for the payment of any commission. It is not clear how long Barry negotiated with Marks, but on the afternoon of Friday, September 3, Marks orally made to Barry a tentative offer of $13,500, which was slightly less than the Moores had been asking. That evening Barry discussed this offer with the Moores, and they signed the contract now in issue, by which they agreed to sell the property at Marks’s figure. Upon leaving the Moores that evening Barry took the signed contract to Marks and left it with him. The contract provided that it should be void unless earnest money were put up by noon on the following Tuesday.
On the next day, Saturday, September 4, the Moores received a better offer for the property. Hoyt Moore promptly telephoned Barry, but the exact effect of their conversation is in dispute. Moore says that when Barry told him that the contract had been left with Marks, he informed Barry that the deal was off and directed Barry to pick up the contract before Marks signed it. Barry says that he did not understand Moore’s position to have been this clear-cut, but in the view we take the result is the same even if Moore’s directions were as positive as he says.
On. the following Monday, September 6, Marks signed the contract and delivered it, together with the earnest money, to Barry. If Barry had really been told to drop the matter he violated his instructions, for he accepted the contract and the earnest money. The Moores’ subsequent refusal to perform the agreement led to this litigation.
In our opinion the fact that Barry was the agent of the Moores is practically undisputed. We have summarized the oral evidence, which consists of Barry’s positive assertions that he was employed by Moore and of Moore’s reluctant admissions that these assertions are time. In contending that Barry was not their agent the Moores rely almost entirely upon the terms of the contract of sale, which they think to show conclusively that Barry was the agent of Marks. In all material respects this contract is the identical printed form that was quoted in full in Brissaud v. Rogers, 218 Ark. 369, 236 S. W. 2d 439. The printed form is entitled Offer and Acceptance. By the form the buyer purports to authorize the named real estate agent “to offer for my account” a certain sum for the property, all the conditions of the contract being stated in the offer. After the buyer’s signature spaces are provided for the agent to acknowledge receipt of the earnest money and for the seller to accept the offer. Here it happened that the Moores first signed the acceptance, on Friday, and Marks completed the execution of the contract on the succeeding Monday.
We think it plain that the language of this printed form did not convert Barry’s agency for the sellers into an incompatible and disloyal attempt on his part to represent the buyer. The form is evidently designed for use in transactions in which a real estate dealer acts as an intermediary between the parties. Its purpose is not to declare the existence of an agency but merely to reduce to writing a firm offer that may be submitted by either party to the other. Here it was the Moores who made the written offer, by filling in the contract and signing in tlie space provided for the seller’s acceptance. Marks completed the contract by accepting that offer.
Once it is decided that Barry was the agent of the Moores, the case involves only simple and familiar rules of law. From the point of view of Marks, who appears to have acted in good faith all along, it can hardly be doubted that a binding contract came into existence. On Friday night Marks received from the sellers’ agent a signed offer, which was subject to acceptance by noon of the next Tuesday. Without notice of the sellers ’ change of mind Marks accepted the offer within the time allowed and delivered his check for the earnest money to the agent. Marks had manifestly done all that was required of him.
Upon the undisputed facts it is clear that the Moores’ effort to withdraw their offer was ineffective. One dealing with an admitted agent, even though he be a special agent, is entitled to assume that the agent is clothed with authority coextensive with its apparent scope and is not bound by the principal’s specific instructions of which the third person has no notice. Three States Lbr. Co. v. Moore, 132 Ark. 371, 201 S. W. 508; Slayden v. Augusta Cooperage Co., 163 Ark. 638, 260 S. W. 741. Two other more specific rules are also applicable. One is that if the principal knows that the agent has begun to deal with a third person, the agent’s apparent authority cannot be terminated unless the third person has notice of the termination. Rest., Agency, § 129. The other is that similar notice of termination is re.quired when the principal has entrusted to the agent a writing which manifests the agent’s authority and which is meant to be shown to third persons. Ibid., § 130. Here Hoyt Moore admits that he knew Barry was negotiating with a man named Marks, and the Moores entrusted Barry with a signed copy of the proposed contract. In these circumstances Barry’s apparent authority to consummate the sale could not be withdrawn without notice having been brought home to Marks.
