text
stringlengths 8
185k
| embeddings
sequencelengths 128
128
|
|---|---|
Kirby, J.,
(.after stating the facts.) It is contended first that the court erred in not excluding from the consideration of the jury the testimony of the witnesses relative to the parol agreement .to deliver to Brown’s insurance agency the insurance business of the officers of the bank and its customers, which could be controlled by it, it being claimed that if such 'an agreement was made, it was not to be performed wibbin a year and was within the statute of frauds and therefore the failure to carry it out could not constitute a failure o'f consideration of the notes.
This court has held that a defendant may show in defense of a suit upon promissory notes 'a partial failure of the consideration therefor by 'way of a recoupment in abatement of so much of the consideration as has failed. Webster v. Carter, 99 Ark. 458; Dutton v. Million, 169 S. W. 1184, 114 Ark. 330.
Brown testified that he executed the notes upon the agreement of Hie bank’s officers to deliver to his agency their insurance business and Ithe insurance business of such other customers as it could control. That he did this after they had shown him a list of the business that would 'Come to Ms agency which was .sufficient to take care of the notes as (they matured; said that he got none of the companies of the old Elmo agency (because Brown iand Tebbs had failed to pay his indebtedness to the companies and that the list of the dates of expiration of the policies was secured through Albert Ahrens’ .agency .and “that the agency, the bank agreed to turn over to him was not worth anything at all.”
After the bank refused to continue to have the insurance business of its officers and others given to the Brown Agency in accordance with the .agreement, Brown declined to pay any of 'the remaining notes and sold his agency for barely enough to pay the indebtedness due from him to the insurance companies he represented. Brown had paid .sixteen of the series of notes.
The first instruction, telling the jury that if they found that the consideration for which the notes sued on was given had failed or (had not been performed by the plaintiffs that they should find for the defendants, was not erroneous as being abstract, Brown’s testimony showing that the officers of the bank bad ait first given enough business to his agency to justify his paying the notes maturing, that the agency they agreed to deliver was worthless 'and that they had finally failed to perform the agreement to' deliver the insurance business to his agency. It may be 'that the agreement to deliver such insurance business, .since the last of the series of notes in consideration of which it was made was not due for more than two years thereafter, was not to be performed within one year from the time it was made, but there was no legal obstacle to the performance of this -agreement by the bank and its officers and certainly it was a moving .consideration for the execution of the notes, the makers of which declined to pay the remaining notes after the failure of the bank to deliver any considerable portion of the insurance business in performance of its agreement.
Conceding ithat the agreement was within the statute of frauds and .could not be enforced by Brown against a plea thereof in another proceeding, it -still could foe availed of as a defense to the notes, the partial failure of consideration of which may foe -shown upon the theory that it wias a recoupment and not -a .set-off or counterclaim and the right to reduce the claim sued on -continued as long as plaintiffs’ cause -of action thereon existed. State v. Ark. Brick & Mfg. Co., 98 Ark. 129.
If the bank was -allowed to procure the -execution of these notes upon -agreement to furnish -enough insurance (business to the -agency to enalhle its manager to pay them off and then refuse to perform its -agreement 'because it was not in writing and in -contravention of the statute of frauds -and collect the notes notwithstanding, it would foe perpetrating -a fraud under the forms of law -and the terms of -a -statute -designed to prevent and protect against fraud.
The court did not err in refusing plaintiffs ’ said requested instruction 19, telling the jury that a failure to deliver part of their insurance to the -defendant by Blanks -and others under a promise to do -s-o, not -due to his inability to meat’the rates of other companies, could not foe considered -as a total failure of consideration, unless it appeared from a -pi-eponderance -of the testimony what was the damage in dollars -and -cents -on -account of such failure -and that no recoupment -eo-uld foe fo-aid for a partial failure. It had -already instructed the jury in appellee’s requested instru'ction numbered 2 that if the plaintiffs partially -failed to' perform the consideration for which the notes sued on were -given, -and that by reason of the breach oif -contract the defendants -were -damaged in an amount equal to or -greater than the amount of the notes sued on, they would find for the -defendant and the jury must have understood from the instructions given that in order to relieve the defendants from the payment -of the notes, that th-e bank’s officers had failed to deliver enough insurance -business under the agreement so to do to damage the makers of the n-ote-s in a sum equal to or greater than the amount due thereon. And there i-s -substantial testimony from which the jury might -have found that the failure to. carry out the agreement to deliver insurance 'business to Brown’s agency caused him a loss of more than the amount of the notes sued ion iby the bank. Sixteen of the series of notes had already been paid and 'the defense is not available against the notes sued on by T. N. Doyle.
It is understood that he purchased them for a valuable consideration before maturity and the testimony does not show that he had notice of any defect therein or any defense thereto. The burden was upon 'appellees to show after the testimony disclosed that Doyle had purchased 'the notes for value before maturity that he had such notice of failure of 'consideration as would prevent his being a bona fide purchaser, the presumption otherwise. being 'that he was a purchaser in good faith without notice. Harbison v. Hammons, 113 Ark. 120, 167 S. W. 849; Little v. Ark. National Bank, 113 Ark. 72, 167 S. W. 75.
The testimony does disclose that J. P. Blanks, the president of the bank, knew of the infirmity in the notes, that he negotiated the sale of them to T. N. Doyle for the bank and that he was salesman for and a stockholder in the Beal-Doyle Dry Goods Go., a corporation in which said Doyle was largely interested. Blanks was not the agent of Doyle, however, but of the bank in the sale and he stated that he did not tell the purchaser anything about any defense to the notes or refusal of the makers to pay same,, but on the contrary recommended them as ‘ a good investment. There was nothing shown in the transaction that would impute notice to the purchaser of these notes before maturity, who paid an adequate consideration" therefor, of any defense thereto.
It follows that the judgment against appellant Doyle, there being no testimony to support the verdict, must be reversed and a judgment will be entered here in 'his favor.
The record not disclosing any prejudicial error, the judgment against the bank will be affirmed. It is so ordered. | [
-80,
124,
-16,
-65,
-54,
32,
42,
-118,
30,
32,
55,
83,
-23,
-45,
20,
127,
-92,
45,
85,
10,
-43,
-78,
23,
75,
-14,
-77,
-15,
-60,
49,
75,
-10,
-41,
76,
48,
-54,
-43,
-26,
66,
-63,
-112,
-58,
13,
-39,
-27,
-7,
112,
48,
94,
84,
79,
85,
-122,
-93,
44,
21,
79,
105,
40,
107,
57,
-64,
-80,
-114,
-121,
109,
17,
-77,
100,
-102,
99,
-40,
15,
-112,
-77,
9,
-24,
114,
-90,
-122,
84,
41,
57,
12,
102,
102,
0,
97,
-49,
-52,
-104,
39,
126,
13,
-90,
-44,
72,
-117,
9,
-65,
-97,
108,
5,
-121,
-52,
-9,
29,
25,
100,
1,
-113,
-44,
-14,
-115,
118,
28,
-117,
-1,
-109,
48,
96,
-49,
-94,
92,
69,
58,
91,
-50,
-10
] |
Hart, J.
W. S.- Hittson and F. M-. Seitz, partners doing business under the firm name of Hittson & Seitz, instituted this 'action against L. M. Osborne, W. O. Osborne and Albert Starratt to recover the price of acarload of hogs which ‘the plaintiffs 'alleged they had sold to the defendants.
The defendants in their answer averred that the contract of sale provided that the hogs should be free from ‘cholera, and that the hogs were infected with cholera when they received them. The jury returned a verdict for the plaintiffs for the price of the hogs, and the defendants have appealed.
' The facts are substantially as follows: The plaintiffs were dealers in stock and hogs at Green Forest, Carroll County, Arkansas, and 'the defendant L. M. Osborne owned a farm in Lee County, Arkansas. In December, 1912, he purchased a carload of hogs from the plaintiffs, and the contract of sale provided that the hogs should be free from cholera or other infectious diseases. The hogs were shipped by ¡the plaintiffs at Green Forest on the 9th day of December, 1912, and arrived at Marianna, in Lee County, about 12 o’clock on the 11th of December.. They were at once loaded in wagons and carried to the farm of the defendant Osborne, where they arrived about 7 o’clock p. m. ion 'the evening of December 11.
, Albert Starratt testified that he was manager of the Osborne farm in Lee County, but that he had no interest in .the farm or hogs purchased by Osborne from the plaintiffs ; that he went to Marianna with wagons to haul the hogs to the Osborne farm on the day of ¡their arrival; that one of the hogs was practically dead on arrival, and died on ithe way home; that four or five others were sick; that when he examined the hogs the next morning, he discovered that three more were dead; that ¡at that time he had never had ¡any experience with (cholera, and did not know What was the matter with the hogs; that ¡at the time there were ¡a great many others hogs ¡on the Osborne farm, ¡'and that 'all of them were healthy 'and free from disease; that the hogs shipped by the plaintiffs continued to get sick and to die to such an extent that a veterinary surgeon wa's ¡called in ¡and that he declared that the hogs had cholera; that the disease was communicated to the other hogs ¡on the place, ¡and that most of the hogs shipped by tbe plaintiffs, ¡as well ¡as the other hogs on the place, finally died of ■cholera. ,
The witness ¡stated that he was satisfied now that the hogs had the cholera when'they'reached Marianna, ¡and that he based this opinion on the ¡knowledge of the disease he had ¡acquired ¡since their ¡arrival; that he did not know at the time that they had dholéra, bnt since that time bag observed hogs prononneed to have ¡cholera by veterinary surgeons, and that the hogs shipped by the plaintiffs, on their arrival at the farm, were ¡affected in the same way ¡as ¡cholera hogs.
Three veterinary ¡surgeons testified that they had had experience with hog cholera, and that it was impossible for the disease to develop under seven days; that it requires from seven to twenty ¡days ¡after the hog has the germ of cholera in its system before the disease becomes apparent; that if a ¡ear of hogs was ¡shipped from'Green Forest on December 9, ¡and ¡arrived at Marianna on December 11, and the hogs began to die on the next ¡day, it would be impossible for them to have been healthy and ¡free from cholera at the time they were shipped; that they conld not have become infected in that length ¡of time.
On the part of the plaintiffs, it wias shown that ho'g cholera was prevalent in certain parts of Lee County at the time the hogs arrived there; but it was not shown tbát the hogs in question were exposed to that disease in Lee County. Both ¡of the plaintiffs testified that the hogs in question had been purchased in Oarroll County and that some of them were purchased four days and other six days before the date of shipment; that they appeared to be healthy and free from cholera; that they both had been over Oarroll County that fall purchasing hogs, and had not heard of any cholera in the county.
Other witnesses for them testified that they saw the hogs prior to their shipment, and. that they appeared to be healthy and free from cholera.
The only assignment of error is that the evidence is not sufficient to support the verdict. In this contention we think counsel are correct. We have never ¡adopted the scintilla rule in this State; on the contrary, we have uniformly 'held that to uphold a verdict on appeal, there must be some substantial evidence to support it. The uncontradicted testimony of the veterinary surgeons shows that it takes from seven to twenty days after a hog has a germ of cholera in its system before the disease becomes apparent. The hogs were shipped from Green Forest on the 9th, and arrived at Marianna on the 11th of December.
Starratt was- the manager of the defendant’s farm and took -charge of the hogs upon their arrival at Marianna and hauled them home on the same day. He was not interested either in the farm or in the hogs except as an employee of the defendant. He stated that one of the hogs died on the way home, and that three more of them were dead, and others sick on the next morning.
An attempt was- made to contradict his testimony in this respect by a letter written to his employer the next morning in which he stated that only -one of the hogs was dead, and that the -others appeared to be healthy. On the trial he stated that three of the hogs -were dead the next morning, and that -some of the others appeared sick on the way home. This makes an apparent but not a real contradiction in his testimony, for he states that the letter was written before daylight, -and before he had had an opportunity to inspect the hogs the next morning, and that after he had written the letter he went out into the lot and found three more of the hogs dead. The letteritself shows that it was written before daylight, and Starratt states that the letter was sealed as soon as written. In explanation of the fact that he had stated in his letter that the hogs, except the one which -died on the way home, appeared to be healthy, he said that he noticed that several of the others were “wobbly” but, having had no experience with cholera, never thought of them having that disease, but supposed that they had 'become -tired out from the long journey on the car.
The undisputed evidence shows that later on, the disease was pronounced cholera by the veterinary surgeons, and that, in fact, nearly all of the hogs on the place died with it. Starratt testified that he had a large number of hogs on the place at the time, 'and that they were healthy and free from disease, but contracted cholera after the hogs shipped by the plaintiffs had been received. His testimony shows that the other hogs became infected at a point of time after the arrival of the hogs in question, which indicates that they -contracted the disease from the hogs shipped by the plaintiffs.
Starratt also testified that after he observed h-ogs which were 'known to have -cholera, he was satisfied that the hog which died on the way home, and those found dead the next morning had been infected with -cholera.
Hi-s testimony was reasonable and consistent, land the jury had no right to -arbitrarily disregard it. Hi-s testimony taken in -connection with that -of -the veterinary surgeons makes it appear as nearly ia,s human testimony can establish -a, fact that -some -of the hogs had the cholera germ in them -prior to the tim-e they were -shipped to Marianna. See St. Louis, I. M. & S. Ry. Co. v. Ramsey, 96 Ark. 37.
The question then presents itself as to whether or not the testimony -of the defendants was -contradicted by that of the plaintiffs. 1-f s-o, the jury were the judges of the credibility of the witnesses, and had a right to believe the testimony of the plaintiffs and 'disbelieve that of the defendants. We do not think, however, that the testimony of the plaintiffs tends in any way to contradict that of the defendants. It is true that the plaintiffs testified that the hogs appeared to be healthy at the time they were shipped; hut, according to their own testimony, the hogs had been collected up in small bunches from various parts of Carroll County land s ome of them had been in their possession 'only four days. And, according to the testimony of the veterinary surgeons, which was untoontradieted, cholera would not become apparent in a hog until iaf least seven days after it had been infected with the cholera germ.
We are not unmindful that the plaintiffs testified that they had ridden over Carroll County, and that they had not seen any hogs in that county aJffected with 'cholera. But this testimony was negative in its character, and the bald statement does not, of itself, offer any contradiction to the testimony of the defendants. Besides this, the testimony of the plaintiffs shows that cholera had existed in Carroll County since they had been engaged in shipping hogs from ¡there. They wrote the defendants that they ought to have shipped the hogs and sold them on the market as soon as they discovered that they had cholera, and thus have prevented the total loss of the hogs. They stated that they had done this in the past with hogs which they had collected in Carroll County, and had not sold such hogs to feeders, but had shipped them to the market to be sold there for immediate consumption.
After a careful examination and consideration of -all the testimony, we have reached the conclusion that the testimony of the defendants is uncontradicted, and that it shows that ¡the hogs were infected with cholera when they reached Marianna. If this is true, it is incontrovertibly established that they must have been infected with cholera prior to their shipment.
The judgment is reversed and the cause remanded for a new trial.
Kirby, J., dissents. | [
-15,
-18,
-4,
46,
8,
-8,
96,
-102,
70,
-127,
39,
83,
-51,
-45,
5,
105,
-29,
-3,
80,
121,
70,
-73,
51,
39,
-45,
-45,
-101,
-57,
56,
77,
-27,
94,
78,
72,
74,
77,
-30,
-12,
-63,
92,
-54,
4,
-69,
-20,
127,
80,
56,
43,
102,
67,
101,
-115,
-21,
42,
23,
-57,
77,
40,
107,
47,
81,
113,
58,
13,
-113,
6,
-96,
98,
-104,
17,
-38,
110,
-112,
113,
-119,
-84,
114,
-76,
-42,
84,
5,
-103,
12,
34,
102,
33,
-100,
-19,
40,
44,
46,
-1,
-113,
-122,
-124,
72,
66,
2,
-66,
-99,
122,
-38,
-121,
122,
-15,
-51,
-99,
40,
-121,
-114,
-108,
-77,
119,
-84,
-104,
19,
-23,
-113,
50,
117,
-123,
-78,
125,
-59,
114,
-101,
-122,
-75
] |
McCulloch, C. J.
The plaintiff, while working in the service of defendant railway company (being engaged -at the time in interstate-commerce), received personal injuries caused by the negligent acts of one of his fellow-employees, and this is an action against the company to recover damages. There was a verdict in favor of the plaintiff, assessing ;a small sum as damages, and the -defendant appeals. The record -fails to show that the bill of exceptions was filed within the time allowed by the trial court, -and there i-s therefore nothing presented here for review which concerns the proceedings at the trial below.
The -court sustained a demurrer to one of the paragraphs -of the ¡answer, and, as the record entry of the lower court shows that exceptions to that ruling were saved, the appeal itself brings up that ruling for review. McWhorter v. Andreivs, 53 Ark. 307. In the paragraph to which the court sustained -a demurrer, the defendant pleaded the following -clause in the -contract of employment entered into between plaintiff -and defendant when the former took service with the latter about three years before the alleged injury occurred.
“In further -consideration -of -such employment, I agree for myself, my heirs, executors, administrators, legal representatives -or any other person or persons claiming through or under me, that if while in the service of said company, I -sustain any personal injury or injuries for which I shall or may make claim against the company for damages, I will, within thirty days after receiving such injury, giv-e notice in writing of such -claim to the superintendent of the division upon which I shall be at the time -of -such injury or injuries, and if any such injury or injuries shall result in any death for which claim shall or may be made for damages, that my heirs, executors, ¡administrators, legal representatives or other person or persons that may make such claim will give such notice in writing within thirty days after my death, any and all ¡of which notices shall state the time, place, manner, causes, extent and nature of my injury or injuries, or of my death, ¡as the case may be, and the claim made therefor; and the failure to give written notice of ‘any such claim in the manner and within the time aforesaid shall be a bar to the institution of any suit on account of said injury or injuries or death. ”
• The question whether ¡such a provision in a contract of employment, with respect to notice of injury, is, in the absence of a statute, binding in ¡an action to recover damages resulting from a negligent act of the master’s servants has not heretofore been presented in any of the courts of the country, so far as we are ¡advised. It seems, therefore, to be a question of first impression. Counsel for plaintiff contend that the contract is in conflict with the act of Congress fixing and regulating the liability of a railroad to its employees — the statute known as the Employers’ Liability Act. The plaintiff’s injury occurred while he was engaged in interstate commerce, and the rights of the parties are controlled entirely by that statute. If the provisions of the contract are found to be in conflict with the act, of course, it is without force.
The point seems to be ¡settled by a.decision of the Supreme Court of the United States in the case of El Paso & N. E. Ry. Co. v. Gutierres, 215 U. ¡S. 87. That was an ae-. tion instituted in the courts of the State of Texas against a railroad company to recover for injuries sustained by the servant of the company in New Mexico, then a territory, where there was- a statute which provided that no action for injuries, inflicting death, caused by any person or corporation in the territory, could be maintained unless the person claiming damages should within ninety days after the infliction of the injuries, and-thirty days before commencing suit, serve upon the defendant an affidavit giving particulars as to the injuries complained of, etc.
The injury in that case occurred in June, 1906, after the passage of the first Employers ’ Liability Act, which was held by the Supreme Court of the United States to be unconstitutional, except in its -application to the District of Columbia and the territories. The Texas court declined to give effect to the statute of the territory where the injury occurred and -allowed a recovery without compliance with the terms of that statute. That judgment was affirmed by the Supreme Court of the United States. The court held that the Federal Employers ’ Liability Act superseded the statute of New Mexico, and that the Texas court was -correct in disregarding it. Now, the point of that decision, so far as it applies here, is that if the first Employers’ Liability Act superseded territorial statutes on this subject, the last Employers’ Liability Act, which applies' to -all persons working in the service of railroads in interstate commerce, likewise supersedes any State legislation on the subject; and it necessarily follows that if other legislation is thus superseded -and set at naught, contracts between the parties are also- without force. We think that conclusion is correct upon principle.
Counsel for the defendant rely upon decisions to the effect that the Federal statute fixing the liability of carriers of freight does not invalidate contracts requiring notice of loss or damage. St. Louis & S. F. Rd. Co. v. Keller, 90 Ark. 308. That, however, is -a different question, for in that class of cases, the suit is upon the contract itself, and it has been held that the provision about notice i-s a reasonable regulation which is not in -conflict with the Federal statute. A suit for personal injuries is not, however, a suit upon the -contract of employment, which is entirely collateral to the question of liability. If the suit was based upon the contract between the parties, then any reasonable regulation, not amounting to an exemption -of liability, would be valid. But any contract made between the parties in -advance of the -accrual o-f the cause of action, and concerning a subject-matter which is not the basis of the cause of action which subsequently accrues, necessarily .amounts to an attempt to fix the terms of liability in advance, and is inoperative. Such provision is an attempt to read into the statute, which expressly governs the matter of the liability, something which is not found in the .statute itself, and is therefore invalid.
The judgment of the circuit court is affirmed. | [
-108,
104,
-100,
-115,
-86,
96,
34,
-102,
65,
3,
37,
83,
-49,
-59,
13,
99,
-13,
123,
-47,
43,
124,
-93,
6,
98,
-45,
-73,
-95,
-124,
51,
75,
102,
115,
77,
48,
74,
85,
-58,
74,
-55,
28,
-114,
4,
-120,
-19,
121,
0,
48,
121,
84,
79,
49,
-34,
-29,
42,
24,
-57,
41,
57,
105,
105,
-47,
-15,
-125,
13,
127,
17,
-95,
68,
-100,
7,
-56,
26,
-104,
53,
19,
-4,
112,
-74,
-122,
-108,
43,
-71,
8,
102,
98,
32,
21,
-25,
-116,
-72,
39,
122,
-99,
-89,
-72,
57,
43,
47,
-105,
-99,
26,
84,
38,
-2,
-20,
93,
25,
44,
7,
-117,
-76,
-109,
31,
100,
30,
-121,
-22,
7,
48,
117,
-52,
-78,
92,
71,
59,
-101,
-97,
-102
] |
Hart, J.
The plaintiff, J. O. Baker, sued the St. Louis, Iron Mountain & Southern Railway Company to recover the statutory penalty under section 6620 of Kirby’s Digest, for charging and collecting a greater rate for transportation than that provided by statute. He recovered judgment, and the railroad company has appealed.
On April 4, 1914, the plaintiff got on one of defendant’s passenger trains at Perla, The train auditor came around to collect tickets, and the plaintiff told him that he wished to go to Traskwood. The auditor collected 28 cents for his fare, and gave him a receipt therefor. This was more than he was by the statute allowed to collect.
On the part of the railroad .company it was shown that the auditor turned in the stub from which he had torn the receipt to the railroad company; that twenty-eight cents was a greater rate than he was allowed to charge from Perla to Traskwood, ibut that it was the amount to be charged from Perla to Haskell, a station a few miles beyond Traskwood. The auditor stated that he thought the plaintiff asked to pay Ms fare- from Perla to Haskell, and for that reason charged him twenty-eight cents. He said that if he had understood that the plaintiff only wanted to go to Traskwood, that he would only have collected the amount provided by law for passage to that station.
Under section 6620 of Kirby’s Digest, imposing a penalty upon railroads for charging a passenger a greater compensation than is allowed by law, a railroad company is subject to a penalty only where its agents intentionally charges a passenger an excessive fare. Railway Co. v. Clark, 58 Ark. 491; St. Louis, I. M. & S. Ry. Co. v. Waldrop, 93 Ark. 42.
Therefore, we think, under the undisputed evidence, the court should have directed a verdict in favor of the railroad company. The auditor testified that he understood that the plaintiff wanted to go to Haskell, and that he ¡charged him the fare to that station, ¡and that he would not have charged him twenty-eight cents if he had understood that the plaintiff was only going to Traskwood. He said that he did not see the plaintiff again after he collected his fare, and the plaintiff admitted that the auditor did not see him again, and did not see him get off the train at Traskwood.
The auditor issued the plaintiff a receipt for cash fare and turned in the stub from which the receipt was torn to the company. This shows that he accounted for the fare taken. His ¡own testimony that he did not intentionally make an overcharge is reasonable and consistent and is corroborated by the fact that he charged the plaintiff the exact amount of the fare from Perla to Haskell, the station to which the ¡auditor understood the plaintiff wished to go. There is no fact or circumstance in the case tending to ¡show that the auditor intentionally made an overcharge.
It .follows that the court should have directed a verdict for the defendant, and for the error in not doing so, the judgment will be reversed, and, inasmuch as the case ■has been fully developed, the plaintiff’s cause ¡of action will be dismissed.
It is so ordered. | [
-80,
-6,
-104,
-82,
122,
-32,
42,
-104,
113,
-63,
-89,
83,
-23,
-63,
0,
51,
-73,
63,
-47,
58,
68,
-93,
7,
-94,
-110,
-77,
-15,
-123,
-75,
75,
100,
-28,
77,
34,
-54,
117,
103,
-56,
-59,
-72,
-114,
-84,
-88,
-24,
49,
33,
48,
121,
20,
111,
49,
-34,
-1,
44,
24,
83,
77,
47,
-5,
-87,
-127,
-15,
-110,
13,
35,
2,
-80,
36,
-99,
3,
-64,
30,
-104,
53,
51,
-56,
115,
-90,
-126,
-44,
43,
-71,
-120,
42,
102,
97,
21,
7,
-98,
-116,
46,
-6,
-97,
-89,
-44,
88,
75,
79,
-74,
-97,
86,
66,
-121,
-4,
-32,
69,
25,
32,
3,
-18,
-106,
-126,
-67,
102,
-34,
7,
-17,
53,
16,
96,
-116,
-78,
94,
-58,
58,
-101,
71,
-67
] |
McCulloch, C. J.
This is an action instituted by .appellee to recover damages resulting from alleged negligence of appellant in damming up a drainage ditch so as to cause water to overflow lands rented by appellee for the year 1912, ■ and to prevent 'the planting find cultivation of crops. There was .a drainage ditch 'known as the Wilson ditch which ran along the boundary of lands in question, but 'another drainage district was formed to enlarge .and extend that ditch, and the commissioners let the contract to appellant to do the work. It is alleged that in doing the work, the Wilson ditch was dammed up and kept in that condition for several months, land that as a result, the lands rented by appellee from Lovell were overflowed. This occurred in June, 1912, and it is claimed that the greater portion of the land was rendered wholly unfit for cultivation, and prevented the planting of" crops, and that a certain amount of crops of corn, which had been planted and were being cultivated to maturity, were destroyed. The court .submitted the case to the jury upon instructions concerning the measure of damages, which permitted the jury to assess damages based upon the rental value of the lands which could not be planted or cultivated on account of the alleged overflow, and upon the actual value of immature crops which were destroyed by the overflow. The jury returned a verdict in favor of appellee, and assessed the damages in the sum of $600..
It is-contended that the testimony is not sufficient to sustain the verdict, but we are of the opinion that there is enough testimony to warrant a finding that the damming up of the ditch was not a necessary part of the construction work which appellant had undertaken to do, that it constituted an act of negligence, and that it caused the overflow which damaged appellee in the planting and cultivation of his crops. The law of the case was declared in Wood v. Drainage District, 110 Ark. 416, 161 S. W. 1057, and in the case of Timothy J. Foohey Dredging Company v. Lovewell, supra. In the last case we said that ‘ ‘ a drainage district, or other pnhlie agency of that kind, is not liable for negligence in constructing a 'contemplated improvement, and that the contractors who do the work are not liable except for negligence or unskillfulness in constructing the improvement. ’ ’ The court gave several instructions, telling the jury that appellant was hot liable unless the damming up of the ditch constituted an act of negligence on the part of the appellant, and caused the damage to the crops.
It is true that the court gave two instructions, at the instance of appellee (instructions Nos. 1 and 6), which omitted any reference to negligence in the construction of the ditch, and made the right of appellee to recover depend solely on the damming up of the ditch and the consequent overflow of the land, but appellant failed to make ¡appropriate objections to those instructions. The objections were specific and based on other grounds. The court gave other instructions, at the request of both parties, submitting the question of negligence, and doubtless if the omission of that issue from the two instructions mentioned above had been called to the attention of the court, they would have been cured, but appellant contented itself with specific objections based upon entirely different grounds from that, and thereby waived the defect in the instructions.
Counsel invoke the rule, stated in many of our cases, to the effect that a request for a correct instruction is tantamount to a specific objection to an erroneous one. St. Louis, I. M. & S. Ry. Co. v. Bright, 109 Ark. 4. That rule does not apply, however, where there has been a specific objection upon different grounds, for that is an 'affirmative act which constitutes a waiver of all other objections. Where a party specifically objects to an instruction, it in effect says to the court that all other objections ■are waived, ¡and it would be permitting a party to take advantage of his own mistake for 'him to set forth another defect as reversible error.
It is insisted, however, that the court erred in refusing to give instruction No. 4, which, it is said, conformed to the law as stated in Wood v. Drainage District, supra, and which reads as follows: “You 'are further instructed that the 'defendant had a contract to dig ditches in Ditch District No. 12, that they were under bond to complete the same within a certain specified time set out in the contract, that they were operating on the right-of-way of said Ditch District No. 12, 'and if you find that it was necessary to construct said dam across the Wilson ditch in order to enable the defendant to build the ditches in Ditch District No. 12 under their contract, and that said dams were not negligently constructed, or constructed in such a manner, as to cause the water to flow upon the defendant’s land and thereby destroy his crop or prevent him from making a crop under ordinary circumstances, you will find for the defendant.” That instruction does not, we think, state the law correctly, and was calculated to mislead the jury, therefore, the court was right in refusing to give it. It was perhaps intended as an attempt to conform to the rule in previous cases, but it goes further and in effect informs the jury that if it was necessary for appellant to dam up the ditch in order to perform its contract within the time limit specified therein, there would be no liability. That is not the law. An independent contractor is not liable except for negligence or unskillfulness in the performance of his Avork, and if he confines himself to a skillful performance of the work he has contracted to do, he is not responsible for damages which necessarilyresultfromtheeonstruation of the work. He can not, however, escape liability merely on the ground that the method of 'construction was necessary for his own convenience in performing the contract. Now, the contract in this case shows that there was a time limit for its performance, but appellant could not justify itself, for damages inflicted, solely on account of that feature of the contract. In other words, it could not assume an obligation which of itself would justify the doing of an injury to some one else. If the instruction had been eon- fined solely to the issue as to whether or not the damming of the diteh was an essential part of constructing the work contemplated by the organization of the district, it would have been correct and should have been given. The jury might have understood from it that the mere fact that it was necessary to construct the dam across the Wilson ditch in order to comply with the contract within* the time specified constituted a defense.
It is ¡also contended that the court erred in refusing to give the following instruction: “6. You are further instructed that if the dam so constructed across the Wilson canal was ibuilt under the direction and supervision ¡of the engineer in charge of Drainage District No. 12, and if you further find that said engineer was acting under the supervision and at the instance of the commissioners in charge of the said Drainage District No. 12, you will find for the defendant.” We think the court was correct in refusing to give this instruction, for, if the damming up of the ditch was not a necessary part of the construction ¡contemplated in the ¡contract, but was merely done for the convenience ¡of the contractor in performing the contract within the time specified, it is no justification to show that the work was done under the ¡direction of the engineer and the commissioners. There must be some remedy in the law for injury done to ¡one’s property, and the drainage district itself was not liable for .any injury done except that which resulted necessarily from the construction of the improvement. Any injury that resulted from unskillfulness in the ¡construction of the improvement necessarily falls on the one who was guilty of the misconduct.
There was objection to the instructions on the subject of the measure of damages, but we find that those instructions conform to the rules laid down by this court in other cases. St. Louis S. W. Ry. Co. v. Morris, 76 Ark. 542; St. Louis, I. M. & S. Ry. Co. v. Hoshall, 82 Ark. 387. The evidence was sufficient to justify the assessment made by the jury, when measured by those standards.
Affirmed. | [
-78,
108,
-72,
-19,
-54,
-86,
104,
-98,
73,
-69,
-27,
119,
-35,
-105,
24,
71,
-25,
121,
96,
105,
-60,
-78,
3,
-126,
-77,
-13,
-1,
79,
-108,
109,
-44,
87,
76,
48,
66,
85,
-62,
-128,
-59,
-38,
-122,
70,
-118,
73,
121,
72,
52,
123,
86,
77,
85,
28,
-14,
46,
17,
-57,
41,
44,
-51,
60,
81,
-16,
10,
28,
95,
5,
32,
102,
-124,
67,
-38,
42,
-112,
57,
9,
-72,
122,
-74,
-107,
85,
67,
-101,
12,
114,
102,
35,
36,
-17,
-31,
-103,
22,
-33,
-115,
-90,
-112,
104,
83,
-62,
-66,
-99,
116,
16,
22,
102,
104,
-59,
91,
105,
7,
-125,
-44,
-25,
-49,
-80,
-103,
17,
-49,
11,
49,
113,
-49,
-78,
92,
109,
115,
-37,
-116,
-39
] |
Smith, J.
The suits embraced in this appeal were originally begun on the 7th ¡of April, 1908, and those causes were removed to the Federal Court, "Western District, of this State, where nonsuits were taken in July, 1910. And thereafter the suits were again brought in the Greenwood District of the Sebastian Circuit Court. Ten carloads of peaches are involved in this litigation, and there were originally ten suits, hut the causes were consolidated .and tried together, and a ¡single appeal has brought the judgment in ¡all of the eases before us for review.
The peaches were ¡shipped from Greenwood, in Sebastian County, to Adam Miller in New York City, and suit was brought by Miller to recover damages to compensate the loss sustained to the peaches in transit. Miller died before final judgment, and the cause was revived in the name of a ¡special administrator.
There was .proof to .support the finding by the court below that the damage to the peaJdhes resulted from the failure of the railroad to ship the peaches promptly and to ice them properly, and the evidence was also sufficient to sustain the amount of damages found by the court in the case of each of the cars.
The bills of lading for the respective cars all contained the provision that the carrier should not be liable for any 'damages sustained by tbe peaches, unless written notice was given within thirty-six hours after the arrival of the peaches at their destination of the damages sustained. It was .alleged in the complaint .that a written notice had been given; but the proof is insufficient to sustain that .allegation. It is very earnestly urged, however, that personal notice was given .and that .the delivering carrier had such actual .knowledge of the damage done the peaches as that a written notice was unnecessary, and would only have advised the delivering carrier of a fact about which it already had full information. The proof on the part of appellee was to the effect that the .ears were delivered a!t the railroad terminal in Jersey City, after which they were switched from the road to a. lighter, which was ferried across the Hudson River to a pier numbered 29, which was devoted to the reception of perishable fruits. The oars were taken from the lighter to the dock, which was entirely closed, (and no one was allowed inside the dock 'until the cars had been unloaded and the fruit placed in piles, 'the crates of peaches in each car being placed in a separate pile. The cars were unloaded hy employees of the railroad company, and at midnight bulletins were posted up showing the car numbers and the dealers to whom the fruit was consigned, and at 1 o’clock in the morning the dock doors were opened and the dealers permitted to go in and get their peaches. But no one was permitted in the .dock until the peaches were ready for delivery, and no consignee would know whether the oars consigned to him had been received until midnight when the bulletins were posted. The custom was that, if the peaches were sound, they were sold at the dock and were usually gotten rid of before noon of the day of their receipt; but, if many of them were bald, and had to be sorted out, the authorities 'at the dock required the consignees' to haul the peaches to. their places of business .and there sort them out, at which time the sound fruit would be repacked in orates and the faulty fruit thrown away.
It is insisted on behalf of appellees that Ithe delivering carrier was necessarily charged with notice of the condition of the fruit at the .time of its arrival .at its destination ; that 'this is so because the delivering carrier had inspectors at the docks whose business it was to inspect and .ascertain the condition of the various shipments, and that the consignments here involved were in such bad shape that ithe .carrier must necessarily have known that considerable damage had been sustained, as the fruit was shipped in crates Which were 'open so that from a superficial examination it could be seen .that the fruit had discolored and had become specked .and 'that large quantities off juice from the fruit had run out off the orates over other crates, .and that these crates could not have been handled without the railroad company acquiring this knowledge.
The deposition of Adam Miller was taken upon interrogatories in each of these cases, and in five of those depositions he was asked this question: Interrogatory No. 17. . State whether you, or .any of your .employees, told any of the employees of the delivering carrier of the damaged condition of peaches in said car, and Whether or not employees off said railroad company went into the car and inspected the peaches, and, iff they did not go into the car, did they unload or see the peaches unleaded, or see them after they were unloaded, and knew of the damaged condition of the peaches, giving name of the employee, if you know, -and the position he holds with ithe company?
“His answer was, I don’t know.’ ”
The following question was .also iasfced: “Interrogatory No. 18. State iff you know whether the railroad company, at that end off the line, had an employee to inspect said car of peaches, and knew of the condition in which the car .arrived?
“Answer to Interrogatory No. 18, ‘I don’t know.’ ”
These questions were asked and answers given in regard to the 'following oars involved in this litigation, towit: A. R. T.- 8787; A. R. T. 9737; A. R. T. 10756; A. R. T. 9478; A. R. T. 8711.
But different 'answers were given in regard to the remaining five ears, which had the same initials and were numbered as follows: 10640; 8683; 10875; 10542; 10052. As to these last-numbered oars, the witness answered the Interrogatory No. 17 as follows: “I called the attention of the dock foreman to the had peaches, and told him they were not iced and had gone bad. I do not know the dock foreman’s name. He is in the employ of the Pennsylvania Railroad, Which ownsi the dock where the peaches were unloaded from the car which was lightered from Jersey City to New York. I don’t know his name. He looked at them and went away. ’ ’ And, in .response to Interrogatory No. 18, he testified: ‘ ‘ The railroad company has a man .at the dock who inspects the peaches as they come on the dock off the cars and see the condition which they arrive in.”
We have today handed down an opinion in a companion. case. See St. Louis, I. M. & S. Ry. Co. v. Cumbie et al., 118 Ark. 478. In that case we reviewed our previous decisions on the question of the validity of the stipulation contained in the hill of lading requiring notice to he given of the damaged condition of the goods within thirty-six 'hours .after arrival at their destination. The validity of the stipulation was again upheld in that case, as it had been in several prior decisions, and the judgment recovered in that case was reversed because the proof did not show a compliance with this condition. That case also stated the rule .as to the circumstances and conditions under which the knowledge of the carrier in regard to the condition of the damaged goods, would he held to dispense with the necessity of giving notice. That opinion quoted with approval from the case of Cumbie v. St. Louis, I. M. & S. Ry. Co., 105 Ark. 406, the following language:
“Where the facts stated show that the delivering carrier has actual knowledge of all (the conditions that a written notice could give it, then written notice is not required, and a provision requiring it under such circumstance's would he unreasonable. ’ ’
The purpose of this notice is manifest, and has been stated in our decisions upholding- it. Its object is that the carrier may inspect the goods and ascertain the nature and extent of the damage while the truth in regard to any claim for damages may he known. But where the carrier possesses this information independently of the notice, the giving of the notice can serve no ¡necessary purpose.
It is insisted that the carrier should be 'charged with notice of any information possessed by any of its servants or employees. But we can not agree with this contention. None of -our -cases so hold, nor has it been so . held in ithe decisions of 'any other jurisdiction of which w-e are aware. To so hold would render the provision in regard to notice practically nugatory. In the present case the laborers who unloaded the cars were called longshoremen, and some of these men unquestionably knew that some of the peaches contained in the cars were in a damaged condition; but this is not the knowledge- contemplated 'by the bill of lading. To cotmply with the terms of the bill of lading it is essential, either that the notice be given to the company in writing, or, if this is not done, that personal notice be given to that employee or agent of the company whose duty it would be, if written notice had been received, to make the inspection to ascertain the nature -and -extent of the damage, if such employee or agent -does not already possess this knowledge. These longshoremen were under no- duty to inspect the peaches. They had no duty to perform except that of tasking the crates of peaches -out of -the cars and piling them on the dock, and they-would not 'know whether written notice had been given to the company -or not, and there is nothing in the record to indicate that any -duty of inspection would . have devolved upon them had the written notice in fact been given. There is much evidence in this record tend ing, on tibe one hand, to 'corroborate Mr. Miller, and, on the other hand, to contradict him. But we are not called upon to weigh this evidence, nor to pass upon the credibility of the witnesses. It is onr duty simply to determine whether or not the evidence is legally sufficient to ■sustain the verdict. We will not undertake to review the evidence in detail, but state our 'conclusion to be that, as to the five cars first mentioned, there was no proof of knowledge of the damage sufficient to supply the failure to- give the notice in writing provided for by the 'bill of lading, and as to these ears the judgment must be reversed, and as the ease has been fully developed the suits as to them will be dismissed. But we think a different rule must be applied to the last five mentioned cars. As to them the proof showed that the peaches were placed in piles as they were unloaded from the ears, and that neither the consignee nor his representative was allowed in the dock until the ears had been completely unloaded, and that Miller went to the foreman of the dock, who was the man in authority there, iand reported to hiim the damaged condition of the peaches, and that the for'eman went with Miller to these peaches and sa.w the peaches, but left without making any comment, and that this foreman was the representative of the delivering carrier. The proof further shows 'that an inspection of the peaches by the railroad company could have been made then and there. The answer to the eighteenth interrogatory shows that the railroad company maintained ¡an inspector at the dock. Yet, notwithstanding this fact, we do not hold the railroad company liable for the first five mentioned cars, because the proof does not show that this inspector had any duty to perform concerning them. Upon the other hand, we can not assume that there was auy uncertainty about Miller’s purpose in hunting up the dock foreman and reporting to him the condition of the five remaining cars, and in going with this foreman to the piles of peaches about which the complaint was being made. The proof does not show that Miller stated to the dock foreman that it was his intention to sue for the damage to the peaches; hut it is not indispensable that the ■written notice should have contained this statement. The purpose and effect of Miller’s statement to the foreman was to advise the representative of the delivering carrier, in authority of the fact that damage had been done, and the giving of this notice under the circumstances must be held sufficient to charge the delivering carrier with 'knowledge of the fact .that compensation would be claimed.
The depositions of Miller, upon motion of appellant, had been suppressed at a former term of court for the reason, principally, that the certificate of the notary was defective. This certificate was .amended, and upon motion of appellee the court .set aside its former order suppressing the depositions and permitted them to be read upon the hearing of the cause. There was no intimation that the integrity of the depositions had not been preserved, neither was there any question about the depositions having been properly transmitted by the clerk. No prejudicial error was committed in this respect.
As to the five cars last mentioned, the'judgment will be .affirmed; but as to the others, the judgment is reversed and the cause dismissed. | [
-16,
96,
-68,
-84,
26,
-96,
58,
26,
65,
97,
-91,
83,
-51,
71,
25,
45,
-21,
125,
117,
59,
-12,
-125,
87,
-94,
27,
-109,
-21,
-41,
-69,
111,
108,
-10,
12,
52,
10,
-115,
-25,
-46,
-59,
28,
-52,
55,
-87,
-20,
61,
0,
52,
106,
-42,
71,
65,
14,
-1,
46,
25,
91,
41,
44,
-21,
-87,
-63,
-15,
-118,
12,
117,
22,
-96,
100,
-98,
-125,
-56,
12,
-112,
21,
48,
-88,
112,
-92,
-121,
116,
1,
-119,
12,
34,
102,
1,
5,
-19,
-24,
-88,
38,
-2,
-113,
-89,
4,
16,
75,
96,
-66,
-97,
112,
82,
-89,
122,
-6,
85,
21,
32,
-125,
-114,
-76,
-77,
-49,
-14,
-100,
-105,
-21,
-113,
50,
97,
-36,
-78,
92,
69,
52,
-101,
-49,
-58
] |
Smith, J.,
(after stating the facts). The controlling question in the case is whether or not the ordinance of the City of Argenta, making it unlawful to sell intoxicating liquors in the leased premises, operated to cancel the lease. It will be observed that the language of the lease is that Wilhelm covenants that he will use said premises as a hotel and saloon, and for no other purpose whatever, and that he specially will not let said premises, or permit same to be used for any unlawful business or purpose whatever.
It is first argued that the word “saloon” does not necessarily mean a place where intoxicating liquors are sold, and that the city ordinance prevents the operation only of a saloon for the sale of intoxicating liquors. It is true that the word “saloon” does not always mean a place where intoxicating liquors are sold, but there can be no doubt that such was the meaning contemplated by the parties to this contract. This is shown by the provision of the lease cancelling it in the event Pulaski County should vote dry at the election in 1916. This election, of course, refers only to saloons in which intoxicating liquors are sold, .as no other kind of saloons could be affected by that election.
But it is insisted that, even though it be conceded that the word “saloon,” as here used, means a place where intoxicating liquors are sold, this would not avoid the lease, because the keeping of a saloon was not the only business authorized by the contract; and for the further reason that the parties expressly named a condition upon which the lease should be terminated, towit: That Pulaski County should vote dry ,at the general election in 1916, and that having named one condition which should operate to cancel the lease, the parties thereby agreed that the lease should not otherwise be cancelled. This last contention was based upon the doctrine of expressio unius est exchosio alterius.
We think the important question in the case is whether or not the building was leased for a single purpose, that purpose being the operation of a hotel and saloon ; "and we think the lease should be so construed. The lease does not provide for keeping a hotel or saloon, but for a “hotel cmd saloon.”
It is not necessary that a lease specify the use to be ¡made of the property let.. In 24 Cyc. 1061, under the title of “Landlord and Tenant,” it is said: “Where the contract of lease is silent on the subject, the lessees have by implication the right to put the premises to such use and employment as they please, not materially different from that in which they ¡are usually employed, to which they are adapted, and for which they were constructed. The law, however, implies an obligation on the part of the lessee to use the property in a proper and tenant-like manner, without exposing the buildings to ruin or waste by acts of omission or commission, and not to put them to a use or employment materi ally different from that in which they are usually employed, or apparently violative of the spirit and purpose of the lease as such spirit and purpose is evidenced by the recitals therein. ’ ’
Discussing restrictions in leases as to mode of use, the same authority, page 1062, says: “Express condition or covenants are frequently embodied in leases to the effect that the premises shall only be used for purposes specified therein, and such covenants run with the land. A recital in a lease of the purposes for which the demised premises are let'is often held to constitute an express covenant on the part of the tenant to use them for no other purpose. Where, however, such restrictive conditions or covenants are incorporated into a lease, the general rule of interpretation is that they should be so construed as to carry into effect the intention of the parties, and when considered in connection with .other parts of the instrument, will tend to support, rather than defeat it. =* =X= $ >>
The parties to this lease agreed .and covenanted that the property should be used as a hotel and saloon, and for no other purpose whatever, and, in construing the lease, we have no right to strike out one cf the terms there employed. It is argued that the building could be used for a hotel, even though no saloon was kept there, and that a temperance saloon could be kept, where cigars and non intoxicating drinks could be bought; and further that the property has other usable value. But we think the answer to this contention is that this is not a general lease, but a special one, for the purpose of operating a hotel and saloon. It is alleged, and there was proof to support the allegation, that the landlord does not object to the tenant making other uses of the property. But we can not consider the landlord’s present inclination in determining the meaning of his written contract. His permission for a different use is essential and it would be a modification of the contract to read into it the landlord’s changed purpose. And in construing this lease, we can not say that the stipulation of the use to be made of the building was solely for the benefit of the landlord.
Through the industry and research of opposing counsel, we have had the benefit of citation to many cases on this subject; but we shall not undertake to review these cases in this opinion. The cases are numerous and are conflicting, and it must be conceded that there are courts of the highest authority which sustain appellant’s view of the law. But we think the better rule is announced by those courts which hold such contracts to be void, when their performance becomes unlawful.
In the case of Hooper v. Mueller, 158 Mich. 595, 123 N. W. 24, a certain building in Alma, Michigan, with the hotel furniture and fixtures, was let for a term of eight years, to be occupied for hotel .and saloon purposes. The lease contained the following clause: ‘ ‘ The said first parties further agree that in case they are unable to furnish, that is secure, for the said second parties, or the tenant of said parties, two sufficient bondsmen required by law in case of retail dealers in malt and spirituous liquors, at second parties’ own proper expense, however, then this lease shall be and become void. ’ ’ Thereafter, under the operation of the local option law, the sale of intoxicating liquors was prohibited, and upon suit for the rent of the building after the prohibitory order became effective, the trial court held that the lease became void and nonenforeeable on the date the prohibitory order became effective. It was there contended that the contract did not provide for its abrogation in the event of the adoption of local option, and, consequently, the law would not operate to avoid it on the happening of that event. But the court there said:
“It is not argued by either party that the contract was not .such a one as the parties at the time could not undertake to perform, and which could not be enforced. The local option law which went into effect in that county during the term of this lease, rendered the performance of the contract on the part of plaintiffs impossible. They had agreed that in case of failure to furnish and secure bondsmen for defendants as retail liquor dealers, the lease should be .and become void. It may well be said that they contracted, with reference to this contingency which has arisen, as well as to any other circumstance which' would intervene, either from their own acts or otherwise. This was a part, of the consideration which induced defendants to enter into the lease.
“In a recent well-considered case decided by the Supreme Court of Maine, the question involved in the case at bar was before the court. It was held that the enactment of a law after a lawful contract is made which renders its performance unlawful, discharges the contract. American Mercantile Exchange v. Blunt, 102 Me. 128, 120 Am. St. Rep. 463, 66 Atl. 212, 10 L. R. A. (N. S.) 414, 10 Em. & Eng. Ann. Cas. 1022, notes and leases cited. In the case note, it is .said: T,he authorities are almost unanimous in holding that, where the act contracted for is rendered unlawful by the enactment of a .statute before the expiration of the time for performance, the obligation is thereby discharged,’ citing, among other cases, Cordes v. Miller, 39 Mich. 581, 33 Am. Rep. 430. ’ ’
In the case of Jamieson v. Indiana Natural Gas & Oil Co., 128 Ind. 555, 28 N. E. 76, 12 L. R. A. 652, a bill of complaint was filed by a stockholder seeking an injunction, in which it was alleged that a contract had been entered into by his corporation with a construction company for building and operating a pipe line for transportation of natural gas, which had become incapable of per formance' by reason of'.a statute passed, after part performance, which prohibited the transportation of gas at as high pressure as that provided for in the contract;.and the syllabus in that case is as follows:
“A contract is invalidated by the subsequent enactment of police regulations which render its performance illegal as to one of the parties. ’ ’
An extensive case note reviews a large number of oases.
• Another 'ease which discusses the principle which we think should control here is that of Heart v. East Tennessee Brewing Co., 19 L. R. A. (N. S.) 964, 113 S. W. 664. In that case a certain house situated in Knoxville, Tenn., had been leased for a term of eight years, to be used as a saloon or place for the sale of intoxicating liquors, and by an act of the General Assembly of that State, it thereafter became unlawful to sell intoxicating liquors in said city. The chancellor sustained a demurrer to a suit for the rent which .accrued thereafter, and, in sustaining that action, the Supreme Court of Tennessee, speaking through Shields, J., said:
“There is no error in the action of the chancellor. ' When the contract was made, the purpose for which the property was leased, the sale of intoxicating liquors in Knoxville — was lawful, and the lease valid and enforceable. Afterward, that purpose was made unlawful by the acts of the General Assembly above referred to, and thus, by operation of law, the lease became and is void and unenforceable at the instance of either party.”
Many oases were cited in that opinion, and among other things, it was there said:
“It is a principle of general application that all contracts are void which provide for doing a thing which is contrary to law, morality, and public policy. * * * It has been applied to contracts of this character, and held for that- reason, that the rent contracted to be paid could not be collected.”
‘ ‘ It is not necessary in this case to determine whether or not the contract contained in the lease restricts the use of the property for the sale of intoxicating liquors. It was the purpose of both lessor and lessee, as clearly expresesd in the instrument, that it should be used .-as a saloon, and this being made unlawful by law, the contract is no longer enforceable.”
One of the cases strongly relied on by appellant is that of O’Byrne v. Henley, 23 L. R. A. (N. S.) 496, 50 So. 83. The lease in that case provided for the occupation of the premises as a saloon, and not otherwise. The court there discussed the meaning of the word “saloon,” and held that this word will not be understood, as a matter of law, to mean a place where intoxicating liquors only were sold, and not a place for the sale of soda water, etc., and it was there said that there had been only a partial, and not a total, destruction of the business for which the premises were leased after the prohibitory law became effective which prevented the operation of a saloon for the sale of intoxicating liquors. That the lessee could have continued to use the premises as a saloon, though he could not have sold intoxicating drinks or beverages, and after reviewing a number of cases, the court reached the conclusion expressed in the syllabus as follows:
“A lease of property solely for saloon purposes is not terminated by the taking effect during- the term of a prohibitory liquor law, where, by construction of the parties, the right was conferred upon the lessee of selling upon the property nonintoxicating beverages and tobacco, so that the right of the lessee was not totally destroyed. ’ ’
A later case by the same court is that of Greil Bros. v. Mabson, 60 So. 876, 179 Ala. 444. The lease in that case provided “that the parties of the first part have leased * * * the bar room and fixtures known as the Windsor Hotel Bar, and located in the Windsor Hotel building on Commerce Street, for occupation as a bar, and not otherwise.” The complaint in that case set out the facts stated above, and alleged the passage of a prohibitory law, which made the sale of intoxicating liquors unlawful in the State of Alabama. A demurrer was interposed to the complaint, which raised the question of the sufficiency of the allegations of the complaint of incapacity to use the building for other purposes than the sale of intoxicating liquors, in that it was not .shown that the passage of the prohibitory .act destroyed or deprived the lessee of the beneficial use of the premises, and that it was not alleged in the complaint that the lessor had declined or refused to permit the lessee to use the premises for other legitimate purposes, or that the lessor had consented to an abandonment of the premises. The opinion in that case called attention to the fact that the lease included the bar room and fixtures inseparably and provided that the room was to be occupied as a bar, and not otherwise, and that the lessor was bound under the contract to have permitted the use of the property as a bar, .and the lessee was prohibited from using it for any other purpose. After defining the terms “bar” and “barroom,” the court said:
“It is therefore evident that the main, and, indeed, the sole, purpose for which the property was leased was that it .should be used as a place for selling intoxicating liquors. Therefore, did the said business become totally prohibited by the subsequently enacted State prohibition law? We think that .such was the result, and that the said prohibition law forbade the very business and purpose for which the property was leased. The general rule is that, where the performance of a contract becomes impossible .subsequent to the making of same, the promissor is not thereby discharged. 9 Cyc. 627. But this rule has its exceptions, and these exceptions are where the performance becomes impassible by law, either by reason of. a change in the law, or by some action or authority of the Government. It is generally held that, where the act or thing contracted tó be done is subsequently made unlawful by an act of the Legislature, the promise is avoided. Likewise, where the performance depends upon the continued existence of a thing which is assumed as a basis of the agreement, the destruction of the thing by the enactment of a law terminates the obligation. ’ ’
Without reviewing in detail the decisions of the various courts upon this subject, it may be said that we have a statute on the subject of leases of buildings for use in connection with the unlawful sale of intoxicating liquors of a kind which we have not found referred to in any of the opinions which have been called to our attention on this' subject. This is Act No. 418 of the Acts of 1907, found on page 1106 of the Acts of the General Assembly for that year.
The purpose of this act was to aid in the suppression of the unlawful sale of intoxicating liquors, and, as a means to that end, it is made unlawful for one to lease a building for that purpose, and under the conditions stated, the landlord is made guilty of a misdemeanor who permits the illegal sale of intoxicating liquors in his building, and the act cancels the lease where the liquor law is violated.
Performance o*f the contract having, therefore, become unlawful, it must necessarily follow that no action will lie to compel its performance, and the judgment of the court below is therefore affirmed. | [
113,
-2,
88,
-20,
122,
-32,
42,
-100,
107,
-85,
55,
23,
-23,
-38,
20,
105,
-93,
127,
113,
121,
-25,
-77,
23,
33,
-74,
-13,
-62,
-43,
-80,
77,
-9,
109,
12,
36,
74,
117,
-58,
-54,
-55,
-36,
-118,
5,
11,
-24,
-39,
-111,
52,
106,
98,
78,
97,
15,
-29,
44,
88,
-61,
-87,
40,
73,
45,
112,
-72,
-36,
-124,
75,
6,
1,
80,
-100,
-121,
-40,
24,
-104,
21,
12,
-24,
115,
-76,
4,
52,
45,
-119,
-83,
102,
102,
34,
37,
-17,
-32,
-120,
-113,
-5,
-99,
-90,
-108,
89,
43,
40,
-106,
-99,
124,
16,
6,
126,
-28,
-107,
25,
108,
-100,
-54,
-42,
-89,
15,
40,
-122,
23,
-39,
99,
33,
117,
-51,
-68,
126,
69,
112,
27,
-114,
-44
] |
McCulloch, C. J.
This is .an action instituted by appellee against appellant railway company to recover damages alleged to have been sustained by reason of delay in the transportation of a carload of coal. The car of coal was shipped from a point on the Illinois Central Bailway Company in the State of Kentucky to a dealer in Memphis, Tennessee, and when the ear reached Memphis, it was sold to appellee and reconsigned to him over appellant’s road to Thomas Switch, a station in Prairie County, Arkansas. There was a delay in transporting the car by reason of the fact that when it reached Brinkley there was no way bill, and the car was laid out there and remained there six or eight days before it was again moved under orders from the superintendent’s office. That was after appellee had given notice of the delay, and at his request the car was finally located and forwarded.
Special damages are proved, arising from the fact that appellee is a rice grower and ordered the coal to use in running the engine which pumped water for the growing rice, and by reason of delay, the appellee’s rice crop was ruined. There is no testimony tending to establish any other element of damages on account of the delay. There is no proof that notice of special damages was given at the time of the contract of reshipment from Memphis, or any time prior thereto, but there is proof that notice was given during the period of delay, and while the car was laid out at Brinkley. The testimony shows that appellee requested the Memphis dealer to hurry up the shipment, and that that request was communicated to appellant’s Memphis agent, (but it is not shown that any information was given concerning any element of special damages involved in any possible delay.
We decided in the case of Crutcher v. C., O. & G. Rd. Co., 74 Ark. 358, following a line of authorities on the proposition, that notice or information of circumstances whereby special damages might arise, given after the contract was made and during the period of transportation, was not sufficient to charge the carrier with liability for such special damages. The authorities are not harmonious on this question, iand some of the recent oases have relaxed the rule to some extent. As this court has, however, deliberately taken position on the question, we see no reason to change. In the latter case of Chicago, R. I. & P. Ry. Co. v. King, 104 Ark. 215, we decided that there may be a recovery for special damages arising on account of negligent delay in making a delivery after the transported article has reached its destination, if notice was given after the arrival of the article at its 'destination. It is insisted by counsel for appellee that the doctrine of that case relaxed the rule in the Crutcher case to the extent that it would permit a recovery in the present case. We do not, however, regard that as any relaxation of the rule laid down in the Crutcher case. It was ¡a mere recognition of the well-established distinction to the doctrine stated in the Crutcher case.
In the opinion in the King case, we said: “The reason for the rule in the case of a common carrier rests upon the ground that it may have .an opportunity by special precaution to protect itself from loss. The necessity for and justice of this rule is apparent when the delay occurs during the period of transportation. But, after the goods have arrived without delay .at the place of destination, and are in the custody .and control of the carrier at that place for delivery to the shipper or consignee, then the reason of the above rule would cease, if notice of the special circumstances is given to the carrier after the arrival of the goods at the place of destination, and thereafter it wrongfully delays making the delivery. The contract made by the carrier for thé transportation and delivery of goods is two-fold: The obligation rests upon the carrier to transport the goods safely and promptly to the point of destination, and also thereafter to deliver the same to the consignee. If it fails to carry the goods safely or promptly, there is a breach of the contract; but there is also a breach of the contract from which damages may arise if it fails for an unreasonable time to deliver the goods after the actual transportation to the point of destination is completed. The special damages are not a part of the contract, but are simply ¡an element of damages to which the injured party is entitled for its breach. After the arrival of the goods at the point of destination, and after notice is then given to the carrier of the peculiar conditions from which special damages may arise while the goods are in its possession and under its control, the carrier could then take all precautions necessary to avoid loss on account of delay in making the delivery thereafter. The obligation to make delivery after the arrival of the goods at the point of destination would then begin, and notice of the peculiar conditions then given to the carrier would charge it with the special damages arising on account of the delay to make the delivery after such notice had been given. In such case the delay does not arise during the actual transportation of the goods, but it arises in the delivery of the goods after the transportation has ‘been completed, ¡and while the goods are still in the custody and under the control of the carrier. ’ ’
Now, the above quotation 'amounts to a clear reaffirmation of the doctrine of the Crutcher case, but, as before stated, distinguishes it in a case where the facts are that the transportation is 'complete, and there is negligence in making a delivery. In the present case, the transportation was not complete, and the oar was laid out at an intermediate point. Unless the decision in the Crutcher case is to be overruled, it necessarily follows that there can be no recovery in this case.
The judgment is therefore reversed and the cause remanded for a new trial. | [
-74,
-8,
-72,
-116,
26,
96,
42,
-102,
97,
43,
37,
-45,
-19,
-58,
-112,
97,
-25,
121,
113,
123,
52,
-93,
7,
114,
83,
-109,
-29,
71,
-69,
75,
76,
94,
76,
32,
74,
21,
-58,
74,
-43,
28,
-114,
-92,
-67,
-20,
121,
8,
52,
122,
92,
79,
81,
-98,
-26,
46,
24,
-57,
105,
40,
-23,
45,
-63,
113,
-70,
7,
127,
6,
-95,
100,
-98,
7,
-54,
58,
-104,
53,
16,
-88,
115,
-90,
-106,
-44,
41,
-103,
8,
102,
102,
33,
12,
-81,
-68,
56,
6,
-2,
15,
-90,
-108,
40,
35,
103,
-106,
-99,
122,
20,
68,
-2,
-4,
13,
81,
52,
3,
-50,
-80,
-109,
103,
36,
-98,
7,
-21,
17,
48,
112,
-52,
-14,
92,
7,
51,
-101,
-122,
-49
] |
PER CURIAM
|; Appellant, Casey L. Ruiz, is an inmate incarcerated in the Arkansas Department of Correction (ADC). Ruiz fíled a petition in the Pulaski County Circuit Court that sought judicial review of a decision of the Arkansas Parole Board (Board) pursuant to the Administrative Procedure Act, Arkansas Code Annotated sections 25-15-212-219 (Repl. 2014). A petition to proceed in forma pauperis was filed in connection with his petition for judicial review. The circuit court denied Ruiz’s in forma pau-peris petition pursuant to Rule 72 (2015) of the Arkansas Rules of Civil Procedure on the basis that Ruiz had not stated a color-able claim. For the reasons set forth below, we affirm in part and reverse in part and remand.
An examination of the allegations raised in the underlying cause is necessary to determine Ruiz’s entitlement to proceed in forma pauperis. In his petition for judicial review, Ruiz contended that the Board had denied his application for parole and deprived 12him of liberty without due process. In addition, Ruiz alleged that the parole board had retroactively applied a parole statute in violation of the ex-post-facto prohibition. In support of his ex-post-facto claim, Ruiz made the following allegations: that he was convicted of burglary in 2009; that the Board applied Arkansas' Code Annotated section 16-93-615, which was enacted in 2011, in considering his parole eligibility and determined that he was not entitled to parole and would not be eligible for parole for an additional two years; and that the application of the current parole statute increased the length of his incarceration because under the former statute — Arkansas Code Annotated section 16-93-1302 (Repl. 2006) — he was not classified as a felon convicted of a targeted offense and would have been eligible for parole.
Rule 72 of the Arkansas Rules of Civil Procedure states in pertinent part that the circuit court may order that the petitioner be allowed to prosecute the suit in forma pauperis if satisfied from the facts alleged that the petitioner has a col-orable cause of action. Under this court’s rules of civil procedure, allegations in a pleading must state facts and not mere conclusions in order to entitle the pleader to relief. Ballard Group, Inc. v. BP Lubricants USA, Inc., 2014 Ark. 276, at 6, 436 S.W.3d 445, 449 (citing Ark. R. Civ. P. 8(a) (2013)). Therefore, a colorable cause of action is established by the sufficiency of the non-conelusory facts alleged in a petition but there is no requirement that a petitioner provide evidentiary support for those fact allegations in order to state a legitimate claim for relief. A colorable |scause of action is “a claim that is legitimate and that may reasonably be asserted, given the facts presented and the current law (or a reasonable and logical extension or modification of current law).” Boles v. Huckabee, 340 Ark. 410, 412, 12 S.W.3d 201, 202-03 (2000) (per curiam) (quoting Black’s Law Dictionary, 240 (7th ed.1999)).
The administration of prisons has generally been held to be beyond the province of the courts. Clinton v. Bonds, 306 Ark. 554, 557-58, 816 S.W.2d 169, 171-72 (1991). However, an exception to the courts’ reticence to entertain a prisoner’s administrative complaints occurs when the petitioner asserts an infringement on constitutional rights. Id. Thus, an inmate who asserts a credible constitutional claim is entitled to review under the Administrative Procedures Act, codified at Arkansas Code Annotated sections 25-15-212 to - 219 (Repl. 2014).
Here, Ruiz alleged a constitutional violation of his right to due process and contended that the parole board had violated' the ex-post-facto prohibition in the United States and Arkansas Constitutions. Because Arkansas statutes have not created a liberty interest in parole eligibility, Ruiz failed to state a colorable claim based on the allegation that the denial of his parole eligibility constituted a violation of his right to due process. See Cridge v. Hobbs, 2014 Ark. 153, at 2, 2014 WL 1344404 (per curiam) (There is no constitutional right or entitlement to parole that would invoke due-process protection.). However, Ruiz stated sufficient non-eon-clusory facts to assert a colorable claim for judicial review of an alleged violation of the ex-post-facto prohibition. Ruiz specifically alleged that his term of incarceration was extended by two years through the retroactive application of the current parole-eligibility statute rather than by the application of the former statute which was in | ¿effect when he committed the crime of burglary. Ruiz therefore made sufficient fact allegations supporting a claim for relief based on an alleged ex-post-facto violation. See Holloway v. Beebe, 2013 Ark. 12, at 4, 2013 WL 7851272 (per curiam) (holding that petitioner failed to state sufficient facts that statute was punitive and subject to ex-post-facto prohibition).
Both the United States and Arkansas Constitutions prohibit the enactment of any law which imposes punishment on a person for an act done that was not punishable at the time it was committed or which increases or imposes additional punishment than what was prescribed for that act when it was committed. U.S. Const. Art I, §§ 9 and 10; Ark. Const. Art. 2, § 17. There are two critical elements that must be present for a criminal law to be ex post facto: (1) it must be retrospective, that is, it must apply to events occurring before its enactment; (2) it must disadvantage the offender affected by it. Pitts v. Hobbs, 2013 Ark. 457, at 4, 2013 WL 5968940 (per curiam) (citing Brown v. Lockhart, 288 Ark. 483, 707 S.W.2d 304 (1986)). Furthermore, we have explained that the change in the law must have altered substantial personal rights, not merely modes of procedure that do not affect matters of substance. Bowen v. State, 322 Ark. 483, 499, 911 S.W.2d 555, 562 (1995).
This court has applied the ex-post-facto prohibition to parole-eligibility statutes and has held that it is unconstitutional to apply the current parole-eligibility act retrospectively to a defendant’s conviction, instead of considering him for parole under the parole-eligibility statute that was in effect at the time of the commission of the crime. Bosnick v. Lockhart, 283 Ark. 206, 207-08, 672 S.W.2d 52, 53 (1984). In so doing, we have explained that a parole statute less favorable to one who had been sentenced prior to its passage than the parole law existing at the time of his sentencing would.be unconstitutional as an ex-post] fifacto law, in violation of Art. 2 § 17 of the Arkansas Constitution. Id. The presence or absence of an affirmative, enforceable right is not relevant to the ex-post-facto prohibition, which forbids the imposition of punishment more severe than the punishment assigned by law when the act to be punished occurred. Bosnick, 283 Ark. at 207-08, 672 S.W.2d at 53. Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was committed. Id. It is the effect, not the form, of the law that determines whether it is ex post facto. Id. at 209, 672 S.W.2d at 53; see also Kellar v. Fayetteville Police Department, 339 Ark. 274, 280, 5 S.W.3d 402, 405 (1999) (The Ex Post Facto Clause was applicable to an administrative statute if its retroactive application constituted punishment.).
Because the circuit court summarily denied Ruiz’s petition to proceed in forma pauperis, a record of the entire proceedings was not lodged in the circuit court pursuant to Arkansas Code Annotated section 25-15-212(d)(l), which requires the parole board to transmit to the reviewing court the original or a certified copy of the entire record under review with the initial cost of the record to be borne by the agency. The record that is before this court includes two documents generated by the Board reflecting that a hearing was held on November 5, 2015, that parole was denied based on “previous release history,” |Hand that parole had been denied for a period of two years. The record does not contain the original judgment of conviction reflecting the date the crime had been committed, the nature and degree of the burglary offense for which Ruiz was convicted, or the sentence that had been imposed. Nor does the record contain documentation of Ruiz’s previous release history and the circumstances under which Ruiz had been transferred back to the ADC. Ruiz’s claim that the Board violated the ex-post-facto prohibition cannot be analyzed under prevailing constitutional standards by reference to the deficient record that is before this court. As stated above, the determination of a color-able claim is made from an evaluation of the petitioner’s non-conclusory fact allegations. The validity of the allegations contained in the petition for review can only be measured by a review of the entire record and the evidence contained therein.
In view of the allegations contained in the petition for judicial review, Ruiz’s ex-post-facto claim is legitimate based on the non-conclusory facts alleged in his petition and the current law. Boles, 340 Ark. at 412, 12 S.W.3d at 202-03. Under the law enunciated above, the ex-post-facto prohibition is applicable to parole-eligibility statutes. Because Ruiz has asserted a legitimate claim that the Board violated a constitutional right, the Board’s alleged actions are subject to judicial review. Clinton, 306 Ark. at 557-58, 816 S.W.2d at |771-72. Ruiz stated a colorable claim that must be evaluated in light of the entire record, and he is therefore entitled to proceed in forma pauperis.
Affirmed in part; reversed in part and remanded.
. Arkansas Code Annotated sections 16 — 93— 1301 to -1304 concerning criteria for transfer to community punishment programs was repealed by Acts 2011, No. 570, codified as Arkansas Code Annotated sections 16-93-615 to -620.
. Arkansas Code Annotated section 25 — 15— 212(d)(2) mandates that the cost of producing a record shall be recovered from the appealing party if the agency is the prevailing party. Granting Ruiz pauper status will ensure that the Board will recover its costs should it prevail in this action.
. While these documents indicate that parole was denied based on Ruiz’s previous release history, wherein Ruiz had absconded following an earlier release from the ADC, the denial of parole eligibility for a period of two years appears to arise from an application of Arkansas Code Annotated section 16-93-615(b)(5) and the targeted offenses set forth in Arkansas Code Annotated section 16-93-615(b)(1), rather than the application of the former statute — Arkansas Code Annotated section 16-93-1301(2)(E) — which prescribed separate time frames for reconsideration of parole eligibility where an offender had been transferred back to the ADC for disciplinary reasons. | [
48,
-22,
-3,
60,
26,
97,
26,
-120,
83,
-93,
45,
-45,
-25,
-42,
0,
59,
-31,
111,
112,
121,
-60,
-74,
115,
97,
106,
-13,
-24,
87,
50,
79,
-28,
-16,
90,
48,
-54,
-44,
70,
-56,
-23,
88,
-118,
1,
-103,
65,
113,
9,
48,
103,
16,
15,
53,
-98,
-77,
46,
27,
-53,
77,
108,
89,
-81,
64,
-104,
-98,
29,
-21,
6,
-95,
37,
-37,
37,
80,
42,
-104,
57,
0,
-24,
115,
-74,
-114,
116,
75,
-103,
5,
96,
98,
40,
29,
-13,
-96,
-96,
46,
-66,
29,
39,
-39,
81,
75,
37,
-97,
-4,
126,
20,
38,
126,
118,
-20,
86,
108,
-124,
-114,
-100,
-95,
-81,
116,
-124,
67,
-21,
5,
-112,
117,
-50,
-26,
80,
95,
113,
-37,
-50,
-48
] |
KENNETH S. HIXSON, Judge
I, This case involves an interpleader action filed by appellant One Bank & Trust, N.A. (the Bank) with respect to funds being held by the Bank. In its complaint for interpleader, the Bank named the appel-lees herein, Horace L. Lenderman, Dianna Sue Lenderman, and Francella K. Merritt, as defendants who may assert a claim to the funds. The trial court authorized the Bank to deposit the disputed funds into the court registry, and later entered summary judgment awarding the interpleaded funds to Francella. The trial court subsequently awarded Horace and Francella attorney’s fees in the amount of $3,188.25 and did not award attorney’s fees to the Bank. The Bank filed a motion for clarification and reconsideration of the order awarding attorney’s fees, which was deemed denied thirty days later by operation of law. The Bank appealed from both the order awarding attorney’s fees and the denial of its posttrial motion.
|2The issues on appeal are solely related to attorney’s fees. The Bank argues that the trial court erred in granting separate appellees Horace and Francella’s motion for attorney’s fees. The Bank further argues that the trial court erred in denying its motion for attorney’s fees and costs. Finally, the Bank assigns error to the trial court’s denial of its motion for clarification and reconsideration of the order awarding attorney’s fees. We reverse the award of attorney’s fees to the appellees, and we affirm the trial court’s decision declining to award attorney’s fees and costs to the Bank.
The underlying facts are these. Horace and Dianna are married, and Francella is Horace’s daughter. The appellees held a certificate of deposit (CD) account with the Bank. The CD account was closed in August 2013, and on August 26, 2013 the Bank issued a check for $21,005.10 made payable to Horace or Dianna.
The appellees did not deposit or otherwise negotiate the check for a period of several months, and on June 12, 2014, the Bank placed a stop-payment on the check. On the same day, the Bank issued a replacement check (less a $45.00 stop-payment fee) in the amount of $20,960.10 made payable to Horace or Francella. Francella then deposited that check into a One Bank account.
On July 17, 2014, the Bank received a letter from Dianna’s attorney stating that Dianna had attempted to deposit the original check at a different bank, but that payment was refused due to the stop-payment order on the check. In the letter, Dianna’s attorney demanded payment of the funds, stating that if prompt payment was not made a lawsuit |swould be filed against the Bank. In response to that letter, the Bank placed a hold on the $20,960.10 that had been deposited with the Bank by Francella, representing the amount of the replacement check.
On August 27, 2014, and again on September 9, 2014, the Bank sent letters addressed to each of the appellees advising them of the situation and of the hold placed on the account where the replacement check had been deposited. In these letters, the Bank requested payment instructions so that the $20,960.10 being held by the Bank could be released. The letter further advised that, if agreed payment instructions were not timely provided, the Bank would deposit the funds with the court so that competing claims could be determined with no further involvement of the Bank. The Bank received no response to these letters.
On May 22, 2015, the Bank filed a complaint for interpleader, naming the appel-lees as defendants. In its complaint, the Bank alleged that because competing claims had been made or may be made by each of the appellees, the Bank was unable to determine without hazard to itself which of them was legally entitled to the funds being held by the Bank. The Bank asserted that it should not be required to make that determination because, by doing so, it may subject itself to double liability. The Bank asked permission to deposit the funds into the court’s registry, and upon doing so to be discharged from all liability.
Dianna filed a separate answer, asking that the Bank’s complaint for interpleader be dismissed. Horace and Francella filed a joint answer, asserting that they were entitled to the funds at issue and asking that the Bank’s complaint be denied and dismissed. On July 22, 2015, the trial court entered an order authorizing the Bank to deposit $20,960.10 into the court’s registry.
[4Horace and Francella subsequently filed a motion for summary judgment, requesting that the trial court award the interpleaded funds to Francella. Dianna did not respond to the summary-judgment motion. The Bank responded, stating that it had no objection to the relief requested, and asking that it be dismissed from the action. On August 27, 2015, the trial court entered summary judgment, awarding the interpleaded funds to Francella. The trial court reserved the issue of attorney’s fees, inviting each party to petition the court.
Horace and Francella filed a petition for attorney’s fees, seeking attorney’s fees of $3,188.25. The Bank also filed a petition for attorney’s fees and costs, asking for attorney’s fees of $3,665.52 and costs of $335. The Bank’s motion was premised on Arkansas Rule of Civil Procedure 22(b), which provides:
A plaintiff who disclaims any interest in the money or property that is the subject of the interpleader action shall, upon depositing the money or property in the registry of the court, be discharged from all liability. The court may make an award of reasonable litigation expenses, including attorneys’ fees, to such a plaintiff.
On March 11, 2016, the trial court entered an order awarding attorney’s fees of $3,188.25 to Horace and Francella and did not award the Bank attorney’s fees. In support of the award, the trial court ruled that, as evidenced by the summary judgment entered in favor of Horace and Fran-cella, they were the prevailing parties in the case.
The Bank timely filed a motion for clarification and reconsideration with regard to the order awarding attorney’s fees. The Bank asked the trial court to reconsider its award of attorney’s fees to Horace and Francella, and alternatively to include specific findings supporting that award and specifying the rule or statute upon which .the award was based. The Bank also asked the trial court to reconsider its motion for attorney’s fees and to include specific findings supporting its ruling. The Bank’s motion was subsequently deemed denied.
| Jn this appeal, the Bank first argues that the trial court erred in granting Horace and Francella’s motion for attorney’s fees. Our general rule relating to attorney’s fees is well established and it is that attorney’s fees are not allowed except when expressly provided for by statute. Hanners v. Giant Oil Co. of Ark., Inc., 373 Ark. 418, 284 S.W.3d 468 (2008). An award of attorney’s fees will not be set aside absent an abuse of discretion. Id. The Bank contends that the trial court abused its discretion in awarding attorney’s fees because Horace and Francella failed to specify any statute or rule that entitled them to fees, nor did the trial court’s order. We agree that there was no basis to support the trial court’s award of attorney’s fees to Horace and Francella.
Arkansas Rule of Civil Procedure 54(e)(2) requires that a claim for attorney’s fees, among other things, must specify the statute or rule entitling the moving party to the award. In Crawford & Lewis v. Boatmen’s Trust Co., 338 Ark. 679, 1 S.W.3d 417 (1999), the supreme court held that the requirement that the motion contain the specific rule or statute providing for attorney’s fees is the essence of the thing to be done by the rule, and is therefore mandatory.
In this case Horace and Francella’s motion for attorney’s fees did not specify any statute or rule authorizing an award, nor was there any authority for the award. The trial court’s order awarding the attorney’s fees failed to cite any basis for the award other than that the appellees were the prevailing party. The appellees now assert that this finding entitled them to attorney’s fees pursuant to Arkansas Code Annotated section 16-22-308 (Repl. 1999), which provides for attorney’s fees to the prevailing party in a breach-of-contract case. However, this was not a breach-of-contract case; it was solely an interpleader faction filed by the Bank. There was no counterclaim by the appellees, nor was a breach-of-contract action filed, and there was never a determination of a breach of any contract by the trial court. Furthermore, it cannot be said that Horace and Francella prevailed over the Bank, as the Bank disclaimed any interest in the funds. Therefore, we conclude that the trial court abused its discretion in awarding attorney’s fees to Horace and Francella.
The Bank next argues that the trial court erred in denying its motion for attorney’s fees and costs. In the Bank’s motion for attorney’s fees, the Bank cited Arkansas Rule of Civil Procedure 22(b), which provides that the trial court “may make an award of reasonable litigation expenses, including attorney’s fees” to the plaintiff being discharged from liability in an inter-pleader action. (Emphasis added). While we agree that Rule 22(b) authorized an award of attorney’s fees to the Bank in this case, the rule expressly provides that the trial court may award such fees. The Reporter’s Notes to the rule indicate that the fee award is discretionary rather than mandatory. Therefore, the trial court was not required to award attorney’s fees and costs to the Bank, and we hold that there was no abuse of discretion in the trial court’s declining to award such fees. Our supreme court has held that the decision of whether to award attorney’s fees lies within the sound discretion of the trial court. See Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000).
The Bank’s remaining argument is that the trial court erred in denying its posttrial motion for clarification and reconsideration of the attorney’s fees. As part of its argument, the Bank contends that the attorney-fee award to the appellees was contrary to the law and should have been clarified by the trial court. Because we are reversing the award of attorney’s fees to the appellees, this part of the Bank’s argument is moot. The Bank also |7argues under this point that the trial court’s decision to deny its motion for attorney’s fees and costs was clearly against the preponderance of the evidence and contrary to law pursuant to Ark. R. Civ. P. 59(a)(6). However, as we stated previously, the trial court acted within its authority in not awarding attorney’s fees to the Bank because Rule 22(b) is discretionary.
Finally, we note that the appellees cited an unpublished court of appeals case in its brief, which was impermissible pursuant to Supreme Court Rule 5-2(c). After the parties’ briefs were filed in this case, the appellees realized this oversight and filed a motion for leave to cite the unpublished case, and alternatively for leave to file an amended brief that omits the prohibited reference. That motion was passed until submission of the case, and we now deny the motion. As our supreme court stated in Carter v. Norris, 367 Ark. 360, 240 S.W.3d 124 (2006), unpublished opinions will not be considered as authority and should not be cited to the appellate court. Therefore, in our review of this case we did not consider the unpublished opinion cited by the appellees.
For the reasons stated in this opinion, we reverse the attorney’s fees awarded to the appellees, and we affirm the trial court’s decision declining to award attorney’s fees and costs to the Bank.
Reversed in part; affirmed in part; ap-pellees’ motion denied.
Virden and Vaught, JJ., agree.
. The Bank alleged that the stop-payment on the first check and the issuance of the replacement check was at the request of one or more of the appellees, who had reported the first check lost or misplaced. | [
-16,
124,
-64,
-36,
10,
-96,
42,
-118,
65,
-127,
37,
83,
-21,
-33,
20,
105,
-9,
105,
101,
115,
-41,
-77,
47,
64,
-62,
-78,
-7,
-60,
-79,
-19,
-92,
-42,
12,
48,
-30,
-35,
102,
-125,
-57,
-44,
14,
0,
9,
4,
-7,
42,
48,
63,
94,
15,
49,
-124,
-13,
45,
61,
106,
72,
44,
-37,
-67,
80,
-68,
-117,
5,
95,
23,
-79,
53,
-102,
66,
-38,
62,
-112,
59,
3,
-23,
114,
-74,
-122,
84,
99,
-71,
13,
98,
100,
-112,
97,
-19,
-108,
-120,
54,
-1,
-97,
-122,
-45,
73,
67,
47,
-74,
-98,
116,
48,
38,
-10,
126,
13,
25,
108,
7,
-50,
-106,
-109,
-99,
85,
-100,
-125,
-17,
-93,
16,
97,
-114,
98,
92,
86,
57,
115,
-50,
-75
] |
KENNETH S. HIXSON, Judge
| Appellant Lazaro Veneros-Figueroa appeals after he was convicted by a Sevier County jury of one count of rape. He was sentenced to serve a total of 360 months in the Arkansas Department of Correction. On appeal, appellant contends that the trial court erred by allowing L.S. to testify when she was not competent. We affirm.
Appellant was arrested and charged with raping his stepdaughter L.S., after L.S. disclosed to her mother that appellant had repeatedly subjected her to anal intercourse. At trial, L.S. testified that she was fourteen years old and that she understood that she swore to tell the truth. She explained that she knew that if she lied .she would be in trouble. She described' the alleged incidents of appellant raping her in detail and explained that appellant began by inappropriately touching her when she was eight years old. While the incidents began with appellant inappropriately touching her, they continued to get worse and later involved anal intercourse. On cross-examination, L.S. testified that she had been having 1 ^nightmares and that she had seen defense counsel in one of her nightmares, despite the fact that she had not met defense counsel prior to trial. She also admitted on cross-examination that she believed that she had previously seen a “spirit” friend who later died.
Deputy Brian 'Hankins testified that he spoke with L.S. during his investigation, and L.S. told him that the incidents took place over several years. Odia Russette, a registered nurse employed by the Children’s Advocacy Center of Texarkana (Advocacy Center), testified that she interviewed and examined L.S. L.S. told her about the incidents, and during a physical exam, Russette observed ■ scarring consistent with L.S.’s allegations.
L.S.’s mother, Lorenza Sostenes, testified in appellant’s presentation of evidence. She testified that her daughter had constipation issues in the past that required her to give her enemas. Sostenes admitted that L.S. had told her one night that a “spirit” had told L.S. to start a fire in her bedroom and, on another occasion, that a girl at school had touched her inappropriately in a school bathroom. Sostenes testified that she made the report to the hotline after L.S. had disclosed appellant’s abuse to her. She further indicated that L.S. did not lie to her and that L.S. described the incidents with appellant to her in detail. Sos-tenes finally testified that she believed her daughter more than appellant because L.S. had nothing to gain by making the allegations.
Appellant testified on his own behalf and denied the allegations. Appellant moved for a directed verdict at the close of the State’s case and again after all evidence was presented, alleging that there were some “credibility issues” with L.S. because she had given “different stories” about the incidents. The trial court denied the motions. The jury convicted |sappellant, and appellant was sentenced to serve 360 months’ imprisonment. This appeal followed.
On appeal, appellant does not contest the sufficiency of his conviction. Instead, he contends that the trial court erred by allowing L.S. to testify when she was not competent. Appellant argues that L.S. “had an inability to exist in reality” because she testified that she saw defense counsel in her nightmares and believed that a “spirit” had visited her. However, appellant failed to challenge L.S.’s competency as a witness at trial. See Stevenson v. State, 2009 Ark. App. 582, 2009 WL 2877238. Additionally, even in appellant’s motion for directed verdict, he argued only that the evidence was insufficient because L.S. was not credible — not because she was incompetent, and appellant is bound by the nature and scope of the arguments he raised at trial. Johnson v. State, 71 Ark. App. 58, 25 S.W.3d 445 (2000). Therefore, we are precluded from addressing whether L.S. was competent and affirm on appeal. Id.; Baker v. State, 2010 Ark. App. 843, 2010 WL 5129959; Stevenson, supra.
Affirmed.
Harrison and Brown, JJ., agree. | [
112,
-20,
-27,
-100,
27,
97,
122,
56,
82,
-109,
36,
-13,
-93,
-46,
84,
121,
-85,
127,
84,
97,
-61,
54,
21,
97,
114,
-5,
56,
-42,
-77,
73,
-12,
-108,
73,
48,
-54,
17,
34,
-55,
-25,
80,
-114,
1,
-119,
64,
26,
2,
32,
55,
110,
7,
53,
30,
-13,
107,
-98,
-54,
105,
36,
91,
53,
92,
3,
82,
5,
-51,
52,
-79,
38,
-97,
9,
80,
40,
-36,
-79,
0,
-24,
115,
-74,
-126,
116,
69,
-103,
-115,
100,
98,
33,
12,
-121,
36,
-119,
-65,
62,
-68,
-90,
-102,
97,
67,
5,
-73,
-35,
84,
84,
47,
-14,
114,
78,
124,
68,
-17,
-57,
-106,
-103,
-115,
16,
20,
-79,
-29,
45,
50,
117,
-33,
-14,
116,
86,
112,
-46,
-50,
-10
] |
N. MARK KLAPPENBACH, Judge
[ t Appellant Frank Campbell was convicted of two counts of second-degree sexual assault and one count of sexual indecency with a child. The charges were based on allegations that appellant inappropriately touched his two teenage stepdaughters (NB and EB) and that he sent the younger stepdaughter (EB) a fictional story about a sexual relationship between a stepfather and stepdaughter. For these crimes, appellant was sentenced to thirty years in prison. Appellant asserts two points on appeal, contending (1) that the trial court abused its discretion in permitting the jury to consider evidence of messages and two stories that were sent electronically to EB as well as a DVD recording of a police interview with appellant; and (2) that there was insufficient evidence to support his conviction for sexual indecency with a child. We affirm.
Preservation of an appellant’s right to freedom from double jeopardy requires a review |2of the sufficiency of the evidence before a review of trial errors. Dillon v. State, 317 Ark. 384, 877 S.W.2d 915 (1994); Robinson v. State, 2016 Ark. App. 550, 506 S.W.3d 881. In a challenge to the sufficiency of the evidence, we review the evidence in the light most favorable to the State and consider only the evidence that supports the convictions. Cluck v. State, 365 Ark. 166, 226 S.W.3d 780 (2006). Evidence is sufficient if it is of such character and force that it, with reasonable certainty, compels a conclusion one way.or the other without resort to speculation or conjecture. Id. When reviewing the sufficiency of the evidence, the court considers all the evidence, whether admitted properly or erroneously. Boyd v. State, 2016 Ark. App. 407, 500 S.W.3d 772. In order to preserve a challenge to the sufficiency of the evidence in a jury trial, a criminal defendant must make a motion for direct ed verdict at the close of the evidence offered by the prosecution and at the close of all the evidence. Ark. R. Crim. P. 33.1(a) (2016). A motion for directed verdict shall state the specific grounds therefor. Maxwell v. State, 373 Ark. 553, 559, 285 S.W.3d 195, 200 (2008). Without a circuit court ruling on a specific motion, there is nothing for this court to review. Id. Failure to abide by these procedural rules renders any question of the sufficiency of the evidence waived on appeal. Ark. R. Crim. P. 33.1(c); Bradley v. State, 2013 Ark. 58, 426 S.W.3d 363.
A person commits sexual indecency with a child if, being eighteen years of age or older, the person s.olicits another person who is less than fifteen years of age or who is represented to be less than fifteen years of age to engage in sexual intercourse, deviate sexual activity, or sexual contact. Ark. Code Ann. § 5-14-110(a) (Repl. 2013). At the conclusion |sof the State’s case, appellant’s attorney argued to the trial court with regard to sexual indecency that “[t]here are three counts of sexual indecency with a child and we would assert there is insufficient evidence for those three counts.” No specific element of the offense was challenged. Appellant’s attorney then argued that it was “duplica-tive” to charge him with three counts instead of a single count of sexual indecency with a child. The trial court agreed with his argument on the “duplicative” charges. The trial court denied the motion for directed verdict on one count of sexual indecency with a child. Appellant renewed his motion for directed verdict at the close of all the evidence as to the single count of sexual indecency with a child, adding that the State had failed to prove “solicitation” where the story sent to EB did not request or ask EB to do anything sexual.
On appeal, appellant asserts that the State’s evidence lacked sufficient proof that he “solicited” EB, but this argument is not preserved for appellate review. A motion for directed verdict in a jury trial that is based on insufficiency of the evidence must be made at the close of the State’s evidence and at the close of all the evidence, and it must specify the respect in which the evidence is deficient. Ark. R. Crim. P. 33.1(a). A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. Ark. R. Crim. P. 33.1(c). Rule 33.1 is strictly construed. Pratt v. State, 359 Ark. 16, 194 S.W.3d 183 (2004). An appellant must make a specific motion for a directed verdict that advises the trial court of the exact element of “the crime that the State has failed to prove. Conley v. State, 2011 Ark. App. 597, 385 |4 S.W.3d 875. Appellant’s failure to make a specific motion for directed verdict at the close of the State’s case renders this point not preserved for our review.
Appellant’s other point on appeal concerns the evidentiary rulings by the trial court that permitted the State to introduce into evidence a DVD of appellant’s interview with the police, the content of certain electronic messages, and the content of two stories transmitted electronically to EB. We affirm the discretionary rulings of the trial court.
We review evidentiary rulings using an abuse-of-discretion standard, and trial courts are afforded wide discretion in evidentiary rulings. See Hawkins v. State, 348 Ark. 384, 72 S.W.3d 493 (2002). Our court will not reverse an evidentiary ruling absent a showing of error and resulting prejudice. Nelson v. State, 365 Ark. 314, 229 S.W.3d 35 (2006).
First, appellant contends that, although the statements that he made during his police interview recorded on the DVD were admissible, the actual DVD recording constituted inadmissible hearsay. Specifically, appellant argues in his brief that the questions of the interviewer, the visual location of the scene, and other sensory sights and sounds on the DVD exceeded the scope of appellant’s statements and constituted inadmissible hearsay. We reject this argument for several reasons. A trial court does not abuse its discretion by admitting out-of-court statements that are not offered for the truth of the matter asserted. Buchanan v. State, 315 Ark. 227, 866 S.W.2d 395 (1993). The interviewer’s questions were not offered for the truth of the matter asserted but were questions to place appellant’s admissible answers into context. See Dirickson v. State, 104 Ark. App. 273, 279, 291 S.W.3d 198, 202 (2009). |fiIn addition, a physical object is not a statement, and it is therefore not subject to the hearsay rule. See Taylor v. State, 88 Ark. App. 269, 197 S.W.3d 31 (2004). The visual location of the scene of the interview and the sights and sounds associated with the scene were not statements and thus are not subject to the hearsay rule. Moreover, appellant does not present any discernible prejudice resulting from allowing the DVD into evidence when his incriminating statements were conceded to be admissible, and we do not reverse in the absence of demonstrated prejudice.
Next, appellant contends that the trial court abused its discretion in permitting the State to ask EB about the contents of emails or messages she received in relation to the explicit stories sent to her. EB testified that the messages asked her if she had any suggestions for the story, that the story was about a stepdaughter having sexual fantasies that included her stepfather, and that the story contained the use of commas instead of periods in certain places indicating to her that appellant was the sender. EB related that one message asked her if she had any of her own fantasies. EB stated that she no longer had the electronic messages because she deleted them or the sender’s account had been deleted. Appellant objected on the basis that this testimony went to the “controlling issue” on sexual indecency with a child and was thus inadmissible without the original documents. The State responded that the documents were lost or destroyed and that Ark. R. Evid. 1004 permitted this evidence to be | ^admitted by other evidence of the contents. The trial court permitted EB to testify about these matters, and this ruling was not an abuse of discretion.
Arkansas Rule of Evidence 1004(1) states that “[t]he original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if: ... [a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” There is no evidence, nor has it been alleged, that the police or the State lost or destroyed the electronic communications or that any loss or destruction was in bad faith, and as such, other evidence of the contents was admissible. Dirickson, supra. Rule 1004 provides for alternative situations in which the evidence is admissible, and subsection (1) supports the trial court’s ruling.
Appellant’s argument focuses on Rule 1004(4), which provides that such evidence is admissible if the writing, recording, or photograph is not closely related to a controlling issue. Appellant argued to the trial court, and argues now on appeal, that if the matter is closely related to a controlling issue, then the matter is not admissible. Appellant does not persuade. Again, Rule 1004 provides for several alternative situations in which such evidence may be admissible, including when the original has been lost or destroyed where there is no evidence of bad faith. See Efurd v. State, 334 Ark. 596, 602, 976 S.W.2d 928, 932 (1998); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985).
To the extent that appellant argues that the electronic messages constituted hearsay, none were offered for the truth of the matter asserted. Arkansas Rule of Evidence 801(c) [7defines hearsay as a statement offered into evidence to prove the truth of the matter asserted. Cf. Dirickson v. State, 104 Ark. App. 273, 279, 291 S.W.3d 198, 202 (2009) (holding that the officer’s statements were not offered to prove the truth of the matter asserted but were instead offered to put Dirickson’s statements in context). Here, EB testified to the general content of messages and the stories, but this was not to prove the truth of the messages or the truth of the fictional stories. Instead, this gave context to how EB came to be in possession of the stories and provided the basis for her having suspicions that the sender was her stepfather. Lastly, given that appellant admitted having sent one story to EB, that explicit story constituted an admission of a party opponent, which is not hearsay. Ark. R. Evid. 801(d)(2) (2016). On this eviden-tiary argument, appellant has failed to demonstrate an abuse of discretion by the trial court accompanied by resulting prejudice.
In summary, we affirm appellant’s convictions for two counts of second-degree sexual assault and one count of sexual indecency with a child.
Affirmed.
Harrison and Whiteaker, JJ., agree.
. The second story was not lost or destroyed, and it was ultimately entered into evidence and read to the jury. Appellant admitted that he had sent EB the second story via his iPhone. | [
48,
-18,
-84,
-34,
106,
-95,
26,
56,
11,
35,
-29,
115,
-91,
-46,
13,
121,
-17,
93,
68,
97,
-46,
-73,
35,
82,
-22,
-69,
-5,
-61,
117,
74,
-82,
-36,
72,
-78,
-62,
85,
102,
-54,
-25,
88,
-114,
-121,
-71,
-32,
91,
80,
36,
119,
32,
15,
-15,
-98,
-77,
47,
28,
-61,
73,
40,
91,
61,
88,
57,
-78,
-73,
11,
22,
-93,
-90,
-67,
6,
120,
46,
92,
49,
-127,
-24,
51,
-110,
-118,
-44,
73,
57,
-115,
112,
98,
5,
24,
-27,
45,
-104,
39,
111,
-101,
-89,
-104,
41,
65,
37,
-74,
-15,
100,
52,
14,
106,
-25,
76,
61,
108,
6,
-121,
48,
-103,
15,
12,
-106,
114,
-13,
-95,
16,
37,
-51,
-14,
84,
87,
89,
-101,
-34,
-73
] |
RITA W. GRUBER, Chief Judge
| jThis case has returned to us after re-briefing. Appellant Joseph Longley appeals from an order of the Sebastian County Circuit Court setting aside a deed and quieting title to certain property in his sister, appellee Christine Gatewood, subject to the marital interest of her husband, appellee Curtis Gatewood. On appeal, Joseph contends that the circuit court erred, first, in allowing his counsel to withdraw on the morning of trial in violation of Rule 64(b) of the Arkansas Rules of Civil Procedure and, second, in not properly considering his defense of laches. We affirm the circuit court’s order.