A minor ■ contention is that Marks was required to pay the entire purchase price of $13,500, rather than just the earnest money, by noon on Tuesday, September 7. It is shown that when the printed form was filled out and signed by the Moores on Friday evening, the amount of the purchase price was inserted, but the spaces for the earnest money and for the remaining balance that was to be paid on delivery of the deed were left blank. The contract, however, clearly contemplated a deposit of earnest money, as it provided that this deposit had to be made by noon, September 7. It was patently intended that Barry and the buyer would fix the amount of the earnest money and insert this detail in the agreement. As completed, the contract requires that the entire unpaid balance be paid upon the delivery of the deed, which is all that the sellers are entitled to demand.
Affirmed.
Mile wee, J., dissents. Seamster, C. J., not participating. | [
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J. Seaborn Holt, J.
Appellee, as Administratrix of the estate of her deceased husband, sued appellant for damages in the amount of $151,000, for his death which resulted when a one-half ton auto truck he was driving was struck by one of appellant’s freight trains on a public crossing in Mena, Arkansas. She alléged in her complaint that the negligent acts of appellant were: (1) Failure, while approaching the crossing, to keep a lookout, (2) Failure to ring the bell or blow the whistle as required by § 73-716, Ark. Stats. (1947), (3) Running the train at an excessive speed, (4) Failure to keep the crossing, which was hazardous, in a safe condition, and (5) Failure to provide signal warning devices, or a watchman at this “particular” crossing. Appellant’s answer was in effect a general denial, and in addition contained the affirmative plea of deceased’s contributory negligence, as a complete bar to any recovery.
A jury trial resulted in a verdict for appellee in the amount of $9,000 and it is not claimed that this verdict is excessive. From the judgment is this appeal.
For reversal appellant first argues that the court erred in giving, over its objections, appellee’s Instruction No. 1 submitting the issue of failure of appellant’s employees to keep a lookout as required under § 73-1002, Ark. Stats. (1947), and that the court erred in refusing to give appellant’s requested Instruction No. 11 which was in effect peremptory.
After review of the record presented, we have reached the conclusion that this contention of appellant must be sustained. Appellee’s Instruction No. 1 provides: “You are instructed that Section 73-1002 of the Revised Statutes of Arkansas for 1947 provides in part as follows:
“‘Duty of trainmen to keep lookout — Burden of proof of reasonable care. — It shall be the duty of all persons running trains in this state upon any railroad, to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad, shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout.’
“In this connection, therefore, you are instructed that under the law of this state, the persons running the train of the defendant, Kansas City Southern Railroad Companjr, were under a duty to keep a constant lookout for persons and property upon the track or approaching said track, and if the person or persons running said train failed to keep such lookout and such failure, if any, resulted in the death of the deceased, Charles D. Shane, then the defendant Kansas City Southern Railway Company would be liable to the plaintiff for all damages to the plaintiff resulting from such neglect, if any, to keep such lookout.”
Appellant’s requested Instruction No. 11 provides: “You are instructed that the plaintiff has failed to prove, by a preponderance of the evidence in the case, her allegation that the defendant failed to maintain and keep a constant lookout at the railroad crossing at the junction of Reine Street and U. S. Highway 71, and as to that allegation of negligence, your finding must be for the defendants.”
The collision in question occurred about 6:45 p. m., November 28, 1953, on a dark, misty night. The deceased was driving a one-half ton truck east along Reine Street and was struck by appellant’s northbound freight train on the Reine Street public crossing. Appellant’s engineer who was operating the engine of the freight train testified in effect that he had been acting as an engineer for appellant for about thirteen years. The engine had four diesel units of the General Motors type, weighing about 900,000 pounds with a modern headlight of 32,000 candlepower which was ten feet, nine and one-half inches above the rails. You could distinguish an object (such as a man) about 800 feet and larger objects further than that depending on weather conditions. On the night in question he had a good headlight beam of about 600 feet from the end of the curve up to the crossing. His train consisted of fourteen loaded cars, four empties, and a caboose, and was going at a speed of about forty-five miles per hour, a speed he was required to make. As he approached the crossing in question he saw the headlights of the truck approaching the crossing when it was about 150 feet away going east. He immediately made an emergency application of the brakes. His brakes were working perfectly and responded promptly to his application. When the truck was about fifty feet from the crossing its driver, Mr. Shane, seemed to try to stop it but the pavement was wet and the truck skidded to the side upon the crossing almost sidewise. It required a distance of about 1,350 feet to stop the train and he stopped it as quickly as possible in the circumstances. He was passing through a cut about seven feet wide at its highest point and from his seat on the right side of the engine he was about thirteen feet above the rails. Two other employees, a brakeman and the fireman, were sitting on the seat beside him and their testimony tends to fully corroborate this engineer’s tes timony. These three employees were the only eye-witnesses to the collision. A witness had testified that he thought the truck could have been seen by the appellant’s operatives, when the train was approximately 258 feet away, for a distance of about 225 feet from the crossing. This difference between 150 and 225 feet as to the distance is not of material importance here in the circumstances because the physical facts show that tins train could not have been stopped in time to have avoided the collision had the truck been discovered 225 feet away. In fact 1,350 feet was required in which to stop it.
As we read the evidence presented, the uncontradicted testimony shows that the operatives of appellant’s train were keeping the lookout required by the lookout statute above, and, therefore, this issue should not have been submitted to the jury there being no evidence to support it.
In construing § 73-1002 above our rule appears to be well settled that where an injury is caused by the operation of a railway train a prima facie case of negligence is made against the company operating such train and the burden rests on the company to show that it was not guilty of negligence. The effect of the statutory presumption created by the lookout statute above has been construed many times by this court and its legal effect well settled by our decisions. In St. Louis-San Francisco Railway Company v. Cole, 181 Ark. 780, 27 S. W. 2d 992, this court said: “The Supreme Court of the United States recently said, in construing a statute similar to the Arkansas statute: ‘The only legal effect of this inference is to cast upon the railway company the duty of producing some evidence to the contrary. When this is done, the inference is at an end, and the question of negligence is one for the jury upon all the evidence.’ Western & A. R. R. Co. v. Henderson, 279 U. S. 639, 49 S. Ct. 445, 73 L. Ed. 884.
“After the introduction of evidence hy the railroad company, as we have already said, the inference is at an end. It cannot be considered by the jury as evidence.
“Under the construction placed upon statutes like ours, the presumption of negligence is at an end when the railroad company introduces evidence to contradict it, and the presumption cannot be considered with the other evidence, because to do this would, as stated by the Supreme Court of the United States, be unreasonable and arbitrary, and would violate the due process clause of the 14th Amendment. . . .
‘ ‘ The duty of the railroad to take precautions begins when it discovers, or should have discovered, the peril of the traveler. . . .
“The jury could not arbitrarily disregard the testimony of the engineer and fireman. St. L. I. M. & S. R. Co. v. Landers, 67 Ark. 514, 55 S. W. 940.
“ ‘The public interest requires that trains be run on time and that railroads dispatch their business promptlv.’ Davis v. Porter, 153 Ark. 375, 240 S. W. 1077.”