Clarence Wilson, the uncle of Christine and Joseph, purchased the disputed property at 600 North 20th Street in Fort Smith on May 3, 1996. The deed transferring the property lists the grantees as Clarence, Frances M. Longley (Clarence’s sister and Christine and |2Joseph’s mother), and Christine as joint tenants with the right of survivorship. On December 18, 2000, a warranty deed purporting to transfer the property to Joseph and Annette Longley — and appearing to contain the notarized signatures of Clarence, Frances, and Christine — was filed of record in Sebastian County. Joseph, Annette, and their children began residing at the property on December 18, 2000, and Joseph has been in continuous possession of the property since that time.
On February 7, 2003, Frances passed away, and on March 20, 2013, Clarence passed away. Seven months after Clarence’s death, on October 17, 2013, Christine and Curtis filed a petition against the Longleys to set aside/cancel the 2000 deed, alleging that Christine’s signature had been forged, that she had not discovered the deed until after Clarence’s death, and that she should be the sole record owner of the property because Frances and Clarence had both passed away, leaving her the owner as the sole survivor of the three.
Joseph retained James Filyaw to represent them. Joseph denied the allegations in the complaint and pleaded the defenses of laches, statute of limitations, and waiver. The trial was continued several times at Filyaw’s request due to Joseph’s unavailability and, in January 2015, Filyaw filed a petition to withdraw due to Joseph’s continued lack of cooperation and communication. Filyaw withdrew the motion less than a week after having filed it, indicating that the communication problems had been resolved. However, on March 24, 2015, Fi-lyaw filed a second petition to withdraw, again alleging difficulty communicating with Joseph. He 13mailed a copy to Joseph. On April 2, 2015, Filyaw filed a letter addressed to the court, copying the Gate-woods’ counsel and Joseph, alerting the court to his motion to withdraw and asking for a hearing on the motion. He stated that he had lost contact with his client; that he had been unable for six weeks to schedule a meeting, talk on the phone, or otherwise communicate with him despite repeated efforts; and that it had become impossible for him to continue as an effective attorney for him. The circuit court neither granted nor denied Filyaw’s motion, but did send a letter to Filyaw on April 7, 2015, copying the Gatewoods’ counsel; recognizing receipt of the motion and letter; and stating that it could not grant the request “at this time” because the trial had been delayed numerous times already, and the court would “have to afford” Joseph additional time to retain counsel, only further delaying the matter. The court did not send a copy of this letter to Joseph.
A trial was eventually held on April 16, 2015. Before hearing any testimony, the circuit court addressed Filyaw’s petition to withdraw. The court first heard argument from Filyaw and then allowed Joseph to address the court. Joseph stated that he had been out of work for a year, that he and Filyaw had continued to argue about money when they talked, and that he had realized that he could not afford Filyaw’s legal services. The circuit court then questioned Joseph, “So you don’t want Mr. Filyaw to be your lawyer?” Joseph responded, “Well, evidently not, because we can’t agree. I mean, there was never a set price as to what it would cost in this matter.” The court then made the following findings and observations and granted Filyaw’s motion to withdraw:
The Court: Let me tell you my problem, Mr. Longley. This is the fourth time that this matter has been set for trial. It’s been pending since October of 2013. The three | ¿previous trial settings were continued at your request. Throughout the trial there have been issues regarding discovery that Mr. Fi-lyaw could not respond to because he said you wouldn’t cooperate with him in that.
I think Mr. Filyaw ... has made it clear that you have not completed your obligations to him, as far as meeting with him and providing information to present a defense on your behalf. Therefore, I am ... going to allow Mr. Filyaw to withdraw as your attorney, but we are going to proceed [with] this matter to trial today. And so you will be representing yourself, if it remains your desire to contest this petition, which I assume it does. All right?
The court then explained the trial process, and the trial proceeded with Joseph representing himself. Joseph never objected to the circuit court’s decision granting Fi-lyaw’s motion to withdraw or to its decision to proceed with the trial.
The Gatewoods’ first witness was Joseph Lucas, a forensic document examiner, who was retained by them to examine the 2000 deed to determine whether the signature purporting to be Christine’s was valid. He testified that after reviewing documentation containing Christine’s signature and reviewing ten signatures and certificates from the same time period as the deed and comparing them with the signature on the deed, he determined that the signature on the deed was a forgery. He testified that the signature on the 2000 deed was not Christine’s genuine signature, that there was no correlation “whatsoever” between Christine’s known writings and the deed, and that he had no reservations about his opinion.
Christine testified that the signature on the 2000 deed purporting to be hers was not her signature. She testified that, when the deed was signed, she and Curtis had lived in Little Rock where she was a teacher. She said that she was not in Fort Smith on the day the deed was allegedly signed but had been at work that day planning the school Christmas party. She produced the deed transferring the disputed property to Clarence, Frances, and her as joint |fitenants with the right of survivorship dated May 3, 1996. She said that she had discovered the 2000 deed containing her forged signature when she went to the courthouse to inquire about the property in the summer of 2013 after Clarence’s death. She said that she attempted to speak with Joseph about the deed to resolve the matter but that he did not respond. It was after attempting to reach her brother and then obtaining an attorney to attempt to reach him, both unsuccessfully, that she filed this lawsuit seeking cancellation of the deed and quiet title to the property.
Dale Arnold, the title insurance agent who notarized all three signatures on the 2000 deed, testified that he rarely notarized the execution of deeds; that deeds “were constantly flowing through the title company”; and that “sometimes” a signature on a document would be notarized when the signor was not present. He also said it was possible that someone identified herself as Christine who might not have been Christine.
Joseph presented the testimony of both of his adult daughters. Sarah Tinsley testified that Clarence was an honest and very noble person and was Joseph’s “best friend.” She said that Clarence trusted Joseph and put everything of his in Joseph’s name. She also testified that her mother had improved the disputed property by putting in new carpet and installing a new roof. Alicia Smith testified that Clarence was very close to their family and that he “absolutely” trusted Joseph. Both Sarah and Alicia testified that they had never seen their aunt, Christine, at the disputed property. Finally, Joseph testified on his own behalf, stating that Clarence had wanted to help him and that Clarence trusted Joseph with everything he had.
| fiThe court allowed the parties to submit posttrial briefs and explained to Joseph that “anything that you want to argue in there, you are welcome to put in there, okay, whether it relates to his pleading or not. And if you put new stuff in there, then I will give Mr. Gean a few days to respond to that.” Both parties submitted posttrial briefs. The court entered an order on June 8, 2015, and an amended order on June 15, 2015, stating that “the evidence could have hardly been more clear that the signature on the document purporting to be that of Christine Gatewood conveying the property to Defendants was fraudulent.” The court also found that the defense of laches was not established by the evidence. The court granted the Gatewoods’ motion to set aside/cancel the deed and quieted title to the disputed property in Christine subject to Curtis’s marital interest.
I. Attorney Withdrawal
For his first point on appeal, Joseph argues that the circuit court’s deci sion to allow Filyaw to withdraw caused Joseph prejudice in violation of Rule 64(b) of the Arkansas Rules of Civil Procedure. This argument is not preserved for our review because Joseph did not raise this argument to the circuit court, and the circuit court did not rule on it. We will not consider arguments that are not preserved for appellate review. Seidenstricker Farms v. Doss, 374 Ark. 123, 126, 286 S.W.3d 142, 144 (2008). We will not do so because it is incumbent upon the parties to raise arguments initially to the circuit court in order to give that court an opportunity to consider them. Advance Am. Servicing of Ark, Inc. v. McGinnis, 375 Ark. 24, 33, 289 S.W.3d 37, 43 (2008). Otherwise, we would be placed in the position of reversing a circuit court for reasons not addressed by that court. Id.
17Here, Filyaw filed the motion to withdraw on March 24, 2015, and mailed a copy of the motion to Joseph. On April 2, 2015, Filyaw filed a letter with the court asking for a hearing, again copying Joseph. Joseph attended the trial on April 16, 2015, at which the circuit court entertained argument on Filyaw’s motion. Joseph was given the opportunity to speak, and he did. As an explanation for his failure to communicate with counsel, he said that they differed regarding the cost of the representation. As previously noted in our opinion, under questioning by the court regarding whether Joseph wanted Filyaw to continue his representation, Joseph replied, “Well, evidently not, because we can’t agree. I mean, there was never a set price as to what it would cost in this matter.” At that point, the court granted Filyaw’s motion. Joseph did not object. The trial proceeded with Joseph representing himself. At the conclusion of the trial, the court told the Gatewoods’ counsel and Joseph that it would accept posttrial briefs on the issues. Indeed, the court told Joseph that he was free to put “anything that you want to argue in there.” The court even advised Joseph that he could obtain counsel to help with the brief if he desired. Joseph filed a posttrial brief. The brief did not mention Filyaw’s withdrawal. Joseph’s argument is not preserved for our review.
II. Laches
For his second point on appeal, Joseph contends that the circuit court’s failure to properly consider the defense of laches, other than to dismiss the argument for lack of evidence, is clearly erroneous. The court’s order simply states that “[t]he defense of laches was not established by the evidence.” The standard of review on appeal from a bench trial 18is whether the circuit court’s findings were clearly erroneous or clearly against the preponderance of the evidence. Washington v. Washington, 2013 Ark. App. 54, at 3, 425 S.W.3d 858, 861. Disputed facts and determinations of credibility are within the province of the fact-finder. Id.
Laches is an equitable doctrine premised on some detrimental change in position made by one party in reliance upon the action or inaction of the other party. Anadarko Petroleum v. Venable, 312 Ark. 330, 342, 850 S.W.2d 302, 308 (1993). The first requirement in laches is that the party have knowledge of his or her rights and the opportunity to assert those rights. Carwell Elevator Co. v. Leathers, 352 Ark. 381, 391, 101 S.W.3d 211, 218-19 (2003). The doctrine operates to bar an action by a party who has “sat on his rights,” i.e., purposely or negligently failed to assert a claim for so long that to permit it now would disadvantage prejudi-cially an opposing party. Massongill v. Cty. of Scott, 337 Ark. 281, 287, 991 S.W.2d 105, 109 (1999). The application of laches is based on the particular circumstances of each case and is a question of fact for the circuit court. Adams v. Howard, 2014 Ark. App. 328, at 6, 436 S.W.3d 473, 477.
Joseph argues that the evidence at trial established the following. Joseph and his family were in need of a larger home. In response to this need, Clarence deeded the disputed property to Joseph and Annette. He and his family had lived there since 2000, making improvements and paying the taxes. Christine knew that Joseph and his family lived at the disputed property. Christine took no legal action to assert her interest in the property until after the death of the joint tenants to the original deed. Joseph contends that he was | ndisadvantaged because he lived in the home for fifteen years, improved it, and no evidence proved that he had committed or commissioned the fraud or forgery. Thus, he argues, Christine should be barred by laches from uprooting Joseph from his home.
We note first that laches is an equitable principle. We also recognize that the first requirement of laches is that the party, here Christine, must have knowledge of her rights and an opportunity to assert those rights. Carwell Elevator Co,, 352 Ark. at 391, 101 S.W.3d at 219. Until the death of Clarence, Christine did not have sole ownership of the property. She shared ownership with Clarence, who had funded the purchase of the property. The court also found, and Joseph does not challenge the finding, that Christine’s signature on the deed conveying the property to Joseph was a forgery. Christine testified that she had no knowledge of the forged deed and asserted her rights shortly after discovering it several months after her uncle’s death. She filed this lawsuit several months after discovering the deed, having unsuccessfully attempted to resolve the matter first with Joseph. As we previously stated, laches is an equitable doctrine, and determinations of credibility lie within the province of the circuit court. We hold that the circuit court’s finding that laches was not established by the evidence in this case is not clearly erroneous.
Affirmed.
Gladwin and Brown, JJ., agree.
. Longley v. Gatewood, 2016 Ark. App. 365, 2016 WL 4540043.
. Annette suffered a stroke in May 2014 and passed away on October 17, 2014, before the trial. | [
48,
104,
-19,
92,
-104,
-32,
8,
-72,
99,
99,
101,
83,
-17,
-34,
80,
111,
-29,
109,
85,
105,
-26,
-77,
6,
33,
82,
-77,
-69,
-43,
-80,
-51,
-10,
-42,
73,
48,
-54,
21,
66,
-62,
-113,
80,
14,
-64,
-117,
100,
73,
66,
52,
-85,
22,
71,
85,
-82,
-13,
43,
57,
-55,
72,
46,
-33,
44,
80,
-70,
-114,
21,
95,
23,
-111,
-76,
-102,
15,
104,
10,
-47,
49,
8,
-88,
115,
54,
-122,
100,
108,
-103,
44,
36,
114,
48,
77,
-1,
-32,
-120,
14,
-74,
-111,
-89,
-22,
105,
67,
45,
-98,
-41,
125,
80,
15,
-4,
-26,
13,
24,
108,
-95,
-50,
-108,
-95,
37,
-72,
-100,
18,
-29,
7,
96,
113,
-51,
-30,
125,
71,
113,
-101,
-122,
-79
] |
DAVID M. GLOVER, Judge
| j Timothy Thompson was employed by Tyson Foods in September 2008 when he ■began exhibiting signs of confusion as he was clocking out from his late-night shift at approximately 2:00 a.m. A concerned fellow employee took him to the nursing station, which federal regulations undis-putedly require Tyson to provide. The licensed practical nurse administered a drug test, which was negative, but did not take Timothy’s vital signs and. did not summon emergency-medical personnel. Rather, Timothy was driven home. His wife, appellant Rochelle Thompson, subsequently drove him to the hospital. At approximately 6:00 a.m., Timothy suffered a major stroke and remains paralyzed on his right side. He filed a complaint against Tyson, alleging three counts of negligence and one count of breach of implied contractual obligations. He appeals from the trial court’s grant of summary judgment in favor of Tyson Foods, Inc. We reverse and remand.
| ¿Procedural Background
The Thompsons filed their complaint against Tyson Foods on September 16, 2011. It alleged three counts of negligence based on 1) lack of training, supervision, and monitoring; 2) failure to provide emergency medical treatment; and 8) failure to provide appropriate medical assistance. It also alleged the breach of implied contractual obligations.
Tyson filed its motion for summary judgment on September 19, 2013. The motion argued that the complaint constituted a medical-malpractice case against Tyson; that the only expert identified by the Thompsons was a registered nurse, who was not qualified to give an expert opinion on the element of proximate causation pursuant to Arkansas Code Annotated section 16-114-206 and Ark. R. Evid. 702; that the report from Dr. Hank Simmons, which was attached to the motion as an exhibit, opined that there was no causal connection between any act or omission by Tyson and Timothy’s alleged medical injuries; and that, accordingly, Timothy could not meet his “burden of proof under the AMMA [Arkansas Medical Malpractice Act] as a matter of law, and [could not] meet proof with proof as required by Rule 56 of the Arkansas Rules of Civil Procedure,” entitling Tyson to summary judgment.
On November 5, 2018, the Thompsons filed their response to the motion for summary judgment. They contended that Tyson Foods was not a medical-care provider as defined by section 16-114-201(2); that this action was not one for medical injury arising out of or sustained in the course of the professional services rendered by a medical-care provider; and that, accordingly, the Medical Malpractice Act was not applicable. Instead, they | .^countered that this was an action against Tyson for negligence and breach of implied contract; that they had previously identified the registered nurse as their expert, but in light of Tyson coming forward with Dr. Simmons, they also identified Dr. Bob Gale, to respond to Dr. Simmons’s report; that material issues of fact remained regarding whether Timothy’s injuries were proximately caused by Tyson’s negligence; and that, accordingly, Tyson was not entitled to summary judgment.
Dr. Gale’s deposition was taken in February 2014. On April 10, 2014, Tyson filed a “Supplemental Brief in Support of Motion for Summary Judgment and Motion to Strike Plaintiff s Expert Dr. Bob Gale.” In the supplemental brief, Tyson maintained the position that this was a medical-malpractice case and argued that Dr. Gale was not qualified to provide the requisite expert testimony on causation and that he must be stricken as an expert in this case. In addition, Tyson argued that even if Dr. Gale were qualified to testify, he could not testify regarding the issue of causation within a reasonable degree of medical certainty as required by Arkansas law. Included in the exhibits Tyson attached to its supplemental brief were Dr. Gale’s curriculum vitae and deposition.
In a nutshell, Dr. Simmons’s report concluded that Timothy was not a candidate for the thrombolytic (clot-busting) agent and nothing Tyson did, or did not do, proximately caused his injuries. Dr. Gale’s deposition, on the other hand, concluded that Tyson did not provide Timothy with the opportunity for appropriate treatment that more likely than not would have helped him avoid the injuries he suffered. Dr. Gale explained that Timothy was not given the thrombolytic agent because the hospital physicians presumed it was beyond the 14three-hour time frame, but stated, “If we take what happened after they started the treatment, only started it at 2:40 or 2:45 or actually a little bit earlier in the ambulance, then it’s more likely than not, to a reasonable degree of medical certainty, that they would have offered the TPA [thrombolytic drug].”
A hearing on Tyson’s motion for summary judgment was held on May 22, 2014, with counsel for both sides presenting their arguments for and against summary judgment. On July 21, 2014, the trial court entered its order, which provided:
On May 22, 2014, the Court heard arguments from counsel for both parties regarding the Motion for Summary Judgment of Tyson Foods, Inc. currently pending. After reviewing all filings and evidence of both parties and considering the arguments made at that hearing, the Court hereby orders that the Motion for Summary Judgment of Tyson Foods, Inc. is GRANTED. This case is dismissed with prejudice pursuant to Rule 56 of the Arkansas Rules of Civil Procedure.
The motion to strike Dr. Gale’s testimony was never ruled upon.
Discussion
The . Thompsons challenge the trial court’s grant of summary judgment to Tyson Foods, Inc. We find merit in the argument that the trial court erred in granting summary judgment.
A circuit court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated and that the party is entitled to judgment as a matter of law. Druyvestein v. Gean, 2014 Ark. App. 559, 445 S.W.3d 529. The burden of sustaining a motion for summary judgment is always the responsibility of the moving party. Id. Once the moving party has established prima facie entitlement to summary judgment by affidavits, depositions, or other supporting documents, the opposing party must meet proof |awith proof and demonstrate the existence of a material issue of fact. Id. When the proof supporting a motion for summary judgment is insufficient, there is no duty on the part of the opposing party to meet proof with proof. Id. Summary judgment is not granted because the opposing party fails to respond to the motion. Id. On appellate review, we determine if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of its motion'leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id.
Here, the major thrust of Tyson’s motion for summary judgment was its contention that the case against it was a medical-malpractice case, and, as such, it was governed by Arkansas Code Annotated sections 16-114-201 et seq. Tyson argued that . the only expert identified by the Thompsons at that time was a registered nurse; that a registered nurse was not qualified to give expert causation testimony in a medical-malpractice case, citing section 16 — 114—206(a)(3); that without expert causation testimony, it was impossible for the Thompsons to “meet their legal burden of proof in this case as defined by the AMMA [Arkansas Medical Malpractice Act]”; and that the report of Dr. Hank Simmons, attached to the motion, opined that there was no causal connection between any act or omission of Tyson and Timothy’s alleged medical injuries.
The grant of summary judgment, quoted previously, provides us with no explanation for the basis upon which it was granted. We have no way of knowing whether the trial court accepted the premise that this is a medical-malpractice case, or whether it accepted the ^alternative argument offered by Tyson in its reply that, regardless of whether it was treated as a medical-malpractice case, the Thompsons had not met proof with proof, i.e., the Thompsons had not provided proof to rebut Dr. Simmons’s report.
Dr. Simmons’s report, which was in the form of a May 31, 2013 letter from him to defense counsel, was not a deposition, was not an affidavit, nor was it submitted as an exhibit to an affidavit from Dr. Simmons. However, the Thompsons never challenged the “proof’ offered by Tyson to support its motion for summary judgment; rather, the primary focus of their response was to argue that the Medical Malpractice Act was not applicable to this case, followed by the assertion that in light of Tyson presenting evidence from Dr. Simmons, they would be presenting Dr. Bob Gale, to respond. Dr. Gale’s deposition was subsequently taken, and it was Tyson that actually put Gale’s deposition before the trial court by attaching it to Tyson’s reply.
Thus, at the end of the summary-judgment-motion process and in spite of the unconventional manner in which the “proof’ was received, the trial court had before it an unsworn report from Dr. Simmons, which concluded that Timothy was not a candidate for receiving a thrombolytic agent, and a deposition from Dr. Gale, which concluded that Tyson did not provide Timothy with the opportunity for appropriate treatment, including the opportunity to receive the thrombolytic drug, that more likely than not, to a reasonable degree of medical certainty, would have helped him. Although we have questions about the applicability of the Medical Malpractice Act in this case, on the record that is before us, we decline to rule on that issue. We do, however, conclude that the evidence presented to the |7trial court demonstrated that a material issue of fact regarding causation existed in this case. We hold, therefores that the trial court erred in granting summary judgment.
Reversed and remanded.
Harrison and Kinard, JJ., agree. | [
-111,
-52,
-84,
13,
24,
32,
56,
-38,
65,
-21,
-73,
51,
-67,
-44,
21,
107,
-32,
95,
81,
105,
94,
-93,
3,
96,
66,
-105,
-56,
-121,
33,
75,
-12,
-103,
73,
56,
-126,
-43,
-26,
-61,
-37,
-40,
-54,
19,
11,
-11,
89,
-126,
120,
-10,
20,
71,
48,
28,
114,
46,
52,
-125,
72,
42,
123,
32,
-39,
-15,
-55,
7,
127,
18,
-109,
36,
-113,
15,
-40,
60,
-112,
-72,
64,
-24,
82,
-74,
-94,
84,
75,
-99,
4,
98,
98,
-80,
25,
-27,
0,
-70,
7,
-82,
31,
-121,
-102,
33,
67,
3,
-98,
-67,
118,
28,
30,
120,
120,
76,
27,
60,
-125,
-34,
-36,
-79,
-121,
100,
-100,
-69,
-9,
11,
16,
113,
-115,
-96,
93,
5,
123,
31,
-34,
-106
] |
PER CURIAM
| petitioner Reginald Early filed in this court a motion for belated appeal of an order that denied a petition for writ of habeas corpus filed in the Lee County Circuit Court. As the notice of appeal was timely filed, we treat the motion as a motion for rule on clerk to lodge the appeal rather than a motion for belated appeal. Holland v. State, 358 Ark. 366, 367, 190 S.W.3d 904, 905 (2004).
As Early indicates in the motion, the record was first tendered to this court on December 30, 2014. Our clerk declined to lodge it because it did not contain Early’s petition for writ of habeas corpus. Our rules of procedure require that the record be tendered to this court within ninety days of the date of the notice of appeal. Ark. R.App. P.-Civ. 5 (2014). In this case, the notice of appeal was filed on October 6, 2014, and Early did not tender a record containing the habeas petition to this court until he filed the instant motion on May 1, 2015. .
When a petitioner fails to perfect an appeal in accordance with the prevailing rules of | aprocedure, the burden is on the petitioner, even if he is proceeding pro se, to establish good cause for failure to comply with the procedural rules. See, e.g., Butcher v. State, 345 Ark. 222, 45 S.W.3d 378 (2001) (per curiam) (acknowledging that a petitioner is not permitted to proceed with a belated appeal in a criminal matter, unless he demonstrates some good cause for his failure to perfect an appeal) (citing Garner v. State, 293 Ark. 309, 737 S.W.2d 637 (1987)). Early alleges in his motion that the circuit clerk provided him with an insufficient record, and any procedural default should be excused.
We need not consider Early’s asserted grounds for good cause. It is clear from the record that he could not prevail on appeal if he were allowed to proceed. An appeal of the denial of postconviction relief, including an appeal from an order that denied a petition for writ of habeas corpus, will not be permitted to go forward where the appeal is without merit. Seaton v. State, 324 Ark. 236, 237, 920 S.W.2d 13, 14 (1996) (per curiam) (citing Chambers v. State, 304 Ark. 663, 803 S.W.2d 932 (1991) (per curiam); Johnson v. State, 303 Ark. 560, 798 S.W.2d 108 (1990) (per curiam); Williams v. State, 293 Ark. 73, 732 S.W.2d 456 (1987) (per curiam)). Here, Early did not allege grounds in his petition on which the writ could be granted.
In his petition for writ of habeas corpus, Early alleged that the judgment was invalid on its face because his trial counsel was ineffective for failing to make an appropriate motion for directed verdict. Early also alleged that the judgment was invalid because the evidence against him was insufficient in that his accomplice’s testimony was not corroborated. A writ of habeas corpus will issue when a judgment of conviction is invalid on its face or when the trial court lacks jurisdiction over the cause. Hale v. Hobbs, 2014 Ark. 405, 443 S.W.3d 533. Although Early |.^alleged that the judgment was invalid on its face, the supporting bases Early asserted for that allegation, ineffective assistance of counsel and a lack of sufficient evidence, are not cognizable claims in proceedings for the writ.
Early contended in the petition for the writ that the particular claim of ineffective assistance that he would raise was one that would not, at the time, have entitled him to relief in proceedings under Arkansas Rule of Criminal Procedure 37.1. Ineffective assistance of counsel claims are not cognizable by habeas corpus — regardless of whether those claims would have been successful if raised in a timely Rule 37 proceeding. See, e.g., McConaughy v. Lockhart, 310 Ark. 686, 840 S.W.2d 166 (1992) (holding that ineffective assistance of counsel claims are not cognizable in habeas corpus proceedings). Questions that require factual inquiry that goes well beyond the facial validity of the commitment are not the sort cognizable in habeas proceedings. Friend v. Norris, 364 Ark. 315, 219 S.W.3d 123 (2005) (per curiam). Moreover, a habeas proceeding does not afford a prisoner an opportunity to retry his case, and it is not a substitute for direct appeal or other postconviction relief. Noble v. Norris, 368 Ark. 69, 243 S.W.3d 260 (2006).
We affirm a denial of habeas relief where an appellant did not establish any cause to grant the writ. Baker v. Norris, 369 Ark. 405, 255 S.W.3d 466 (2007). The circuit court could not properly grant the writ on either of the grounds Early alleged. It is clear that Early cannot prevail on appeal, and we deny his motion to proceed with an appeal.
Motion treated as motion for rule on clerk and denied.
Wynne, J., not participating | [
48,
97,
-27,
30,
10,
-31,
26,
-82,
-47,
-29,
125,
81,
-91,
-126,
-104,
127,
99,
111,
117,
-7,
-53,
-77,
39,
65,
114,
-78,
-125,
87,
117,
-19,
-11,
-8,
77,
112,
-54,
-43,
68,
-22,
-117,
-48,
-114,
1,
-119,
109,
81,
0,
56,
-93,
88,
15,
17,
62,
-29,
46,
58,
-61,
-23,
108,
91,
-71,
-40,
-48,
-102,
15,
91,
22,
-96,
-42,
-97,
-117,
114,
126,
-120,
17,
19,
-24,
114,
-74,
-121,
84,
107,
-39,
32,
118,
98,
-127,
28,
-9,
40,
-88,
30,
62,
47,
-90,
-37,
73,
75,
99,
-106,
-99,
35,
20,
6,
126,
102,
-123,
85,
44,
-118,
-50,
-112,
-107,
22,
120,
-76,
-117,
-29,
17,
80,
53,
-51,
-30,
92,
71,
57,
-69,
-52,
-78
] |
RITA W. GRUBER, Judge
LA Benton County jury found appellant, Max Douglas Bishop, guilty of thirty counts of distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child. He was sentenced on each count to 48 months in the Arkansas Department of Correction, with counts 1-15 to run consecutively for a total of 720 months’ imprisonment and counts 16-30 to run concurrently with counts 1-15. On appeal, he challenges the sufficiency of the evidence to support the convictions. He argues that the State presented insufficient evidence that he knowingly downloaded onto his computer images depicting sexually explicit conduct involving a child. We affirm.
The offense of distributing, possessing, or viewing of matter depicting sexually explicit conduct involving a child is committed when a person knowingly “[p]os-sesses or views |2through any means, including on the internet, any photograph, film, videotape, computer program or file, computer-generated image, video game, or any other reproduction that depicts a child or incorporates the image of a child engaging in sexually explicit conduct.” Ark. Code Ann. § 5-27-602(a)(2) (Repl. 2013). The culpable mental state “knowingly” is defined by statute:
A person acts knowingly with respect to
(A) The person’s conduct or the attendant circumstances when he or she is aware that his or her conduct is of that nature or that the attendant circumstances exist; or
(B) A result of the person’s conduct when he or she is aware that it is practically certain that his or her conduct will cause the result[.]
Ark. Code Ann. § 5-2-202(2) (Repl. 2013).
In reviewing the sufficiency of the evidence to support a conviction, we view the evidence in the light most favorable to the State and consider only evidence that supports the verdict. Spight v. State, 101 Ark. App. 400, 402, 278 S.W.3d 599, 600 (2008). We affirm a conviction if it is supported by substantial evidence, which is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Id. The assessment of eredibili ty is left to the jury. Hutcheson v. State, 92 Ark. App. 307, 313, 213 S.W.3d 25, 29 (2005).
Applying these standards, we review the evidence in the present case. Naval Criminal Investigation Special Agent Rachel Clergy testified about her work in undercover |3communications in Bremmer, Washington, as part of the Internet Crimes Against Children Task Force — investigating crimes against children, crimes within the family, domestic violence, and spousal rape. Pretending to have a Navy spouse and twelve-year-old twins, and using the profile name “navydu-bletruble” in Yahoo Messenger, she targeted individuals in chat rooms geared toward family, sex and sex with underage children. Someone with the profile name “iam_adad,” who was also known as “nas-tydad,” contacted her in fetish room 12 and initiated a chat with her on May 29, 2007. They chatted again on May 29, May 31, June 6, June 7, July 18, July 26, July 31, August 27, September 6, September 16, October 14, October 19, October 20, October 22, and October 23 — always in instant messages. In the first chat, nastydad discussed being a nudist and having a fight with his daughters about keeping their clothes on. In the June 6 chat, he told Clergy that he was an application programmer working from home in southwest Missouri and that his children were school-aged. He mentioned on June 7 that he had a high sex drive and was “hard most of the day” and that his daughters found this funny and tormented him — a statement causing Clergy concern. On July 31, he began chatting about performing sexual acts with his daughters; later, he said that they were in the fourth and sixth grades.
Clergy recorded the conversations and prepared a search warrant in order to get information from Yahoo about the individual she had chatted with. She testified that she obtained the user’s login name, email, and IP addresses and determined that the Internet provider was Cox Communication. She then prepared a search warrant for Cox, which identified appellant as the user of the IP address, with the physical address of 2013 Southwest |4Home Place Avenue in Bentonville, Arkansas. Clergy detailed this information in a report that she passed along to Arkansas authorities.
Detective Dennis Schumacher, working in the Cybercrime Division of the Benton County Sheriff s Office, obtained a search warrant for appellant’s residence based on Clergy’s report. Schumacher made contact with appellant at the residence, seized two computers and thumb drives, obtained appellant’s signature on a rights form, and interviewed him. Explaining that he was there because of “chatting about molesting children,” Schumacher asked appellant about child pornography. Appellant acknowledged engaging in such chatting, which he called fantasy, and said that he had no children and was “just role-playing” when chatting about teaching them to have sex. He told Schumacher, “I basically have a pornography collection.... None of it is real on the internet.” He acknowledged that child pornography was saved in a file on his computer and said that forensic evaluation would “find some weird shit on there ... probably some child pornography ... basically just everything.” He never said that he had a roommate or that another person put anything on the computer.
Detective Schumacher testified regarding items saved on “storage drive one” in subfolders of user-created folders labeled “junk” and “junk one.” Schumacher stated that the Internet history showed when and where the user looked at the pictures, the names of the pictures, and downloads to My Pictures. He explained that the computer’s peer-to-peer file-sharing system, WinMX, required someone to choose what was brought into the system and that Leech Hammer, also on the computer, was a software program used to thwart undercover investigations. A forensic exam of the computer recovered 5,845 saved images Land 99 saved videos that Schumacher considered to be child pornography. He testified that they had “different last access dates” and that someone was chatting under various profiles on the computer when the files were created. In multiple profiles, the individual described^ his location as northwest Arkansas and gave his age as thirty-six, descriptions which fit appellant; the individual talked about being unable to help himself because his sex drive was too high — engaging in sex actswith his oldest daughter when she was a year old and breaking in children by accidental exposure to masturbating or engaging in sex acts with adults. Schumacher presented twenty-five images and five videos from appellant’s computer in a PowerPoint presentation, verbally describing for the jury the sexual acts and the children depicted.
In his sole point on appeal, appellant challenges the sufficiency of the evidence. He does not dispute the presence of child pornography on his computer, nor does he claim that anyone else lived with him or had access to the computer. He argues only that there was insufficient evidence to show that he knowingly possessed or downloaded the images and videos.
The State responds that there was substantial evidence that appellant exercised dominion and control over the computers that were seized from his residence. We agree. We hold that the testimony of Special Agent Clergy and Detective Schu-macher, as summarized above, constitutes substantial evidence that appellant knowingly possessed the images and videos of child pornography saved on his computer. We therefore affirm the convictions for distributing, possessing, or viewing matter depicting sexually explicit conduct involving a child:
1 BAffirmed.
Abramson and Hoofman, JJ., agree.
. Appellant argued in his motions for directed verdict that the State failed to prove both that he knowingly downloaded these images and that the children in the images were under the age of seventeen. On appeal, he abandons his argument regarding proof of age.
. Arkansas Code Annotated sections 5-27-602 and 5-2-202 were formerly codified in Replacement Volume 2006. | [
49,
-22,
-20,
-67,
10,
99,
58,
56,
83,
-25,
34,
-13,
-25,
-28,
4,
121,
-125,
-17,
84,
97,
-39,
-77,
39,
-64,
-78,
-9,
-21,
-41,
-75,
75,
-84,
-36,
75,
112,
-53,
37,
-58,
74,
-35,
88,
-126,
0,
-117,
-48,
86,
66,
46,
39,
96,
14,
33,
62,
-9,
42,
30,
-49,
41,
42,
73,
63,
72,
33,
-40,
-107,
111,
22,
-95,
36,
-97,
1,
-32,
45,
-36,
59,
0,
-24,
-77,
-90,
-58,
112,
79,
10,
-120,
96,
-30,
-91,
-100,
-59,
-91,
-64,
-89,
47,
-39,
-90,
-72,
73,
65,
46,
-81,
-107,
100,
16,
8,
-6,
115,
-60,
123,
108,
-95,
-121,
-92,
-125,
13,
61,
-42,
-72,
-53,
-83,
32,
53,
-49,
-26,
116,
23,
42,
-101,
-98,
-9
] |
J. Seaborn Holt, J.
On an indictment charging murder in the first degree, Grace Halton was tried and found guilty, by a jury, of involuntary manslaughter and her punishment fixed at a term of three years in the penitentiary. From the judgment is this appeal.
For reversal, appellant first questions the sufficiency of the evidence to support the jury’s verdict and judgment thereon. Briefly stated, the evidence shows that in August, 1952, appellant and her grandson, while sitting at a table in the “East Side Tavern” in El Dorado drinking soft drinks, Azrene Robinson-came in and began an argument with Grace which caused such a disturbance that an employee intervened and ordered them out. Azrene, however, threatened Grace, told her she was going to get her and to come on out and fight. When Grace refused, she grabbed her by the neck, again told her to come out and fight, but Grace again refused. Azrene then went out one of the two doors in front of the building and walked to the other door where Grace was standing, whereupon Grace opened the screen door, drew a pistol and shot Azrene killing her instantly. There was evidence that Azrene had an ice pick in the front of her blouse and appellant testified that Azrene attacked her with this weapon and that she shot her in self defense.
In the circumstances, it was for the jury to determine, under proper instructions — which the court gave and to which there were no objections — whether appellant in killing Azrene did so in the honest belief that her own life was in imminent peril and that she acted with due caution and circumstances. We said in Deatherage v. State, 194 Ark. 513, 108 S. W. 2d 904: “One who slays another under the honest belief that his life or limb is in imminent peril and commits the act to prevent the apprehended danger is in the exercise of a lawful act. Merely because of this, however, he is not to go free unless he acted with due caution and circumspection, for if he did not he is guilty of manslaughter. ’ ’ We hold that the evidence was sufficient to support the verdict.
The judgment must be reversed, however, for error which we now consider. The record reflects that the indictment upon which appellant was convicted was re turned against her September 8, 1952. No further action was taken on the indictment until August 18,1953 (during which time appellant had been allowed bond) when the following nolle prosequi was entered by the court: “On this day comes the State of Arkansas by Hon. Bruce Bennett, Prosecuting Attorney, and upon motion of the State, it is ordered by the Court that a nolle prosequi be entered herein. It is therefore considered, ordered and adjudged by the Court that the Defendant go hence without delay, and that she and her Bondsmen be, and they are hereby discharged from all further liability hereunder.”
This action was taken during the regular March, 1953, term of the Union Circuit Court (First Division), which term expired September 13, 1953. Thereafter on October 3, 1953, during a xxew term, the court set aside the nolle prosequi order, of the previous regular term, and set the case for trial over the appellant’s objections for November 30, 1953. No xxew iixdietment or informatioxx was filed agaixxst appellaxxt.
The case was tried February 1, 1954. Appellant stoutly argues that the court erred ixx reixxstating, over her objections, the indictment here at a subsequent term axxd resumixxg prosecution oxx this indictment after the ■above unconditional nolle prosequi. We hold that appellant’s coxxtention is correct. The general and accepted rxxle appears to be “that the unconditional dismissal of axx indictment or information by the prosecuting attorney, if made a matter of record, operates as a termination of the proceedixxg under that accusatioxx, and that the same ixxdictmexxt or informatioxx caxxxxot be reinstated at a subsequent term axxd prosecutioxx thereon resumed.” 27 Am. Jur., § 22, page 600. See Anno, in 112 A. L. R. 386.
While frankly concedixxg the above to be the law, counsel for the State say: “Although it is settled law that the court could not reinstate the indictment at a subsequent term, it does not appear from the record that the appellant questioxxed the iixdietment until after she had ixx effect entered a plea of not guilty,” and argue that appellant, by her actions, waived her right to demand trial on a new indictment. We do not agree.
The record shows that appellant was brought into court by the sheriff and before arraignment, and before any plea was made (the record is silent as to whether any plea was made by her) or the taking of testimony, she objected to the reinstatement of the old indictment and being forced to trial on it. On this point, the record recited: “IN CHAMBERS . . . MR. LOVE:” stated to the court: ‘ ‘ That on August 18th, 1953, this case was nolle prosequied, and on October 3, 1953, after that term of Court had elapsed this case was reinstated, and for that reason we move the Court to quash and dismiss the charge.” The trial court denied appellant’s request, ordered the old indictment reinstated “to which the defense duly excepted.”
In reversing the case, we point out that the dismissal' of the indictment is not a bar to a future prosecution for the same offense. § 43-2127, Ark. Stats. 1947.
Accordingly, the judgment is reversed and the cause remanded. | [
-15,
-18,
-44,
-81,
74,
96,
106,
-70,
99,
-110,
-31,
51,
-83,
-53,
80,
35,
111,
111,
85,
105,
-128,
-89,
23,
97,
-14,
-13,
-107,
-43,
-77,
-20,
118,
-3,
76,
112,
-54,
85,
70,
74,
-31,
82,
-126,
-107,
-87,
97,
74,
-110,
48,
63,
-28,
14,
97,
-82,
-21,
43,
30,
-53,
105,
104,
-53,
61,
116,
48,
-62,
-115,
-49,
18,
-77,
38,
-68,
35,
-38,
52,
24,
53,
8,
-8,
119,
-108,
-127,
92,
107,
25,
12,
98,
98,
-93,
53,
77,
-88,
-119,
62,
126,
-123,
-89,
-100,
73,
105,
104,
-108,
-35,
127,
52,
7,
124,
-12,
-41,
121,
124,
1,
-33,
-108,
-79,
-113,
53,
-46,
110,
-61,
37,
48,
117,
-52,
106,
93,
96,
118,
-101,
-114,
-106
] |
Ed. F. McFaddin, Justice.
This is a suit instituted by appellees (Stanberry and wife) to cancel — on the grounds of usury — a note and mortgage they executed to appellant, Public Loan Corporation. The complaint filed January 21, 1953, alleged:
“Plaintiffs further state that on the 26th day of June, 1952, the plaintiffs negotiated for and received a loan from the defendant corporation in the principal sum of $300.00 evidenced by a promissory note of that date which they executed in favor of said defendant, together with a chattel mortgage on their household furniture, and that the defendant corporation in making the loan required that said $300.00 be paid in eighteen equal monthly installments of $22.25, making a total of $400.50 which was to be paid by the plaintiffs over the 18-month period. ’ ’
The defenses offered below and urged here for reversal are:
(1) The corporation holding the note was and is a foreign corporation without agent in Arkansas upon whom process could be served.
(2) The loan was consummated in Louisiana and valid under the laws of that State.
(3) The decree rendered is void because the wrong corporation was sued.
The evidence is in hopeless conflict. Stanberry and his wife testified that on June 26, 1952, they went to a place of business on Block Street, in Fayetteville, Arkansas, at which there was a sign which read: “Public Loan Corporation.’' They had previously borrowed $125.00 at the same place; and Stanberry testified that on June 26th, Mr. A1 Smith was in charge at the place of business on Block Street and made the loan. The Stanberrys testified that they signed the note and mortgage here involved, and also other papers, and “in a second” Mr. Smith delivered to them a check for $270.00 as proceeds of the loan. The Stanberrys emphasized that there was no delay, and that the entire transaction —from the application for the loan until the delivery of the check — was consummated in a matter of minutes.
A photostatic copy of the loan statement given the Stanberrys was introduced in evidence.. It reflects that the Stanberrys borrowed $300.00 on June 26, 1952, from “Public Loan Corporation, 111 North Second Street, Monroe, Louisiana”; and that the agreed rate of interest was:
“3%% a month on that part of the unpaid principal balance of any loan not in excess of $150, and 2%% a month on any remainder of such unpaid principal balance. ’ ’
The loan statement quotes what purports to be Sec. 12 of the Louisiana Small Loans Law. Under this statement the Stanberrys were required to pay $22.23 per month for eighteen months. This would be a total of $400.14 for a $300.00 loan; and is clearly usurious under the Arkansas law. See Art. 19, § 13 of the Arkansas Constitution; and see, also, Strickler v. State Auto Finance Co., 220 Ark. 565, 249 S. W. 2d 307; and Winston v. Personal Finance Co. of Pine Bluff. 220 Ark. 580, 249 S. W. 2d 315.
The defendant’s witness, Mr. A1 Smith, testified that there were at least three loan companies doing business at the same place on Block Street in Fayetteville, being Public Loan Corporation (an Arkansas corporation) ; Public Loan Corporation of Fayetteville; and Public Finance Corporation (State of incorporation not given). Mi-. Smith testified that in June, 1952, the Stanberrys owed Public Loan Corporation of Fayetteville a balance of $372.00; that this was re-financed by two loans, being one for $125.00 with Public Loan Corporation (an Arkansas corporation); and the other for $300.00 from Public Loan Corporation (an Ohio corporation doing business at Monroe, Louisiana), and being the appellant in this case. Mr. Smith testified that the Stanberrys received from the re-financing transaction in June, 1952, only the sum of $88.65, rather than the $270.00, as stated by the Stanberrys. Mr. Smith also testified that the $300.00 loan application, and the papers here involved, were signed by the Stanberrys in Fayetteville, but were forwarded by him to Monroe, Louisiana, for acceptance or rejection; and that the $300.00 note here involved was a transaction consummated in Louisiana under the Louisiana Small Loans Act.
Thus the Chancery Court was confronted with the problem of deciding which version of the facts to adopt: i.e., the plaintiffs’, who testified to a completed loan of $300.00 on June 26, 1952, in Fayetteville, Arkansas; or the defendant’s, whose witness, Smith, testified to a refinancing arrangement finally consummated in Louisiana. And on the conflicting evidence, the Chancellor— who heard all the testimony ore tenus and saw the witnesses — decided for the plaintiffs. The decree recites:
“That the defendant is a corporation organized under the laws of Ohio and is not authorized to do business in the State of Arkansas.
“The Court further finds that the defendant made a loan to the plaintiffs in the sum of $300.00 on June 26, 1952, evidenced by a promissory note secured by a chattel mortgage, and that the interest charged in said note is usurious and by reason thereof said note and chattel mortgage securing same should be declared void.”
A careful study of the case and a reading of the entire record fail to convince us that the Chancellor’s findings are against the preponderance of the evidence. So we affirm the decree on the factual issues; and with the facts settled, the law is clear.
We have a foreign corporation — Public Loan Corporation, an Ohio corporation — with a place of business in Monroe, Louisiana, but undomesticated in Arkansas. Mr. A1 Smith at the Public Loan Corporation office on Block Street in Fayetteville, Arkansas, as the agent of this undomesticated corporation, made and consummated the $300.00 loan to the Stanberrys by having the papers signed in Arkansas and the money paid in Arkansas in a matter of seconds. This clearly constitutes the doing of business in Arkansas by an undomesticated foreign corporation. See Clark v. J. R. Watkins Co., 115 Ark. 166, 171 S. W. 136; Dean v. Caldwell, 141 Ark. 38, 216 S. W. 31; The Vaccinol Products Co. v. State, 203 Ark. 302, 156 S. W. 2d 250; and Chapman Chem. Co. v. Taylor, 215 Ark. 630, 222 S. W. 2d 820. The facts here — as regard intra-state transactions — are entirely different from the facts held to be interstate commerce in such cases as: Scruggs v. Scottish Mtg. Co., 54 Ark. 566, 16 S. W. 563; Davis & Worrell v. General Motors Acc. Corp., 153 Ark. 626, 241 S. W. 44; Linograph Co. v. Logan, 175 Ark. 194, 299 S. W. 609; and Security Trust Co. v. Martin, 178 Ark. 518, 12 S. W. 2d 870.
Mr. A1 Smith, the one transacting such business for such foreign corporation, as such agent, was properly served with process under § 27-347 and § 27-350, Ark. Stats.; and the Ohio corporation, the admitted payee of the $300.00 note, was properly in court on a transaction consummated in Arkansas and clearly usurious under the Arkansas law.
Such result makes it entirely unnecessary for us either (a) to consider whether the various corporations were used'as a cloak for usury; or (b) to consider- the similarity of this case to that of Public Loan Corporation v. Weaver, 223 Ark. 902, 270 S. W. 2d 888.
Affirmed.
That the Ohio corporation is undomesticated in Arkansas was abundantly shown, if not conceded.