The record reveals that appellee requested no instruction on the alleged negligence of appellant in failing to give the statutory signals (ringing the bell or blowing the whistle) required under § 73-716, Ark. Stats. (1947) and none was given. He also did not request any instruction on the issue of the alleged negligent speed of the train and none was given. The court did, however, give appellee’s requested instructions on the issue as to the alleged hazardous condition of the crossing such as might require a “watchman, gongs, lights, or similar warning devices” and on the issue of the alleged negligence of appellant in failing to keep the right-of-way free of-view obstructing objects. The jury, therefore, was not given an opportunity to pass on the issues as to warning signals and excessive speed.
We, therefore, reverse for the error above, and we remand the canse for a new trial. Our rule in reversing a law case is to remand the case for a new trial unless there be an affirmative showing that there can be no recovery. See Fidelity Mutual Life Insurance Company v. Beck, 84 Ark. 57, 104 S. W. 533, 1102.
In view of a new trial we think it only fair to point out that we find no abuse of the trial court’s discretion in refusing to admit in evidence certain photographs offered by appellant which were taken some eleven months after the collision. Accordingly, the judgment is reversed and the cause remanded for a new trial.
Justice Millwee dissents. | [
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Mehaffy, J.
On April 30, 1930, the appellee and appellant entered into a written agreement whereby the appellee let, rented and leased to the appellant certain property in the city of Fort Smith, Arkansas, for the term of five years, commencing on June 1, 1930, at a yearly rental of $2,400, payable monthly in advance.
One clause in the lease reads as follows:
“That said lessee shall keep the premises in good repair, reasonable use, wear and tear and damage by the elements excepted, except that the lessee shall not be required to make repairs to the roof or structural repairs and the lessor agrees to keep the roof and the structural parts of the building in good repair.”
A later clause in said lease reads as follows:
“In case the premises are destroyed by fire, or so damaged by fire or any unavoidable casualty as to make them uninhabitable or unfit for use and occupation, the lessor agrees to repair such damage as promptly as possible, and the rent shall be abated until the completion of such repairs. In the event that the said premises are completely destroyed and the lessor decides not to rebuild, then this lease shall terminate and come to an end. ”
The above are the only clauses in the lease about which there is any controversy.
The appellant conducted a retail clothing business in said building, and the building was damaged by fire on September 10, 1931. Immediately after the fire, the lessor employed the contractors to restore said building. The contractors made a survey of the general damage to the building, and made notes of the damages, prepared an estimate of loss and damage caused by the fire, water and smoke. The contractors were ready to go to work the day after the fire.
The manager for the appellant, Mr. Frazier, told the contractor that Mr. Schachter would be there in a few days; that he was the road manager, and that the goods could not be removed until Mr. Schachter came. When Mr. Schachter came, he insisted that no repairs be made until they got their goods out of the building. He asked the contractor not to do anything until after everything had been moved out.
The insurance adjuster undertook to adjust the loss. He directed the contractor to make separate estimates for the papering, painting and all fixtures, and all interior work; that the appellant had that covered by insurance, and would collect for it, and he should make separate estimates, which he did, and the appellant collected for the damage to these items.
The appellant concedes that, if the appellant was to make repairs, its failure to do so and to continue to pay rent would constitute a breach of the contract, and justify the judgment against it. But if it was the duty of the appellee to make these repairs, then her failure to do so constituted a breach of the contract.
The question for onr determination therefore is, whether the lessor or lessee was to make repairs on the items upon which appellant carried insurance.
The two clauses of the contract or lease must he construed together. There is no conflict between the two clauses; and, if we had nothing hut the two clauses and had to determine from them alone, the appellee would be required under them to repair all the damage done by the fire.
A contract of lease is construed like any other contract, and the rule is, in the interpretation of contracts, to ascertain the intention of the parties, and give effect to that intention, where this can be done consistently with legal principles. 6 R. C. L. 835, 13 C. J. 520; Coca-Cola Bottling Co. of Ark. v. Coca-Cola Bottling Co., 183 Ark. 288, 35 S. W. (2d) 579.
In ascertaining the intention of the parties, this court, in the last case cited, quoted with approval the following:
“It is a well-established principle of law that, in the interpretation or construction of contracts, the construction the parties themselves have placed on the contract is entitled to great weight and will generally be adopted by the courts in giving effect to its provisions.”
It is to be assumed that parties to a contract know best what was meant by its terms, and are the least liable to be mistaken about its intentions. Temple Cotton Oil Co. v. Southern Cotton Oil Co., 176 Ark. 601, 3 S. W. (2d) 673; Gauss Sons v. Orr & Lindsey, 46 Ark. 129; Keopple v. Nat. Wagonstock Co., 104 Ark. 466, 149 S. W. 75; Craig v. Golden Rule Life Insurance Co., 184 Ark. 48, 41 S. W. (2d) 769.
■Courts may acquaint themselves with persons and circumstances that are subjects of the statement in a written agreement, and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them, and judge of the meaning of the words and clauses used by the parties, and the conduct of the parties should be considered in determining what they meant by the contract. 13 C. J. 546.
The appellant secured a policy of insurance protecting it from loss or damage by fire, on certain items of the interior. It suggested that separate estimates be made, one for the landlord, including the items that she was to repair, and one for the tenant, on the items insured, for its benefit and in its name.
We therefore think that the parties themselves, and especially the appellant, understood the contract to mean, and construed it to mean, that it was to repair the damage to these items. We are therefore of opinion that, when the two clauses of the contract are considered together, and the conduct of the parties and all the attendant circumstances are considered, it was the intention of the parties that the appellant should repair the items insured in its name for its benefit.
It also appears from the evidence that the landlord would have repaired the building immediately, but for the objection of the appellant. The contractor offered to go to work at once, and to give the appellant a bond to protect its goods and its interests while repairs were being made, but the> appellant declined to permit repairs to be made until it had disposed of its goods.
About the time the repairs were completed, the appellant, after disposing of all of its property in Arkansas, and after requiring the appellee to spend considerable money purchasing linoleum for the floor, wrote to the Secretary of State .that it had disposed of its last store in Arkansas, and wished to retire from business in the State of Arkansas. When this suit was brought, it filed a petition in this court for a writ of prohibition, alleging that about four months before the appellee instituted her suit, it, a foreign corporation, had withdrawn by discontinuing its business in the State of Arkansas, and by notifying the Secretary of State of such cessation of business, and its retirement from the State, alleging that, by reason of these facts the chancery court acquired no jurisdiction by service of summons upon the Secretary of State.
We do not think that the contract as construed by the parties, shows that the repairs to the interior were to be made by the appellee, but we think appellant is estopped by its conduct from claiming that the appellee breached the contract.
We think it evident from the proof that the appellant did not intend to occupy the building, nor did it intend to sublet it.
Whether the appellant had breached the contract, and whether, under the contract, the appellant was to make the interior repairs, were questions of fact, and the chancellor’s finding will not be disturbed unless we can say it is against the preponderance of the evidence; and, in determining these questions the chancellor had a right, not only to consider the testimony of the witnesses, but the conduct of the parties and all the attendant circumstances.
The conclusion we have reached as to the interpretation of the lease makes it unnecessary to decide the other questions discussed by counsel.
We find no error, and the decree is affirmed. | [
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-123,
11,
-28,
-35,
65,
48,
122,
0,
15,
65,
-97,
-13,
44,
17,
77,
77,
60,
-19,
-85,
112,
-15,
-63,
12,
125,
23,
-127,
84,
-98,
71,
72,
12,
-112,
53,
9,
-88,
115,
54,
-58,
116,
39,
-117,
12,
98,
98,
8,
33,
-21,
-24,
-120,
39,
-126,
-99,
-92,
-77,
89,
59,
11,
-66,
-99,
125,
20,
23,
122,
-25,
17,
89,
108,
7,
-114,
-44,
-95,
15,
104,
-98,
11,
-17,
67,
33,
116,
-49,
-92,
92,
70,
95,
-101,
-126,
-37
] |
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