It was admitted by Mr. A1 Smith that three such corporations used the same office in Fayetteville, being Public Loan Corporation of Fayetteville; Public Loan Corporation (an Arkansas corporation); and Public Finance Corporation (State of incorporation not given). In addition to these, there is the appellant in this case, being Public Loan Corporation, an Ohio corporation doing business in Monroe, Louisiana. We take judicial notice of the public records required to be kept.- See State, ex rel. Attorney General v. State Board of Education, 195 Ark. 222, 112 S. W. 2d 18; and Kelley v. Carter, 216 Ark. 491, 226 S. W. 2d 53. Such records in the office of the Secretary of State disclose the following:
(a) Public Finance Company is a California corporation, domesticated in Arkansas on August 20, 1952;
(b) Public Finance Corporation is an Arkansas corporation, chartered April 27, 1951;
(c) Public Loan Corporation is an Arkansas corporation, chartered March 9, 1951;
(d) Public Loan Corporation of Fayetteville is an Arkansas corporation, chartered April 3, 1951;
(e) Public Loan Corporation of Little Rock is an Arkansas corporation, chartered April 3, 1951;
(f) Public Loan Corporation of Pine Bluff is an Arkansas cor- . poration, chartered April 3, 1951; and
(g) Public Loan Corporation of Texarkana is an Arkansas corporation, chartered April 3, 1951, with name changed on November 1, 1954, to “Public Loan Corporation of Ninth Street.” | [
48,
108,
-96,
-20,
-118,
-32,
40,
-102,
86,
97,
-89,
-45,
-23,
100,
20,
101,
-27,
9,
-44,
122,
119,
-78,
6,
100,
-46,
-77,
-23,
93,
-71,
77,
-28,
-41,
72,
48,
-126,
-41,
98,
-110,
-57,
-106,
-114,
-128,
57,
100,
-7,
-64,
112,
-87,
0,
13,
65,
-116,
-9,
47,
19,
74,
105,
46,
-7,
57,
-64,
-15,
-101,
5,
125,
7,
-127,
116,
-104,
69,
-24,
14,
-104,
49,
1,
-23,
114,
-90,
-122,
116,
9,
25,
12,
98,
98,
0,
-127,
-17,
-100,
-116,
7,
-2,
-99,
-122,
-16,
57,
3,
13,
-66,
-100,
62,
87,
-121,
-8,
-66,
-107,
25,
108,
7,
-50,
-42,
-77,
-97,
-10,
-98,
3,
-17,
-93,
48,
113,
-49,
-80,
93,
71,
59,
-101,
-58,
-15
] |
Ed. F. McFaddin, Justice.
The posed question is, whether the Resources & Development Commission of Arkansas has the power to dispose of the property herein concerned by pursuing the provisions of Act 317 of 1937. We answer the question in the negative because of the facts and reasoning here set forth.
On December 30, 1953, the Westinghouse Electric Corporation conveyed valuable property in Garland County to the State of Arkansas. The granting clause recited that Westinghouse . . does hereby grant, give, convey and quit claim unto the State of Arkansas and its assigns, as a gift, such gift, or the proceeds realized by sale, exchange, or other disposition thereof, to be used exclusively for public purposes in promoting the lawful functions and purposes of the Arkansas Resources and Development Commission ...”
The property was duly accepted (see § 9-107 Ark. Stats.); and thereafter the Resources and Development Commission (hereinafter called “Commission”) adopted a resolution declaring the conveyed property “. . . to be surplus to the needs of the Commission and its lawful functions and purposes . . .” The resolution of the Commission further stated:
“Be It Further Resolved, That, in accordance with Act 317 of the Acts of the Legislature of the State of Arkansas for the year 1937, the Chairman and Secretary of the Resources and Development Commission are hereby directed, in accordance with Section 1 of said Act, to certify to the Governor of the State of Arkansas, in dupli cate, its proposal for such sale to be made strictly in accordance with the terms and provisions of said Act; and
“Be It Further Resolved, That, if the Governor shall approve such proposal in the manner provided by said Act, the Secretary of the Resources and Development Commission shall thereupon proceed to give notice in behalf of the Resources and Development Commission of the terms of the proposed sale, in accordance with said Act.”
After the adoption of the foregoing Resolution, the appellant, Harris, as a citizen and taxpayer, filed this suit in the Pulaski Chancery Court against Emmerling, (as the Executive Director of the Commission), and the other defendants (as being all the members of the Commission) ; and the complaint alleged that the Commission had no power to proceed under said Act 317 of 1937, and should be enjoined'from attempting to make any disposition of the property. To the complaint, the defendants filed a general demurrer, which was sustained; and the complaint was dismissed when the plaintiff refused to plead further. This appeal followed.
That the title to the deeded property passed to the State in trust for “. . . public purposes in promoting the lawful functions and purposes of the Arkansas Resources and Development Commission . . .” is perfectly clear. The Act creating the Commission specifically authorizes it to receive gifts (see § 9-107 Ark. Stats.); and in Adkins v. Kalter, 171 Ark. 1111, 287 S. W. 388, we said:
“It is well settled that a State may acquire real or personal property by conveyance, gift, or otherwise, and sell or dispose of it as it sees fit. 38 Cyc. 869, and 25 R. C. L. 388, § 21. This Court has held that, under our Constitution, the power of the State in respect to its property rights is vested in the Legislature. L. R. & Ft. Smith R. Co. v. Howell, 31 Ark. 119; and Bartlett v. Crawford, 36 Ark. 637.”
But the difficult question is whether the Commission can dispose of the property, either under Act 317 of 1937, or under any other Statute — and none is cited — until the Legislature sees fit to authorize such disposition. The general rule is that the power of an agent or agency of the State to part with the State’s title to property is to be strictly construed. In McCarter v. Lehigh Valley R. Co., 78 N. J. Eq. 346, 79 Atl. 93, there is this clear statement:
“Nothing is better settled than that the state is not presumed to have parted with any part of its property, in the absence of conclusive proof of an intention to do so. Stevens v. Paterson & Newark R. Co., 34 N. J. Law, 532, 533, 3 Am. Rep. 269; Martin v. Waddell, 16 Pet. 411, 10 L. Ed. 997; Polhemus v. Bateman, 60 N. J. Law, 163, 37 Atl. 1015. ‘Any ambiguity must operate against the grantee and in favor of the public.’ U. S. v. Michigan, 190 U. S. 401, 23 Sup. Ct. 742, 47 L. Ed. 1103.”
See generally 59 C. J. 16 et seq.; 81 C. J. S. 1079 et seq.; and 48 Am. Jur. 270 et seq.
With the general rule being as above stated, we turn to Act 317 of 1937 (which may be found in § 7,105 et seq. Ark. Stats.). The first two sentences of the said Act read:
“The several State boards or commissions having supervision of the affairs of institutions of the State of Arkansas are hereby each empowered from time to time to sell, for cash in hand, and upon compliance with the provisions of this Act, the lands, in whole or in part, belonging to the respective said institutions or belonging to the State and held for their benefit. The respective said board or commission shall, through its Chairman and Secretary, certify to the Governor, in duplicate, its proposal for any such sale.”
Prom these sentences — and there are no others in the Act extending its provisions to other institutions — it is clear that the Act is applicable only to Boards or Commissions “. . . having supervision of the affairs of institutions of the State . . .” The important word to notice is “institutions”. This word, as used in the Statute, means such State agencies as the State Hospital, the State Penitentiary, the State Tuberculosis Sanatorium, the McRae Tuberculosis Hospital, and other agencies of a similar nature, having charge of buildings and properties for carrying out the purposes for which the State operates such institutions. The Boards and Commissions having supervision of the affairs of such institutions are the ones to which said Act 317 has reference.
The Resources and Development Commission does not have supervision of the affairs of institutions of the State. The Act creating the Resources and Development Commission is Act 138 of 1945, and may be found in § 9-101 et seq. Ark. Stats. The Commission is — inter alia —to bring labor, industry and agriculture into accord for developing Arkansas, to publicize Arkansas’ great industrial operations, to stimulate travel into Arkansas, to promote the further use of navigation and hydro-electric power, to co-operate with civic organizations devoted to the welfare and development of the State, and to recommend to the Governor the means and methods for a more efficient operation of the State Government. Among other powers and duties of the Commission, it is also authorized to “. . . make a study of the institutions supported in whole or in part by this State ...” It is clear that the Resources and Development Commission does not have supervision of any State institution, and therefore does not come within the purview of the said Act 317 of 1937. The power to dispose of the property here involved is not vested in the Resources and Development Commission by the Act 317. The power to dispose of the property here involved is now vested in the Legislature.
Therefore it follows that the Chancery Court was in error; and the decree is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.
In 21 Words & Phrases, Permanent Ed., p. 666, cases may be found from many jurisdictions construing the word “institution”; and in 40 Words & Phrases, Permanent Ed., p. 34, cases may likewise be found construing the words “State institutions.” Title 7 of Ark. Stats, is entitled: “State institutions in general; Hospitals.” | [
18,
-22,
-44,
92,
122,
-32,
58,
-72,
75,
-85,
100,
83,
-19,
-32,
-99,
61,
-29,
-9,
-48,
105,
-122,
-74,
67,
114,
90,
-13,
121,
-17,
59,
-51,
100,
-58,
76,
33,
-54,
-107,
-122,
64,
-51,
94,
10,
1,
-118,
-24,
89,
-64,
52,
107,
82,
-117,
81,
-84,
-29,
47,
28,
-57,
-19,
62,
125,
-65,
89,
58,
42,
-107,
123,
22,
33,
-27,
-104,
65,
-24,
126,
-104,
53,
8,
-84,
115,
38,
-122,
112,
13,
93,
40,
32,
99,
2,
9,
-25,
-88,
-120,
7,
-65,
-115,
-92,
-92,
8,
2,
67,
-97,
-100,
73,
-106,
66,
-10,
-29,
-123,
91,
108,
7,
-114,
-42,
-91,
15,
109,
-119,
27,
-53,
-49,
52,
48,
-49,
-10,
94,
7,
114,
26,
-114,
-46
] |
George Rose Smith, J.
This is a suit to recover income taxes in the amount of $770.35, which the appellee paid under protest to the appellant. The issue narrows down to the question of whether the appellee was entitled to deduct from his 1952 taxable income certain contributions which he made to unsuccessful oil and gas operations conducted outside the state. The effect of the chancellor’s decree is to uphold the deductibility of these expenditures.
By a written contract dated May 1, 1952, the appellee agreed to reimburse four nonresident oil and gas operators for one-eighth of their expenses in the search for oil and gas, in return for a similar share of the profits resulting from production. Pursuant to this contract the appellee advanced $17,105.93 during the year in question, but the venture was entirely unproductive. He now contends that the state statutes permit him to deduct this outlay from other taxable income.
Were it not for the enactment of Act 320 of 1953, Ark. Stats. 1947, § 84-2018, the case would unquestionably be controlled by the holding in Morley v. Pitts, 217 Ark. 755, 233 S. W. 2d 539. There we held that expenses incurred in unsuccessful out-of-state oil and gas activities were deductible from taxable income.
The Commissioner insists that the rule of the Morley ease was changed by Act 320, which amended the statute considered in the earlier case. Before the amendment, the statute (as construed in the Morley opinion) exempted certain out-of-state income from local taxation but did not disallow the deduction of expenses incurred in an unsuccessful attempt to obtain such exempt income. The 1953 amendment added this proviso to the existing law: “Provided further, that no income which arises from and no expense or losses incurred in the use, production, exploration, or sale of real estate situated in another State but owned by a resident of Arkansas shall be included in the gross income, deductions, or net income of such resident person for income tax purposes.”
Doubtless the 1953 amendment was intended to modify the rule of the Morley case, for the amendment supplied a specific reference to expenses, which was the omission we had found in the original law. But the amendment is not comprehensive enough to reach this case, for it disallows the deduction only when the expense or loss is incurred in connection with real estate “situated in another State but owned by a resident of Arkansas.” It is not contended that the appellee’s contract with his nonresident associates contemplated, or resulted in, the ownership of land on his part. Rather, it is argued that since almost any business venture involves real estate either directly or indirectly, it would be unwise to restrict the disallowance of the deduction to those instances in which the taxpayer actually owns the land. This argument might be persuasive if addressed to the legislature, but such considerations of policy do not authorize us to disregard the plain wording of the statute. The Commissioner has not shown' that the present case falls within the language of the 1953 law.
Affirmed. | [
-44,
-22,
-36,
44,
91,
96,
58,
-101,
80,
-85,
101,
83,
-23,
74,
20,
125,
-61,
61,
117,
106,
-41,
-77,
6,
106,
-102,
123,
-71,
-33,
-67,
-49,
-20,
-43,
76,
57,
74,
-43,
102,
-126,
65,
-40,
-82,
0,
-120,
109,
-7,
4,
52,
73,
52,
11,
97,
-116,
-6,
-84,
29,
-53,
-115,
46,
-39,
43,
-37,
-15,
-22,
4,
95,
17,
33,
85,
-104,
71,
104,
58,
-100,
25,
8,
-56,
115,
-90,
66,
117,
39,
-101,
41,
96,
98,
8,
-95,
-89,
-104,
8,
63,
-14,
-99,
-91,
-45,
24,
35,
-49,
-98,
21,
126,
20,
-121,
126,
-20,
-107,
-33,
108,
19,
-98,
-44,
-93,
-121,
-31,
-36,
19,
-17,
-126,
16,
96,
-58,
-94,
92,
7,
122,
-101,
-60,
-24
] |
Robinson, J.
This is a suit to require the one who organized a corporation to return to the company shares of stock alleged to be of a value in excess of the value of land traded to the corporation for stock; to dissolve the corporation, sell the assets, and distribute the proceeds of the sale among the stockholders.
R. M. Traylor controls the Arkansas Real Estate Company which owned 16% acres on East Roosevelt Road in the city of Little Rock. He wanted to construct a theater on this land, and organized for that purpose a corporation, appellant herein, Rose Theater, Inc. That corporation, owning no assets, issued to the Arkansas Real Estate Company'100,000 shares of common stock in payment of the tract of land above mentioned. The common stock was of no par value; hence the 100,000 shares of stock issued in payment of the land were worth whatever the land was worth.
Traylor was inexperienced in the operation of theaters, and sought advice from appellee Gerald W. Jones, an experienced theater man who was operating several picture shows at the time. Later Jones decided to come into the venture with Traylor under an agreement whereby Jones would be the manager of the theater. Later Jones and William Yan White, another stockholder, brought this action in behalf of themselves and other stockholders.
It is alleged that $65,000 has been spent on the land getting it in shape for a theater, $38,000 for buildings, and $6,000 for theater equipment; that $123,000 would be required to complete the theater and put it in operation and there is evidence to the effect that in fact about $180,000 would be required for that purpose. It is contended that the corporation is without funds and can not raise the necessary money to complete the project; that the part which has been built is depreciating in value and will eventually become worthless; that Traylor through his corporation, Arkansas Real Estate Company, defrauded the Rose Theater by false representations as to ownership of part of the land involved, and by falsely representing that the land had a fair market value of $65,000. After a trial of the issues, the trial court entered a decree ordering the assets of Rose Theater sold.
One of the principal issues is whether Traylor perpetrated a fraud upon Rose Theater in causing the Arkansas Real Estate Company to convey to Rose Theater the land for a price in excess of the true value. The evidence does not justify a conclusion that any fraud was perpetrated in this repect. Assuming that Traylor controls the Arkansas Real Estate Company, we will refer to dealings by that company henceforth as Traylor’s.
At the time Traylor acquired 100,000 shares of no par value common stock of Rose Theater, that corporation owned no assets whatever other than the land that it received for the 100,000 shares of stock. Therefore, regardless of any kind of representations made in connection with the value of the land, the Rose Theater could not have been hurt. It gave nothing for the land except the common stock of no par value; the stock was not worth anything above what the land was worth. So re gardless of whether the land was worth $10 or $10,000 an acre, Bose Theater got full value for the stock it gave as the purchase price of the land. Appellees contend that Traylor did not own in fee all of the land transferred to the theater that was to be used for theater purposes, that $6,000 was owed on that which he did own, and that he only had leases on a portion of it. But assuming this to be true, still the common stock issued to Traylor had no value other than what the land was worth which Traylor transferred to the theater, regardless of what that value might be.
After Jones came into the corporation, he complained to Traylor that the preferred stock could not be sold without giving the purchaser an opportunity also to buy some common stock, and since Traylor held all the common stock, sale of the preferred was very difficult. Traylor then transferred back to the corporation 15,000 shares of the common stock, permitting it to be sold elsewhere. The corporation was authorized to issue 1,500 shares of 8% non-participating preferred stock having a par value of $100 per share. Jones has purchased 733 shares of preferred stock for $73,300; this was bought from the corporation, the money paid into the corporation and spent under the supervision of Jones. Jones bought $38,400 worth of common stock and claims that he was overreached by Traylor in the trade on that stock; however, they dealt at arm’s length. Jones says that Traylor represented to him that the land owned by Rose Theater was worth $65,000 and that acting on this representation he bought common stock from Traylor at $.65 a share. Jones is an experienced business man; he had every opportunity to ascertain the value of the land owned by the theater. Later, after Jones had been in active management of the affairs of the corporation for some time, a par value of $1 per share was set on the stock, but this was at Jones’ suggestion.
A great deal more money was spent on the project than was anticipated at first; but this was mostly due to Jones’ management of the affairs of the corpo ration. In the first place, it cost a good deal more to prepare the land for the theater than was planned. Traylor had nothing to do with estimating this job; it was done by engineers selected by Jones and the contractor, and they underestimated the cost of the project. Jones is to be commended that he did not hold the contractor to a bad bargain, but the mistake should not be charged to Traylor. Two screens were built at a cost of $38,000 when only one screen had been planned originally; this change in plans was due solely to Jones who, while on a trip to Texas, came to the conclusion that two screens would be better. It appears that all of the money which has been spent in connection with the project has been under the management and supervision of Jones.
It is claimed that the corporation is financially embarrassed, and can not raise the money to proceed with the completion of the theater; but there is no showing that any effort has been made to raise the money to complete the job. It appears that about the only thing Traylor has done in connection with this theater is t® organize the corporation and transfer to it 16% acres of land and some leases in consideration of 100,000 shares of the common stock of the corporation. At that time the corporation had no assets except the land. Later Traylor sold some of his stock to Jones, and even if Traylor represented the stock as being worth $.65 a share because the land he had transferred to the theater was worth $65,000, this would not be a false representation giving rise to a cause of action. Traylor was dealing with a man of experience at arm’s length, and the value of the land was a matter of opinion. Witnesses at the trial estimated its value at anywhere from $15,600 to $75,000.
If the decree is allowed to stand, it will mean that all the assets of the theater will be sold to the highest bidder ; the money received will be used first to pay off any third party debts, and from the record there does not appear to be any of that kind of any consequence; next the preferred stockholders will be paid insofar as the money received will go toward the payment of the stock at the par value of $100 per share plus 8% accumulated dividends. In all probability the assets will not bring enough whereby the owners of the common stock will be paid anything.
Appellees also contend that a decree providing for dissolution of a corporation in the circumstances existing here is supported by the case of Warner v. Bonds, 11 Ark. 238, 163 S. W. 788. There it was held that a minority stockholder may maintain an action for fraud and-mismanagement against the governing body of the corporation. This rule is also supported by Red Bud Realty Co. v. South, 96 Ark. 281, 131 S. W. 340. But the facts as they existed in those cases are not present here. In the case at bar, the largest stockholder is the one that has managed the affairs of the corporation and is the principal one who seeks dissolution.
Appellees also cite authority to the- effect that a stockholder may maintain a dissolution suit when the object of the corporation is no longer attainable; but we can not say the evidence here justifies such a conclusion. The corporation owes no debts of any consequence; preferred stockholders are not creditors. 13 Am. Jur. 466. Traylor and those on his side do not own the controlling stock.- The corporation owns over 16 acres in fee and leases on other acres making a total of 23 acres controlled within the city limits of Little Rock; $65,000 has been spent in preparing the land for use as an outdoor theater; $38,000 has been spent in building two large moving picture screens; and $6,000 has been spent on equipment. It appears from all this that the corporation should be able to finance the completion of the theater. At least we do not believe the evidence justifies a holding that the corporation cannot proceed with its business and put an outdoor theater into operation. Perhaps all parties concerned have not proceeded with the caution that prudence would dictate, but be that as it may, there does not appear to have been any fraud, and the object of the corporation does not appear to be unattainable.
Reversed.
Justices McFaddin and Ward dissent. | [
114,
-26,
-40,
-36,
24,
-32,
120,
34,
81,
-86,
-25,
-41,
-23,
-64,
28,
109,
-26,
-1,
81,
105,
-122,
-77,
71,
34,
-30,
-77,
-39,
-15,
-80,
-51,
-28,
-42,
-51,
48,
-54,
-107,
-42,
-30,
-55,
92,
10,
5,
27,
96,
-7,
-32,
52,
-93,
64,
79,
81,
-98,
-5,
45,
48,
90,
77,
42,
121,
-87,
65,
121,
-102,
5,
-1,
23,
1,
68,
-102,
67,
-56,
110,
-40,
52,
16,
-120,
115,
54,
6,
116,
77,
93,
9,
40,
99,
0,
-123,
-81,
82,
-116,
39,
-10,
-115,
-89,
-62,
88,
19,
109,
-65,
-106,
-40,
16,
7,
-2,
126,
-100,
89,
108,
15,
-49,
-42,
-109,
-83,
100,
-34,
3,
-53,
-101,
-80,
112,
-51,
-93,
92,
107,
50,
-101,
-114,
-12
] |
Grieein Smith, Chief Justice.
James Lloyd Rose and his wife, Betty — whom he married in 1948 — had one child, Allan Gale, now five and a half years of age. James Lloyd died in September, 1953. At that time he was living with his mother. His own father had died more that} fifteen years ago and in 1940 or 1941 his mother married Lonnie Rose, who was Mrs. Rose’s first husband’s brother. She is 49 years of age and Lonnie is 61.
The child, Allan Gale, has been with its paternal grandmother and her husband for some time. Following her remarriage Betty sought by habeas corpus to regain custody of her child. The writ was dismissed and we treat the cause as having been brought up by certiorari for review.
For some time after their marriage in 1948 James Lloyd and Betty lived with Betty’s parents at Grand View, in the state of Washington. James Lloyd was addicted to drink, according to Betty’s testimony, and failed to provide the reasonable necessaries of the home. He also incurred obligations beyond current means.
In October, 1949, when the baby was about eight months old, Betty and her husband came to Arkansas and lived with James Lloyd’s mother and his step-father at Cedarville for a period of six months. Betty’s testimony is to the effect that the grandmother and her husband quarreled a great deal.
At the end of eight months Betty left for a visit with her parents in Washington. She had concluded that her marriage was a failure, and intended to leave James Lloyd and procure a divorce. Her husband, however, refused to allow her to take the baby. His action in this respect was encouraged by other members of the family. Mrs. Lonnie Rose had physical possession of the boy. Betty remained in Washington a week, then borrowed money and returned to Arkansas. She was accompanied by her mother and an uncle. Betty’s version of this transaction is that, with the uncle, she went to the Rose home, picked up the boy, and asked where his father was. She was told that James Lloyd was in the garden, but “Instead of going to see the baby’s daddy I just went to the state of Washington.”
Two months latex- James Lloyd went to Washington to detex-xnine whethex- his wife would x-eturn. There was a x-ecoxxciliatioxx to the extent that Betty went with her husband to Susanville, California, remained there for eight or xiixxe weeks, and then a second separation occurred. According to Betty’s version of discomfitures axxd matters rendering her situation intolerable, ‘ ‘ Grocery bills were piling up and I didn’t know whether we were goixxg to get credit axxy more. I had made arrangements to sell my rings axxd silverware and take my soxx back to Washington to my parents. I was going to do this while Jaxnes Lloyd was at work, but he found out from some oxxe what I intended to do axxd told me I could leave, but that I couldxx’t take Allen Gale. . . . He told me that if I tried to take the baby he would shoot me, [and] he was the type I was scared enough of to believe he would do it. He had a police record.”
Betty testified that she left for Washixxgton to join hex- parents, fearing to take the child. About a year later she sued for divorce. In the meantime — possibly three or four moxxths after leaving her husband — Betty began keepixxg company with Robert Paul McGraw, who was also married, but separated from his wife. His former wife visited with him ixx the home of Betty’s mother and father.
The divorce proceedings ixx Yakima couxxty, Washington, were attended by James Lloyd, who was represented by an attorney. When at the first hearing it developed that the baby was not within the court’s jurisdiction an adjournment was ordered, the purpose being to permit the father — -under court direction — to bring the child to Washixigtoxx. This was xxot done, and at the second hearing the judgment in Betty’s favor was for custody of the child, $50 per moxith support money, and cost of the action, includixxg an attorney’s fee.
The petitioner’s husband, Robert Paul McGraw, owns 160 acres of productive farming land near Masonville, Iowa, and receives from this property $2,000 or more per year, in addition to the agricultural products personally used.
Lonnie Eose and his wife rent their home. For a time Mr. Rose worked as janitor at one of the schools, but he is a world war veteran and draws monthly compensation of $70. When Mrs. Rose was asked regarding her husband’s physical condition her answer was that he was extremely nervous. At one time he had taken carbolic acid and was sent to a hospital. There is evidence that the sons of her first marriage, or at least some of them, had drinking habits and were not always within the law.
On the whole, however, the record fails to disclose anything but a sincere purpose on Mrs. Rose’s part to do the best by the child that circumstances will permit.
Some of the witnesses thought that on one or two occasions Mrs. McGraw had punished the child to spite her husband and had gone so far as to attempt to choke it. The evidence on that point is not at all convincing and we doubt that the Chancellor gave it serious weight.
If testimony of the grandmother and others interested in her point of view is to be accepted, Mrs. McGraw abandoned her child. But the mother’s explanations regarding marital difficulties and references to the unfavorable economic position into which she was thrust go far to discount the contention of abandonment. The law’s policy is to permit children to remain with their parents unless there is the most compelling reason for deviation from this normal social status,; and this rule is ordinarily emphasized when small children are concerned. Unless abandonment is clearly shown, or unless unnatural proclivities upon the part of parents is established, such as cruelty or negligence amounting to parental indifference, the superior claim of a father or mother is given first consideration. Hancock v. Hancock, 198 Ark. 652, 130 S. W. 2d 1; Hazelip v. Taylor, 209 Ark. 510, 190 S. W. 2d 982.
In the case at bar the father is dead and the mother and her present husband are shown to be economically able to rear the child in an environment, we think, more conducive to good citizenship than would be the case if the grandmother and Lonnie Rose were permitted to retain custody.
Reversed, with directions that the writ be granted. | [
49,
108,
-99,
60,
24,
-96,
10,
88,
118,
-61,
-31,
-13,
-55,
76,
0,
121,
59,
47,
80,
107,
-16,
-73,
87,
-96,
-14,
-13,
89,
-35,
-77,
125,
-68,
86,
76,
114,
-102,
89,
-30,
-120,
-63,
20,
-122,
16,
73,
-16,
82,
-48,
34,
107,
-48,
14,
65,
63,
-41,
46,
61,
-10,
40,
108,
-39,
-72,
-48,
41,
26,
22,
-33,
52,
-80,
34,
-74,
7,
-40,
14,
-104,
49,
32,
-24,
50,
-76,
-126,
125,
108,
-85,
12,
-28,
98,
36,
77,
103,
-80,
8,
-58,
122,
-67,
-89,
-106,
97,
66,
71,
-66,
-67,
105,
80,
43,
88,
-29,
-52,
124,
32,
40,
-113,
-42,
-111,
-120,
56,
-100,
58,
-14,
-59,
96,
113,
-55,
-102,
101,
71,
115,
-109,
-122,
-77
] |
Ed. F. MoPaddin, Justice.
This appeal results from the collision of two automobiles on TJ. S. Highway No. 65. Plaintiff’s (appellee’s) car was being driven to the South, and defendant’s (appellant’s) car was being-driven to the North. The case was submitted to the Jury on the issue (among others) of which driver was at fault; and the Jury rendered a verdict against the defendant. The only issue on appeal'is whether the evidence was sufficient to support the verdict.
The driver of the plaintiff’s car testified that when he drove over the top of a small elevation, he saw the defendant’s car was about three hundred feet away, and on the wrong side of the road; that plaintiff’s driver then swerved to his left in order to avoid the defendant; that the defendant then started back to the defendant’s right side of the road; the plaintiff’s driver thén returned to the plaintiff’s right side of the road; that plaintiff’s front wheels were both in plaintiff’s right side of the road when the collision occurred; that defendant’s car was about two feet over on the plaintiff’s side of the road; that the left front of the plaintiff’s car collided with.the left front of the defendant’s car; and that no collision would have occurred if the defendant had been on defendant’s side of the road. Plaintiff’s driver also testified that the defendant stated immediately after the collision that the defendant was looking at some flowers near the road and did not see the plaintiff’s car until the collision occurred. Although this was denied by the defendant, the acceptance was for the Jury.
We see no occasion to detail all of the evidence. We have stated sufficient of it to show that there was substantial evidence to take the case to the Jury on the question of fact as to (a) who was at fault, and (b) whether the plaintiff was free of contributory negligence. Under our legal system, the Jury is the authority to decide those questions, and also the question of the credibility of the witnesses. Oviatt v. Garretson, 205 Ark. 792, 171 S. W. 2d 287; Faulkner v. Crawford, 119 Ark. 6, 177 S. W. 85. On appeal we give the evidence its strongest probative force in favor of the Jury verdict. Potashnick v. Archer, 207 Ark. 220, 179 S. W. 2d 696.
Affirmed. | [
-16,
-24,
-32,
44,
10,
96,
112,
94,
96,
-121,
116,
-45,
-81,
-55,
92,
113,
-18,
63,
85,
43,
-43,
-85,
23,
-111,
-78,
-77,
59,
71,
-106,
-56,
102,
-15,
76,
112,
-54,
-43,
100,
72,
-59,
120,
-50,
-98,
-69,
124,
25,
-110,
60,
48,
84,
15,
-15,
-113,
-57,
42,
24,
-57,
105,
44,
75,
-71,
-47,
112,
76,
15,
-1,
4,
-77,
-92,
-98,
-127,
-40,
8,
-48,
49,
32,
-8,
114,
-90,
-110,
-44,
105,
-103,
12,
-96,
118,
1,
17,
-115,
-67,
-104,
38,
126,
15,
-89,
24,
1,
-55,
9,
-105,
-97,
123,
114,
13,
126,
-3,
85,
95,
124,
3,
-53,
-78,
-79,
-25,
50,
30,
67,
-21,
-119,
18,
113,
-51,
-14,
93,
69,
18,
-101,
71,
-106
] |
Ed. F. McFaddin, Justice.
This appeal results from a petition for a local option election in Gray Township in Pulaski County. The petition sought an election pursuant to the provisions of Initiated Act No. 1 of 1942. The County Court, and the Circuit Court on appeal, held the petition to be valid; and the remonstrants are the appellants in this Court.
Only one question is presented here: whether the petition is fatally defective since many of the signers failed to state their voting precinct in Gray Township. Appellants did not claim that the Township was so large as to create any doubt as to the identity of each signer; nor did appellants — by motion to make more definite and certain or otherwise — seek to ascertain the voting precinct of each signer. Appellants rely on the sole contention that each signer must give his voting precinct as a jurisdictional matter.
The portions of said Initiated Act No. 1 in regard to the petition, and germane to the present controversy, are in §§ 1 and 6 of said Act. Section 1 reads in part:
“When fifteen percent (15%) of the qualified electors, as shown on the poll-tax records of the County, shall petition the County Court of any County . . . praying that an election be held in a designated . . . township ... to determine whether or not license shall be granted for the . . . sale ... or giving away of intoxicating liquor within the designated territory, the County Court, within ten (10) days thereafter, . . . shall give a public hearing to determine the sufficiency of the petition; and if it be found that fifteen percent (15%) of the persons who have paid their poll-taxes for the year, making them qualified voters at the time the petition is filed, . . . have signed said petition, said County Court shall order a special election to be held. . .
Section 6 of the said Initiated Act No. 1 reads in part:
“It is hereby expressly declared that . . . this Act shall at all times be construed so as to permit, upon petition of fifteen percent (15%) of the qualified electors in any area to be affected, the qualified voters therein at one election to determine whether or not all alcoholic beverages . . . shall be . . . sold . . . or given away therein. ’ ’
There is no requirement in the said Act No. 1 that any signer must give his voting precinct; and to so require would mean that we were reading into the Act the provisions of some other Statute. In several cases we have held the Initiated Act No. 1 to be complete in itself. We refer now to three of such cases.
1. In Mondier v. Medlock, 207 Ark. 790, 182 S. W. 2d 869, the contention was made that certain provisions of Act No. 108 of 1935 had to be observed in a proceeding under Initiated Act No. 1 of 1942, and in holding against such contention, we said:
‘ ‘ Since sections 1 and 2 of the Initiated Act are not ambiguous, and no essential constituent of an election is left to intendment, it must be held that the restrictive provisions of Act 108 were purposely eliminated.”
2. In Winfrey v. Smith, 209 Ark. 63, 189 S. W. 2d 615, the contention was made that certain requirements of the law in regard to initiative and referendum peti tions had to be observed in a proceeding under Initiated Act No. 1 of 1942; and in holding against that contention, we said:
“In other words, Initiated Act No. 1 is in and of itself a complete act prescribing all the conditions which must he complied with to hold a legal election and the ‘restrictive provisions of Act 108,’ as well as those of 13285 et seq., Pope’s Digest, were purposely eliminated from Initiated Act No. 1.”
3. In Gocio v. Harky, 211 Ark. 410, 200 S. W. 2d 977, we quoted from the earlier cases and said:
“We have held that Initiated Act No. 1 of 1942 is complete in itself and that it is not necessary that a petition thereunder comply with the I. & R. Amendment to the Constitution and the enabling acts carrying it into effect.”
Since there is no provision in Initiated Act No. 1 of 1942 requiring the signer to give his voting precinct, the appellants’ contention is without merit.
Affirmed.
This Act may be found on p. 998, et seq. of the printed Acts of 1943, and also may be found in § 48-801, et seq., Ark. Stats.
In the opinion we referred to these as §§ 13285, et seq., Pope’s Digest. The same sections are now contained in § 2-203, et .seq., Ark. Stats. | [
116,
-20,
-7,
-99,
-86,
-64,
104,
-92,
82,
-79,
-89,
119,
-17,
-46,
20,
43,
-5,
-1,
21,
91,
-63,
-78,
87,
67,
-74,
-77,
-21,
-11,
-77,
73,
-10,
-15,
12,
-91,
26,
85,
-58,
46,
-49,
-36,
-126,
-113,
-117,
67,
-40,
-40,
60,
107,
98,
-117,
113,
-98,
-26,
60,
-72,
67,
-55,
44,
-39,
9,
-63,
-79,
-67,
-123,
123,
6,
-127,
70,
24,
-93,
-8,
14,
-104,
25,
50,
-24,
123,
-90,
-122,
-10,
9,
-103,
-84,
102,
-92,
1,
-127,
-17,
-24,
-87,
-114,
126,
29,
38,
-9,
121,
67,
42,
-76,
-97,
124,
16,
14,
-2,
104,
5,
25,
126,
-124,
-58,
-10,
-77,
76,
-28,
-118,
3,
-17,
53,
48,
117,
-36,
-34,
86,
71,
48,
27,
-49,
-48
] |
Ward, J.
T. J. Aycock and J. S. Bradshaw, being the owners of 640 acres of land, entered into a written lease contract with appellant, Herman B. Young, whereby Young was to pay $1,500.00 for the open, tillable land stated to be 200 acres more or less for the calendar year beginning January 1, 1953. Young made a down payment of $250.00 cash and.executed a note for the balance of $1,250.00. Both instruments are dated January 1, 1953, but it appears likely that they were actually executed sometime later and possibly as late as March, 1953. On September 15, 1953, Aycock sold his one-half interest in said land to. J. S. Bradshaw and also assigned to him his one-half interest in the note and lease contract. About a week later J. S. Bradshaw sold a one-third interest in the land to R. J. Hussey and a one-third interest to F. B. Bradshaw, assigning to them the same interest in said note and lease contract.
This suit was instituted by J. S. Bradshaw, R. J. Hussey and F. B. Bradshaw against appellant, Herman B. Young, on March 29, 1954, to collect the said note for $1,250.00. Young answered, after admitting the execution of the note and lease contract, that he rented 200 acres of tillable land at $7.50 per acre; that in fact there were only approximately 127 acres of tillable land and that he notified Aycock and J. S. Bradshaw of this fact before the note and lease contract were assigned to Hussey and F. B. Bradshaw; and that he, Young, had a right to assert all defenses against Hussey and F. B. Bradshaw which he could lawfully assert against Ay-cock and J. S. Bradshaw. Appellant asserts that he is entitled to an abatement on 73 acres at $7.50 per acre, and that therefore he is indebted to appellees only in the amount of $702.50.
' The matter was submitted to a jury under instructions . by the trial court and a judgment was rendered in favor of appellees in the full amount of $1,250.00 plus accrued interest.
Appellant on this appeal makes only one objection to the procedure in the trial court, and that objection is based on Instruction No. 3 as given by the court. So fair as the abstracted record shows the trial court only gave three instructions. Instruction No. 1 was to the effect that Young was obligated, to pay the note sued on unless he proved failure or partial failure of consideration. Instruction No. 2 told the jury that the burden was .on appellant to show by a preponderance of the evidence that there was such a failure of consideration. Appellant made no objection to these first two instructions and apparently concedes they are correct. Instruction No. 3 .reads as follows: , .
“You are instructed-that the words in the lease, ‘200 acres more or less,’ do not of themselves constitute a covenant or warranty that there is such a quantity of land! 'Before you can sustain the defendant’s theory of partial failure of consideration, he must establish by a preponderance of the evidence that plaintiff’s assignor, T. J! Aycock, made a fraudulent misrepresentation to him that there was 200 acres of open land, either knowing at the time that there was a smaller quantity, or realizing at the time that he did not actually know one way or the other, and that the defendant relied thereon.”
To the above instruction' appellant objected generally and specifically on the ground “that it is adequate . . . if a case of constructive fraud is shown,” together with the fact that the court “has already given plaintiff’s Instruction No. 2 on failure or partial failure of consideration, which fully covers the issues in this case.”
Appellant bases his contentions for a reversal herein on three points which are as follows: 1. Appellees are not holders in due course and are therefore subject to the defense of failure of consideration; 2. There was a partial failure of consideration; and 3. There was a material deficiency in the acreage and Aycock and J. S. Bradshaw were aware of this when they made oral representations that there were 200 acres of tillable land..
1. It is not necessary to discuss whether Hussey and F. .B. Bradshaw were holders in due course, because the case was submitted to the jury on the theory that they were not such holders, and appellant has no ground for complaint on this point.
2. The question of failure or partial failure of consideration was submitted to the jury under Instructions No. 1 and No. 2 which were not objected to by appellant, so the verdict of the jury on this point must be taken as final if it is supported by substantial evidence. Instruction No. 2 correctly stated the law as announced in the recent- case of Gray v. McDougal, Adm’x., 223 Ark. 97, 264 S. W. 2d 403. We have carefully reviewed the evidence and are of the opinion that it is sufficient to support the jury’s verdict.
The undisputed evidence is that no mention is made in either the note or the lease contract about $7.50 per acre. Notwithstanding this however appellant had. a right to introduce oral testimony to show any deceit or fraud practiced upon him by his lessors. Again this question of deceit or fraud is a matter to be passed on by the jury. We find in the record evidence from which the jury might have found that lessors refused to assure appellant that there were actually 200 acres in cultivation; that nothing was said about renting the land for $7.50 per acre; that appellant had ample opportunity and did actually inspect the land to determine for himself the number of acres in cultivation; that lessors offered to reimburse appellant for what he had been out before the land was planted in soybeans; that appellant objected only after the beans were planted and after dry weather indicated a poor crop year; and that the rental value of the land was actually as much as $1,500.00. Appellant states that the evidence was sufficient to support a finding of partial failure of consideration, and reiterates ‘‘that there was substantial evidence in the record to support the partial failure of consideration on the. note and lease contract and that the preponderance of ;the evidence' was to this effect. ’ ’ . Even ’ though we might agree with appellant' in these statements, yet they do not pose the question presented to us. This cause was tried before a jury and its finding must be sustained if supported by’ substántial evidence, and we think it is.
. 3.' Finally, appellant argues that he is entitled to an abatement to the extent of the deficiency in. acreage regardless of -the good faith of lessors and regardless of whether or not he (appellant) was induced to sign the. lease and note because of lessors’ misrepresentations. We have decided to give consideration to this contention although we point .out that it is doubtful if it has been properly presented to us. Apparently this contention is based on ..appellant’s objection to Instruction ■ No. 3 wherein he pointed out that it was adequate “if a case of constructive fraud is shown.” We can see no ground on which to base “constructive fraud” which usually arises from a confidential relationship not ’present in this case:
To support his contention on this point mentioned above appellant relies on Harrell v. Hill, 19 Ark. 102, and Solomon v. Deese, 142 Ark. 189, 218 S. W. 657. However, notwithstanding some expressions in the cited cases appear, when considered alone, to support appellant’s, argument, we do not think they are controlling here. In the Harrell case great stress was placed on principles of equity in reaching a conclusion. The court’s discussion covered four separate phases, viz: First. The effect of designating so many acres, more or less, in describing land in a deed or lease, holding that it did not constitute a covenant or warranty; Second. Oral evidence can be introduced to verify a deed or lease where fraud is alleged; Third. There was in fact a deficiency in acreage, and; Fourth. Should the purchaser recover? In answering this question in the affirmative the court did not discuss the issues raised in the case under consideration, such as: (a) Was there a failure, or partial failure, of consideration, and (b) Did the lessor represent there were 200 acres of tillable land, (c) If he did, did he know this statement was false, or, not knowing did he represent it to be true, and (d) Did the lessee rely on the lessor’s representations and was he induced thereby to execute the lease and note.
In the Soloman case, supra, the court likewise did not discuss the issues enumerated above, and in fact it had no occasion to do so because the purchaser [the State] was not a party to the suit and the seller [Solo-man] admitted to misrepresenting the acreage and volunteered to make it good. Apparently the court relied on the Harrell decision [and on Drake v. Eubanks, 61 Ark. 120, 32 S. W. 492, which in turn relied on the Harrell case] to arrive at the measure of abatement. Consequently we cannot say that these two Chancery cases are decisive' of the issues coming to us here from a cause tried in the Circuit Court.
Ill Instruction No. 3 the court in effect told the jury that appellant could not recover on a covenant or warranty in the lease because it contained the phrase “200 acres more or less.” The court was correct on the authority of the Harrell case, supra, the Soloman case, supra, Brown v. LeMay, 101 Ark. 95, 141 S. W. 759; Ryan v. Batchelor, 95 Ark. 375, 129 S. W. 787, and numerous other decisions of this court.
Likewise the court correctly declared the law in Instruction No. 3, when it told the jury in effect that, before appellant could win, it must find Aycock represented there were 200 acres of tillable land when he knew there was not or, not knowing, he made the representation as a fact, and also that appellant relied on such misrepresentation in deciding to execute the lease and note.
In the Ryan case, supra, the court, in considering a similar question and after stating an action could not be based on a breach of covenant, said:
“It is founded upon the alleged fraud in making a false representation as to the quantity of the land, which induced the purchaser to pay the price therefor. Such an action cannot be founded upon the breach of any of the usual covenants that are contained in a deed and which were contained in this deed.”
Further considering the effect of misrepresentations, the court said:
“If the statement was made only as an expression of opinion, or if it was not made in a manner so as to induce the other to act in reliance thereon, then such representation, even though not true, would not. be sufficient to base an action thereon for deceit.”
Where a lease contract describes land as so many acres more or less it is construed as one' not by the acre, but in gross, as stated in Cox v. Fisher, 146 Ark. 223, 225 S. W. 305, and other decisions of this court. In such cases we have many times held that an action will not lie for a breach of covenant or warranty of the quantity of land but that an action will lie for fraud or misrepresentation by which the lessee was misled to his damage. See Brown v. LeMay, supra. This rule was announced in Mobbs v. Burrow, 112 Ark. 134, 165 S. W. 269; English v. North, 112 Ark. 489, 166 S. W. 577; Cady v. Rainwater, 129 Ark. 498, 196 S. W. 125; Troyer v. Cameron, 160 Ark. 421, 254 S. W. 688, and Gilbertson v. Clark, 175 Ark. 1118, 1 S. W. 2d 823.
Finding no reversible error, the judgment of the lower court is affirmed.
Justice McFaddin concurs. | [
118,
108,
-36,
12,
-102,
96,
40,
-100,
75,
-94,
-10,
87,
-23,
86,
28,
37,
-94,
109,
65,
104,
-121,
-77,
54,
98,
-48,
-13,
-39,
69,
60,
77,
-28,
87,
12,
44,
-62,
21,
-62,
-22,
-51,
24,
-114,
-91,
-83,
108,
-35,
81,
52,
63,
52,
75,
49,
-121,
-13,
44,
21,
75,
104,
40,
-7,
41,
-47,
112,
-102,
-124,
127,
22,
16,
5,
-80,
73,
74,
110,
-112,
49,
9,
-56,
115,
38,
-122,
116,
15,
-103,
-116,
-90,
102,
33,
76,
-33,
-8,
-56,
15,
-10,
13,
-92,
-48,
88,
3,
64,
-100,
-100,
82,
84,
-122,
-12,
-15,
13,
25,
108,
19,
-53,
-108,
-125,
111,
-28,
-102,
27,
-25,
47,
-79,
112,
-113,
-90,
92,
103,
114,
-97,
-113,
-39
] |
G-rifetn Smith, Chief Justice.
Kenneth L. and Wilma Lucas were divorced May 21, 1951, when their only child, Nick Alvin, was slightly more than three years of age. Wilma married Kenneth when she was seventeen. Decretal findings were that Wilma had been guilty of abuse; contempt, and studied neglect. By consent custody of the boy was awarded the mother.
Charles Gr. Bishop, whose wife divorced him July 23, 1951, married Wilma two days later.
In June,’1951, Lucas sought an order divesting* Wilma of the custody to which he had agreed. He as serted that facts not known to him when the decree was rendered had come to his attention. The chancellor entered an order in substantial compliance with Lucas’ petition. Wilma appealed and we reversed. Bishop v. Lucas, 220 Ark. 871, 251 S. W. 2d 126.
In September, 1953, Lucas as “next friend” of his son sued Bishop for $50,000. It was alleged that prior to the divorce action brought by Lucas, Nick Alvin enjoyed a comfortable, happy home, but Bishop made clandestine visits in the course of which he enticed the child’s mother to such an extent that her domestic affections were alienated; that following the Lucas divorce Bishop persuaded Wilma to establish a residence at Mabelvale “. . . where he continued his malicious and wrongful conduct in alienating the affections of the plaintiff’s mother from his father, [and for these reasons] Nick Alvin has been deprived of [the type of home heretofore referred to], the parental care of his mother and father in their home, [also] the financial security he was being afforded prior to such alienation of his mother’s affections, and in all probabilities will be deprived of financial support and security he would have gotten in the future.
A further allegation was that the defendant had done everything within his power to wrongfully influence the boy against his father, thus creating an antagonistic attitude.
Bishop demurred to the complaint. Wilma Bishop, as mother, natural guardian, and next friend of Nicky Alvin, moved to dismiss. This action was the equivalent of an intervention in which Bishop joined, and was sworn to by Wilma. The child, it was asserted, is with its mother and his stepfather in their recreated matrimonial status, where all of its necessities and conveniences are supplied, and where mother love touches the child’s life in all of its phases.
From orders sustaining Bishop’s demurrer and granting the joint motion to dismiss Lucas has appealed.
Common sense and some knowledge of the practical affairs of life inform ns that six-year-old Nick Alvin did not initiate this suit. Lncas, who through unfortunate circumstances has been deprived of the custody of his son — an arrangement that when made involved mutuality —now feels that the judiciary ought to shape for the boy’s benefit a financial substitute for the conventional home environment that children have a right to expect from those who brought them into existence.
Unfortunately the wrong here emphasized is one that has not been legislatively translated into dollar compensation in this state; nor does the common law supply a plaintiff’s answer. The general rule regarding the right of a divorced husband or wife to sue for lost love because of acts or conduct subsequent to the decree seems to be that what is sometimes referred to in this character of proceedings as affection is non-existent, hence there was nothing to alienate.
The effect of Lucas’ suit is to assert that Nick Alvin had a vested interest in the marital status of his father and mother with the inherent right to have that relationship maintained for his personal benefit, — an affiliation .that presumptively would have continued until the plaintiff was twenty-one years of age had it not been for Bishop’s wrongful interference.
At the 1951 divorce trial Lucas testified that Wilma was a good mother and that she invariably took good care of her son — ‘ ‘ always, ’ ’ he said. The alienation for which compensation is now sought, therefore, is not Nick Alvin’s loss of his mother’s love; rather, it is the father’s loss of Wilma’s affections and their son’s supposed legal right to be reared in an atmosphere of reciprocal concern.
Appellant calls attention to Art. 2, § 13, of the Arkansas constitution: ‘ ‘ Every person is entitled to a certain remedy in the law for ¿11 injuries and wrongs he may receive in his person, property, or character. . . . ”
! The argument is that unless relief is granted by this court'it is apparent that appellant will be without a rem edy and that he will be deprived of just rights without due process of law.
But the difficulty is that in this state there is no statutory law to which recourse may be had, and the common law is not helpful, hence “denial of due process” is rhetorical rather than substantive.
Three states — Illinois, Michigan, and Minnesota, and a Federal court in Illinois — have applied the rule appellant would invoke. Perhaps the foundation case is Daily v. Parker, 7 Cir., 152 Fed. 2d 174, 162 A. L. R. 819. The determination that a child’s rights should be protected by transumptive reasoning supported by the Illinois bill of rights found expression in the Daily-Parker opinion delivered in 1945. The federal tribunal said that when a state had not declared the law on a particular subject it had power to do so. Since that time the precedent has been followed by Illinois state courts.
The Daily-Parker case quotes at length from Dean Pound’s Spirit of the Common Law, stressing the thesis that Anglo-American law “is fortunate indeed in entering upon a new period of growth with a well-established doctrine of lawmaking by judicial decision.” The process, says the author, is known as “judicial empiricism.” Also relied upon are quotations from Pollock’s 1939 edition of Torts, and Cooley’s Third Edition of Torts, ‘ ‘ Family Rights, ’ ’ p. 464.
Counsel for appellant concede that the Daily-Parker case and the Illinois, Michigan, and Minnesota decisions represent minority views against which are to be considered opinions in California, Colorado, Connecticut, Massachusetts, New Jersey, New York, North Carolina, Texas, Wisconsin and the IT. S. Court of Appeals for. the District of Columbia. An annotation on Daily v. Parker is to be found in 162 ALR, 819. There is editorial comment.
In Henson v. Thomas, 231 N C. 173, 56 S. E. 2d 432, 12 A. L. R. 2d 1171, the Supreme Court of North Carolina said: “The mutual rights and privileges of home life grow out of the marital status. Affection, guidance, companionship, loving care, and domestic service constitute, in part, the mother’s contribution to the happiness and well-being of the family circle. Such obligations on her part are not legal in nature and may not be made the subject of commerce and barter at the counter.”
The creation of a right of action for a child’s benefit to compensate for loss of the intangible elements set out in the complaint here is a subject that addresses itself to the state’s policy-forming department. Until the legislature has seen fit to designate the redress which, under Art. 2, § 13, of the constitution it has a right to do, the judiciary should not transgress the coordinate boundary established by Art. 4, § 1, of the constitution: “The power of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confined to a separate body of magistracy, to-wit :• Those which are legislative to one, those which are executive to another, and those which are judicial to another; [and, § 2] no person or collection of persons, being of' one of these departments, shall exercise any power belonging to either of the others. . . .”
By this decision we do not wish to leave the impression that in no circumstances of affirmative aggravation or wanton misconduct affecting an infant that a third person could not be adjudged to have designed a course of conduct upon which a cause of action might be predicated under existing methods of redress. But we do hold that in the case at bar Lucas as next friend has not shown that financial compensation for the things complained of has been authorized by any law, and we are not persuaded that judicial empiricism is the answer.
Affirmed.
Webster’s New International Dictionary gives the term a variety of meanings.
First: “The method or practice of an empiric, as (a) pursuit_of knowledge by observation and experiment; (b) a practice of medicine founded on mere experience, without the aid of science or a knowledge of principles; (c) ignorant and unscientific practice; charlatanry; quackery; (2) the philosophical theory which attributes the origin of all our knowledge to experience, applied specially to British philosophy from Locke to Hume.” | [
-80,
108,
-20,
108,
26,
33,
10,
60,
26,
-125,
117,
-45,
-17,
103,
4,
109,
-33,
111,
81,
107,
-45,
-93,
86,
-96,
-112,
-13,
-7,
-35,
-75,
125,
-3,
-9,
76,
48,
-102,
-99,
98,
-53,
-55,
84,
-58,
18,
-88,
-52,
89,
6,
54,
61,
-110,
15,
21,
-66,
-45,
10,
53,
123,
-84,
44,
91,
62,
-44,
57,
-114,
22,
-51,
119,
-107,
34,
-105,
-89,
72,
40,
-116,
-79,
-96,
-24,
123,
-76,
-126,
-12,
69,
-117,
8,
96,
98,
0,
-43,
-25,
-72,
-104,
78,
105,
-99,
-90,
-97,
64,
96,
33,
-65,
-72,
100,
80,
43,
122,
-22,
-52,
30,
96,
40,
-117,
86,
-95,
-99,
-72,
-116,
0,
-29,
-25,
32,
116,
-53,
-94,
92,
69,
57,
-109,
-106,
-112
] |
Ed. F. McFaddin, Justice.
This case is a boundary line dispute with nuisance issues subsequently added. The parties are adjacent property owners in the City of Lewisville.
Appellee Smithy filed suit to enjoin appellant Short from moving the existing boundary fence to a point that would encroach two feet on Smithy’s land. By amendment, Smithy alleged: (a) that Short had erected and put into use three open toilets which were nuisances; and (b) that Short had piled large concrete blocks near another portion of the fence with the result that rats infested the neighborhood and constituted another nuisance. The prayer of the amendment was that the nuisance be abated by requiring Short to remove the open toilets and the concrete blocks.
Short claimed: (a) that where he proposed to erect the new fence was the true line; (b) that the open toilets and concrete blocks were a lawful use by him of his property; and (c) that he was entitled to damages. The Chancellor heard the witnesses ore tenus, made a personal inspection of the premises, and rendered a decree in favor of Smithy on all issues. To reverse the decree, Short brings this appeal.
I. The Boundary Line. There was preponderating testimony showing that about 13 years ago Smithy and Short had the boundary line surveyed, and Short erected a fence on the surveyed line, which has so remained through all the years as the accepted boundary. This evidence brings the case clearly within our holdings in such cases as Robinson v. Gaylord, 182 Ark. 849, 33 S. W. 2d 710; Gregory v. Jones, 212 Ark. 443, 206 S. W. 2d 18; Harris v. Mooney, 211 Ark. 61, 199 S. W. 2d 319; Seidenstricker v. Holtzendorff, 214 Ark. 644, 217 S. W. 2d 836; and Peebles v. McDonald, 208 Ark. 834, 188 S. W. 2d 289. In the last cited case there is a long list of Arkansas cases supporting this statement:
“Where there is a doubt or uncertainty, or a dispute has arisen, as to the true location of a boundary line, the owners of the adjoining lands may, by parol agreement, fix a line that will be binding upon them, al though their possession under such agreement may not continue for the full statutory time.”
It is true that Short and his witnesses testified that the fence was not on the true line, but the preponderance of the evidence supports the Chancellor’s finding that the agreed line has been recognized by both parties for many years.
II. The Nuisances. The Chancellor said in his opinion:
‘ ‘ The court viewed the premises, and it is apparent that these outdoor toilets or privies are located near the boundary line of the defendant’s property, with the back or the rear end of said privies facing the kitchen or the house of plaintiff, W. A. Smithy, and located only a few feet therefrom. The court finds that this property is situated on or near a sewer line, and it is the finding of the court that the defendant, T. C. Short, should be required to remove said privies from this property immediately.
“And in regard to the concrete blocks or boulders which the defendant, Short, has piled up adjacent to the fence on the boundary line between the properties of plaintiff and defendant, the court finds that the same as now situated do constitute a nuisance and should be removed. It will also be the order of the court, therefore, that the defendant be required to remove this concrete and other debris which is causing said nuisance.”
The preponderance of the evidence supports the Chancellor’s statements. The open toilets are breeding places for flies and noxious odors, and the concrete blocks are a breeding place for rats. Short says that there are other open toilets in the same neighborhood; but such fact does not make Short’s toilets any less of a nuisance. The city sewer line, to which he could connect, is only 150 feet from his property. He can connect his toilets with the sewer line and thus eliminate the nuisance to his neighbors’ property and still have full use of his own property.
In Yates v. Mo. Pac., 168 Ark. 170, 269 S. W. 353, 38 A. L. R. 1434, we said:
“The maxim, ‘use your own property so as not to injure another, ’ is peculiarly applicable in nuisance cases. If one does an act, in itself lawful, which yet, being done in that place, necessarily tends to the damage of another’s property, it is a nuisance; for it is incumbent on him to find some other place to do that act, where it will be less offensive. Lewis’ Blackstone’s Oom., Vol. 2, p. 218.'
“In discussing the question in Baltimore & Potomac Rd. Co. v. Fifth Baptist Church, 108 U. S. 317, 2 S. Ct. 719, 27 L. Ed. 739, Mr. Justice Field, who delivered the opinion of the court, said: ‘ That is a nuisance which annoys and disturbs one in possession of his property, rendering its ordinary use or occupation physically uncomfortable to him. For such annoyance and discomfort the courts of law will afford redress by giving damages against the wrong-doer, and, when the causes of annoyance and discomfort are continuous, courts of equity will interfere and restrain the nuisance. ’ ”
The decree is in all things affirmed.
See. 19-4125, et seq., Arle. Stats., empowers cities to require sewer connections, but the City of Lewisville does not appear to have an ordinance on the matter.
To the same effect see also Bickley v. Morgan Utilities, 173 Ark. 1038, 294 S. W. 38; and Yaffe v. Ft. Smith, 178 Ark. 406, 10 S. W. 2d 886. | [
117,
-4,
-4,
76,
24,
65,
56,
-84,
107,
-71,
-27,
87,
-81,
72,
84,
113,
-61,
125,
81,
41,
-43,
-77,
67,
102,
50,
-45,
-110,
85,
-68,
77,
108,
-33,
72,
37,
-54,
-99,
70,
-32,
-17,
-36,
-98,
43,
-117,
109,
-47,
64,
46,
43,
80,
79,
53,
-100,
-14,
-84,
25,
-63,
72,
44,
-55,
44,
80,
123,
-70,
13,
126,
22,
3,
-89,
-70,
37,
106,
10,
-112,
49,
-124,
-24,
115,
38,
-106,
116,
77,
-103,
44,
-32,
98,
10,
9,
-1,
-96,
-104,
12,
-37,
-115,
-90,
-78,
8,
11,
32,
-66,
-111,
125,
80,
6,
126,
-26,
-123,
91,
108,
-90,
-82,
-108,
-77,
7,
-104,
-108,
-93,
-29,
39,
49,
113,
-49,
-26,
94,
71,
19,
91,
-114,
-56
] |
Minor W. Millwee, Justice.
Petitioners are residents of Columbia and Union counties and seek a writ of prohibition against a judge of the Pulaski Circuit Court to restrain said court from proceeding with the trial of a certain action there pending in which petitioners were made party defendants.
The record discloses that the Receiver of Allied Underwriters, an insolvent Texas reciprocal inter-insurance exchange, filed suit in the Circuit Court of Pulasld County, Arkansas, to recover certain assessments levied against more than 100 Arkansas policyholders in said exchange or company. Said assessments are in different amounts and the separate judgments sought against each of the defendants are based upon separate contracts of insurance. Thirteen of said defendants reside in Pulaski County and were served with summons in said county. The remaining defendants, including the petitioners, áre non-residents of Pulaski County. Petitioners were served with summons issued out of Pulaski County but in their respective counties of Columbia and Union by the respective sheriffs of said counties.
The complaint filed by the Receiver in Circuit Court alleges venue and jurisdiction to be in Pulaski County as to all defendants for the reason that 13 of them reside in Pulaski County; and that the suit is maintainable in said county against the remaining non-resident defendants under Ark. Stats. Secs. 27-806 and 27-811, “because each of said defendants is a party to this cause and all of them are severally liable upon the same obligation or instrument as hereinafter alleged, and by reason of the fact that plaintiff is entitled to relief severally against each of such defendants for amounts within the jurisdiction of this Court under and arising out of the same transaction, occurrence, and series of transactions and occurrences, and questions of law and fact common to all of the defendants will arise in this action, all as is hereinafter more fully alleged.” There is attached to the complaint a copy of a “Subscriber’s Agreement” which it is alleged petitioners either entered into or by which they are otherwise bound, and which provides that the subscribers shall have no joint funds or stock, and that no subscriber shall be bound for the obligation of any other subscriber.
The complaint filed in circuit court also sets out the name and residence of each of the defendants, the number of the separate policy or policies issued to each, the period said policy was in force, and the amount of the annual premium alleged to he due on each of said policies. The prayer of the complaint is for separate judgments against each defendant in the different amounts- set forth opposite the name of each such defendant.
Motions to quash service were duly filed by the several petitioners in Circuit Court alleging that the attempted service upon them in Columbia and Union Counties was void and the Pulaski Circuit Court without jurisdiction because only separate, individual, and not joint, causes of action were sought against them in the suit. After a hearing and upon the entry of an order by the Circuit Court denying the motions to quash service, petitioners filed the instant application for a writ of prohibition.
It is the contention of petitioners that under our venue statutes as construed by this court, there must be a.joint liability between them and some of the defendants who are residents of Pulaski County in order for the Pulaski Circuit Court to have obtained jurisdiction over them in a transitory action such as the one involved here. It is undisputed that the Receiver claims only separate or several liability against petitioners, and not joint, common or equal liability, in the suit in Pulaski Circuit Court.
Beginning' in 1911 with the case of Wernimont v. State, 101 Ark. 210, 142 S. W. 194, this court has repeatedly held that in order to obtain judgment against á defendant in a county other than that in which a suit is brought on a transitory action, said defendant must be jointly liable with a defendant who resides or is summoned in the county where the suit is filed. Some of the subsequent cases to the same effect are: Hoyt v. Ross, 144 Ark. 473, 222 S. W. 705; Metzer v. Mann, 183 Ark. 40, 34 S. W. 2d 1069; Coca-Cola Bottling Co. v. Swilling, 186 Ark. 1149, 57 S. W. 2d 1029; and Terry v. Plunkett-Jarrell Grocer Co., 220 Ark. 3, 246 S. W. 2d 415, 29 A. L. R. 1264.
In construing certain sections of our venue statutes, which, now appear as Ark. Stats. Sees. 27-613 and 27-615, this court said in the "Wernimont case: “It is the policy and spirit of our law, enacted into statute by our Legislature, that every defendant shall be sued in the township or county of his residence. To this general principle there are statutory exceptions, chiefly in cases where there is a joint liability against two or more defendants residing in different counties. In such cases it is provided that suits may be brought in the county of the residence of any of the defendants, and service of summons can then be had upon the other defendants in any county, thereby giving jurisdiction over their persons to the court wherein the suit is thus instituted. Kirby’s Digest, § 6072 and 4558 [Ark. Stats. 27-613 and 26-304] But, before this jurisdiction can be acquired by virtue of these statutes over the person of such defendants nonresident of. the county wherein the suit is instituted, it is essential that the defendant resident of the county where the suit is brought shall be a bona fide defendant. By our statute, it is further provided that, before judgment can be had against such nonresident defendants, a judgment must be obtained against the resident defendant. Kirby’s Digest § 6074 [Ark. Stats. 27-615]”. (Italics supplied.)
But respondent earnestly contends that the foregoing cases were in effect overruled by our decision .in Gibson v. Talley, 206 Ark. 1, 174 S. W. 2d 551, and that “joint liability” is no longer necessary for a court to establish proper venue and jurisdiction over the defendant petitioners in the circumstances presented here. That case dealt with the question whether the maker and endorser of a promissory note could be joined in one suit -where they resided in different counties and service of summons was obtained on each in the county of his residence. We there held the rule of “joint liability” inapplicable in such case in view of Ark. Stats. Sec. 68-811 which makes the maker and endorser of a promissory note “equally liable” and subject to joint suit thereon. In so holding we overruled Lingo v. Swicord, 150 Ark. 384, 234 S. W. 264, which had held to the contrary. We also criticized former use of the term “joint liability” in certain cases in the sense of liability of the same grade and weight instead of common liability on the same cause of action, but expressly limited our holding to a case involving the maker and endorser of a promissory note.
In applying the rule announced in the Wernimont case in Myers v. Lillard, 215 Ark. 355, 220 S. W. 2d 608, we again used the term “joint liability.” Also in Terry v. Plunkett-Jarrell Grocer Co., supra, decided in 1952, we said: ‘ ‘ Thus, before a cause may be prosecuted against a defendant outside the county of his residence, there must be a resident defendant or a defendant summoned in the county in which the suit is brought, against whom there is a bona fide claim of joint liability.” Neither of these cases involved negotiable instruments.
Respondent also insists that proper venue and jurisdiction over petitioners in the circuit court action are afforded by reason of the provisions of Ark. Stats. Secs. 27-806 and 27-811. It should be noted that these statutes do not relate to venue but appear in our statutes under the heading of “Parties” while Sees. 27-613 and 27-615, supra, appear under the heading “Venue.” It is true that under § 27-806 parties who are only severally liable may be joined as party defendants in one action but this does not mean that a court acquires jurisdiction over the person of such parties in the absence of proper service upon them as provided in our venue statutes. Although petitioners may properly be joined as party defendants in the Pulaski Circuit Court action this does not mean that the court has jurisdiction to proceed against them in the absence of valid service of process upon them in Pulaski County.
Respondent also relies on Means v. Marshall, 210 S. W. 2d 604, where the Texas Court of Civil Appeals, on facts and under venue statutes similar to those involved here, held that in order to maintain a suit against a non-resident defendant, the plaintiff need only allege and prove that his cause of action against the resident defendant is intimately connected with the cause of action against the non-resident defendant even if their liability is only several. In so holding the Texas Court followed previous interpretations of their venue statutes different from that adopted by this court in construing our own statutes.
We still adhere to the general principles announced in the Wernimont case and hold that, in a case such as the one pending in Pulaski Circuit Court, defendants in the position of petitioners are not subject to the jurisdiction of that court on the service upon them in their respective counties unless they are jointly liable with a defendant who resides or is summoned in Pulaski County. Again, we use the term “jointly liable” in the sense that there must be a common liability of the defendants on the same cause of action. It is clear from the complaint filed in Circuit Court that only several liability is alleged against petitioners and that separate judgments are sought against each defendant for a different debt based on separate policies of insurance.
The writ of prohibition is therefore granted restraining the Pulaski Circuit Court from proceeding further in the causes against these petitioners until and unless proper service is had upon them.
Sec. 27-613, provides: “Every other action my be brought in any county in which the defendant, or one- of several defendants, resides, or is summoned.” Sec. 27-615 reads: “Where any action embraced in section 96 (27-613), is against several defendants, the plaintiff shall not be entitled to judgment against any of them on the service of summons in another county than that • in which the action is brought, where no one of the defendants is summoned in that county, or resided therein at the commencement of the action, or where, if any of them resided, or were summoned in that county, the action is discontinued or dismissed as to them, or judgment therein is rendered in their favor, unless the defendant summoned in another county, having appeared in the action, failed to object before the judgment to its proceeding against him.”
Sec. 27-806 is Sec. 1 of Act 334 of 1941, which reads in part: “All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiff’s according to their respective rights to relief, and against one or more defendants according to their respective liabilities.” Sec. 27-811 was § 34 of the Civil Code and reads: “Persons severally liable upon the same contract, including parties to bills of exchange, promissory notes’ placed upon the footing of bills of exchange, common orders and checks, and sureties on the same or separate instrument, may all, or any of them, or the representatives of such as may have died, be included in the same action, at the plaintiff’s option.”
Reciprocal or Inter-insurance is defined in 29 Am. Jur., Insurance, § 16, as follows: “By the term ‘reciprocal insurance’, or ‘inter-insurance’ or ‘interindemnity’, as it is sometimes called, is meant that system whereby -individuals, partnerships, or corporations, engaged in a similar line of business, undertake to indemnify each other against a certain kind or kinds of losses by means of a mutual exchange of insurance contracts, usually through the medium of a common attorney in fact appointed for that purpose by each of the underwriters, under agreements whereby, as among themselves, each member separately becomes both an insured and insurer with several liability only. Thus, while the reciprocal system of insurance resembles both Lloyds and mutual insurance, it differs materially from both. For instance, in Lloyds all the underwriting members are insurers, but all are not insured, whereas in reciprocal insurance all the members are both insurers aud insured. Under the latter system, there is only a separate and several liability, whereas the liability of members of mutual companies is joint and several. Again, mutual companies often are incorporated, whereas reciprocal associations or exchanges have no corporate existence, although the attorney as such often does become incorporated.” | [
52,
-20,
-11,
60,
-120,
-15,
56,
-94,
91,
-93,
101,
83,
-19,
-28,
85,
57,
-29,
107,
113,
121,
85,
-74,
121,
66,
-30,
-77,
41,
-59,
-72,
79,
-28,
-41,
89,
49,
-86,
85,
-124,
-32,
-91,
28,
-118,
0,
-117,
108,
-39,
-56,
48,
-21,
16,
11,
53,
-105,
-14,
45,
16,
74,
45,
44,
89,
-83,
81,
-46,
-102,
87,
-1,
7,
1,
4,
-104,
3,
80,
10,
-104,
49,
0,
-24,
115,
38,
-122,
117,
11,
-103,
13,
36,
102,
35,
-95,
-81,
-84,
-120,
54,
-2,
-103,
-122,
-94,
105,
43,
12,
-73,
-99,
92,
16,
-121,
-10,
-70,
20,
25,
104,
-123,
-50,
-106,
-91,
-51,
-31,
28,
51,
-25,
79,
48,
85,
-55,
-14,
118,
71,
49,
-101,
-114,
-79
] |
JIM HANNAH, Chief Justice.
Appellants Lili Mitchell Davis, Rose M. White, Jack D. Wilson, Dennis Burnett, Wayne Nunnerly, and Owen Honeysuckle appeal the order of dismissal in favor of appellee Brushy Island Public Water Authority of the State of Arkansas (Authority), formerly known as Brushy Island Water Association, Inc. (Association). On appeal, the appellants contend that the circuit court erred in dismissing their claims under the doctrines of claim preclusion, issue preclusion, and mootness. We affirm.
Appellants are members of the former Brushy Island Water Association, Inc. They filed a complaint seeking to invalidate the July 15, 2003 vote whereby the Association was converted to the Authority-
The present action is the second case challenging the validity of the conversion vote. Previously, former members of the Association sued the Authority and its directors, seeking a declaration that the vote to convert the Association from a nonprofit corporation into a water authority was void and invalid. See Williams v. Brushy Island Pub. Water Auth., 368 Ark. 219, 243 S.W.3d 903 (2006). The circuit court granted the Authority’s motions (1) for summary judgment, (2) to strike an amendment to the Association’s complaint, and (3) to appoint a receiver for the Authority. See id. We affirmed the circuit court’s decision in its entirety. See id.
While the appeal in the Williams case was pending, the appellants in the instant ease filed a complaint for declaratory judgment in the circuit court on January 10, 2006. In the complaint, the appellants requested, in relevant part, that the circuit court declare (1) that the July 15, 2003 vote of Association members to convert the Association to the Authority failed to carry a two-thirds majority as required by Arkansas Code Annotated section 4-28-225(a)(2) (Supp.2003), (2) that the Authority has no existence because the membership conversion vote failed to carry by a two-thirds majority, and (3) that the Authority does not have corporate existence. The circuit court dismissed the appellants’ complaint, pursuant to Arkansas Rule of Civil Procedure 12(b)(8), finding that the appellants’ complaint and the then-pending Williams case were “between the same parties arising out of the same transaction or occurrence.” The appellants did not appeal from this order, nor did they seek to intervene in the Williams case. In addition, the appellants did not seek a stay of the order in the Williams case appointing CAW as receiver. Therefore, during the pendency of the appeal, CAW moved forward with the improvements directed by the order.
Following the issuance of this court’s decision in the Williams case, the appellants again filed a complaint for declaratory judgment on December 22, 2006, requesting that the circuit court find and declare that the vote to convert did not receive a two-thirds vote of the members present at the meeting and, pursuant to Arkansas Code Annotated section 4-28-225(a)(2), the vote failed, and the Association was not properly converted to the Authority. Accordingly, the appellants requested that the circuit court find and order that the Authority has no existence and that the Association continues to exist in the form that it held prior to the July 15, 2003 vote. On October 8, 2007, the Authority moved for summary judgment on the grounds of res judicata and mootness. On March 5, 2008, the circuit court dismissed the complaint with prejudice. The appellants now bring this appeal.
As a threshold matter, we must determine whether the appellants’ complaint should have been dismissed under the doctrine of mootness, as the Authority contends. The Authority claims that the complaint for declaratory judgment is moot because it is clear from the receivership order that the circuit court’s decision to appoint a receiver had nothing to do with whether the assets in question were owned by a water association or a water authority. The Authority asserts that even if a court were to enter judgment declaring the conversion vote invalid, the facilities of the former Association are, and will continue to be, in receivership, pursuant to the order in the Williams case. The appellants assert that the Authority offered no evidence of facts, events, or occurrences that have transpired during the course of this litigation or in the course of the 2003 suit, including the Williams appeal, from which the circuit court could conclude that the issue of the passage of the conversion vote by the statutorily mandated two-thirds majority would have no practical legal effect on the outcome of this litigation. We disagree.
As a general rule, the appellate courts of this state will not review issues that are moot. See Cotten v. Fooks, 346 Ark. 130, 55 S.W.3d 290 (2001). To do so would be to render advisory opinions, which this court will not do. See id. We have generally held that a case becomes moot when any judgment rendered would have no practical legal effect upon a then-existing legal controversy. See id.
In this case, the appellants filed a complaint for declaratory judgment, seeking, in relevant part, that the circuit court: (1) declare that the July 15, 2003 vote of the Association members to convert the Association to the Authority failed to carry by a two-thirds majority, as required by Arkansas Code Annotated section 4 — 28—225(a)(2); (2) declare that the Authority has no existence because the July 15, 2003 Association membership vote failed to carry by a two-thirds majority; and (3) declare that the Brushy Island Public Water Authority was not properly constituted and does not, therefore, have corporate existence.
The appellants’ complaint is moot because any judgment rendered by the circuit court would have no practical legal effect upon the case. In its October 18, 2005 order appointing CAW as receiver, the circuit court found that Brushy Island lacked sufficient management or staff to adequately serve the needs of Brushy Island customers and that Brushy Island lacked the necessary infrastructure to provide Brushy Island customers with adequate fire service protection. The circuit court also noted that the Arkansas Department of Health and Human Services had cited Brushy Island for several violations of the rules and regulations pertaining to public water systems and the national primary drinking water regulations. Accordingly, the circuit court found that it was in the best interest for Brushy Island customers that CAW be appointed as receiver for Brushy Island. In the order of receivership, the circuit court expressly empowered and authorized CAW to perform any of the following duties:
a. to take possession and control of the Assets and any and all proceeds, receipts, and disbursements arising out of or from the Assets;
b. to receive, preserve, protect, and maintain control of the Assets, or any part or parts thereof;
c. to manage, operate, and carry on the business of Brushy Island, including the power to enter into any agreements, incur any obligations in the ordinary course of business, lawfully cease to carry on all or any part of the business, or lawfully cease to perform any contracts of Brushy Island;
d. to engage consultants, appraisers, agents, experts, auditors, accountants, managers, counsel, and such other persons from time to time on whatever basis, including on a temporary basis, to assist with the exercise of the powers and duties conferred by this Order;
e. to settle, extend, or compromise any indebtedness owing to Brushy Island;
f. to purchase or lease such machinery, equipment, inventories, supplies, premises, or other assets to continue the business of Brushy Island or any part or parts thereof;
g. to execute, assign, issue, and endorse documents of whatever nature in respect of any of the Assets, whether in the name of CAW, as a receiver, or in the name and on behalf of Brushy Island, for any purpose pursuant to this Order;
h. to initiate, prosecute, and continue the prosecution of any and all proceedings and to defend all proceedings now pending or hereafter instituted with respect to Brushy Island, the Assets, or CAW, as receiver for Brushy Island, and to settle or compromise any such proceedings. The authority hereby conveyed shall extend to such appeals or applications for judicial review in respect of any order or judgment pronounced in any such proceeding;
i. to market any or all of the Assets that are not necessary for the operation of Brushy Island, including advertising and soliciting offers in respect of the Assets or any part or parts therefor and negotiating such terms and conditions of sale as CAW, as receiver, in its discretion may deem appropriate;
j. to sell, convey, transfer, lease, or assign the Assets or any part or parts thereof out of the ordinary course of business, (i) without the approval of this Court in respect to any transaction not exceeding fifty thousand dollars ($50,000), provided that the aggregate consideration for all such transactions does not exceed two hundred and fifty thousand dollars ($250,000); and (ii) with the approval of this Court in respect of any transaction in which the purchase price or the aggregate purchase price exceeds the applicable amount set out in the preceding clause;
k. to apply for any permits, licenses, approvals, or permissions as may be required by any governmental authority and any renewals thereof for and on behalf of and, if thought desirable by CAW, as receiver, in the name of Brushy Island; and
l. to take any steps reasonably incidental to the exercise of these powers.
In addition, the circuit court ordered CAW to contract for and begin improvements to the Brushy Island water system so that the system would meet standards for water systems operated by CAW. Specifically, CAW was ordered to install improvements, detailed in the order as follows:
The Improvements consist of the installation of approximately 4400 Linear Feet (LF) of 24-inch Ductile Iron (DI) pipe, 4900 LF of 12-inch DI pipe, 4900 LF of 8-inch DI pipe, 4300 LF of 3-inch PVC pipe, and 5900 LF of 2-inch PVC pipe and appurtenances. The Improvements will also include the installation of 10 new Fire Hydrants, 320 new service meters and Pressure Regulators, as well as repair and/or replacement of existing service lines as required.
The order stated that Brushy Island customers would be responsible for paying the debt to finance the improvements and that the debt would be recouped as a surcharge on utility bills each month.
Whether CAW is receiver for a water association or a water authority, it is still receiver for the assets of Brushy Island pursuant to the October 18, 2005 order. The record reveals that the improvements opposed by the appellants are substantially completed. The debt incurred by Brushy Island to finance the improvements is still in effect, pursuant to the October 18 order, and the customers are still obligated to pay certain amounts each month as a surcharge to repay the debt for the improvements.
Based on the foregoing, we hold that any judgment rendered on the conversion vote would have no practical legal effect upon the former Association because its facilities are now subject to receivership. The circuit court was correct in dismissing this case under the doctrine of mootness. Because we so hold, we need not address the appellants’ remaining arguments.
Affirmed.
. We have recognized two exceptions to the mootness doctrine. The first exception involves issues that are capable of repetition, yet evade review. Honeycutt v. Foster, 371 Ark. 545, 268 S.W.3d 875 (2007). The second exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Id. The appellants do not contend that either exception applies. | [
52,
-4,
-4,
-20,
8,
-27,
48,
-106,
67,
-93,
-27,
83,
-85,
83,
28,
75,
-29,
125,
113,
89,
-57,
-73,
19,
64,
-58,
-45,
-7,
71,
-72,
92,
-11,
-34,
72,
49,
-54,
-35,
86,
-54,
-51,
92,
-26,
11,
11,
105,
65,
-57,
48,
-17,
18,
-113,
117,
-97,
-13,
45,
25,
66,
-54,
46,
-7,
52,
73,
56,
-116,
-97,
95,
20,
33,
36,
-101,
-125,
-30,
62,
-112,
48,
-119,
-24,
115,
-90,
-122,
-12,
15,
-103,
12,
98,
99,
3,
48,
-25,
-96,
-127,
6,
-97,
-99,
-26,
-108,
89,
67,
69,
-73,
-100,
124,
-106,
5,
118,
110,
-123,
29,
46,
-90,
-113,
-42,
-95,
-115,
-91,
-100,
3,
-21,
23,
48,
116,
-127,
-22,
93,
71,
50,
-33,
-114,
-48
] |
Kirby, J.
This is the second appeal of this case, the issue before was raised by demurrer and decided in appellees’ favor, the complaint being held sufficient. Cumbie v. St. Louis, I. M. & S. Ry. Co., 105 Ark. 406.
The suit was for damages to thirty-five ears of peaches shipped over appellant’s line from Greenwood, this State, to Cleveland, Ohio, and various other points, because of the negligent delay in transportation and failure to ice properly in transit.
The bill of lading issued by appellant, the initial carrier, provided: “Claims for damages must be reported by consignee in writing to the delivering line within thirty-six hours after the consignee is notified of the arrival of the freight at place of delivery. If such notice is not there given, neither this company nor any of the connecting or intermediate carriers shall be liable.”
This stipulation was pleaded in the complaint passed upon with an allegation that it was unreasonable and void and constituted a restriction or limitation upon the railway’s liability and without any allegation that the notice was given. But it was alleged in the amendment to the complaint that the delivering carrier examined said peaches upon arrival and knew for itself the condition of the consignment on delivery, and that its general agent, for such shipments, naming him, and its local agent at Greenwood, knew all the foregoing facts.
It was there held that the complaint was sufficient and that it was not necessary as a condition of recovery that the ¡shipper give the delivering carrier the notice of an intention to claim damages to the peaches since such carrier through its agents examined and knew the condition of the 'shipment .of peaches while in its possession at their destination, according to the allegations of the complaint, which were admitted by the demurrer. The court said, “Where the facts stated show that the delivering carrier had actual knowledge ¡of all the conditions that a written notice could give it, the written notice is not required and a provision requiring it under such circumstances would be unreasonable.”
It was also ¡held that it made no difference whether the provisions of the contract of shipment required the notice “of loss or damage to he given” or whether its language provided for written notice of an intention to claim damages, .the purport of these provisions ¡being .alike and having the same legal effect and also that they were not limitations upon or exemptions from liability of the carrier but only conditions precedent to recovery.
On this trial appellees introduced testimony in support of its allegation that the delivering carrier examined the shipment on .arrival at destination iand ascertained the damaged condition thereof. Such testimony was to the effect that 'the depot manager in one instance had an opportunity to see the condition of the fruit, although no employee of the railroad was with the .consignee When he inspected the car that had been opened for him before delivery. In .another, that no claim for damages was put in, but he notified the delivering carrier verbally that the car was in bad condition. Relative to another car, that it was the custom of the delivering carrier to inspect peaches before delivery and that one of the clerks did inspect it. In other instances, that .some yard clerk or some employee of the road saw the car unloaded and knew the damaged and rotten condition of the peaches.. 'The agents of the different delivering carriers, the local freight agents in .some instances and the agents to whom the notices of intention to claim damages should have been given, or to. whom they would finally have come, as well as the general freight claim agent of the appellant company, all testified that no notice in writing was given to the delivering carrier of the damaged condition of the .shipment of peaches nor of an intention to claim damages within thirty-six hours .after the arrival of the shipment and that they had no notice of any ,sudh damaged condition or intention to claim damages until the bringing of these suits. Said general claim agent .stated that he caused an investigation to be made of the handling of the thirty-five cars embraced in this suit and no written notice was given within thirty-six hours after the notice of arrival of cars at destination ¡or ¡at all upon the delivering lines, as to any claim for-damages ¡by tbe consignee to tbe agent of tbe delivering line. His first knowledge ¡of any such claim was the bringing of tbe siuit. That no exceptions or objections were made by tbe consignees at the time of tbe delivery of tbe Cars and tbat they were delivered upon receipts of tbe connecting carriers and tbe consignees, showing them to be in good order.
No attempt was made to show that any written notice was given to .any delivering carrier of 'an intention to claim damages within thirty-six hours of the arrival of tbe shipment, or at all, nor was any testimony introduced tending to show that the local agents of appellant at G-reenwood knew of any such material facts as .alleged in the complaint and they both testified that they had no knowledge of tbe peaches arriving in a damaged condition or that tbe appellee claimed damages on account thereof, until tbe filing of tbe ¡suit.
The court has not only frequently held that such a provision requiring tbe written notice of tbe intention to claim damages given to tbe delivering carrier is reasonable and a condition precedent bo recovery, but has so held in this case on the former appeal as already said. Such notice can only be dispensed with by ¡showing that tbe delivering carrier bad actual knowledge of the damaged condition of tbe shipment on arrival and necessarily that a claim therefor would be made. The purpose of requiring such notice to be given is to enable the carrier, while the occurrence is ireeent, to inform itself ¡of the actual ¡facts occasioning the loss or injury that it may protect itself against claims Which might be made upon it, •after such lapse of time as to make it difficult if not impossible, to ascertain the truth. St. Louis & S. F. Rd. Co. v. Keller, 90 Ark. 313; St. Louis, I. M. & S. Ry. Co. v. Furlow, 89 Ark. 404; St. Louis, I. M. & S. Ry. Co. v. Cumbie, 101 Ark. 172.
In this last cited case, the ¡consignee or his agent, declined to receive the .shipment, thinking it damaged in its entire value, and sent ¡a telegram to that effect to tbe con signor, a copy of which, was given to the delivering carrier and it was held that that was a sufficient compliance with the provision requiring written notice of .an intention to claim damages. The purpose of the ¡clause requiring notice would he utterly defeated and such requirement rendered ineffectual and worthless if it could be disregarded and a recovery had, notwithstanding the failure to give it, upon .the testimony of appellee introduced in the trial. The most it tends to show is that some agent or some employee of the delivering carrier saw, or could have seen, if he had endeavored to do so, the damaged condition of the shipment of peaches on arrival and delivery. Nowhere does any one of said witnesses say or intimate that he notified any agent of sudh carrier in authority that the shipment was so damaged, and that a claim for damages would be made. Of course, the delivering carrier could inspect for itself each oar load of perishable freight upon delivery to the consignee and .ascertain its condition, and if the testimony was sufficient to show that this had been done and that such carrier had actual 'knowledge of such damage as must cause a reasonable inference that a claim would be made therefor, it might be required to ■answer for such damage without the written notice. But here was a reasonable provision of its contract of carriage upon the compliance with which it had the right to rely ■and which was not attempted to be performed by the consignee who relies for his failure to give the notice upon the alleged fact that such carrier had actual knowledge of the damaged condition of the shipment on arrival at destination and must take notice that a. claim would be made for such damages.
The burden of proof was upon the shipper, Who failed to give the written notice, to show such actual ¡knowledge of the damaged condition of the shipment on arrival .and delivery to the consignee as would cause such delivering carrier to know that a claim for damages would be made, ¡that it might investigate and discover the true condition 'and protect itself against unjust claims.
■ The fact that some employee whose duties were not shown to include the investigation of such matters or to report to some agent in .authority ¡anything relating to ¡the condition of the shipment was present upon the delivery -and saw the damaged condition of the fruit shipped, or could have seen it, is not sufficient to show actual 'knowledge upon the part of the delivering carrier that would excuse the failure to give ¡the written notice of intention to claim damages as a condition precedent, to recovery. It might he that some employee or some .agent who had no duty whatever relative to such matters could he present and see the shipment ¡and know of its damaged condition, and still the agents or employees, whose duties required attention to such matters, never be informed about it.
The proof is not sufficient to support the findings and judgment. The judgment is therefore reversed ¡and the cause having been fully developed, must be dismissed. It is so ordered. | [
-80,
108,
-35,
-115,
58,
96,
58,
-70,
96,
-95,
38,
83,
-51,
-41,
-99,
99,
-9,
121,
85,
58,
116,
-89,
15,
-62,
82,
-45,
-29,
-58,
-75,
107,
110,
-10,
77,
36,
10,
21,
-25,
-62,
-63,
-100,
-18,
35,
-119,
-19,
121,
64,
36,
120,
28,
79,
48,
-50,
-13,
46,
24,
71,
43,
45,
-23,
37,
-64,
-31,
-69,
15,
63,
6,
50,
100,
-99,
39,
-24,
15,
-120,
49,
17,
-87,
80,
-89,
-122,
116,
43,
-103,
8,
98,
103,
32,
5,
-17,
-114,
-72,
38,
-2,
-97,
-90,
-76,
8,
11,
97,
-66,
29,
52,
0,
-91,
126,
-6,
5,
27,
52,
3,
-126,
-76,
-78,
39,
-12,
-98,
7,
-21,
-105,
18,
117,
-52,
-94,
92,
71,
54,
-101,
-98,
-38
] |
Kirby, J.,
(after stating the facts). The appellant contends that there was no negligence shown for which it was responsible, causing damage to the shipment of potatoes, and that the court erred in not instructing a verdict in its favor.
It is not disputed that the potatoes were in a damaged condition when they arrived at the point of destination on appellant’s line. Appellant made no effort to show where or how the damage actually occurred, and the law presumes in the .absence of other proof that the delivering carrier was the negligent one. Midland Valley Rd. Co. v. Hale, 86 Ark. 484; St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112.
A common carrier is practically .an insurer of all goods received by it for shipment against .all losses except those relating to, or which arise from, the act of God, of the public enemy, of constituted authority, of the shipper, or from the inherent nature of the goods shipped, and in ¡all cases in which loss occurs, not falling within said recognized exceptions, the carrier is responsible notwithstanding there may be no negligence or fault upon its part.
Its liability springs from the duty imposed upon it to carry safely and the law making it responsible as an insurer for the losses occurring from any and every cause, ■other than one f alling within the specified exceptions. St. Louis, I. M. & S. Ry. Co. v. Pape, 100 Ark. 269; Brennisen v. Pa. Rd. Co., 100 Minn. 102.
Appellant contends that the damage to the freight' shipped, which was of a perishable nature .and froze while in transit, was caused by act of God, for which the carrier is not liable, there being shown no unnecessary delay in transportation or carelessness on its part in exposing the shipment to the cold.
Some of the .authorities hold “where the immediate and sole cause of loss is the action of the elements, as by freezing, the carrier is relieved from liability. 4 Ell. Railroads, § 1455; 1 Moore on Carriers, p. 314; Schwartz v. Erie Rd. Co., 106 S. W. (Ky.) 1188.
Of course, if the negligence of the carrier concurs with the act of Grod in producing the injury, it is still required to answer therefor. Vail v. Pacific R. R. Co., 63 Mo. 230; 6 Cyc. 381; White v. Minneapolis & R. R. Ry. Co., 111 Minn. 167.
In.the last cited case the court said: “A carrier is not an insurer against damages to freight from changes in temperature, unless the ¡circumstances in which the transportation is undertaken impose upon the carrier that obligation; but if, after .acceptance of the freight, its transportation is delayed, the ¡carrier must use reasonable care to protect it during the ¡delay. ’ ’
There was no unnecessary delay in the delivery of this carload of potatoes shown from the testimony, nor ■any evidence tending to show negligence upon the part of appellant company, the delivering line, but the shipment arrived at destination in its possession in' a damaged condition, and there is a presumption'of law that the carrier is responsible therefor; that the delivering carrier is the negligent one. It made no effort tó show when, where or how the injury occurred, nor whether before or after the shipment wias received from the connecting carrier on its line, and although the testimony of the appellee tends strongly to show that damage was occasioned by the failure to load the potatoes properly by putting straw in the car to prevent ¡those lying next to the floor from- freezing, or by putting’ paper .on the floor with a stove inside to keep the temperature above freezing, it was not shown whose duty it was to attend to the proper loading thereof, and generally the loading and unloading of goods are under the carrier’s control, and it is responsible for any loss or injury incident thereto. 6 Cyc. 381.
Of course, if the shipper assumed the responsibility of loading and unloading, it would relieve the carrier from liability for loss in that connection. We do not think the testimony in this case sufficient to overcome the presumption that the damage occurred on the appellant’s line, .and it is sufficient to support the verdict. Affirmed. | [
-78,
104,
-40,
-115,
58,
104,
42,
-6,
21,
-95,
37,
83,
-51,
-41,
-107,
103,
-25,
125,
-16,
58,
116,
-89,
31,
-62,
-46,
-41,
33,
-122,
17,
107,
108,
-20,
76,
16,
10,
117,
102,
72,
-63,
-100,
-50,
44,
-72,
-23,
121,
0,
-76,
120,
22,
79,
113,
-121,
115,
46,
24,
-57,
-55,
40,
-23,
109,
-61,
113,
-82,
15,
117,
2,
-95,
100,
-101,
37,
-54,
12,
-128,
57,
33,
-88,
112,
-90,
-126,
84,
41,
-119,
8,
98,
99,
32,
13,
105,
-84,
-88,
39,
-2,
47,
-26,
-108,
72,
3,
35,
-65,
21,
38,
81,
62,
90,
-8,
84,
31,
112,
7,
-126,
-108,
-109,
-81,
-26,
-98,
-105,
-49,
-105,
-78,
113,
-52,
-66,
89,
69,
54,
27,
-49,
-34
] |
Wood; J.
This appeal is prosecuted from an order of the circuit court sustaining a motion for a new trial on behalf of appellee who was the defendant below. Appellant attempts to appeal from an order of the trial court granting appellee a new trial.
Section 1188' of Kirby’s Digest provides, in part: # * * “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.”
. The appellant does not show that he has complied with this statute, therefore his attempted appeal can not avail him. See, St. Louis, I. M. & S. Ry. Co. v. Hix, 101 Ark. 90.
The appeal is therefore dismissed. | [
-112,
-24,
-67,
12,
10,
-32,
51,
-66,
64,
-125,
39,
-13,
-81,
-110,
-112,
63,
-1,
127,
101,
123,
93,
-73,
15,
65,
-14,
-5,
19,
-41,
-11,
76,
-25,
-4,
76,
-80,
-54,
85,
70,
-55,
-27,
-100,
-114,
-91,
-87,
-51,
81,
-85,
48,
-30,
92,
31,
53,
-98,
-21,
42,
30,
-62,
-56,
40,
91,
45,
-14,
112,
-110,
15,
127,
4,
33,
4,
-99,
99,
88,
126,
24,
49,
3,
-6,
112,
-90,
-122,
86,
75,
-37,
0,
98,
98,
1,
-7,
-17,
-72,
-104,
62,
62,
31,
-90,
-111,
9,
74,
39,
-73,
-101,
116,
54,
-89,
126,
108,
-124,
17,
124,
2,
-113,
-128,
-73,
-65,
104,
18,
-62,
-53,
21,
16,
48,
-51,
-46,
94,
71,
51,
-33,
-116,
-74
] |
Per Curiam.
This is a motion to strike out the hill of exceptions and affirm the ease on the ground that the bill of exceptions was not filed within the time provided by law and the order of the trial court. On October 1, 1914, the trial court overruled the motion for .a new trial and gave appellant one hundred and twenty days thereafter within which to file the bill of exceptions, and the same wias signed by the judge and filed with the clerk on January 29, 1915, which was the last day of the allotted period.
The statute provides, however, that the time allowed by the court for filing exceptions must not be “beyond the succeeding term.” Kirby’s Digest, section 6222. The next regular term of the Bradley circuit court, after trial term, began on January 4,1915, and the court was continuously in session until January 16, when there was an .adjournment over to March 29, 1915. It is insisted by counsel for appellee that the words of the statute, “not beyond the succeeding term,” mean before the commencement of the succeeding term, but we think the decisions of this court have settled that point to the Contrary. Stinson v. Shafer, 58 Ark. 110, and cases referred to therein.
The further question arises whether the words refer to a continuous session of the court or to the whole term up to the final adjournment. Our statute was copied ■from one in force in the State of Kentucky, .and the 'courts of that State decided, while the- statute was in force, that a bill of' exceptions could not be signed by the trial judge in vacation, but if the time was extended beyond the trial term it must be to a day in the next term and the bill of exceptions must be settled during that term. The practice has, however, been uniform in this State, and has been recognized by this court, to permit a bill of exceptions to be signed in vacation if done within the time specified in an order of the court entered at the trial term. It has been decided here that the filing of a bill of exceptions is not a judicial act, but constitutes merely the making of a record of past transactions and ■therefore may be done in vacation, and that is the basis of our construction of the statute on this subject. Bullock v. Neal, 42 Ark. 278. Since we hold that the bill of exceptions may be signed by the judge ¡and filed with the clerk in vacation, there is little reason for construing the statute to mean that it must be done during the -succeeding term while the court is in session. It may be that ■the lawmakers, in using the language, had in mind a continuous session of the succeeding term, but the • language is broad enough to mean, .and we think does mean when fairly interpreted, that the limit is fixed at the final adjournment if that does not go ¡beyond tbe period of time fixed in the order of tbe ¡court. Tbe only limitation upon tbe power of tbe court at tbe trial term to extend tbe time for filing a bill of exceptions is that it must not run beyond the next succeeding term, 'and the fact that the next term is unduly extended by adjournments over from time to time does not prevent tbe extension of tbe time up to the limit of tbe number of days fixed in 'the 'Court’s original order.
The leoucdnsion of the court therefore is that notwithstanding tbe bill of exceptions was not filed during a continuous session of tbe term of tbe court next succeeding tbe trial term, it was within time when filed within one hundred and twenty days and not beyond the final adjournment of tbe court.
The motion will therefore be overruled. | [
-12,
113,
-108,
-50,
-53,
96,
32,
-74,
-23,
-31,
103,
81,
-89,
-110,
20,
113,
-29,
41,
81,
89,
-52,
-89,
38,
65,
-30,
-5,
1,
85,
-75,
109,
-25,
127,
12,
120,
-54,
-11,
71,
-56,
-51,
20,
-2,
-85,
-103,
109,
-15,
-54,
48,
125,
92,
15,
57,
-49,
-93,
-82,
24,
-57,
-88,
73,
72,
105,
-48,
-80,
-109,
-115,
95,
2,
-79,
-107,
-98,
-121,
-8,
126,
-128,
25,
41,
-24,
114,
-74,
-42,
52,
111,
121,
40,
98,
98,
3,
109,
-17,
-104,
-68,
54,
104,
-67,
-90,
-112,
121,
11,
-84,
-66,
-75,
52,
20,
36,
122,
110,
-59,
24,
108,
12,
-125,
-106,
-77,
-97,
-30,
-124,
-126,
-14,
3,
48,
113,
-115,
-9,
94,
71,
49,
-109,
-50,
-122
] |
Smith, J.,
(after stating the facts). 'Convictions in cases of this kind do not depend solely upon the evidence of the prosecuting witness, and a conviction may be had where the proof is sufficient to establish the guilt of the accused, beyond a reasonable doubt, without reference to the testimony of the girl, alleged to have been oar naily abused. Such cases are, of course, unusual, but the beneficent purpose of the law to protect the virtue of girls, who have not reached the age of discretion, might in many cases be defeated if the law were otherwise. In this case, however, we should hold the proof insufficient if the proof of appellant’s guilt depended upon the evidence of the girl alone, because her last statement was an emphatic denial that appellant had ever had sexual intercourse with her, and the conviction. would not have been ¡proper in the face of such testimony if there had been no other evidence of appellant’s guilt. Moore on Facts, section 1271; Crowe v. House of the Good Shepherd, 56 N. Y. Sup. 223. But, as has been shown, there was other evidence which we think was legally sufficient to sustain the verdict of the jury. The crime of carnal abuse had been committed upon the person of the girl, and appellant’s statements tended to show that he was guilty of this crime. The affidavit and the letter set out in the statement of facts were not competent as affirmative matter tending to-show the guilt of the accused, but they became competent for the purpose of contradicting and impeaching the prosecuting witness when she testified that appellant had never at any time had intercourse with her. But for this denial they would not have been competent. But the denial made them admissible, as the party producing a witness, when surprised by adverse testimony, may show, for the purpose of impeachment by contradiction, that the witness has made prior statements inconsistent with the one made on the stand. See 3137, Kirby’s Digest; Williams v. Cantrell, 170 S. W. 250, 114 Ark. 542.
There were other errors assigned in the motion for a new trial, tout we do not regard them as of sufficient importance to require a discussion, and finding no error ia the record the judgment of the court below is affirmed. | [
53,
-22,
-20,
-67,
46,
96,
-86,
126,
-125,
-125,
53,
-13,
45,
74,
0,
127,
-82,
57,
85,
65,
-43,
-77,
23,
65,
-14,
-77,
-6,
87,
-75,
-51,
-20,
124,
76,
48,
90,
-11,
102,
-54,
-75,
80,
-114,
-113,
-104,
-28,
18,
-64,
36,
111,
-30,
15,
113,
84,
-13,
10,
-100,
-57,
43,
40,
75,
-67,
64,
37,
-98,
-105,
73,
20,
-77,
116,
-66,
66,
-8,
44,
88,
-79,
0,
104,
115,
-74,
2,
-42,
47,
-87,
8,
96,
98,
1,
109,
-85,
45,
-47,
39,
47,
-100,
-89,
24,
88,
75,
109,
-73,
-39,
68,
80,
46,
106,
-9,
-51,
61,
108,
11,
-113,
62,
-79,
77,
40,
-102,
-77,
-29,
-111,
16,
113,
-51,
112,
84,
117,
120,
-39,
-114,
-10
] |
■Smith, J.
Appellant was the plaintiff below, and sued appellee on a note executed by him to the order of appellant for the sum of $500. The note was dated March 12, 1912, and was payable six months after date. The execution of "the note was admitted, but appellee alleged in his answer that its execution had been procured by fraud and that the note was void for lack of consideration. In support of these defenses appellee offered 'evidence ¡to the effect tihat the Arkansas Valley Trust Company, as executor of the estate of one Dave Mayo, was selling the saloon and restaurant fixtures of the estate. The sale had been advertised and sealed bids invited, and appellee had put in a bid. . The fixtures were located in a building owned by appellant, 'and there was an outstanding contract for the lease of this building between Mayo and appellant, and Mayo’s executor was anxious to make a disposition of the fixtures, which would relieve the estate from liability on account of the lease. That appellant represented to appellee that he would use his influence with the executor of the Mayo estate to have appellee’s bid accepted, and that he would consent for appellee to take an assignment of the lease upon the terms agreed upon’in the contract for the lease made with Mayo, and that in consideration of this promise appellee executed the note sued on, whereas appellant had already agreed with the representative of the trust company for t'he substitution of appellee as a tenant, and further that the executor had opened the bids,' and had ascertained that appellee’s bid was the highest ■bid received, and that the trust company had already determined to accept appellee’s bid.
There were several sharply drawn questions of fact in the case, but the verdict of the jury is decisive of those questions.
The transaction upon which the note was based took place in August, 1908, and the note then given was renewed from time to time and the interest paid thereon, •and the last of the notes so executed is the one now ■sued on.
Various exceptions were saved to the action of the court in giving and refusing instructions; but the court in effect told the jury that if the facts were found to be us herein stated a verdict should be returned in favor oif appellee, and the verdict was so returned.
It is undisputed, however, that .appellee bought.the fixtures and took possession of the building and occupied it in accordance with the terms of the contract for the lease; and it is also undisputed that appellee was advised, immediately .after executing the first note, of all the facts here stated. Thereafter the note was frequently renewed.
The effect of renewing a note which was void for the want 'of consideration was considered by this court in the case of Stewart v. Simon, 111 Ark. 358, and the authorities were (there reviewed, .and 'the law was stated to be that the defense of failure of ■consideration was not available to one who, with knowledge of the failure ■of the consideration for the original note, thereafter ■executed a renewal note.
Applying the principal.there stated to the facts of this case it follows that a verdict should have been directed in appellant’s favor, and the judgment of the court below will be reversed and judgment will be entered here for appellant for the amount of the nóte and the interest thereon. | [
-13,
124,
-80,
13,
-118,
-16,
106,
-102,
98,
0,
39,
83,
-23,
66,
20,
109,
-25,
45,
65,
120,
71,
-77,
7,
98,
-14,
-77,
-45,
-43,
-91,
-19,
-12,
-41,
72,
32,
-54,
29,
-58,
-30,
-27,
-40,
14,
-127,
9,
100,
-7,
-128,
48,
107,
37,
71,
101,
-34,
-13,
45,
61,
74,
109,
62,
107,
-65,
112,
-71,
-117,
-123,
125,
23,
49,
103,
-98,
75,
74,
10,
-104,
53,
0,
-24,
115,
-90,
70,
116,
107,
43,
8,
98,
98,
34,
-43,
-21,
112,
-116,
38,
-2,
-115,
-89,
-78,
88,
3,
109,
-66,
-99,
56,
16,
-121,
-10,
-11,
29,
25,
108,
1,
-50,
-106,
-77,
5,
62,
30,
11,
-21,
-109,
48,
112,
-49,
-32,
92,
103,
22,
-101,
-114,
-80
] |
Hart, J.
J. K. Meffert sought a divorce from Emma Meffert on the ground that she had offered such indignities to his person as to render his condition intolerable. From ia decree 'dismissing his petition for divorce and awarding his wife the custody of their young child and allowing her alimony, ¡the plaintiff prosecutes this appeal. It appears from the record that these parties were married November 4, 1903, in Kansas City, Missouri, by a probate judge. The plaintiff was a member of the Methodist Church and the defendant of the Roman Catholic Church. After their marriage they lived in various towns in the States of Missouri and Oklahoma until December, 1911, when the plaintiff moved to Rogers, Arkansas. The defendant joined her husband in February, 1912. Prior to this time three children had been born as fruits of their marriage, two of whom had died. In November, 1912, 'another son was bom who, at the time of the trial, was fifteen months old. The other remaining living child was a little daughter, then eight years old, named Bernice.
On the 29th day of September, 1913, the wife left her husband’s home and went to visit her mother in another State. She returned on the 29th of October, 19.13, and this suit was instituted 'by the husband on the 31st day of October, 1913.
J. K. Meffert testified in his own behalf substantially as follows:
Prior to our marriage my wife agreed that she would renounce the Catholic faith, but after we were married she refused to do so. We lived at various towns in the State of Oklahoma, and in some of these towns I was a member of the choir of the Methodist Church, My wife was jealous of my attention to other women, although I never gave her any cause to be so. After we came to Rogers I to some extent engaged in church work and was a member of the choir of the Methodist Church. My wife became jealous of my ¡attention to several lady members of the choir, but I gave her ¡no cause to be so. She frequently cursed and abused me, calling me a “darn odd hypocrite,” or a “damn old hypocrite.” She seemed to be angered because I went to the Methodist Church ¡and carried our little daughter, Bernice, there. She was extravagant .and very neglectful of our home. On .September 29,1913, she deft my home and declared that she would never return to live with me. She did return, however, on October 29,1913, and gave a number of reasons for returning. One of them was that , she wanted our little daughter, Bernice, and I refused .to let her have her. In a few days I instituted this .suit for divorce.
Several servant girls who worked for the parties to this suit while they lived at Rogers testified that the plaintiff was always kind and considerate toward his wife, hut that she .frequently cursed and abused him, calling him a “dam old hypocrite,” or a “damn old hypocrite,” and that one of her most frequent expressions was, “un-Grod.” They .stated that the plaintiff most of the time bathed and dressed his little daughter and took her to ¡Sunday .School; that his wife objected to his doing so and objected to his going to choir practice and church so often. They said that ¡she frequently quarreled with him about his church and religion and used profane and vulgar language to and about him.
The defendant, Emma Meffert, testified in her own behalf substantially as follows:
My husband and I never had any serious quarrels until we oame to Rogers. Prior to that time our married life had been a happy one. I have not been very well since the birth of our daughter, Bernice, who is now eight years of age. At the time of our marriage I was twenty-three years old and weighed 110 pounds. I now weigh only eighty pounds. After we oame to Rogers and the birth of our son in November, 1912,1 got worse and have been ill most of the time since then. I never objected to my husband tailring our little daughter to the Methodist Church and 'Sunday School; but, on the contrary, encouraged it. I felt, however, that he neglected me and his home for his choir practice and ibis .church work. I particularly objected to his attention to one of the female members of the choir and told him so. I never thought there was 'any criminal intimacy between them and did not charge him with that, 'but I thought he paid her too much attention for a married man and (complained about it. He paid no attention to my complaint. I was not extravagant, and I attended to my household duties the best I could, .considering the state of my health. When I left in September, 1913, I had no intention of staying away, but went to visit my mother. When I returned home I .asked my husband if he was glad to see me, and he replied that he was not, pushed me away from him, and said that I better go back to Kansas. My mother lived there. I then asked him what about Bernice, and he said that he had .an old lady who was coming to keep house for ¡him. I told him that I would not leave, and he replied that the law would make me go. Subsequently, he served notice on me and my brother, who had come with me to vacate the house. I never used profane or vulgar language toward or about him. At times when I was excited I may have used the phrase “un-God.” I had trouble with most of the servant girls who stayed with me after I came to Rogers, but this was due to the manner in which they did their work.
Other witnesses, who belonged to the Methodist and Presbyterian Churches, testified that they lived near the home of the parties to this suit and visited Mrs. Meffert frequently. They said that she did not use profane or vulgar language, but that she at all times conducted herself as a good wife. Thait she was not extravagant and did not even dress as well as her husband; and that she was nervous 'and excitable 'because she had been ill ever since the birth of her son in November, 1912.
One of these witnesses stated that at the time she left in iSeptemiber, 1913, she stated that she was just going home on a visit. Others stated that 'Mr. Meffert was frequently seen on the streets with one of the members of the choir, iand that this was a source of .great worry and annoyance to. his wife. One of them stated that on one occasion shortly after the baby was born she was called over to attend Mrs. Meffert, who was very ill at the time, and that while there she saw Mr. Meffert walk by the house with this member of the choir and ¡that he did not stop to inquire about his wife.
Another of the witnesses stated that she and Mrs. Meffert, while walking on the streets one day, saw Mr. Meffert and the member of the choir, above referred to, talking. Mr. Meffert left before they came up and Mrs. Meffert said to the young lady, “It is funny to' me that I never see you without you are talking to my husband,” and the young lady answered,Maybe you don’t like it?” Then Mrs. Meffert said, No, I don’t like it,” and the young lady again replied,You surely don’t trust him.”
A physician who had attended Mrs. Meffert for about a year prior to the time he testified said she had during ■all that time been in a very nervous condition iand that he had several times feared she would break down with nervous prostration. He testified that her condition rendered her highly excitable and that ishe was at all times very nervous..
The record in this case is very long and other matters testified to by the'various 'witnesses might be set out at great length, but we do not think a detailed state ment of the evidence or a specific review of it would be of any value to the parties to this suit or be of any use to future actions as a precedent. For in determining what indignities to the person are sufficient to render one’s condition intolerable, regard must be had to the particular circumstances of each case and to the mental and physical condition of the party charged.
This action was brought under the fifth subdivision of section 2672 of Kirby’s .Digest. In 'discussing the provisions of the latter 'clause of that section in the case of Cate v. Cate, 53 Ark. 484, Chief Justice Cockbill said:
‘ ‘ The latter provision does not require that a party shall show that she, or he, fives in a state of danger or apprehension of personal violence, in order to warrant judicial interference. Haley v. Haley, 44 Ark. 429. But the courts are not quick to interfere in domestic quarrels, and where the parties are equally at fault, it must be shown at least that there is something that makes cohabitation unsafe, to move the courts to interfere. Unhappiness sufficient to render the condition of both parties intolerable may arise from the mutual neglect of the conjugal duties; but when the parties are thus at fault the remedy must be sought by them, not in the courts, but in the reformation of their conduct. The remedy is in their own hands, and, until it has been tried without effect by the party complaining, the court will not give effect to the complaint. Until this home remedy has been tested and failed, the condition of each may be said to be due to his or her own acts, .and one must bear, the consequences of his own misconduct.” See, also, Arnold v. Arnold, 170 S. W. Rep. 486; 115 Ark. 32.
So it may be isaid that the remedy of absolute divorce contemplated by this clause of our statute is for evils which are unavoidable and unendurable and which can not be relieved by ¡any exertions of the party seeking the aid of the courts. In Hoff v. Hoff, 48 Mich. 281, 12 N. W. 160, Mr. Justice Cooley said:
“It is true of divorce cases, as in others, that a party-must come into a court of equity with clean hands. Divorce laws are made to give relief to the innocent and not to the guilty. ’
We have read the long record in this case with much care, and have come to the conclusion that when the evidence is stripped of the insinuations and innuendoes of the parties and their witnesses, it falls short of making a case in favor of the plaintiff. The plaintiff testified that his wife had always been of a jealous disposition and had been jealous of his harmless attentions ¡to women before they came to Rogers. His wife denied this. She said their married life had been happy until they came to Rogers. Be that as it may, there is no testimony tending to corroborate the husband as to what occurred before the parties moved to Rogers, and his right to relief must be predicated upon the occurrences at Rogers. The record shows that after they came to Rogers their married life was not a happy one. Each party, as is usual in such oases, laid the blame on the other. The husband testified that the wife neglected their home; that she was extravagant and seriously objected to his church connection; and that she objected to his taking Ms little girl to church and Sunday 'School. He testified that she sneered at Ms religion and studiously adopted a contemptuous manner toward him. His testimony is corroborated in a general way by the various servants who worked for .them during this time. But when the testimony is analyzed we think it falls far short of establishing the contention of the plaintiff. ■
For instance, on one occasion, .according to the record, they had a violent quarrel about their religion, but it came up in tMs way: A neighbor’s servant girl, who belonged to the Catholic Church, was visiting their servant girl, who was a member of the Methodist Church. The servant girl of the .parties to tMs suit made some very derogatory remarks about the priests of the Catholic Church. This ¡angered the defendant, and she began to upbraid the servant for it. The husband took the part of the servant, and said she had a right to say what she pleased.
At other times the wife made harsh remarks about the husband, but for the most part it was because she objected to his attention to a member of the choir and to his refusal to cease such attention. She admits that on several occasions she called him a “darn old hypocrite,” and says that she did this because of something he had said which angered her. She admits that she was very nervous .and easily excited, but denies that when she left home in September, 1913, she had no intention of returning, but, on the contrary, said it was her intention to return home and to live with her husband.
Instead of being ¡an extravagant woman, as her husband testified, her neighbors testified that she was a frugal one, land that her husband dressed very much better than she did. They also ¡said that instead of being a coarse and vulgar woman, her conduct was ¡always exemplary, and that there was nothing ¡about her life which indicated that she was accustomed to use profane or vulgar language.
According to the testimony of defendant and her witnesses, she did not object to their little daughter going to church and Sunday ¡School, but on the contrary encouraged her to do ¡so.
When the whole situation is summed up and the surrounding circumstances taken into consideration, it seems that the parties to this suit were in the habit of quarreling frequently but that these quarrels were due to their .differences in religion and to the fact that the wife objected to his paying too much attention to a member of the choir.
The record shows that the husband was a strong, healthy man, and that the wife was a weak, nervous woman, easily ¡excited. They both seemed to be devoted to their daughter, ¡and they ¡do not seem to. have any /settled dislike.for each other. There appears to have been nothing in the ¡conduct of the husband with the member of the choir referred to in this record other than that which may be characterized under the well -known term, “flirting.” Still, the husband persisted in his -attention to her -after he knew that his wife 'objected to it. He knew -that his wife’s condition was such that ishe was easily -excited, -and, under the circumstances, he should have refrained from paying any further attention to another woman but -should have devoted his -life to -his wife -and -children.
If the parties had practiced.the principles of their religion, instead of talking about them s-o much, it is probable that their family differences would have adjusted themselves. Under -their marriage vows it was their duty to exercise mutual forbearance and tolerance of the faults of each and to bear the burdens incident to the marriage relation and to life itself.
Neither of the parties to -this suit is vicious or immoral. As above istated, they both seem to be devoted to their little daughter, -and there seems to be no substantial reason why they may not live together’in peace if not in happiness. The record does not show anything in the life of either of these parties which makes it impracticable for them to again live together.
The -chancellor found the i-sisues in regard to the divorce in favor of the defendant, and, when the whole record is considered, we are of the opinion that his finding is not against the preponderance of the testimony.
The chancellor also awarded the custody of the daughter to the mother. At the time the -case was heard and determined by the chancellor Bernice was eight years old. The testimony shows that both of her parents were devoted to her and that prior to the unhappy condition brought about by this suit she was very devoted to both her parents. Considering her tender age, and the fact that she needs a mother’s care, we do not think the -chancellor erred in awarding her custody to the mother.
The father was given the right to visit the child at all proper times, and she may be the -means of 'bringing about a reconciliation ibe,tween them.
It must be remembered, however, that the order of the court awarding the -child to the mother is not a final one, .and that it may he changed at any future time by the chancellor for cause. It then behooves the parties to this suit to teach the child to love and respect both its parents. If either of the parents should try to teach the child disrespect to the other, this course, if persisted in, might be a ground for the chancellor to change the custody of the child if the mother should be the guilty party; or to restrict the visits of the father, should he be in fault in that respect.
The record shows that the husband is in debt about $1,300; that he was agent of the railway company at Rogers and that ¡his salary was $125 per month. The court awarded to the defendant the sum of $65 per month alimony. Under the circumstances, we can not say that the chancellor erred. The husband is a stout, robust man, in the prime of life, and the wife is a weak, nervous woman, who, While devoted to her two children and capable of taking care of them, is not capable of earning any money by her own exertions. .
It is the duty of the husband to support his family; but it is equally the duty of the family to reside with him. The award of alimony made by the Chancellor is subject to alteration under changed conditions.
The record shows that the husband ordered his wife out of the house after she returned from a visit to her mother in the fall of 1913. He 'claims that he had good reasons for doing so, but the court has held otherwise. His wife said' she had come home to again live with her husband, and it is her duty to do so if he should honestly -and in good faith repent and ask her to' come home again.
Section 2683 of Kirby’s Digest provides that upon the application of either party, the court may make such alterations from time to time as to the allowance of alimony and maintenance as may be proper. Under this clause of our statute, the court has the power to alter the allowance of alimony at any time when the changed conditions of the parties justify such action. Pryor v. Pryor, 88 Ark. 302.
The decree will be affirmed. | [
-80,
10,
-80,
108,
10,
-96,
78,
106,
-14,
-118,
53,
-41,
-23,
-5,
64,
45,
98,
13,
116,
112,
-64,
-109,
87,
-96,
-14,
-5,
-71,
-43,
-72,
77,
-91,
-3,
91,
42,
54,
93,
34,
-54,
-123,
28,
-124,
-64,
-23,
-8,
-37,
-54,
48,
123,
83,
11,
69,
-66,
-9,
42,
127,
127,
109,
46,
87,
58,
-44,
-16,
-118,
85,
124,
102,
-77,
38,
22,
1,
64,
-67,
-104,
49,
40,
-67,
51,
-90,
-122,
116,
91,
-119,
12,
48,
102,
18,
-79,
-13,
56,
24,
79,
56,
25,
39,
-70,
73,
75,
108,
-66,
-47,
113,
84,
27,
-8,
125,
87,
116,
-32,
0,
-113,
-42,
-79,
25,
10,
-36,
-125,
-13,
-83,
37,
81,
-55,
34,
94,
-41,
58,
-73,
-82,
-71
] |
Wood, J.
(after stating the facts). The appellant contends that the evidence was not sufficient to sustain the verdict, but this was an issue for the jury and there was evidence to warrant the verdict.
The court did noit err in overruling appellant’s motion in arrest of judgment. While the ordinance under which appellant was tried was not in conformity with the statute (section 1960 Kirby’s Digest) as to the penalty iand was void because it prescribed a less penalty than that prescribed by the State laws (section 5464), nevertheless, appellant was not prejudiced because the fine adjudged against him was less than be would have had to pay had ihe been tried 'and convicted under the State law, section 1960 of Kirby’s Digest.
The affidavit before the mayor, .setting forth the charge against appellant of resisting an officer in the language of the above statute (section 1960) was sufficient to give the mayor jurisdiction of the offense under section 5586 of Kirby’s Digest.
The evidence, as we have seen, was sufficient to sustain the verdict of guilty of the offense of resisting an officer under section 1960, supra, and appellant, under this .section, could have beeu fined in any sum not less than $50.00. He is therefore in no attitude to complain and is not prejudiced by the verdict and judgment. See Sellers v. State. 93 Ark. 313.
The court did not err in refusing appellant’s prayer for instruction No. 4 as the same is abstract, there being no evidence upon which to base it, 'and, besides, it was argumentative in form. The other instructions correctly presented the issue of fact to the jury.
There being no error in the rulings of the court to the prejudice of 'appellant, the judgment is affirmed. | [
16,
-18,
-24,
-66,
27,
96,
51,
-104,
-48,
-79,
-89,
115,
109,
-45,
16,
51,
-6,
125,
117,
106,
-34,
-77,
71,
99,
-70,
-109,
-53,
-59,
49,
111,
-10,
-4,
77,
-80,
-30,
-43,
38,
74,
-59,
80,
-50,
0,
-119,
80,
-24,
66,
36,
55,
96,
11,
49,
-98,
-13,
42,
28,
-61,
109,
44,
91,
-80,
-32,
112,
-104,
-113,
15,
4,
-77,
-90,
-100,
-125,
-8,
116,
8,
49,
1,
-24,
115,
-90,
2,
84,
109,
-117,
-120,
98,
98,
1,
61,
-19,
-72,
-119,
14,
62,
29,
-90,
-112,
120,
74,
45,
-106,
-107,
103,
16,
14,
-18,
-15,
84,
89,
108,
11,
-50,
-108,
-79,
-115,
116,
50,
82,
-53,
1,
16,
113,
-49,
-14,
92,
117,
18,
-101,
-106,
-108
] |
Wood, J.,
('after stating the facts). The court erred in its instructions. In instructions given at the request of the appellee the court, in effect, told the jury broadly that if the appellee contracted to sell the machinery in question to Protho & Holiman and at the time reserved title in himself until the purchase money was paid, and that if they found from the evidence that the purchase •money had not 'been paid, their verdict should be for the appellee. These instructions entirely ignored the issue as to whether or not the appellee, after entering into the contract' with Proitho & Holiman, thereafter ratified the acts of hiis vendees in executing the mortgage on the machinery under which .appellant, W. H. Greer, holds.
True, the court granted prayer No. 4 of appellant, in which this issue was .submitted, but this prayer is necessarily in conflict with the instructions granted at the instance of the appellee. While ¡there were no specific objections to the instructions granted at the request of the appellee, instruction No. 4, given at appellants’ instance, was ¡tantamount to a specific objection to appellee’s prayers so far as the issue of ratification was concerned, and also prayer No. 6 of .appellants, which the court refused. Prayer No. 6 should have been given. The same idea was not covered fully in instruction No. 4, given at the request of appellants.
There was testimony to warrant the Court in' sending to the jury the issue as to Whether or not appellee had ratified the conduct of his vendees in executing the mortgage under which .appellant Greer claims the right to possession of the property, and the issue as to whether or not appellee had received the benefit of the money derived from 'the mortgage, ¡knowing at the time that the property had been mortgaged, and thereby estopped 'himself from setting up title adverse to one who holds under such mortgage.
In Bell v. Old, 88 Ark. 105, we held that a vendor of chattels waives a reservation of title where he consents to the execution .of a mortgage by the vendee, at least as to the mortgagee and those claiming under him.
The above principle is .applicable here and the court should have submitted this issue, along with the other issues, in instructions that were not in conflict, .and therefore calculated to mislead the jury.
For the errors indicated the judgment is reversed and the cause is remanded for a new trial. | [
-112,
-4,
-40,
-83,
10,
-32,
40,
-102,
80,
-95,
39,
-45,
111,
-41,
-108,
107,
-9,
125,
80,
106,
85,
-93,
15,
17,
-14,
-13,
-47,
-43,
-75,
109,
-10,
31,
76,
32,
-62,
-43,
-26,
-126,
-59,
-44,
14,
-124,
8,
64,
-7,
82,
112,
-5,
84,
11,
69,
-98,
-29,
38,
27,
-49,
107,
44,
105,
100,
-48,
-8,
-69,
13,
95,
7,
-79,
36,
-116,
37,
-40,
60,
-110,
49,
1,
-32,
123,
-74,
-126,
84,
9,
9,
8,
102,
102,
-96,
65,
-17,
-40,
-104,
46,
94,
29,
-90,
-110,
88,
1,
105,
-73,
-99,
108,
16,
38,
118,
-18,
-107,
29,
-20,
23,
-49,
-42,
-77,
29,
118,
-104,
3,
-18,
-125,
48,
112,
-49,
-70,
92,
101,
30,
-109,
-116,
-39
] |
McCulloch, C. J.
A grand jury impaneled at a special term of the circuit court of Mississippi County, Chick■asawba District, held on August 24,1914, returned an indictment against appellant, E. Beece, for the crime of murder in the first degree, and at the next regular term of said court appellant was tried and convicted of murder in the second degree. The validity of the indictment was and is challenged on the ground that the special term of court, 'and the grand jury which was empaneled at that term, was illegal because not called by the circuit judge in the manner prescribed by the statute. The order of the circuit judge was directed to the clerk, and is in the following form:
“Whereas, the undersigned judge of the circuit court for the Second Judicial Circuit for the State of Arkansas, being informed that a large number of persons are confined in the jail house, for said district, in said county, and State, charged with erime and are unable to give bail, and that a large number of persons aforesaid have not been indicted heretofore. Now, therefore, you are hereby directed to issue a venire facias to the sheriff of Mississippi County, requiring him to summon a grand jury to attend a special term of the circuit court in the second division, to be holden at the courthouse in the city of Blyt'heville, in said Chieknsawba District of Mississippi County, Arkansas, on Monday, the 24th day of August, 1914, the same being a date at which no regular or adjourned session of the circuit court in the second division thereof is in session, and said date not being within twenty days of any regular term of said court in said division. ’ ’
It will be observed in the first place that the instrument prepared land signed by the judge does not in express terms order that a special term be held on the date named. According to the express language used, it only recites the necessity for holding a special term of the court for the purpose of trying persons confined in jail, and directs the clerk to issue a venire facias to the sheriff requiring him to summon a grand jury to attend a special term to be holden at the courthouse on the day named.
The first point made against the legality of the proceedings is that there was no special term called. Our statute on this subject is a part of the Revised Statutes and was copied literally from a Missouri statute, and the Supreme Court of Missouri, in the case of Mary v. State, 5 Mo. 71, decided in 1837, Which wias before the statute was adopted in this State, held that an order substantially in the same language as the one now under consideration was sufficient to amount to a direction to hold the term of court. However, we need not discuss that point further or decide it in the present case, as we have reached a conclusion disposing of the case on 'another point.
The principal contention is that the form of the order is insufficient to give vitality to the special term ■of coiirt for the reason that it fails to designate the accused persons who were to he indicted and tried. The order, las will be seen from its inspection, merely recites that the judge is “informed that a large number of persons are confined in the jail house * * * charged with crime 'and are unable to give bail, and that a large number of persons aforesaid have not been indicted heretofore. ” The order does not designate any individual nor does it expressly direct that all persons confined in jail are to be tried at a special term of court. We have decided that the order of the circuit judge for a special term of the court to try criminal cases is jurisdictional and must be strictly complied with in order to give authority to indict or try criminals at that term. In Beard v. State, 79 Ark. 293, we said: “It has been held by this court that every fact, according to the strict terms of the statute, must be made to appear of record, otherwise the jurisdiction of the count will fail. Dunn v. State, 2 Ark. 230; Pulaski County v. Lincoln, 9 Ark. 326. The order of the judge must therefore recite every jurisdictional fact, because in no other way can those facts appear upon the record.” The same rule announced in the more recent case of Hill v. State. 100 Ark. 373.
Since the case came here on appeal, the circuit count, has on motion of the prosecuting attorney, amended the order, nunc pro tunc, so as to specify that appellant was confined in jail 'and that the special term of court was called to impanel a grand jury and indict appellant on the charge for which he was confined. In Beard v. State, supra, we pretermitted any discussion of the question whether or not the court had the power, after indictment and trial of an accused under such circumstances, to make an order amending the original order of the judge calling the special term of the court. In that case it was unnecessary to 'decide the question for the reason that we held that the unamended order was sufficient under the law. Upon further consideration now, we are clearly of the opinion that since the order of •the judge calling a special term of the court is juris die tional, it cannot, if found to be insufficient, be validated by a subsequent order of tbe ¡court ¡amending it so ¡as to establish tbe jurisdiction of tbe -court. Tbe legality of tbe term of -court depends upon tbe -sufficiency of tbe order -of tbe court, -and if that order is, on jurisdictional grounds, insufficient, 'an -amendment cannot relate back so as to legalize a term of court which was not valid at tbe time it was- held. We must therefore test this ca-s-e by ¡a -solution of the question whether or not the -original order of the trial judge, ¡calling a special term, of -the court at which (appellant was indicted, was in conf ormity with the -statute and sufficient to give the court jurisdiction.
Dunn v. State, 2 Ark. 230, was decided by tbis court in tbe year 1840, which was shortly ¡after the -adoption of the Revised Statutes -containing the provision now under consideration. The ¡statute was- thoroughly -considered and rules were laid down ¡concerning the form of the order of the circuit judge necessary to give -the court jurisdiction ¡at a special session. After summarizing the essential features o-f ¡the ¡order, the ¡court ¡said: “We ¡are therefore ¡satisfied that the order for the ¡special term must be made ¡at least ten days before the ¡commencement of the -term, ¡and designate the persons to be there tried, ¡and -state they -are Confined in jail, -and whether they have been indicted, previously ¡o;r otherwise, -and if they, -or either ¡o-f them, have not been in-dieted for the of-fence for -which he is to be there tried, the order must contain a direction to the clerk to issue a venire facias to the sheriff, requiring him to ¡summon a -grand jury to 'attend ¡suieh ¡special term ¡of the ¡Court.” The court further said in the -opinion that no persons other than those in jail ¡at the time the order wfas- made, ¡and designated in the order, -Could be tried. If that -be the effect -of the statute, it is clear that a mere recital that numerous persons are in jail is not -sufficient -designation -of tbe persons to be indicted or tried.
It is urged on behalf of counsel for tbe State that tbe ruling in Dunn v. State, with respect to tbe points referred to, was dictum. The same point was made in Hill v. State, supra, but we said that the doctrine laid down in the Dunn case had been recognized ever ¡since by this ¡court ¡as the correct interpretation of the ¡statute, ■and that that interpretation ¡should not now be departed from. Moreover, we ¡are ¡convinced, upon ¡a reconsideration' ¡of the matter, that that interpretation was ¡correct. A limited jurisdiction is ¡conferred by the ¡statute, ¡and the purpose was clearly to provide for ¡calling a special session in particular ¡oases. The ¡court has no right to try oases :at ¡a special term other than that designated in the order, nor has the grand jury impaneled at ¡such term general powers of inquisition, but is limited to ¡an inquiry into those matters specially embraced in the ¡call. The general policy of our statutes is to provide for trial ¡of ¡oases at regular terms of ¡court, of which the public is advised by the ¡statute itself fixing the time for holding court. The ¡statute now under consideration merely provides for ¡an emergency, ¡and the thought ¡of the lawmakers was that in particular -Cases’, where persons charged with crime are confined in jail, the court -should have power to call a ¡special term of the ¡court to try. those particular persons. Of ¡course, the judge could specify more than one accused person in the order but, after ¡all, the order is to be for the trial of the persons specially designated and no others.
We are of the ¡opinion, therefore, that the indictment in this case cannot be ¡sustained without departing from long established rules of practice laid down by this court in the interpretation of the statute under consideration. It follows that ¡the judgment must be reversed and the cause is remanded with directions to quash the indictment, and for further proceedings in ¡accordance with the statutes covering ¡such oases.
Kirby, J. dissents. | [
48,
-31,
-92,
-36,
-85,
97,
8,
-72,
-45,
-29,
100,
82,
-83,
-42,
4,
113,
43,
125,
117,
121,
-124,
-73,
3,
66,
19,
-45,
7,
-57,
-73,
73,
-68,
-9,
8,
48,
-54,
81,
70,
106,
-63,
28,
-122,
1,
-55,
-32,
90,
24,
48,
57,
90,
13,
81,
-66,
-29,
42,
21,
75,
-23,
108,
89,
46,
88,
56,
-102,
31,
127,
22,
-77,
38,
-118,
-121,
104,
62,
-104,
21,
88,
-8,
115,
-110,
-121,
84,
109,
27,
44,
102,
98,
9,
44,
-81,
-87,
-88,
22,
62,
-99,
-90,
-102,
105,
43,
4,
-74,
-99,
78,
20,
-114,
118,
37,
-91,
80,
108,
15,
-50,
-44,
-125,
3,
60,
-108,
19,
-29,
3,
112,
113,
-51,
-14,
90,
78,
27,
-37,
-121,
-127
] |
Smith, J.,
(after stating the facts). We think the instruction numbered 3 should not have been given. Mental anguish was not a recoverable element of damages under the facts -of this case. The mental anguish suffered in this -case did not result from the walk in the rain -and cold, nor from the sickness which resulted therefrom; but from the delay in getting to Malvern in time to look after the funeral arrangements of the father on the part of two of the appellees and the failure to attend the funeral of an uncle on the part of the other. It is true appellees suffered physical pain as the result of their illness and men. tal anguish on account of the delay; but there is no such causal 'connection between the two as that the railway must respond in damages for both.
A somewhat similar contention was made in the case of Chicago, R. I. & P. Ry. Co. v. Moss, 89 Ark. 187. There a passenger debarked from a train and requested that his baggage be put off. His request was denied, and he was insulted and humiliated by the conductor. At the trial he recovered a verdict for $5 for actual damages .and $700 for humiliation and injured feelings. The opinion in that case reviewed the opinion of this court in the case of St. Louis, I. M. & S. Ry. Co. v. Taylor, 84 Ark. 42, which is our leading case on the right to recover damages to compensate for mental .anguish unaccompanied by physical injury. It was there insisted that Moss should recover for his humiliation because it was accompanied by another “element of recoverable damages.” Discussing that question, it was there said:
“The ‘other element of recoverable damages’ referred to, in the excerpt of the opinion above quoted, was clearly indicated in the preceding part of the opinion, wherein it was stated that 'damages for mental suffering may be recovered where there is a physical injury, be-, cause the two are so intimately connected that both must bé considered on account-of the 'difficulty in separating them. This is the foundation for permitting a recovery for mental suffering; and without this necessary connection between the physical injury and the mental suffering, there can be no recovery for the mental suffering. There are many cases in the books where there is a constructive physical injury, such as duress, ejection from trains, etc., where there is no physical violence, but an actual restraint or coercion of the person. In such cases, and possibly others, it would not be sound to hold that, merely because the finger was not laid upon the lapel of the coat, there can be no recovery for the wrong done, including the mental suffering resulting from such duress or coerced ejection. In order not to exclude such cases, the clause, which is made the basis for this suit was added; but it was not intended to permit any disconnected recoverable element to be used as a post to which to hitch mental suffering. In this case there is no connection whatever between the recoverable element .and the mental suffering; and the latter can not be sustained independently.”
' Appellees assert their right to recover under the authority of the ease of St. Louis, I. M. & S. Ry. Co. v. Brown, 97 Ark. 505. But the opinion in that case recites the fact to be that: “There is also evidence of physical suffering resulting directly from the wrongful expulsion of plaintiff with her baggage át a lonely place on the railroad where she could not procure shelter. She became physically exhausted iu attempting to carry her baggage back to the place where the auditor told her she would find the depot, -and in seeking to find a house where she could procure shelter and protection for the night. ' The jury had a right to consider these circumstances, and the mental, ás well -as the physical suffering plaintiff endured in estimating the amount of her damages.”
Here .there is no connection between the mental anguish and the physical injury, and, consequently, there can be no recovery for the mental -anguish.
For the error indicated, the judgment will be reversed and the cause remanded. | [
-78,
-6,
-35,
-68,
59,
96,
42,
8,
81,
-126,
37,
83,
-113,
-101,
-127,
43,
-26,
-13,
112,
43,
126,
-73,
71,
35,
-14,
-45,
115,
-59,
-99,
79,
100,
-4,
77,
32,
-62,
84,
-25,
-55,
80,
84,
-50,
21,
-88,
-19,
89,
18,
48,
111,
-58,
23,
-103,
-97,
-85,
46,
24,
-57,
9,
45,
107,
-72,
-64,
-72,
-113,
15,
107,
4,
-95,
36,
-68,
-89,
88,
10,
24,
25,
32,
-20,
113,
-92,
-121,
116,
109,
-119,
0,
-30,
98,
33,
5,
-25,
-40,
-88,
46,
-32,
-97,
-90,
-122,
88,
35,
101,
-73,
-103,
78,
84,
39,
120,
-16,
29,
77,
32,
13,
-49,
-76,
-73,
-51,
44,
-98,
-93,
-54,
47,
54,
113,
-51,
-94,
92,
67,
126,
-101,
-97,
-65
] |
McCulloch, C. J.
This is an action instituted to recover possession of a. tract of land containing .about eight acres, and the claimant shows a clear record or paper title. • The defendant claims title only by adverse possession for the statutory period of limitations, and the case was tried before the jury on that issue. The verdict was in favor of the defendant, and the plaintiff appealed.
The plaintiff owns a farm in Little Eiver County, and the defendant owns one adjoining his on the south. The land in controversy is, and has been for twenty years before the commencement of this action, inclosed with the defendant’s farm, ibut is in fact situated within the boundaries described in plaintiff’s title deeds. The defendant shows that as far back as the year 1890, the land in controversy was in cultivation, and inside of the fence of his grantors. The undisputed proof is that the defendant’s grantors and tenants occupied the land and cultivated it up to this fence, which was supposed to be on the boundary line. Defendant purchased the farm in the year 1904, which was about six years before the commencement of this action. The farm owned by • the defendant is known as the Deloney farm, and he purchased it from the Deloney heirs. Testimony adduced iby the plaintiff tends to show that in the year 1903, Mr. Jobe, the husband of one of the Deloney heirs, recognized the superiority of plaintiff’s title, and agreed to pay rent on the disputed strip of land, the tract of land in controversy. This, however, is contradicted by the testimony of Jobe himself. The court 'submitted the issue to the jury upon the claim of adverse possession, and we think there is enough testimony to establish title by limitations. The evidence on the part of the defendant shows that the land was actually occupied and cultivated by defendant’s grantors from the year 1890 down to the present time, and the jury were warranted in finding that possession was adverse, and not in subordination to the title of the true owner. The charge of the court on this issue conforms to the law on the subject as declared by this court in many decisions. The most recent one is the case of Couch v. Adams, 111 Ark. 604.
Error is assigned in giving, at the plaintiff’s request, the eighth instruction, which reads as follows: “Possession, if once shown to be openly and notoriously adverse, is presumed to continue so until the contrary is shown. ’ ’ In other instructions the jury were told that the burden rested on the defendant to establish his title by adverse possession by a preponderance of the evidence. We think the proof in this case does not leave open any question of presumption, and that the instruction on that subject was not prejudicial, even if it was erroneous. We will not, therefore, undertake to decide whether or not the instruction was correct. The jury necessarily passed upon the question of the character of defendant’s possession. That .was expressly submitted to them by other instructions, and they were told that unless the possession was adverse. to all claimants, and not in subordination to the title of the true owner, the verdict should be for the plaintiff.
Now, there was, .according' to the evidence, no change in the character of the plaintiff’s possession, except that some testimony tended to show recognition of the plaintiff’s claim by Mr. Jobe in tbe year 1903. That, however, was thirteen years after the adverse possession began, and the possession of the Deloneys had therefore ripened into title by limitations. Mere recognition at that time would not divest the title already acquired by limitations, and proof of recognition of the title by Jobe was only competent for tbe purpose of showing the character of possession prior to the lapse of time necessary to give title. Shirey v. Whitlow, 80 Ark. 444; Hudson v. Stillwell, 80 Ark. 575. But, inasmuch as the 'character of possession had not, according to the unoontradicted testimony changed for thirteen years, and the jury having found that it was hostile, there was no ground for finding that it had ceased to be such bef ore it ripened into title. There are other questions presented, not of sufficient importance to discuss. We find no prejudicial error in the record, and the judgment is therefore affirmed. | [
-14,
108,
-100,
12,
-56,
96,
40,
-104,
75,
-125,
100,
83,
-17,
-48,
12,
33,
-25,
105,
69,
111,
-28,
-77,
86,
-63,
80,
-69,
-126,
85,
53,
77,
-26,
87,
76,
0,
-54,
85,
-62,
96,
-127,
-98,
-114,
-113,
-103,
76,
-39,
72,
62,
59,
16,
111,
81,
31,
-13,
46,
21,
67,
105,
45,
-55,
25,
81,
-8,
-65,
5,
127,
19,
-95,
71,
-104,
-125,
-54,
42,
-112,
57,
-128,
-24,
114,
-74,
-106,
84,
11,
-103,
-120,
38,
103,
48,
108,
-17,
-87,
-72,
6,
58,
73,
-90,
-48,
64,
75,
106,
-66,
-99,
80,
-112,
70,
126,
-32,
-52,
28,
108,
13,
-121,
-42,
-77,
15,
60,
-106,
3,
-45,
-89,
116,
113,
-51,
-26,
92,
71,
121,
-101,
-114,
-43
] |
Wood, J.,
(-after stating the facts). The court erred in not -directing a verdict in favor of the -appellant. The unoontroverted evidence -showed that the appellant was' an innocent purchaser of the notes sued on. The appellant established the fact by its -evidence that it paid a .valuable -consideration for t-he notes before their maturity and without any n-oti-ce of any fraud in their execution or -of any defenses that the makers thereof might have against the payee. This -shifted the burden to the appellee to show that the appellant was not an innocent purchaser. Pinson v. Cobb, 113 Ark. 28; Bank of Monette v. Hale, 104 Ark. 388-395. The appellee did not meet this burden, and there were no circumstances developed in the testimony on. behalf of the appellant that would warrant a -conclusion that appellant was not an innocent holder of -the notes. The circumstances -did not -even create a suspicion of that kind.
In the absence of any testimony first tending to show that appellant was not an innocent purchaser, the court should not have permitted any testimony as to fraud in the execution -of the notes. Bothell v. Fletcher, 94 Ark. 100-103.
For the érrors indicated the judgment is reversed and -a judgment is entered here in favor of the appellant for the amount of the notes sued -on. | [
-80,
-4,
-24,
-65,
10,
-32,
34,
-102,
2,
-95,
55,
115,
109,
-61,
-108,
125,
-26,
-87,
-15,
106,
69,
-93,
39,
97,
-14,
-73,
-7,
85,
53,
107,
-12,
93,
76,
48,
-54,
-43,
98,
-118,
-63,
80,
-50,
-128,
9,
68,
-7,
-48,
52,
35,
68,
73,
113,
-108,
98,
44,
31,
71,
107,
44,
107,
57,
-48,
-8,
-102,
5,
93,
4,
-79,
55,
-100,
13,
-40,
46,
-104,
-78,
1,
-56,
122,
-74,
2,
84,
109,
25,
8,
102,
98,
33,
28,
109,
-100,
-100,
39,
126,
29,
-89,
-46,
104,
11,
41,
-105,
-35,
110,
65,
-122,
-2,
-16,
77,
29,
108,
3,
-50,
-10,
-79,
-67,
118,
26,
11,
-17,
-77,
16,
112,
-49,
-30,
92,
69,
26,
-101,
-98,
-75
] |
Hart, J.
On the 31st day of October, 1914,1. P. Hydrick instituted this ¡action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for personal injuries alleged to have been sustained by him while alighting from one of defendant’s passenger trains in consequence of the alleged negligence of the defendant.
The defendant interposed the plea of res judicata upon the following facts: On the 17th day of May, 1912, Hydrick was a passenger on one of defendant’s passenger trains from Newport to Swifton. After the train stopped at Swifton, it was suddenly jerked forward with great violence and thereby caused Hydrick to be injured while he was alighting from the train. He instituted an action against the railway company to recover damages for the injury sustained. In 1911 he was convicted of murder in the second degree and was sentenced to serve eleven years in the State penitentiary. ■ The judgment and sentence of conviction were in effect at the time he instituted said .action and .at ¡the time of the trial. Before the case was submitted to the jury, he dismissed his cause of action as to the loss of time and diminished earning capacity, and the only elements oí damages submitted to the jury were those of pain and suffering, medical attention, disfigurement and humiliation arising from said disfigurement.
The jury found for the plaintiff and assessed his damages at $7,749. The defendant railway company appealed to the Supreme Court, and the judgment was affirmed. See, St. Louis, I. M. & S. Ry. Co. v. Hydrick, 109 Ark. 231.
'Subsequently, Hydrick was pardoned by the Governor, and thereafter instituted this action to recover damages for the same injury, his contention being that because he was pardoned by the Governor, he is now entitled to recover for his loss of time and diminished earning capacity.
The circuit court sustained the plea of res adjudicaba, and the plaintiff has appealed.
The judgment of the circuit court was right. The cause of action and the damages recovered therefor are an entirety. The party injured must demand all the damages which he has suffered or ever will suffer from the injury, grievance or cause of action, upon which his action is founded. He can not split a cause of action and bring successive suits for parts, because he may not be able at first to prove all the items of the demand, or because 'all the damages have not been suffered. If he attempted to do so, a recovery in the first suit, though for less than his whole demand, will be a bar to the second action. See Sutherland on Damages (3 ed.), volume 1, section 106.
In volume 4, section 1251, the same author says: “A personal injury from a single wrongful act or negligence, is an entirety and affords grounds for only one action. In that action recovery may be had for all damages suffered up to the time of the trial, and for all that are shown to be reasonably certain or probable to be suffered in the future; or such as it is fair to believe will be so suf fered. Such prospective damages may include compensation for pain, disability and expenses. For this reason it is important in cases of serious injury to determine the permanence of any disability or reduction of workng capacity or impairing effect upon the health resulting therefrom.” See also, Black on Judgments, volume 2, section 738; Freeman on Judgments, volume 1, section 241; Hale on Torts, section 114.
In Foss v. Whitehouse (Maine), 48 Atl. 109, the rule is stated as follows:
“It is common learning that a plaintiff can not thus split up a cause of action, .and bring several actions for the different items of damage, resulting from the one cause of action. If he does bring tan action for some only of which items of damage, he is barred from bringing another action for any other items of damage from the same cause.”
In Warner v. Bacon, 8 Gray (Mass.) 397, the rule is thus tersely stated: “A fresh action can not be brought unless there be both a new unlawful act and fresh damage.” See, also City of North Vernon v. Voegler, 103 Ind. 314; Curtiss v. Rochester & Syracuse Railroad Co., 20 Barber (New York) 282.
In the application of these general principles, it is ■held that where a deceased in his lifetime brings an action and recovers damages for injuries sustained, 'his representative can not maintain an action for damages where death results from the same injury for which the recovery was had. This is so because there can be only one recovery iand a recovery adjudicates the whole right. 3 Elliott on Railroads (2 ed.), section 1375.
The defendant was guilty of but one wrong, and can be subjected to but one action .for it by the same party. The recovery in the first action is a bar to the present action.
The judgment will be affirmed. | [
-16,
72,
-36,
-82,
26,
104,
34,
-102,
65,
-61,
-91,
-13,
-55,
-113,
1,
51,
-25,
-21,
81,
51,
76,
-109,
23,
-94,
-78,
-109,
115,
-121,
-65,
77,
-28,
-63,
12,
50,
78,
69,
-58,
72,
-43,
28,
-114,
-92,
-86,
-20,
19,
72,
48,
124,
84,
31,
49,
-98,
-5,
46,
84,
-33,
73,
61,
107,
-55,
-47,
-16,
-126,
71,
123,
18,
32,
6,
-67,
35,
88,
31,
-102,
53,
1,
-4,
114,
-76,
-122,
-44,
33,
-103,
12,
98,
38,
35,
21,
55,
-88,
-88,
38,
122,
-113,
-89,
-110,
85,
75,
111,
-98,
-99,
91,
20,
-73,
120,
-20,
76,
89,
32,
3,
-50,
-76,
-109,
-33,
39,
-98,
39,
-37,
41,
52,
116,
-116,
50,
92,
5,
58,
-109,
-113,
-33
] |
Smith, J.,
(after stating the facts). No serious objection is made to any of the instructions given by the court except 'that appellant insists that the undisputed evidence shows that appellee was the servant of an independent contractor, and that under no view of the evidence was the appellant company responsible for his injury.
The law of this question was stated in the opinion of this court in the case of Arkansas Natural Gas Co. v. Miller, 105 Ark. 477, in which case we quoted with approval the following statement of the law from Elliott on Railroad's, volume 2, section 1063, as follows:
“In general, it may be said that the liability of the company depends upon whether or not it has retained control and direction of the work. But neither the reservation of the power to terminate the contract when in the discretion of the engineer 'the ■work is not progressing satisfactorily, the right to exercise general supervision and inspect the work as it progresses, nor the right to enforce forfeitures, will change the relation so as to render the company liable.”
And it was there further said: “According to this well settled principle of the law, the defendant was not liable for the negligent acts of the contractors or their servants, merely because it furnished an inspector to see that the work was done according to the contract. ’ ’
The evidence in this case, when subjected to the test here stated, did not call for the submission to the jury of the question of appellant’s liability for appellee’s injury.. We think the fact is undisputed, when the evidence has been viewed in the light most favorable to appellee, that Allen was an independent contractor, and that no representative of the appellant company was shown to have had any authority or supervision-over appellee, iand ¡that no representative of appellant company directed, or offered to direct, appellee in 'the discharge of his duties. The owner of a building, or principal employer has the right always to see that the building is-constructed according to the plans, and the mere exercise of -this right does not create the relation of master •and servant between the owner and the servant, 'and does not place upon the owner any liability to the servant, unless the owner undertakes to direct the manner in which the laborer shall work in the discharge of his duties. And the same thing is true in regard t'o any mere change in .the plan of construction. The making of this change does not 'alter the relation between the owner and the servant, unless the owner undertakes to direct and supervise the manner in which the servant shall do his work in making the change.
Nor do we agree with appellee in the importance to be attached to the inference which he says should be drawn from the proof in regard to the conversation between Pryor and Mattison concerning the use of one •tringer instead of two in a certain part of the work, even if we should conclude that the evidence supported ■the inference that Miattison had directed that only one stringer should be used. 'The use of one stringer, .instead of 'two, did not occasion the 'appellee’s injury, and the proof that Pryor sought Mattison’s advice would not make Allen any the less on independent contractor, because the use of 'two stringers instead of one would have been only one of those changes in the plans which the owner had the 'authority to make.
Neither the directions given in regard to cutting off 'the posts, nor 'any other similar directions, could change the relationship of the parties, because such directions were given in the exercise of the owner’s right to see that the work conformed to the plans, 'and, as was stated in the case of Arkansas Natural Gas Co. v. Miller, supra, such .supervision over the work iof the independent contractor does not make the owner or principal employer the master of the servant who performs the work if such supervision consists only in seeing that the plans have 'been followed, and does not go to the extent of saying who shall do the work or how it shall be done. The servant remains the servant of the independent contractor if the right of direction and control abides with the independent contractor.
Appellee asserts an additional right of recovery, that is that 'appellee had furnished unsafe plans for building the sheds. But we need not discuss the law of that question, because the proof does not show that appellee’s injury was due to 'any defective plans. Appellee proved, and the fact is undisputed, that a lot of lumber, containing a thousand or twelve hundred feet, had been negligently piled together, and that this great weight caused the giving away of the joists which resulted in appellee’s injury; and the stacking of this lumber was no part of the plans.
Moreover, this ground of liability was not alleged in the pleadings, 'and appellant’s liability on that account was not submitted to the jury in any of the instructions asked or given, and we will not remand this cause for a trial upon .that issue. In our view of this evidep.ce the 'court should have instructed the jury that Allen was an independent contractor, and that the proof was insufficient to show that the .appellant company had exercised any control or supervision over appellee in the 'discharge of Ms duties which made it liable for Ms injury, und ia verdict should, therefore, have been directed in his favor. And for the error in so refusing to direct a verdict the judgment will be reversed and the cause will be dismissed. | [
-108,
122,
-36,
-20,
-40,
-32,
58,
-102,
113,
-90,
-89,
83,
-17,
-125,
-100,
107,
-29,
61,
-48,
27,
84,
-93,
19,
107,
-42,
-109,
115,
-59,
-110,
91,
-26,
-34,
76,
48,
74,
-43,
-25,
65,
77,
24,
-118,
5,
42,
-23,
-7,
64,
48,
106,
116,
79,
17,
-97,
-13,
44,
25,
-57,
45,
46,
111,
45,
-48,
113,
-102,
13,
79,
4,
-79,
5,
-98,
103,
-24,
12,
-104,
-79,
1,
-40,
115,
-74,
-127,
-4,
111,
27,
8,
98,
98,
34,
-99,
-25,
-52,
-40,
62,
-18,
-99,
-89,
17,
24,
-101,
73,
-73,
-99,
72,
4,
38,
110,
-26,
85,
91,
109,
3,
-117,
-10,
-95,
79,
101,
-110,
-121,
-17,
5,
17,
100,
-50,
-86,
94,
67,
115,
-101,
-98,
-54
] |
Hart, J.
This is an action by Jno. A. Lovewell against S. T. Simonson to recover damages for the publication of a certain alleged libelous article in the Luxora Commonwealth of March 19, 1910. The case was tried before a jury which returned a verdict for the plaintiff in the sum of $5,000 and from the judgment rendered the defendant has appealed. The article upon which the action of libel is based is as follows:
“WHO SHALL WE SELECT AS THE NEXT SHERIFF IS ONE OF THE MOST IMPORTANT QUESTIONS NOW BEFORE THE PEOPLE OF MISSISSIPPI COUNTY, IF NOT THE MOST IMPORTANT.
“(1) Shall it be C. B. Hall, who has in the short space of time in which he has had to prove himself, made one of the best and cleanest officers Mississippi County has ever known, and whose boobs are clean .and whose settlements are right and up-to-date, or shall it be John Lovewell, who, after several terms in office and after ample opportunity to prove his worth and efficiency if it were in him, has proven his utter inefficiency and unworthiness and has abused and forfeited every right he may have had to the support, confidence and respect of the people of Mississippi County.-
“(2) Instead of being the high-class gentleman to which, he should have aspired and might easily have attained in his private life, he has forced upon and displayed before the people a record that has offended every sense of right thinking people. In fairness, what an example to the youth of our rapidly developing county to confer such a conspicuous honor upon a man with such a' record, and in effect to say to our sons, do likewise, and be honored. No, we could not so advise them for a hundred times the honor and compensation .attached. Details are in disgusting abundance and reserve. Not for ■any fancied slight or dislike to the action of his friends and fellow county officers, should Mr. Hall lose one vote, but we should encourage a man who has made so excellent a record by strong support and re-election.
“(3) Even Mr. Hall’s worst enemies have practically no foundation for their enmity, and it is clearly a distorted and perverted judgment that would lead to an endorsement of Lovewell’s record in preference to Hall. The time has fully arrived when it is of urgent importance to support and encourage a worthy and competent official iand endorse his record in the strongest way, which is by re-election.
' “(4) Mr. Hall has taken a very impartial attitude in the matter of drainage, but the facts are that we should go forward with the improvement and development of our country in the most rapid and practical manner. Lovewell is the worst retarding influence we have. Men with the capital and ability to assist in this work do not care to come where the sheriff invites and encourages riot and disorder, even when the county court is in session, as we recently had a deplorable exhibition. True, this suits a few people we have yet with us, but happily their number is'rapidly declining.
“(5) The land owner'and even the humblest laborer should be for the early and full development of the country, and upon mature reflection all will be.
“(6) The construction of drainage ditches or flis•tricts eight and nine means the expenditure of many hundred of thousands of dollars which insures an advance in values of many hundreds of per cent above the assessment to the land owner, and the laborer will receive the greater bulk of the large expenditure for construction which will be followed by the expenditure of many hundreds of thousands of dollars immediately in the clearing of lands which the poorer people of the county will receive. This will be followed by building of thousands of homes, barns, and thousands of miles of fences, small lateral ditches and good roads, all at an expenditure of hundreds of thousands of dollars, all of which will come to the hands and pockets of the laboring people and on to the merchant in payment of better and more food, clothing and furniture and for the payment on little homes and farms, then thousands of worthy and industrious people will 'Come from other places where opportunities scarce exist and plow and gather most abundant crops from the lands that were formerly disgusting and malarious, disease breeding swamps and into which the doctor can not be induced to visit the poor man’s family for a fee less than ten or fifteen dollars.
“ (7) And yet the most that Lovewell’s supporters seem to be able to say for him is that he has saved the poor people from this improvement and that he has been their friend, and How? By squandering and appro- • priating to his own uses the thousands of dollars of the people’s money that should have been turned into the treasury of the county for the upbuilding of the county and the payment of the county’s indebtedness, and we now experience an enormous raise in taxes made necessary very largely on account of the misappropriation of the county funds by the 'Self-confessed benefactor of the county and friend of the people.
“(8) Here is one of the many comparisons which should cause the people to take notice. In the collection of the 1907 taxes Lovewell turned into the school fund $29,331.61. In the collection of the 1908 taxes on the same valuation, Hall turned into the school fund $36,-686.34, or $7,354.73 more than Lovewell, as shown by the public records.
“(9) In the case of the County against Lovewell, just tried in the chancery court, Lovewell made no defense that he had appropriated the county’s funds as charged, but that he was saved from prosecution by the three years’ statute of limitation and the judge held only that the three years’ time was a bar to the prosecution. What a record with which to oome before the people for re-election. The attorneys for the people immediately filed t'heir transcript preparatory for an appeal to the Supreme Court.
“(10) The confidence man always poses as your friend :and 'always will while getting his graft, and is usually conspicuous -and busy with his advice to look out, for somebody else is trying to work a graft.
“ (11) It would be far-more pleasant and infinitely to the credit -of the county if such records' as this had never been made, though such records and their maker, who is entitled to no screening or support, should be brought into the light and given their due then buried forever, and newer and better men and records supplant them at the earliest opportunity.
“(12) Vote for C. B. Hall, who has nothing to cover up, and feel assured that your taxes will be used as they should. ’ ’
Simonson admitted that he was the author of the ■article and caused it to be published.
The article was libelous per se. Patton v. Cruce, 72 Ark. 421; Murray v. Galbraith, 86 Ark. 50; Murray v. Galbraith, 95 Ark. 199.
The record of the testimony in the case is voluminous and for the reason that the case must be reversed because the court erred in instructing or admonishing, the jury upon the question of agreeing upon a verdict, we do not deem it necessary to abstract the testimony. It is sufficient to say that many witnesses were examined and that the testimony upon the question of the truth or falsity of the published article is in direct and irreconcilable conflict. Besides, upon a retrial of the case there may be additional and different testimony. We have carefully examined the record and are of the opinion that the testimony was sufficient to sustain the verdict.
After deliberating for some hours the jury returned into the court and reported that they were unable to agree upon a verdict. Thereupon the court said to the jury, “Gentlemen, how do you stand?” and the foreman of the jury replied, ‘ ‘ We stand nine to three. ’ ’ The court then of its own motion gave to the jury what is called instruction number 19, which is as follows:
‘ ‘ Gentlemen, under our laws and constitution we have only one method of settling disputed questions of fact, and that is by the verdict of a petit jury. The law requires that the verdict of the jury be the verdict of twelve men unless the parties otherwise agree to a less number. This agreement on the part of the parties to a lawsuit is rarely, if ever, obtained, so it is necessary in order to have a lawsuit finally disposed of that the jury render a verdict.
“It is not to be presumed that this case can ever be tried at any other time any better than it has been tried on this occasion, or that we will ever have another jury to try the case that will be any more honest or careful and painstaking than the jury we have at present. If you do not decide the case, it is left for some other jury to decide, and there is no reason why it should be done, if it can possibly be avoided.
“If, when you have discussed the case, you find that a large majority of the jury is for one side or the other, as the case may be and a few for the opposite side, then the minority ought to consider very carefully whether or not they are right and the others are wrong before they finally conclude to report a mistrial.
“You ought to discuss the matter among yourselves and endeavor as best you can to reach a conclusion. We make up our minds and opinions upon .almost everything we experience in our lives from discussing those matters with other people. Very often we find people whose opinions upon a given state of facts are at variance with our own, and very often we find that our opinion is wrong and that of our neighbor is right. It is not to the discredit of any man that he may change his opinion, if, after a discussion, he ascertains that his opinion is wrong. This is not said to you for the purpose of changing your minds. No man ought to render a verdict in a case where he conscientiously believes it is wrong; on the other hand, he ought to he reasonably sure he is right before finally concluding he will report a mistrial in a case.
“In the 'determination of this case you have very few questions to decide. The first is, was the publication true or false. If you find the alleged libel to be true, you will find for the defendant. If false, then the next question is the question of damages. These are the questions- you have to decide.
“I am now going to ask you gentlemen to retire to your room and make another effort to reach an agreement. I do not do this because I have the power or authority to do it, but because I believe the jury should be given time and opportunity to reach an agreement. It is not to the discredit of the jury that it takes time to decide the suit. You may retire, gentlemen.”
The language used by the court is assigned as error by counsel for the defendant.
Upon the question of how far the court may go in admonishing the jury of the necessity of agreeing upon a verdict, in the case of St. L., I. M. & S. Ry. Co. v. Devaney, 98 Ark. 83, the court said:
“In the conduct of the trial of causes the trial court is necessarily and rightfully vested with a large discretion. And, -unless there has been a clear abusé or unwise exercise of that discretion, the appellate court should not interfere therewith. The trial judge' should not make any remark to or in the hearing of the jury which would indicate his opinion as to the merits of the case or as to any fact involved therein. But he may properly admonish the jury as to the importance or desirability of their agreeing on a verdict. He should not by any word or act intimate that they should arrive at a verdict which is not the result of their free and voluntary opinion, and which is not consistent with their consciences; but -still it is proper for the trial court to impress upon the jury the • duty resting upon them to arrive at a decision. This court has said: ‘It is entirely proper for a trial judge, at all stages of the deliberations o‘f the jury, to make plain the obligation resting upon them, if possible, to agree upon a verdict consistent with the facts and the concurring individual convictions of each juror.’ ”
In the case of the St. Louis, I. M. & S. Ry. Co. v. Carter, 111 Ark. 272, we said:
“The rule is well settled in this State that the trial court may detail to the jury the ills attendant on a disagreement and the importance of coming to an agreement. The trial judge should not, by threat or entreaty, attempt to influence the jury to reach a verdict. He should not, by word or act, intimate that they should arrive at a verdict which is not the result of their free and voluntary opinion, and which is not consistent with their 'conscience. He may, however, warn them not to be stubborn and to lay aside 'all pride of opinion and to consult with each other and give due regard and weight to the opinion of their fellow jurors.”
In that case we recognized it to be the doctrine of this court that the province of the court and jury in the trial of a case was distinct and separate, and that the object of jury trial is to get the free judgment of the jurors upon the facts in dispute; .and the fundamental question to be determined in testing the language used by the court in admonishing the jury to reach a verdict in a given case is to determine whether or not the language used by the judge was calculated to coerce the jury, either by threat or by persuasion, into an unwilling verdict.
In the Carter case, supra, we did not approve or disapprove the instruction given' in the case of Commonwealth v. Tuey, 8 Cush. (Mass.) 1. We, as well as other courts which have had occasion to discuss the subject, recognized the Tuey case as a leading case on the question, and pointed out that it is generally regarded as a case approaching the border line of telling the minority of a disagreeing jury to agree with the majority merely for the sake of an agreement. We held that the language used in the Carter case went further than that used in the Tuey case, and that the tendency of the court’s remarks was to create an impression upon the minds of the minority that they should yield to ¡the majority of the jury. In the Tuey case, the language of the trial court which was regarded as objectionable is as follows :
“And, on the one hand, if much the larger number of your panel are for conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one, which makes no impression upon the minds of so many men, equally honest, equally intelligent with himself, and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath. And, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably, and ought not to doubt the correctness of a judgment, which is not concurred in by most of those with whom they are associated; and distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows.”
A comparison of the language used by the court in the case at bar, and that used in the Tuey case will show that the court went further in this case than did the court in the Tuey case. In the Tuey case, the court had instructed the jury that before it could convict, it must be convinced beyond a reasonable doubt of the guilt of the defendant. The court, in admonishing the jury, in effect, told them that a juror should consider whether a doubt in his mind was a reasonable one when it made no impression on the minds of a majority of the jury; and that, on the other hand, if the majority of the jury were for acquittal, the minority ought to seriously ask themselves whether they should distrust the weight or sufficiency of the evidence which failed to carry conviction to the majority.
The meaning of the language used by the court in that case was that if a minority of the jury differed from the majority, the minority should carefully consider the evidence for the purpose of determining whether their own opinion was correct. In other words, the language of the court was equivalent to telling the minority that it should consider and examine carefully evidence which failed to carry conviction to a majority of the jury. It did not tell the minority that it should give more effect to the opinion of the majority than it did to its own opinion, which would have been in effect to tell them that they should weigh the opinion of the majority instead of weighing the evidence.
In the instant case, the court said to the jury: “If you do not decide the ease, it is left for some other jury to decide, and there is no reason why it should be done, if it can possibly be avoided.”
“If, when you have discussed the case, you find that a large majority of the jury is for one side or the other, as the case may be, and a few for the opposite side, then the minority ought to consider very carefully whether or not they are right, and the others are wrong before they finally conclude to report a mistrial.
“* * * This is not said for the purpose of changing your minds. No man ought to render a verdict in a case where he conscientiously believes it is wrong; on the other hand, he ought to‘ be reasonably sure he is right before finally concluding he will report a mistrial in a case.”
In the case before us the language used was calculated to impress the minority of the jury with the idea that it was their duty to yield their judgment to the voice of the greater number. The court did not tell them to weigh the evidence as it did in the Tuey case, but in effect told them that they should give weight to the opinion of the majority. This was^ not within the province of the court.
The case before us was a civil case, and, under the instruction of the court, was to be determined by the jury according to where it should find was the preponderance of the evidence. The case had been on trial for several days. Numerous witnesses had been introduced and examined and cross-examined at length. The record of their testimony is very voluminous. There was a sharp and irreconcilable conflict in the testimony given by the witnesses. After the jury had deliberated some hours, it returned into court and reported that it could not reach an agreement. The court at once asked them how they stood, and when told nine to three, it immediately used the language which is the basis of the assignment of error under consideration. We do not doubt but that the court was actuated by proper motives, both for the interest of the public, and for the litigants in the case. But we are of the opinion that under the circumstances, a fair and reasonable construction of the language used was- calculated to impress upon the minority that their opinion was entitled to less weight than that of the majority of the jury. As we have already seen, each party, as a fundamental right, was entitled to have the issues of fact determined by a unanimous verdict which had the independent assent of each member of the jury, and we are of the opinion that the language of the court was calculated to impress on the minds of the jury that the minority should yield its opinion to the majority for the sake of an agreement in the case. The minority should not be required to yield to the majority unless from conscientious convictions that the majority are right. Therefore, we are' of the opinion that the court erred in the language used, and that for this error, the judgment should be reversed.
Inasmuch as the judgment must be reversed for the error just indicated, we desired to call attention to two other instructions given by the court, numbered respectively, 11 and 15. They are as follows:
“11. In determining the amount of damages you will award to the plaintiff, in the event you find for the plaintiff, you have the right to take into consideration all of the evidence in the case, 'and if you find that prior to the publication of said article plaintiff’s reputation for morality was bad, and that he further bore the reputation of being a defaulter, then you may consider such evidence in mitigation of any damages you may award the plaintiff by way of compensation.”
“15. You are further instructed that the evidence relating to the 'circumstances under which a libelous , article is published, may be considered by you in determining whether the plaintiff is entitled to vindictive or punitive damages from the defendant, but must not be considered by you in determining the amount of compensatory damages ; that is to say, such evidence is not competent to reduce or mitigate 'Compensatory damages. ’ ’
It is claimed by counsel for the defendant that these instructions are in conflict. It will be noted that in instruction numbered 11, the court told the jury that in awarding compensatory damages, it had a right to take into consideration all the evidence in the case, and that if it found that prior to the publication of the article in question, the plaintiff bore the reputation of being a defaulter, or that his reputation for morality was bad, these facts might be considered by them in mitigation of damages. This instruction was correct, and no complaint is made by the defendant. The defendant does insist, however, that the instruction numbered 15 is in conflict with it because the court there told the jury that the evidence relating to the ciroumstanoes under which a libelous article is published may be considered in determining whether the plaintiff is entitled to punitive damages, but can not be considered in determining the amount of compensatory damages. Counsel for the defendant urges that the evidence relating to circumstances .as used in the instruction includes evidence of the plaintiff’s reputation for morality and the evidence that he bore the reputation of being a defaulter.
We do not think he is correct in this contention. The court evidently intended to use the word ‘ ‘circumstances ’ ’ with reference to the facts leading up to the publication of the article and which caused its publication, and we do not think the court had in view the evidence relating to the plaintiff’s reputation for morality or the evidence in regard to his being a defaulter. Therefore, we would not reverse the judgment on account of this assignment of error. The language of the instruction might have had a tendency to mislead the jury, and had counsel for defendant made a specific objection to it, doubtless the court would have changed it to obviate the objection of defendant. We call attention to this matter now, so that the language of the instruction may he changed at the nest trial should 'an instruction couched in the same language be presented to the court by the plaintiff, and should a specific objection be made to it by the defendant.
For the error in giving instruction numbered 19, the judgment will be reversed and the cause remanded for- a new trial. | [
48,
-2,
-8,
29,
56,
-96,
10,
-68,
67,
-85,
-14,
-13,
-71,
107,
9,
119,
-93,
109,
-43,
121,
-62,
-89,
-105,
-93,
-78,
-45,
-37,
-121,
-79,
-59,
-10,
117,
12,
48,
-46,
29,
-62,
66,
-123,
-36,
-122,
-94,
-86,
-27,
88,
-56,
52,
122,
16,
75,
101,
110,
-21,
56,
22,
67,
-19,
40,
-39,
56,
64,
-78,
-100,
31,
93,
22,
49,
103,
-100,
-57,
-40,
46,
-72,
53,
0,
-8,
123,
-89,
-124,
-43,
15,
-115,
-116,
-90,
111,
-45,
-35,
-9,
-96,
-101,
29,
126,
13,
38,
-116,
105,
43,
107,
-76,
-99,
114,
16,
-121,
124,
-29,
84,
95,
40,
3,
-58,
-42,
-93,
-49,
-96,
-100,
18,
-61,
10,
36,
113,
-51,
-30,
84,
69,
48,
31,
-121,
-8
] |
Hart, J.
On the 28th day of June, 1914, W. D. Polk and others under the firm name of the Bank of Success instituted this action before a justice of the peace against William Stephens, J. R. Shively and Joe McCracken to recover on a promissory note.
The defendants Shively and McCracken interposed the plea of the statute of limitations; and the defendant Stephens-pleaded his discharge in bankruptcy as a defense to the action. Judgment was rendered in favor of the defendants in the justice of the peace court and an appeal wias taken to the circuit court. There the cause was 'Submitted to the court sitting as a jury upon an agreed statement of facts as follows:
“It is agreed by the parties hereto that on June 7, 1905, defendants, Wm. Stephens, J. E. Shively and Joe McCracken execrated to the Bank of Success a note for $150 due on the 6th day of August, 1905, and bearing interest from date until paid at the rate of 10 per cent per 'annum; that Wan. Stephens was the principal in said note and Joe McCracken and J. E. Shively were sureties on same, which fact was known to plaintiffs at the time of execution and delivery of said note to them; that Wm. Stephens made payments on said note as follows: September 26, 1905, $6.25; December 11, 1905, $3.75; February 17, 1906, $3.75; May 14, 1906, $3.75; September 22, 1908, $7.50; March 3, 1913, $1.00; that on the lOth of Maricih, 1908, Wm. Stephens was discharged in bankruptcy and the note sued on was included in his schedule of liabilities in said bankrupt proceedings. At the time Stephens made the payment of $1 on March 3, 1913, he orally promised to pay the balance on the note sued on.”
The circuit court found that as to McCracken and Shively the action was barred by the statute of limitations ; and as to the defendant Stephens, by his discharge in bankruptcy. Judgment was entered in favor of the defendants and the plaintiffs have appealed.
It is the contention of counsel for plaintiffs that the payment by the defendant Stephens of $1 on March 3, 1913, had the effect of reviving the debt against him and of preventing the statute of limitations from running against the defendants Shively and McCracken.
In this contention we do not agree with counsel. Section 3655 of Kirby’s Digest provides that no promise to pay a debt or obligation which has been discharged in bankruptcy shall be valid unless such promise is in writing. The promise made by Stephens was an oral one and on that account did not have the effect of reviving the debt against him. Because the promise can not ¡be implied or inferred it has been generally held that partial payments on a debt 'discharged in bankruptcy are not sufficient evidence of a new promise to pay, to revive the debt. Remington on Bankruptcy, (2 ed.), volume 3, see. 2716; Needham v. Matthewson, 81 Kan. 340, 19 Amer. & Eng. Ann. Cas. 146, and case note, 26 L. R. A. (N. S.) 274, and case note; Merriam v. Bayley, 1 Cush. (Mass.) 77, 48 Amer. Dec. 591.
It follows that the oral promise of Stephens to pay the note, and the part payment by him of one dollar, did not have the effect of reviving the debt against him and the court properly held that the plaintiff’s cause of action against him was barred 'by the discharge in bankruptcy.
The rights of the creditor against third parties liable jointly with the bankrupt or secondarily for him are not impaired by the bankrupt’s adjudication nor by the bankrupt’s discharge. Remington on Bankruptcy, second edition, volume 2, section 1510.
More than five years elapsed between the last payment on the note and the date on which this action was commenced. Therefore, as to Shively and Mc-Cracken, the 'court properly sustained their defense of the plea of the statute of limitations.
Counsel for the plaintiffs contend that the payment made by Stephens on the 3d day of March, 1913, after his discharge in bankruptcy, operated to prevent the statute running against Shively and McCracken; and in support of their contention they cite the case of Hicks v. Lusk, 19 Ark. 692, where the court held that a part payment by one of the several contractors, or partners, before the bar of the statute of limitations had attached, forms a new point from which the .statute begins to run as to all.
The holding in that case proceeded upon the theory that the person making the payment was agent for his co-obligors, and has no application to the facts of the present case.
Although the moral obligation to pay the discharged debt :by ¡a bankrupt is a sufficient consideration for .a promise to pay, the .cause of action rests upon the new promise ¡and not upon the old debt.
As we have already seen the part payment made by Stephens was not sufficient evidence of :a new promise to pay on his part; ,and even if it had been sufficient evidence of a promise to pay on'his part, the'cause of action against him would rest upon the new promise and not upon the old debt. The defendants .Shively and McCracken were only liable on the old debt and on that account the part payment by Stephens, after his discharge in bankruptcy, could- not (have the effect of preventing the statute of limitations from running as to Shively and McCracken.
It follows that the judgment will be affirmed. | [
-16,
108,
-8,
-98,
10,
-16,
10,
-102,
74,
-128,
-75,
-13,
-7,
-61,
9,
113,
-15,
41,
85,
104,
-27,
-77,
55,
-126,
-13,
-77,
-35,
-59,
-75,
75,
-27,
85,
12,
52,
106,
29,
-58,
-38,
-59,
28,
-50,
-92,
41,
-20,
-7,
-103,
48,
27,
37,
72,
117,
14,
-5,
41,
21,
94,
108,
41,
107,
25,
-64,
-79,
-118,
5,
127,
21,
17,
83,
-112,
71,
72,
14,
-104,
55,
49,
-24,
114,
47,
-122,
-12,
107,
9,
12,
102,
102,
48,
81,
-1,
-120,
-72,
38,
-98,
-113,
-122,
-79,
64,
11,
109,
-68,
-99,
126,
20,
-121,
-12,
-18,
-60,
29,
40,
11,
-33,
-106,
-126,
-101,
118,
30,
11,
-45,
3,
48,
113,
-50,
96,
92,
38,
120,
-109,
14,
-79
] |
McCulloch, O. J.
Appellant is charged with the crime of administering poison to a certain horse named “Wat-tan”, the property of one W. H. Shanks. The indictment charges that appellant knowingly administered strychnine to snid horse, and was framed under the •following statute:
“Every person who shall knowingly /administer any poison to .any horse, ass, ¡mule or to any cattle, hog, •sheep, goat or dog, or maliciously expose any poisonous .substance with intent that the same shall be taken or swallowed by 'any of the aforesaid animals, shall on conviction be punished in the manner prescribed by law for feloniously .stealing property of the value of the animal so poisoned; and the jury who shall try such case shall assess the amount of damages, if any /actual damage ■has Occurred, occasioned by .such poisoning or intent to poison, ¡and the court 'shall render judgment in favor of the party injured for threefold the 'amount so assessed by the jury.” Kirby’s Digest, § 1892.
The evidence /addutoed on the trial wias mainly to establish /circumstances which tended to show that appellant administered the poison to the horse and that the horse died from the effects .of it. The owner found the -horse dead in the stall when he went out to feed early in the morning, and there is sufficient testimony to connect the defendant circumstantially with the /commission of the crime.
In making up the trial jury, appellant exhausted all his peremptory challenges, .and there 'are several assignments oif error with respect to rulings ‘of the court in passing on the competency of jurors. One of the veniremen disclosed the fact on his voir dire that be was a justice of the peace in the county ¡at that time, and appellant challenged him peremptorily on that ground, but the court overruled the challenge for the .alleged reason that -appellant had failed to exercise his right of challenge before the attorney for the State passed on the juror. It appears that the juror disclosed the fact that he was a justice of the peace when [being’ cross-examined by appellant’s counsel, amid the question of his competency was dully challenged. We think that the challenge was exercised in apt time and that the ¡court erred in disregarding it. Langford v. State, 98 Ark. 327. The Attorney General has confessed error ¡on this point, and we ¡are of ¡the opinion that the ¡confession is well founded. The statute provides that the fact that a “juryman is a postmaster, justice of the peace or county official” affords grounds for peremptory challenge. Kirby’s Digest, § 4537. This error of the court calls for a reversial of the judgment.
There ¡are ¡many other assignments of error which need not be discussed for the reason that the same matters may not arise in the next trial.
There is one, however, which relates to the question of the ¡conrelcltness of an instruction of the court, ¡and as that question may arise in the next trial we deem it proper ¡to consider it. Iin instruction No. 8 the court told the jury that if appellant “placed strychnine poison in the place for the purpose of having “Wattan” to take it, and .that “Wattan” did take it into his .stomach, then you will find that defendant ¡administered said strychnine to “Wattan.” Objection was made to tbis instruction ¡and the ruling of the court in giving it is now assigned ¡as error. It is argued 'that the ¡statute names 'two Independent methods in which the offense may be committed, and that ¡as -the indictment charges the offense to have been ¡committed in one of the prescribed modes, thiat of knowingly .administering poison, it cannot he established by proving the other method, that of maliciously exposing the poison. Our conclusion is that the instruction given by the court was correct, for the placing of the poison where the horse could get it, and with intent that the horse should get it, constituted the offense ¡of knowingly administering the poison if the horse in fact took the substance in bis stomach. There are, indeed, two methods prescribed for committing the offense. The first method, that of administering the poison, is not complete unless the ¡animal takes it; 'but the other offense is complete when the poison is maliciously exposed with intent that the same ¡shall be taken or ¡swallowed by any of the ¡animals mentioned, whether the poisonous substance is in fact taken by the ¡animal or not. The two methods ¡differ in that respect. But, after ¡all, exposing the poisonous substance with the intention that the ¡animal shall ¡get it constituted the offense of administering if the animal doeis in fact get it. Counsel for appellant cited a decision ¡of the Supreme Court of North Dakota (State v. Hakon, 129 N. W. 234) which sustains their contention, but we decline to take that view of the subject. The statute of North Dakota is very similar to our statute on the subject and the court, in the decision referred to, .said that if exposing the poison was not prescribed as ¡an independent method of committing the ¡crime, then it would constitute administering poison, but that ‘because ¡of the fact that it did constitute an independent method it could not be considered as an element ¡of the offense of administering the poison. The reasoning of the ease does not appeal to us, for it seems clear to us that notwithstanding the fact that the statute makes the exposing of poison a crime, that may also constitute a part of the crime of administering and thus make out the crime if ¡the 'animal gets the poison thus exposed with such intentions.
It is also urged that it was improper for the court to permit damages to :be awarded, notwithstanding the statute which expressly provides that “the jury who shall try .such case shall assess the amount of damages, if ¡any actual damages has occurred, occasioned by such poisoning or intent to poison. ’ ’ No reason is given in the •argument why the Legislature cannot authorize the trial together of ¡the civil action for damages and the criminal prosecution. We are aware of no constitutional prohibition against such procedure.
For the error iof the court, however, in refusing to ■allow appellant to challenge the venireman who was a justice of 'the peace, the judgment is reversed and the cause remanded for a new trial. ■' | [
112,
-26,
-71,
-97,
106,
96,
40,
-104,
65,
-125,
-25,
83,
-49,
-58,
5,
33,
105,
109,
69,
107,
-20,
-74,
19,
71,
-102,
-13,
11,
-57,
55,
75,
-1,
127,
13,
48,
-62,
85,
-58,
43,
-31,
28,
-114,
-91,
-56,
97,
-30,
-128,
52,
123,
127,
75,
113,
31,
-17,
42,
93,
-54,
105,
56,
75,
47,
-56,
113,
-69,
13,
-3,
18,
-93,
6,
-66,
-123,
74,
46,
-40,
49,
0,
-8,
115,
-106,
-126,
-44,
8,
-103,
12,
98,
98,
45,
76,
-115,
32,
-24,
47,
126,
-52,
-89,
16,
65,
75,
8,
-106,
-115,
114,
-46,
-121,
-8,
-7,
-44,
17,
112,
3,
-97,
-108,
-73,
79,
44,
-108,
19,
-5,
-91,
20,
117,
-35,
-30,
92,
71,
16,
-101,
7,
-105
] |
Wood, J.,
(after stating the facts). The court erred in not granting ¡appellant’s prayer No. 4 for instruction. The undisputed testimony showed that the carload of coal in controversy was a through shipment from St. Charles, Ky., to Mesa, Ark. The Hunt-Berlin Coal Company, from whom the appellee bought the coal, directed the coal to be shipped from the mines in Kentucky -over the Illinois Central Railroad. The bill of lading or contract under which the shipment was made provided that 'claim for loss, damage or delay should be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, ¡and that unless claim was so made, the carrier should not be liable.
The testimony showed that under the contract between the initial carrier and the Hunt-Berlin Coal Company, the latter company could rebill the oar when it arrived at Memphis to any of its customers, and that when so rebilled or reoonsigned it became a continuous or through shipment from the point of origin to the place of ■final destination.
The tariff rates on coal destined to Memphis over the Illinois Central provided that coal might be reconsigned to points beyond in the same general direction at the balance of the through rate. There was a through rate in effect at that time from Fox Bun, Kentucky, to Mesa, Arkansas. When there is a reoonsignment from Memphis the consignee at the place of final destination pays the through rate. The Hunt-Berlin Coal Company, in reconsigning the carload of eoial, did not procure another bill of lading from Memphis to Mesa, but “merely directed that the carload of coal be sent from Memphis to destination under the same bill of lading.”
In determining the rate which Foster had to pay on the carload of coal “the regular flat rate from the mines to Memphis 'and the regular rate from Memphis to Mesa were added together and he paid the full sum of the two. The freight was not made any cheaper by virtue of the reeonsignment. ’ ’
The above testimony was certainly sufficient to entitle appellant to have the jury instructed that the con-' tract of affreightment between it and the appellee was that provided by the bill >of lading issued by the Illinois Central Bailway Company, the initial carrier. The appellant’s prayer for instruction No. 4 wa,s¡ based upon the uncontroverted evidence. In refusing it the court ignored one of the material issues in the case which the testimony proved. The carload of coal having been shipped under the original bill of lading, issued by the Illinois Central Bailway Company, the jury should have been told that as the appellee did not make a claim in writing for damages to his rice crop to the railway company at the point of delivery or at the point of origin of the shipment within four months after the delivery of said shipment, 'his action was barred. Chicago, Rock Island & Pacific Ry. Co. v. Williams, 101 Ark. 436.
For the error indicated the judgment is reversed and the cause dismissed. | [
52,
-6,
-36,
-99,
26,
96,
42,
-102,
117,
99,
-89,
83,
-51,
-41,
16,
97,
-89,
61,
-16,
42,
86,
-121,
23,
115,
-45,
-109,
113,
-59,
-79,
78,
108,
-49,
76,
32,
74,
-43,
102,
-56,
-51,
88,
-50,
-84,
-69,
-20,
-7,
82,
52,
-34,
52,
75,
49,
-114,
-5,
44,
25,
-53,
41,
44,
125,
41,
-64,
-7,
-102,
-113,
55,
4,
-111,
100,
-102,
5,
-24,
58,
-112,
49,
3,
-87,
115,
-92,
-124,
-44,
45,
-119,
13,
102,
103,
33,
37,
47,
-4,
24,
54,
-2,
-99,
-90,
-112,
24,
3,
97,
-73,
-99,
110,
16,
22,
-2,
-22,
13,
-39,
44,
1,
-114,
-76,
-78,
-81,
100,
-98,
23,
-17,
-127,
48,
84,
-51,
-78,
92,
7,
114,
-101,
-114,
-53
] |
Smith, J.
The parties to this litigation had a great many business transactions -and differ very widely in their depositions -as to the net result of them -all. The litigation was begun on August 26, 1912, at which time appellants filed a complaint, wherein it was alleged that appellee, Maude Price Quilling, had executed to H. Thane, trustee, a deed of trust on May 4, 1905, to secure a note for $3,000, and that on December 1, 1910, she had paid on this note the sum of $300, which payment had been endorsed -on the note and -also upon the margin of the recorded instrument. It was also alleged that Mrs. Quilling was further indebted to the bank in the sum of $2,900, evidenced by a note executed on September 9, 1908, by her and M. W. Quilling, Jr., her husband. It was also alleged that -on February 20, 1908, the interest of Mrs. Myrtle Kimberlin, a sister of Mrs. Quilling, in the -estate of her father, N. B. Price, deceased, was -acquired by M. W. Quilling, Jr., .by purchase for $1,000, and the title to said interest was taken in the name of Thane as trustee, with the understanding at the time that this interest ■should become additional security for the $3,000 note. That the purchase price for this interest was advanced by the appellant ¡bank and became a part of the indebtedness for which the $2,900 note was given. It was also alleged that on March 3, 1912, Mrs. Quilling executed a note to the bank for an .additional loan of $100, and that there was an open account in favor of the bank for taxes and insurance advanced by the bank in the sum of $315.
The bank appears to have assumed control of the lands belonging to the Quillings and to have made various sales of lands and town lots and to have collected large sums as rents. Out of these transactions it is alleged that the Quillings were largely indebted to the bank and a foreclosure of the deed of trust was prayed. On the other hand, the Quillings say the bank is indebted to them in the .sum of approximately $3,000, and judgment therefor was prayed.
.On(September 3,1913, appellee Cramer filed an intervention in the nature of an answer and cross-complaint, in which it was alleged that the property upon which appellants (claimed a lien was not the property of the Quillings, but had been acquired by his vendor under a foreclosure of a mortgage (given by the Quillings, which would be junior to the bank’s mortgage if that mortgage was unpaid, but prayed that the bank’s mortgage be can-celled. This pleading filed by Cramer .set out the transactions between the bank and the Quillings-, and denied that any payment had been made on the $3,000 note, and alleged that the note was barred by -the statute of limitations. It was further alleged that the conveyance to Thane, as trustee, by Mrs. Kimberlin was in fact a mortgage 'given to secure the purchase money which was borrowed from the bank, but it was denied that it was intended to secure any additional sum, 'and it was further alleged that by the deed from Thane, as trustee, executed on May 9, 1913, to the Quillings, the 'bank released all liens of any sort against this interest.
The Quillings filed separate answers setting up substantially the same facts recited in the answer and cross-complaint of Cramer, but the details of their transactions with the bank were set up with greater particularity. It was alleged by them that the interest of Mrs. Kimberlin in her father’s estate, which had been purchased for the benefit of M. W. Quilling, had been exchanged for other property in the city of Little Bock, over all of which the •bank assumed control and collected the rents.. They denied that they were indebted to the bant in any sum, but stated the fact to be that the bank would be largely indebted to them if proper credits for rents and proceeds •oif sales were given. They denied that 'any payment had been made on the $3,000 note and pleaded the statute of limitations against it.
A wide range was covered in the taking of the proof and the record before us is a voluminous one. There was no reference of the accounts to a master in the court below, with the result that all of the items in controversy below are controverted here. One of the principal questions of fact was the alleged credit of $300 endorsed on the $3,000 note. If there was no such credit, then this note was barred by the statute of limitations. At the time -this credit was .alleged to have been endorsed on the note the Quillings had an account with the bank. All funds belonging to either of them were kept as a single account and debits and credits were charged and given without reference to the .source from which the credits came and checks were drawn in one name. It was testified on behalf oif the bank that there was a credit of $371.68 to the Quilling account at the time the $300 credit was endorsed on the note. No direction from the Quillings for placing this credit on the note is asserted, 'but the bank claims to have taken this .action because the note was past 'due and unpaid. Appellees denied that there was any such appropriation. On the contrary, they say that on the date of the alleged credit the .account stood overdrawn $156, and they .say the statements of their accounts subsequently furnished them showed that this alleged credit on the note was not charged against their account.
The bank had the right to credit this deposit on the note, but this right to so credit the deposit did not toll the statute of limitations. It took the exercise of that right to accomplish that result. Steelman v. Atchley, 98 Ark. 294.
The court below found that the $3,000 note was barred by. the statute of limitations; that the conveyance from Mrs. Kimberlin to Thane, as trustee, was intended to secure the bank for the purchase money advanced, and for that alone, and that that sum had been repaid. The court found that there was a balance due on the $2,900 note, and also a balance due on the open account, and rendered judgment accordingly, but decreed that said sums were not .secured by any lien. As has been said, both parties appealed, and each .undertakes to .show that the chancellor was grossly in error, but without discussing the evidence in detail, which would serve no useful purpose, we announce the conclusion that the fiudnug of the court below does not appear to be clearly against the preponderance of the evidence.
Since the trial of this cause in the court below, M. W. Quilling, Jr., has died, and the briefs discuss the right of appellant to hold an insurance policy on the life of Quilling, as collateral, and to apply the proceeds of the policy to the payment of any balance due the bank. No such issue was raised by the pleadings, and the question was not passed upon by the chancellor, and, while some testimony on the question appears in the record, the point was not fully developed, and for these reasons we decline now to pass upon that question, but leave it open for determination in appropriate future litigation.
The decree is affirmed. | [
-14,
124,
-96,
76,
-54,
96,
40,
-70,
65,
-95,
-75,
83,
-3,
-58,
17,
105,
-27,
9,
81,
106,
-29,
-77,
63,
7,
-38,
-13,
-7,
-33,
-71,
77,
-12,
-41,
72,
60,
74,
93,
67,
-126,
-57,
-106,
78,
-96,
-85,
101,
-35,
-128,
112,
-9,
51,
69,
81,
-114,
-13,
40,
53,
91,
9,
46,
107,
59,
-48,
-24,
-102,
-116,
93,
23,
17,
119,
-104,
3,
-56,
10,
-128,
55,
33,
-32,
114,
-90,
-58,
116,
71,
9,
12,
34,
102,
16,
5,
-21,
-108,
-116,
38,
-10,
-115,
-89,
-110,
104,
67,
40,
-66,
-97,
117,
65,
-121,
118,
-2,
5,
24,
104,
5,
-113,
-106,
-126,
-97,
126,
-100,
-125,
-21,
-105,
36,
112,
-55,
66,
93,
71,
51,
-101,
-50,
-85
] |
Hart, J.,
(after stating the facts). The conveyance by the plaintiff company to the Nashville Lumber Company of the timber on the Barefield land was a conveyance of an interest in the lands themselves. Liston v. Chapman & Dewey Land Co., 77 Ark. 116; Collins v. Bluff City Lbr. Co., 86 Ark. 202; Indiana & Arkansas Lbr. & Manufacturing Co. v. Eldridge, 89 Ark. 361.
In the case of Stephans v. Shannon, 43 Ark. 464, the court held: “A vendor of land who has parted with the legal title, has, in equity, a lien on the land for the tmpaid purchase money, as against the'vendee and his privies, including subsequent purchasers with notice;' and a subsequent purchaser is affected with notice of all recitals in the title deeds of his vendor, whether recorded or not.”
To the same effect, see Wilson v. Shocklee, 94 Ark. 301; Green v. Maddox, 97 Ark. 398; Miller v. Mattison, 105 Ark. 201.
See, also, Gaines v. Summers, 50 Ark. 322, where it is held:
“A person purchasing an interest in lands, ‘takes with constructive notice of whatever 'appears in the conveyances 'constituting his chain of title. ’ If .anything appears in such conveyances ‘sufficient to put a prudent man on inquiry, which, if prosecuted with ordinary diligence, would lead to actual notice of some right or title in conflict with that he is about to purchase, it is his duty to make the inquiry, and if he does not make it, he is guilty of bad faith or negligence, ’ land the law will charge him with the actual notice he would have received if he had made it.”
■So, too, in the case of Swan v. Benson, Admr., 31 Ark. 728, it was held that a vendor’s lien for purchase money is solely a creature of equity, and does not depend upon stipulation or contract, and a purchaser with notice is bound by it. It was .also further held that knowledge that part of the purchase money remains unpaid is sufficient notice.
In the application of these well settled principles of law, it may be said that the plaintiff company in equity had a lien on the timber for the unpaid purchase money against the Nashville Lumber 'Company and subsequent purchasers, with notice. The defendant company having purchased the timber on the Barefield tract from the Nashville Lumber Company, was' required to take notice of everything recited in the deed from the plaintiff company to the Nashville Lumber Company. The deed from the plaintiff company to the Nashville- Lumber Company recited that $5,298 in cash was paid at the time of the execution ,and delivery of the deed. It also provided that the remainder due, if any, was to be payable as the cutting of the timber proceeded at the rate of $2 per thou sand feet. The deed was referred to in the contract which had been executed between the plaintiff company and the Nashville Lumber Company, and the contract was referred to in the deed. By an examination of this contract the defendant company could readily have ascertained that an estimate had been made of the amount of the timber upon the land, land that the cash payment was based upon that estimate, and that both parties to the contract recognized that this estimate was too low, and that an additional ¡amount wias to be paid as the timber was cut.
If the defendant company had pursued with ordinary diligence the inquiry suggested by the deed from the plaintiff company to the Nashville Lumber Company, it would have led to actual knowledge of the equities of the plaintiff company. Moreover, the evidence shows that the general manager 'and the treasurer and land man of the defendant 'company had actual knowledge of the facts in the case, and their knowledge, under the circumstances, was imputable to the defendant company. See Carter v. Gray, 79 Ark. 273.
Another reason for upholding the finding of the chancellor is that the undisputed evidence shows that the transaction was fair and reasonable ¡and absolutely free from fraud. It is true that A. C. Ramsey was a large stockholder in the plaintiff company, but Doctor Toland was the largest stockholder in that company, and acted for it. W. W. Brown was the president of the defendant company ¡and vice president of the Nashville Lumber Company during the time Ramsey was general manager. He stated that he knew Ramsey had purchased the timber on the Barefield land and approved of the purchase. The deed from the Nashville Lumber Company to the defendant company recites a consideration of $3 per thousand feet, and it is ¡admitted by the defendant company that this was a reasonable price. The deed from the plaintiff company to the Nashville Lumber Company recites a consideration of $2 per thousand feet. The president of the defendant company knew that Ramsey had purchased the timber in question for tbe benefit of tbe defendant company .and -approved of tbe purchase. The company proceeded to -out the timber off -of the land ¡and -accepted all the benefits of the -contract. Under these circumstances it -ought not to 'hold to the fruits of the purchase, and not be ¡bound -by the terms thereof. See, Thompson on Corporations (2 ed.), v-ol. 2, -sections 1241, 1242; Cook on Corporations (7 ed.), vol. 3, § 662.
The -only remaining question to be disposed of is whether or not the chancellor erred in his finding as to the amount of timber cut from the 1-amd. A good deal of .testimony was taken on this -point, but we do not -think any useful purpose -could be served by -setting it out in detail and commenting upon it at length. We -deem it sufficient to say that we have carefully and patiently read the testimony bearing -on thi-s phase of the -oas-e, and -are of the opinion that the finding of the -chancellor i-s- not against the preponderance of the 'evidence. Therefore, -under the well ¡settled rules of t-hi-s court, his finding must be upheld.
We are of the opinion that the finding -of the chancellor upon the whole ease was correct, and the decree will be affirmed. | [
-42,
-18,
-36,
29,
10,
96,
42,
-104,
121,
-31,
33,
83,
79,
-46,
9,
51,
-26,
123,
113,
42,
85,
-94,
43,
99,
-46,
-109,
-45,
-60,
-67,
79,
100,
71,
76,
48,
-54,
-107,
-26,
-54,
-59,
28,
14,
-123,
-101,
77,
-13,
96,
48,
-117,
20,
75,
113,
-122,
-5,
44,
25,
66,
9,
46,
109,
1,
-48,
-8,
-70,
4,
127,
7,
51,
4,
-72,
3,
-56,
12,
-112,
49,
11,
-24,
94,
-74,
22,
116,
9,
-103,
9,
6,
-29,
32,
76,
-17,
-74,
-104,
46,
-14,
13,
-90,
64,
88,
3,
105,
-97,
-99,
-6,
20,
70,
-10,
-22,
28,
-99,
104,
3,
-113,
-106,
-109,
-81,
-4,
-102,
19,
-34,
3,
48,
81,
-49,
-85,
92,
103,
116,
27,
-114,
-3
] |
Kirby, J.,
(after stating the facts). The sole question for decision is whether the purchaser at the sale for the foreclosure of the lien for the improvement taxes after the year allowed for redemption had. expired, can hold the property against grantees .and mortgagees, bona fide purchasers to whom conveyances were made by defendant after the suit for foreclosure was commenced, and no lis pendens notice filed as required by section 5149, Kirby’s Digest. Appellant insists that notwithstanding no lis pendens notice was filed, and said purchasers and mortgagees had no actual notice of the pendency of the suit to foreclose the lien and collect the taxes, that they are not bona fide purchasers, and are concluded by the judgment against their grantor, Lottie Schultice.
His contention is that the transaction is governed by the law relating to the sale of lands for the collection of taxes, and not under the law governing judicial sales.
If an individual had been proceeding against Lottie Schultice, the grantor, of the other appellees after suit commenced to enforce a lien .against the lands and had filed no lis pendens notice, and she had conveyed the lands after suit begun to a bona fide purchaser without actual notice of such suit, there is no question but that the purchaser’s rights would not have been concluded by the suit.
The law provides that assessments for a local improvement shall be a charge and lien entitled to preference, against the real property in the district, from the date of the ordinance levying the assessment, which shall continue until the assessment shall be paid (section 5684), and prescribes the procedure for the foreclosure of the lien and collection of the assessments which have not been paid.
A complaint in equity is required filed by the board of improvement in the court having jurisdiction of ■ suits for the enforcement of liens upon real property for the condemnation and sale of delinquent property for the payment of the assessments and the owner of the property assessed shall be made a def endant if known, and if unknown, the fact shall be stated in the complaint and the' suit shall proceed as a proceeding in rem against the party assessed.
A summons is issued to be served and returned as summons in other suits for the enforcement of liens if the defendant can be found and judgment is rendered, if the decree is in favor of the board, for the condemnation and sale of the land, and the owner is given a year after the -sale to redeem it from the purchaser thereat. Kirby’s Digest, § § 5691-5709.
We also >see no reason why the foreclosure of this lien under the prescribed procedure does not have the same effect and is not controlled by the same rules of law as govern decrees of foreclosure of liens upon real estate in chancery courts in other proceedings, Lottie Schultice having"been served with a summons, and it not being a proceeding s rem. Before the enactment of- the statute requiring the filing 'of lis pendens notices in the recorder’s office, all who purchased lands from a defendant against whom a suit for foreclosure of a.lien thereon had been filed, were concluded, .and bound by the decree rendered against the person from whom they acquired the title. The purchaser was held to have had constructive notice of the action by the commencement of the suit.
■ • It was evidently the purpose of the statute to abrogate the lis pendens rule, since it requires the filing with the recorder of deeds in the county in which the property is situated, a notice of the pendency of any suit at law or in équity affecting the title or any lien on real estate,, to render the filing of such suit constructive notice to a bona fide purchaser or mortgagee of any such real estate. Section 5149, Kirby’s Digest.
Before its passage all such purchasers of real estate were affected by constructive notice of suits commenced affecting the title or a lien- thereon and concluded by the decree against the vendor and necessarily bound to investigate the records of all courts in which suits could be brought that would affect such title, in order to ascertain the condition of the title to any real property purchased. Now, the would-be purchaser or mortgagee goes to the recorder’s office where all the instruments of title thereto are necessarily found, and if no notice of a suit pending is on file with the recorder, he is not affected with constructive notice of any such suit, and is only bound by actual notice thereof.
The Supreme Court of Kentucky construing a like statute of that State held it applicable to all suits to enforce liens against real estate. Perkins v. Ogilvie, 131 S. W. (Ky.) 200.
In Washington and California, the courts have construed statutes requiring the filing of notice of pendencyof suits affecting the title to or liens upon real estate, and held them applicable to suits to enforce a lien for local assessments. Page v. Chase Co., 79 Pac. (Cal.) 278; Dow v. City of Ballard, 28 Wash. 87, 68 Pac, 176.
We hold therefore that the grantees and mortgagees -of Lottie Schultice in her conveyances after the suit to foreclose the lien for assessments were begun, were not affected by constructive notice thereof, no lis pendens notice having been filed with the recorder of deeds as required by law, and that having no actual notice of the pendency of such suit, they, were bona fide purchasers for value, and not affected thereby. It is true, that the lien for .the assessments in local improvement districts is fixed from .the -date of the ordinance levying the assessment and superior- and preferred and continues until the assessments are' paid, but it is also true, that as between grantors and grantees of such property, all assessments .unpaid at the date of the. transfer are to be paid by the grantee, and while these purchasers had notice by reason of the organization of the improvement district that a lien for the assessments existed against the property, the title to it was only :affected to the extent of such lien, -and in the purchase without notice -of the pending suit to foreclose it, they are not concluded 'by such foreclosure--and their rights are affected -only to the extent of the lien for unpaid assessments. .
The record in the foreclosure proceedings recites that Lottie Schultiee, the -owner -of the lots, was duly served with summons -and in addition the testimony clearly shows that -she had knowledge of the pending suit and tried to make arrangements to borrow money and pay the assessments and put an end to it, but failed to do so. She can not be heard to question the judgment further, and is concluded by the decree of foreclosure -and -sale thereunder, and is without right of redemption, the time allowed by law for redemption having expired. ,
The. case is poorly abstracted, but taking the chancellor’s findings as recited by appellant to be supported by sufficient testimony, as we must, we -do not find any prejudicial error in the record, and the decree is affirmed. | [
-15,
124,
-47,
45,
-54,
-32,
42,
-88,
105,
-79,
38,
95,
111,
-62,
20,
45,
-11,
121,
-27,
120,
101,
-78,
11,
99,
-42,
-13,
-15,
85,
-95,
76,
116,
-41,
76,
48,
-62,
-43,
102,
10,
-59,
84,
14,
-125,
27,
65,
-39,
96,
52,
11,
80,
15,
53,
-10,
51,
44,
29,
-50,
72,
45,
73,
61,
-48,
-24,
-65,
-107,
127,
7,
51,
37,
-100,
67,
-22,
-114,
-104,
113,
0,
-24,
59,
-74,
-106,
118,
1,
59,
9,
102,
98,
18,
69,
125,
-24,
-104,
47,
86,
47,
-90,
-47,
88,
2,
41,
-65,
-99,
108,
68,
39,
-2,
-18,
-124,
29,
108,
14,
-50,
-106,
-109,
15,
54,
-118,
-61,
-34,
23,
48,
96,
-49,
-88,
94,
-30,
19,
-101,
-114,
-36
] |
Hart, J.
Jack Roberts prosecutes this appeal to reverse a judgment of conviction against him for the crime of selling intoxicating liquors in the Fort Smith District of Sebastian County, Ark., on the 15th day of July, 1922.
His only assignment of error is that the court erred in giving instruction No. 2, which is as follows:
“You are the sole judges of the credibility of the witnesses and the wieght that should be given to their testimony. It is your duty to reconcile the statements of these different witnesses, so as to believe as much of this testimony as you can, but if you cannot do so on account of contradictions, then you have the right to believe the witnesses whom you think the most worthy of credit, and disbelieve the witnesses who you believe from the evidence to be the least worthy of credit. And if you find any witnesses have wilfully sworn falsely to any material facts in: this case, you may disregard their whole testb mony if you believe it to be false, or believe that part which you think true, ana disbelieve that part which you regard to be false. And in weighing a witness’ testimony you may take into consideration his candor or lack of candor, his knowledge about the thing he testifies, the reasonableness or unreasonableness of his testimony, and his interest', if any be shown, in the result of your verdict.”
Counsel for the defendant claim that the instruction is open to the objection that it tells the jury that, if it finds that any witness has wilfully sworn falsely to any material fact in. issue, it may disregard all the evidence of such witness, if it sees fit to do so, and rely upon the decision of Mangrum v. State, 156 Ark. 306, and cases cited for a reversal of the judgment.
We do not think that the instruction is of similar import to any of the instructions referred to in those cases. While we do not approve the form of the instruction, we do hold that it is free from the criticism of the instructions in the cases cited.
The object of all testimony is to establish the truth, and the jury is the judge of the credit to be given to the witnesses. The true rule is that the credibility of a witness who knowingly testifies falsely as to one or more material facts is wholly a matter for the jury. It may believe or disbelieve his testimony as to other facts according as it deems such testimony worthy or unworthy of belief. Hence it is an invasion of the province of the jury to tell it that it may disregard the entire testimony of a witness whom it may believe to have testified falsely as to a material fact.
The present instruction is not open to that criticism because it tells the jury that, if it-believes any witness has testified falsely to a material fact, it may disregard his whole testimony if it believes it to be false, or it may believe that part which it thinks true and disbelieve that part which it regards false. By this the court meant to tell the jury that, if it found a witness to have wil fully testified falsely on a material point, it might disregard his whole testimony if it believed the whole of it to be false.
Therefore the instruction was technically correct, and an instruction in'substantially the same language has been recently approved in the case of Bryant v. State, 156 Ark. 580.
It follows that the judgment will be affirmed. | [
-80,
-22,
-20,
61,
40,
64,
42,
-102,
0,
-119,
-9,
83,
109,
-38,
12,
63,
-88,
61,
84,
105,
70,
-73,
23,
33,
114,
-13,
-37,
-43,
-76,
79,
-12,
92,
13,
56,
-62,
-35,
98,
-56,
-123,
92,
-122,
20,
105,
-24,
91,
84,
48,
51,
20,
74,
-91,
62,
-21,
42,
31,
-61,
41,
44,
75,
44,
72,
-80,
-110,
-115,
-19,
1,
-79,
54,
-105,
7,
88,
44,
-112,
49,
1,
-8,
115,
-76,
-126,
-12,
75,
25,
8,
98,
102,
-127,
81,
-53,
-68,
-68,
107,
62,
-99,
-89,
-102,
73,
75,
109,
-74,
-3,
124,
16,
14,
-30,
102,
93,
93,
108,
3,
-49,
-42,
-79,
-115,
36,
-70,
67,
-21,
-109,
16,
113,
-51,
-30,
92,
69,
24,
-101,
-113,
-75
] |
Wood, J.
DeQueen Light & Power Company, hereafter called appellant, is a domestic corporation under a charter issued to it by the State on the 16th day of May, 1921. On the 13th day of June, 1921, it was granted a franchise by the city of DeQueen, Arkansas, authorizing it to sell and distribute electric current in that city. Commonwealth Public. Service Company, hereafter called the appellee, is a foreign corporation authorized to do business in this State. It had a franchise authorizing it to distribute and sell electric current, power and water to the inhabitants of the city of DeQueen as early as the year 1918. W. L. Curtis was appointed receiver for the appellee on May 25, 1920. He surrendered the franchise which appellee held authorizing it to do business in the city of DeQueen, and on January 22,1921, applied for and was granted by the Arkansas Corporation Commission “an indeterminate permit” authorizing it to continue the public utilities mentioned above to the inhabitants of the city of DeQueen. On March 14, 1922, the appellant filed its petition before the Arkansas Railroad Commission setting up its franchise above mentioned, authorizing it to distribute electric current in the city of DeQueen, and that it was efficiently performing such service, and that the appellee, for various reasons stated in the petition, was not rendering the service it should to the inhabitants of the city of DeQueen, and that appellant was chartered and received its franchise from the city of DeQueen for the purpose of remedying the condition caused by the failure of the appellee to render proper service. •
The appellant alleged in its petition that the “pub-lie convenience and necessity of the city and the inhabitants thereof imperatively requires that a certificate of convenience and necessity be issued to the petitioner,” and the petition concluded with a prayer that such certificate be issued to it. . .
The appellee, through its receiver, appeared specially, and filed its demurrer and motion to dismiss. Among other things it alleged “that the Arkansas Railroad Commission has no jurisdiction over either the person or property sought to be affected by such petition.” The Railroad Commission overruled appellee’s demurrer and motion to dismiss, and issued the certificate to appellant. The appellee appealed to the Pulaski Circuit Court, where the appellee’s demurrer and motion to dismiss the .petition of appellant was sustained, and a judgment rendered dismissing the petition. From that judgment is this appeal.
The only question for determination on this appeal is whether or not the Railroad Commission had jurisdiction to issue a “certificate of convenience and necessity” to appellant.
Section 13 of act 571 of the Acts of 1919, creating the Arkansas Corporation Commission and defining its powers and duties, vested such Commission with the power to grant to public service corporations, upon certain conditions therein specified, a certificate authorizing such 'corporations to furnish public utilities. The section concludes as follows: “Every license, permit, contract or franchise hereafter granted to any public service corporation by the State or any municipality, and all future contracts, ordinances, rules, regulations and orders entered into or made by any municipality relating to the use or enjoyment of rights and franchise granted to any public utility, shall be subject to the exercise, by the Corporation Commission, • of any and all of the powers of regulation provided for in this act.”
Section 31 of the act abolished the Railroad Commission then existing and conferred all the powers and duties of that Commission upon the Corporation Commission.
The General Assembly of 1921 passed act 124 entitled “An act to amend act No. 571 of the General Acts of the General Assembly of the State of Arkansas for •the year 1919, entitled ‘An act to create the Arkansas Corporation Commission and to define its powers and duties,’ approved April 1, 1919, and to regulate public utilities and public service corporations, and for other purposes.” This act was approved February 15, 1921.
Section 5 of Act 124, supra, provides: ‘ ‘ The jurisdiction of the Arkansas Railroad Commission created by the act shall extend to and include all matters pertaining to the regulation and operation of all common carriers” (naming them), and among other public utility corporations mentioned are “pipe-line companies for transportation of oil, gas and water, electric lighting companies and other companies furnishing gas or electricity for light, heat or power purposes,” and. hydro-electric companies and water companies, and provides that “nothing in the act shall vest the Commission with jurisdiction as to any rate, charge, rule, regulation, order, hearing, investigation, or other matter pertaining to the operation within the limits of any municipality of any street railroad, telephone company, gas company, pipe-line company for transportation of oil, gas or water, electrical company, water company, hydro-electric 'company or other company operating a public utility or furnishing public service as to which jurisdiction may be elsewhere conferred in this act upon any municipality, council or city commission; notwithstanding, 'however, the jurisdiction of the municipality as to the above matters within the limits of such municipality, the said Arkansas Railroad Commission shall have and is hereby delegated the authority and duty to require all utility companies now furnishing public service within the limits of any municipality to furnish and continue furnishing such service to such municipality, though the right of regulation of such utility as to rates and all other matters within such municipality is herein elsewhere conferred upon the municipal councils or city commissions, subject to right of appeal to the courts.” •
Section 15 of the act gives all public utility corporations now operating under indeterminate permits' granted by the Arkansas Corporation Commission ninety days after the passage of the act to make application in writing to the municipal council or city commission of the municipality which granted the original franchise, contract or lease, for reinstatements of said franchise, contract or lease, and when such application is made and filed with the clerk or recorder of said municipality it shall be granted as a matter of right, and reinstated by the municipal council or city commission having’ jurisdiction, under the same conditions as existed at the time said indeterminate permit was granted by the Arkansas Corporation Commission, and unless the application for reinstatement is made within said time it shall be a waiver on the paid of the public service corporation to insist upon the fulfillment of said franchise or contract rights.
Section 17 provides, in part, as follows: ‘‘The jurisdiction of the municipal council or city commission of any municipality shall extend to and include all matters pertaining to the regulation and operation within the limits of any such municipality of any street railroad, telephone company, gas company furnishing gas for domestic or industrial purposes, pipe-line company for transportation, distribution or sale of oil, gas or water, electrical company, water company, hydro-electric company, or other company operating a public utility or furnishing public service within such municipality.”
Section 25 of the act is as follows: “That sections 13, 14, 15, 20, 26, 29, 31 and 35 of act No. 571 of the General Acts of the General Assembly of the State of Arkansas for the year 1919, approved April 1,1919, hereinbefore referred to, be and the same are hereby repealed.”
It will be observed that section 13 of act 571 of the Acts of 1919 which conferred jurisdiction upon the Corporation Commission to grant public service corporations a certificate of “convenience and necessity” is expressly repealed by act 124 of the Acts of 1921, and the latter act, as shown by the various provisions above quoted, as well as other provisions which it is unnecessary to set out, confers upon municipalities exclusive jurisdiction over public utilities, like the appellant, operating within their limits.
In Pocahontas v. Central Light & Power Co., 152 Ark. 276, speaking of the jurisdiction of the Railroad Commission under the Acts of 1921, we said: “The public service corporations over which the jurisdiction of the Commission shall extend is specifically stated in § 5 of the act, and jurisdiction by municipalities to regulate public service corporations or public utilities operating lo-ithin the limits of such municipalities is conferred by sec. 17 of the act.”
It follows that at the time of the filing of the petition of the appellant on the 31st of March, 1922, asking the Railroad Commission to grant it a certificate of “convenience and necessity,” the Commission had no jurisdiction to grant such certificate. Having reached this conclusion, the other interesting questions presented and elaborately' argued in the briefs of learned counsel pro and con pass out, and we therefore pretermit a discussion and decision of these questions.
The judgment of the circuit court is correct, and it is therefore affirmed. | [
52,
109,
-4,
-52,
41,
96,
112,
-112,
126,
-93,
-91,
-45,
-67,
114,
-108,
109,
-21,
125,
117,
126,
-32,
-110,
7,
74,
-110,
-109,
-37,
-43,
-77,
-54,
-12,
-43,
72,
48,
-54,
-99,
70,
66,
-51,
92,
-50,
1,
-87,
72,
-7,
-62,
52,
-29,
50,
-61,
81,
-98,
-5,
40,
88,
-48,
109,
62,
93,
-123,
65,
56,
-118,
85,
63,
23,
33,
36,
-103,
1,
-24,
-66,
-104,
53,
24,
-4,
115,
34,
-122,
-12,
45,
29,
0,
34,
98,
3,
32,
-81,
-86,
-85,
54,
-98,
-103,
-90,
-94,
41,
67,
43,
-66,
29,
-17,
-106,
71,
126,
-9,
-108,
-100,
108,
-125,
-114,
-76,
-31,
21,
-32,
-102,
19,
-17,
36,
52,
116,
-50,
-14,
92,
71,
58,
27,
-50,
-40
] |
Smith, J.
B. F. Comer and Lois, his wife, instituted separate suits against the Chicago, Rock Island & Pacific Railway Company, to recover damages on account of alleged injuries to Lois Comer on August 7, 1921, while she was preparing to hoard one of the defendant’s trains. The cases were consolidated by consent and tried together.
The complaint alleged that, as Mrs. Comer, with two small children, was hoarding a passenger train, the company negligently caused the train to start, and she was suddenly and violently thrown and jerked against the end of the coach and against the railing of the' platform to the entrance of the coach, and as a result thereof she suffered a nervous shock, was injured and bruised in her right side, her right arm and back were bruised, and by reason thereof she was caused to suffer a miscarriage on the 11th day of August, 1921.
Mr. Comer alleged that he 'had been caused to expend large sums of money on account of his wife’s injuries, and had been deprived of her services and society, and he prayed damages on that account.
• There was a denial of liability and of injury; but the jury found for the plaintiff in each case, and assessed Mrs. Comer’s damages at $2,000 and her husband’s at $500, and judgments were rendered against the railroad company for those amounts.
The railroad company has appealed, and the only assignment of error argued for the reversal of the judg ments is that they are excessive.
We must, of course, view the testimony in the light .most favorable to the plaintiffs; otherwise the judgments would have to be reversed as being excessive, as the clear preponderance of the testimony is that Mrs. Comer was not seriously injured. On the day following the injury Dr. Bradford was called to attend Mrs. Comer on account of the injury to her wrist. She made no complaint of any other injury, and the doctor regarded the wound which he treated as of small consequence.
Mrs. Comer testified that she was injured in the manner alleged in her complaint; that she was pregnant at the time of her injury, and had been since June; that prior to her injury she had been in excellent health. That she was thrown violently against the railing of the platform, and bounced back, and was injured between her ribs and side. That soon after her injury her arm felt numb, and her side became sore. She was injured on Monday, and the pain continued and increased, and she went to bed on Wednesday, and suffered a miscarriage the next day. She saw a doctor on Monday and Tuesday, and he treated her arm, but gave her no treatment for her side. Wednesday night the pains in her side became more severe, and she was very nervous, and the doctor was called, and she was given relief. Later she again became very nervous, and suffered a miscarriage, and was thereafter in bed for seven days, and did not resume her household duties until the ninth day.
Mrs. Pierce, Mrs. Baker and Mrs. Comer, a sister-in-law of the plaintiff, gave testimony affording sub stantial corroboration of the plaintiff’s testimony in regard to her illness and its consequences.
A doctor who attended plaintiff described her nervous condition, and stated that the patient told him, as a part of the history of her case, that she liad suffered a miscarriage, and she pointed out a sheet on the bed with blood spots on it. The sheet was folded, and he did not know to what extent it was saturated with blood. He “could not say there was anything about her condition to indicate she had suffered a miscarriage”; that while he would not say definitely that she liad miscarried, it is clear that in his opinion the case was one-of delayed menstruation.
Doctor Bradford, who made a digital examination of Mrs. Comer on August 27th, testified that the appearance he then found indicated that there had -been no miscarriage.
Still another doctor, who also examined the plaintiff on October 6th, testified that, if there was a miscarriage, it was caused by the plaintiff’s injury and fright. He testified that at the time of his examination he found a retroversion of the womb, with a slight enlargement and-a tendency for a slight prolapse, and that her temperature and reflexes were exaggerated. 1 le also testified that her nervousness had improved, and she had about recovered from her injury' and the miscarriage.
We think the testimony legally sufficient to support a finding that Mrs. Comer had suffered a miscarriage, and she testified that she suffered acutely during the nine days she was confined in bed, and had suffered less severely for some time thereafter. Under these circumstances we do not feel disposed to say that the evidence does not support the judgment recovered by her.
The verdict in Mr. Comer’s favor we think is clearly excessive. He expended $60 for medical services. Mrs. Comer was unable to perform her household duties for a period of only nine days, When she was able, she did the family washing, but during- her illness her husband hired this done for two weeks. She testified that' she had also worked with her husband in the field, but since her injury she had done less of this work. We think, however, the testimony does not show any impairment of Mrs. Comer’s capacity to assist her husband as she did before her injury, and we have concluded that a judgment for a hundred dollars would fully compensate any damage sustained by him on account of his wife’s injury, and the judgment in his favor will be reduced to that amount. The judgment in Mrs.' Comer’s favor will be affirmed. | [
-80,
61,
-84,
-116,
56,
102,
42,
-102,
99,
-62,
-91,
-13,
-115,
-35,
1,
47,
119,
-19,
85,
107,
-14,
-109,
23,
-94,
-46,
19,
57,
-61,
-70,
75,
101,
-42,
77,
48,
43,
69,
-29,
-54,
69,
28,
-114,
-112,
-23,
-24,
25,
0,
120,
123,
-44,
4,
17,
-18,
-1,
42,
30,
87,
9,
106,
110,
-88,
-32,
-15,
-110,
69,
77,
2,
33,
38,
63,
-127,
-40,
24,
-120,
-75,
98,
-7,
114,
-78,
-110,
-36,
65,
-103,
4,
102,
102,
17,
5,
-11,
88,
-72,
46,
54,
15,
-123,
-96,
5,
19,
27,
-66,
-103,
96,
21,
-89,
-6,
-4,
77,
93,
96,
1,
-117,
-106,
-80,
-113,
100,
-116,
23,
-21,
-77,
54,
81,
-35,
34,
92,
-123,
50,
-101,
-49,
-66
] |
Wood, J.
This is an action by the appellant against the appellees. The appellant alleged that in the fall of 1919 he placed in the hands of Metcalf & Haley, real estate brokers, certain lands for sale. The price fixed for the sale of the land was $1,500; that they were to receive ten per cent, commission for making the sale. They sold the land for the sum of $1,700, and prepared a deed to the purchaser in which they fraudulently concealed from the appellant the fact that the land had been sold for $1,700, and fraudulently represented that they had sold the same for $1,500. Appellant further alleged that by reason of the fraud and concealment lie had been cheated out of the sum of $200, and that appellees were not entitled to retain the sum of $150 which he had paid them as their commission. He prayed judgment in the sum of $350.
The appellees, in their answer, admitted that they sold the land for $1,700, but denied that they were to receive only a commission of ten per cent, of the purchase price. They alleged that, when the land was listed with the appellees, the appellant represented that Wilson Mercantile Company of Imboden had a lien on the land for $1,200, which would have to be paid when said land was sold, and that the appellant would have to receive the sum of $150 before he would execute a deed to his equity in the land, which was all the interest he owned therein, and that after these two amounts were paid the appellees could have, as their remuneration for selling the land, all it brought over and above those amounts, and that the land was sold under such agreement, and they had settled with the appellant on those terms. They therefore denied that they were indebted to the appellant in any sum.
The appellant testified in his own behalf that he was the owner of 160 acres of land which he listed with appellees to be sold for $1,500, and they were to receive ten per cent, commission for making the sale. Appellant ascertained later that appellees had sold his land for $1,700. He demanded the $200 which appellees had received over the price for which the land was listed, and appellees denied that such was the contract. Met-calf, with whom the appellant had the conversation, stated, “Oh, well, that is some of Mr. Haley’s doings. He is in the habit of pulling’ off that kind of a deal.” Witness asked Metcalf -what they were going to do about it, and he replied that they would straighten it up. Witness testified that one E. B. Sims and LeRoy Sims were present when they had this conversation, and Metcalf promised that he would settle it. The appellant signed the deed and received $50, but didn’t know at the time that the place was sold for more than $1,500. He after-wards discovered it when Sims came to see about the interest due on the mortgage, Sims then showed ap pellant the sale contract. Appellant received but $150 out of the sale.
There was testimony corroborating the testimony of the appellant to the effect that the appellant listed the land with the appellees to be sold for $1,500, and that the appellees were to receive ten per cent, commission for selling the same. Witness A. B. Sims also corroborated the testimony of the appellant as to the conversation with Metcalf after the sale was consummated.
Appellee Haley testified that he and Metcalf were partners in the real estate business, and that appellant listed with them 160 acres of land to be sold for $1,500, but afterwards it was agreed that they should receive all they could over $1,500. Appellant stated to witness that all he wanted was the sum of $150, and the buyer to assume the mortgage on the place in the sum of $1,200. Witness detailed the circumstances under which the contract between them was entered into. A contract was introduced in evidence between the appellees and one Sims, showing that the property was sold for $1,700. The testimony of the appellant tends to show that he had no knowledge that the contract specified that the land was sold for $1,700.
The appellant requested the court to instruct the jury to the effect that, if appellees sold the property for a greater sum than that fixed by the plaintiff, it was their duty to advise him of such fact and to account to him for the excess; that, if they concealed from him the fact that they were receiving for the property more than the listed price, and failed to so advise him, they should return a verdict for the appellant for such sum over and above the sum of $1,500 and in addition the sum of $150 which the appellant paid for his commission; that they forfeited the sum of $150 by reason of the fraudulent concealment of the true facts. The court refused to give the appellant’s prayer for instruction.
The court instructed the jury as follows: “He (appellant) testified that he got exactly what he was to get under the contract, which was $150 and the mortgage as- sinned by tbe buyer, and he was released from it, and the undisputed evidence shows that he (appellant) got the $150 and the mortgage released or assumed by the other party, so you will return a verdict for the defendant.” The jury returned a verdict as directed. The court entered a judgment in favor of the appellees, dismissing appellant’s complaint and for costs, from which judgment is this appeal.
The court erred in directing the jury to return a verdict in favor of the appellee. Under, the testimony in the record it was an issue of fact for the jury as to whether or not the appellant had agreed, to allow the appellees as their commission for making the sale of the land all they might receive over the listed sale price of $1,500. There was a sharp conflict on the issue, and the same should have been submitted to the jury, under proper instructions.
The law applicable to this branch of the. case is an nounced in Bennett v. Thompson, .126 Ark. 61. (quoting syllabus): “The duty rests upon a broker, the same as upon any other agent, to make disclosures to his principal of the terms of the negotiation so that the principal may act advisedly in determining whether or not the proposal is satisfactory. A broker may make a contract whereby he will be entitled to the difference between the price the seller agrees to accept and the amount the purchaser agrees to pay, regardless of what that amount is, but such a contract must be plainly expressed in order to relieve the broker of the duty he owes to his principal to make full disclosure concerning the terms of the negotiation.”
On the issue as to whether or not the appellant is entitled .to recover from the appellees the sum of $150 which they had received as commission for making the sale, it suffices to say that the appellant conceded that the appellees were entitled to this amount for making the sale, if there was no fraud perpetrated by appellees on appellant. There was no testimony tending to prove that the appellees had perpetrated any fraud upon the appellant in making tlie sale. The appellees sold the property for more than $1,500, and if they perpetrated a fraud at all upon the appellant it was in concealing’ from him the amount they had received in excess of the listed price and in retaining the same. The issue as to whether the appellant was entitled to recover the excess over $1,500, as we have stated, should have been submitted to the jury, under correct instructions. The issue as to whether or not appellees forfeited the $150 commission received by them, by reason of fraud perpetrated on the appellant, was one of fact also, which should have been submitted to the jury, under correct instructions.
The law is well settled that “it is the duty of one acting for another in the sale of real estate, whether for compensation or otherwise, to faithfully and truthfully make known to his principal all matters pertaining to the transaction; and if he violates this duty and fraudulently misrepresents the facts concerning his transactions, and undertakes to derive an advantage therefrom to himself, he forfeits any compensation that would otherwise be due him, and all gain made thereby belongs to his principal.” Jeffries v. Robbins, 71 Pa. 852, and other cases cited in brief of learned counsel for appellant.
The prayer of appellant for instruction on the issue as to whether the appellees were entitled to hold the $150 commission was, in effect, a peremptory one, telling the jury that the appellees were guilty of fraudulent concealment, and that they thereby 'had forfeited the $150. The court did not err in refusing this prayer.
For the error indicated the judgment is reversed, and the cause remanded for a new trial. | [
113,
-4,
-72,
-83,
26,
96,
122,
-70,
91,
-29,
39,
91,
-3,
-46,
0,
37,
-90,
45,
81,
106,
84,
-77,
87,
35,
-47,
-109,
-45,
-51,
-75,
76,
-12,
69,
77,
32,
-62,
21,
-62,
-94,
-59,
88,
14,
-124,
-119,
-56,
-39,
-64,
52,
-49,
16,
75,
113,
-114,
-5,
44,
53,
65,
73,
46,
127,
41,
-48,
120,
-69,
-123,
127,
15,
17,
102,
-72,
1,
72,
106,
-112,
-79,
9,
-39,
91,
-74,
-122,
116,
5,
-119,
8,
38,
102,
49,
-27,
-17,
-40,
-104,
46,
-34,
-119,
-89,
96,
88,
2,
40,
-74,
-100,
84,
16,
22,
-10,
-24,
-99,
28,
104,
7,
-17,
-42,
-93,
-97,
-66,
-104,
19,
-17,
23,
50,
112,
-49,
-94,
92,
103,
114,
-101,
-113,
-7
] |
Per Curiam.
The petitioner, A. J. Kelley, states in his petition that at the January term, 1922, of the Logan Circuit Court he was convicted on a charge of murder in the second degree and sentenced to a term in the penitentiary, and that the judgment of conviction was, on appeal, affirmed by this court ( Kelley v. State, 154 Ark. 246); that at the August term, 1922, of the said circuit court there was presented to the court by his wife, as next friend, a petition praying for a writ of error coram nobis, on the grounds that at the time of the trial and conviction he was insane and not capable of making a rational defense, but that the circuit court denied the writ, and on appeal to this court the judgment of the circuit court was affirmed (Kelley v. State, 156 Ark. 188); that on January' 22, 1923, petitioner appeared in the circuit court, surrendered himself into custody under his bond, and presented to the court, by his counsel, a petition stating that he was then insane, and asking the court to impanel a jury to inquire, into the question of his sanity or insanity at that, time, and that the execution of the judgment of conviction be postponed or suspended and petitioner committed, to the State Hospital for Nervous Diseases for treatment, instead of being immediately sent to the penitentiary, and that the circuit court denied said petition and ordered immediate- execution of the judgment of conviction, and denied an appeal to this court. The prayer -of the petition is that this court issue a writ of mandamus to the circuit judge, sitting in term time, to grant an appeal as prayed for by petitioner, and that an order be made by this court admitting the petitioner to bail during the pendency of the proceeding here to review the action of the circuit judge.
The petition has been submitted to this court to determine, in the first instance, whether there is a showing made in the petition to justify the issuance of the writ and the allowance of bail during the pendency of the proceeding.
The court has reached the conclusion that the facts set forth in the petition are not sufficient to justify the issuance of the writ of mandamus, as it is clear that the petitioner asked for relief which the circuit court "was not authorized to grant.
Learned counsel for petitioner rely upon the rule of the eonxmon law, which has been repeatedly recognized by this court, that the execution of a judgment of conviction against an insane person ought not to be carried out, and that the court wherein the conviction was had has power, before execution, to stay sentence during the period of insanity. Taffe v. State, 23 Ark. 34; Ferguson v. Martineau, 115 Ark. 317.
The common-law rule, however, was confined to relief sought in capital cases. 4 Blackstone, p. 24; 1 Haw kins’ Pleas of the Crown, eh. 1, sec. 3; 1 Hale, pp. 34-35. Blackstone stated- the rule as follows:
“If a man in his sound memory commits a capital offense, and before his arraignment he become absolutely mad, he ought not by law to be arraigned during such frenzy, but be remitted to prison until that incapacity be removed; the reason is because he cannot advisedly plead to the indictment; and this holds as well in case of treason as felony, even though the delinquent in his sound mind were examined, and confessed the offense before his arraignment. And if such person, after his plea and'before his trial, become of nonsane memory, he shall not be tried; or if, after his trial, he become of nonsane memory, he shall not receive judgment; or if, after judgment, he become of nonsane memory, his execution shall be spared, for, were he of sound mind, he might 'allege somewhat in stay of judgment or execution. ’ ’
Sir Matthew Hale stated the common-law rule in substantially the same terms as in Blackstone, and added the following qualifications:
“But because there may be great fraud in this matter, yet if the crime be notorious, as treason or murder, the judge, before 'such respite ef trial or judgment, may do well to impanel ,a jury to inquire ex officio touching such insanity, and whether it be real or counterfeit.” 1 Hale’s Pleas of the Crown, p. 35.
There is nowhere found a statement of any rule of the common law which would extend relief in a felony case of less degree than a capital offense, the reason evidently being that it is a rule of extreme emergency to prevent the execution of the death penalty on an insane felon.
The lawmakers of this State, in the enactment of the Criminal Code, § 291 (Crawford & Moses’ Digest, § 3251), provided a statutory remedy in such cases by empowering the sheriff charged with the execution of a death penalty to impanel a jury to determine the ques tion of sanity or insanity of the convicted felon. It is thus seen that the lawmakers saw fit to go no farther than the common-law rale in affording a statutory remedy.
There is also a statute providing for relief to a convict confined in the State Penitentiary who is found to be insane. Crawford & Moses’ Digest, § 9669.
It is thus seen that there is no authority in the common law or in the statute for the remedy now sought by the petitioner, and the circuit court was correct in refusing to grant the prayer of the petition.
The prayer of the petition filed herein is therefore denied, and the petition is dismissed. | [
112,
-23,
-4,
-66,
10,
96,
24,
-100,
113,
-13,
-31,
115,
-83,
83,
0,
113,
115,
103,
113,
121,
-60,
-73,
114,
97,
50,
-77,
79,
-41,
48,
78,
-12,
119,
72,
-92,
-22,
85,
101,
-120,
-63,
-36,
-114,
-83,
-87,
-31,
88,
-104,
56,
38,
80,
15,
17,
30,
-29,
-86,
82,
70,
-23,
108,
91,
-68,
-64,
-24,
-98,
7,
111,
23,
-77,
-89,
-100,
-91,
52,
126,
-104,
49,
2,
-20,
17,
-106,
-126,
116,
75,
-103,
12,
102,
102,
0,
89,
-17,
-88,
-40,
30,
-66,
-99,
-90,
-47,
81,
72,
37,
-108,
29,
113,
84,
4,
124,
106,
5,
84,
108,
8,
-113,
-76,
-77,
-49,
124,
-124,
81,
-21,
35,
48,
113,
-36,
99,
92,
103,
121,
-109,
-113,
-16
] |
Smith, J.
This is the second appeal in this cause, and reference is made to the opinion on the former appeal for a full statement of the facts and issues. Nakdimen v. Atkinson Improvement Co., 149 Ark. 448.
The litigation arose out of the interpretation of a lease which the parties hereto had entered into, and that contract, which was in writing, is set out in full in the former opinion. The facts essential to an understanding of the issues presented on this appeal may be briefly summarized as follows. The Atkinson Improvement Company, hereinafter referred to, for brevity, as the company, owned a building in the city of Fort Smith, and Nakdimen owned a lot adjacent thereto, and, desir ing to erect a building oil his lot, he entered into the contract referred to above, whereby the Nakdimen.building should be so constructed that the tenants of the two buildings might make common use of the lobby, stairway and hallways of the company’s building, and of the elevator in that building, and also of the elevator which was to !be installed in the Nakdimen building. Nakdimen sold an interest in the building to certain associates, who were made parties to the former case, and we use his name to include his associates.
Under the contract as construed in the former opinion, the original lease covered a period of ten years, with the reciprocal privilege of a renewal for another ten-year period. Nakdimen construed the contract as being a lease for a ten-year period only, and at the. expiration of that time declared the contract at an end'and refused to operate the elevator in his building. The company took the position that the contract was one in perpetuity, and sought to obtain a decree compelling its specific performance by Nakdimen. 'We held that the contract was not one which the court would compel the parties to specifically perform, but we also held that, as the contract had not expired damages would be awarded for its breach, and the court would fix the rental value, as the parties had failed to do so, under a provision of the contract quoted later.
The lease contract provided that Nakdimen should pay tlie company $25 per month during the entire ten year period as rent for the privilege and concession there granted. It also provided “that at the expiration of said period of ten years, the rental to be paid by the party of the first part to the party of the second part for the concession and privilege herein granted, as herein granted, as herein set out, shall be fixed by a board of arbitrators, three in number, one to be named by each of the parties hereto, and the third to be selected by the two so named by the parties hereto, and that the award of any two of said arbitrators shall be final and conclusive upon the parties hereto.”
Tlie company alleged in its complaint tliat Nakdimen had refused to name an arbitrator as required by tlie section of the contract quoted, and was refusing to operate the elevator in his building, and there was a prayer that the court fix the rental value of the premises and damages for failure to operate the elevator.
The case presented to us, as we viewed it, was that the parties were making joint use of the premises as the contract contemplated they should do, but the provision of the contract determining the rent to be paid by Nakdimen had expired by the limitation of the contract, and Nakdimen had failed to comply with the stipulation in regard to the appointment of arbitrators, to determine that question, and, in addition, he was also refusing to operate the elevator in his building as the contract required him to do.
At the time of the rendition of our opinion on the former appeal, it appears that Nakdimen, after having suspended the operation of his elevator from September, 1920, to April, 1921, had resumed its operation under an agreement that lie should not be prejudiced thereby in the assertion of what he regarded as his rights and obligations under the contract. We were not advised that the elevator was being operated, and, as it was held that the court would not decree specific performance of the requirement that Nakdimen operate his elevator, we directed the court to find damages for this breach of the contract. Tlie court made a finding assessing the damages for failing to operate .the elevator during the time its operation was suspender!, and neither party complains of this finding.
The court below interpreted our opinion on the former appeal as directing him to find the rental value of the stairway and lobby of the company building, and in determining the rental value the court took into account nothing else. Much testimony was offered of the rental value of the hallways and elevator in the company building, but the court refused to take any of this testimony into account, for the reason, as stated, that the court was of the opinion that the rent was to he fixed only on the stairway and lobby.
The opinion on the former appeal, in which the contract was construed, is the law of the case, and is binding on all parties, and ourselves as well. We need not, therefore, inquire what the contract meant, as the decision of the questions presented on this apneal depends upon the interpretation of the former opinion, in which we, construed the contract and gave directions to the trial court as to the rights of the parties thereunder.
The opinion is, of- course, to be construed in the light of the facts .there stated and of the directions there contained. After holding that the court below had erred in granting specific performance of the contract requiring the Nakdimen elevator to be operated, we said that upon the remand of the cause it would be the dutv of the court to settle the damages which resulted to the company from the breach of the contract bv Nakdimen. We also said that, in fixing the damages to be allowed the company for the breach of the contract by Nakdimen, it would be necessary for the court to consider and fix the rental value of the “premises.” The court .’below hsd fixed the rental value at $25 per month; but we directed a new finding to be made on that question and gave both parties permission to take additional testimony, and this privilege was very freely used, as we have an additional record as large as the original record.
The former opinion contained this direction to the court below: . “It will be the duty of the court moon the remand of the present case to fix the amount of damages suffered by appellee (the company) by the breach of the contract upon the part of appellants (Nakdimen), and, inasmuch as it will be necessary for the court to know the rental value of the premises for the renewal period of ten years in fixing the damages, it will be necessary for the court to fix the rental value for the elevator service, for the reason that appellants refused to proceed under the arbitration clause looking to that end, as above stated.”
An elaborate opinion was prepared by the chancellor, and, after making it perfectly plain that he had taken into account only the rental value of the stairway and lobby of the company building, he fixed the rental value thereof at $25 per month. It appears from the opinion of the court below that he reached this conclusion because, as he interpreted the contract, rént was to 'be paid only on the stairway and lobby, and he was evidently controlled, in a large measure, in fixing the rental value, 'by the fact that the parties, when contracting in regard to the rental for a period of ten years, fixed $25 per month as the rental to be paid.
We think the court below did not correctly interpret the opinion. Our direction was not to fix the rental value of the stairway and lobby only but “to consider and fix the rental value of the premises.” It is true that we gave no specific direction to take into account the elevator service rendered by the company building in fixing the rent. One reason for this omission is that the elevator was a part of the “premises,” and was included in that designation. The second reason was the fact, as it then appeared to us, that Nakdimen was not operating his elevator, and we had refused to compel him to do so. This refusal imposed upon the company elevator the service which the parties contemplated the two elevators should perform. Nakdimen had breached his contract, as we found, and this breach was to be compensated by way of damages. The other privileges conferred by the contract, such as the use of the stairway, lobby and hallways, were being jointly used by the parties as the contract contemplated, and the value of these privileges was to be considered in determining the rental value.
The Nakdimen elevator is now being operated, ami the parties are getting what they mutually contracted for originally. It appears the parties then contemplated there would be a difference of opinion as to the rental value after the ten year period, for they provided for an arbitration of that question without requiring the parties' to first consider it.
The reciprocal privileges for the ten-year period were identical with those for the first ten-year period, and “the rental to be paid by the party of the first part to the party of the second part for the concession and privilege herein granted, as herein set out,” was the matter which the contract provided the arbitrators should determine, but, as Nakdimen failed and refused to name an arbitrator, as there provided, it became the duty of the court to make the finding which the arbitrators should have made, and the direction given to the court below was to make this finding after compensating the company for Nakdimen’s refusal to operate his elevator.
As we have said, the court below was largely controlled, in fixing the rent at $25 per month, by the fact that the parties had themselves fixed it at that amount, and it is insisted that we, too, should reach the' same conclusion, for the reason that conditions have not substantially changed since the execution of the contract, and the parties were the best judges of the reciprocal value of the contract to each other.
The fact mentioned is, of course, very significant, but it is not controlling. It now appears that the company elevator carries ninety-seven per cent, of the traffic, with the consequent cost of its operation, which the owners of that 'building must pay. This results chiefly from the more convenient location of the company elevator, and from the fact that -it is more modern. ' In other words, it now appears that the company is largely furnishing the elevator service which the contract contemplated should be jointly furnished.
The testimony developed this and other facts which the numerous witnesses mentioned in testifying as to the rental value of the contract to Nakdimen. This testimony is voluminous and in many respects conflicting. This might well be expected, as the basis of most of it is the opinion of the witnesses as to rental value. No useful purpose would be served by setting this testimony out. We have liad mueli difficulty in determining- what tlie fair rental value is as shown by the testimony, and after carefully considering- this testimony and reconciling our own views in regal'd to it, we have concluded that the rental value should be fixed at $33.33 per month, and the decree of the court below will be modified to accord with that view. | [
80,
-5,
-36,
-50,
26,
64,
58,
-104,
121,
-15,
-90,
87,
-19,
-34,
20,
107,
-123,
127,
81,
96,
-42,
-77,
70,
98,
-42,
-77,
-45,
-47,
-72,
77,
-11,
-42,
72,
37,
66,
-105,
-26,
-126,
79,
-36,
74,
-127,
8,
-19,
-7,
1,
54,
123,
64,
14,
1,
5,
-13,
44,
25,
-61,
72,
60,
105,
41,
-15,
-8,
-54,
13,
125,
7,
1,
69,
-98,
-57,
72,
12,
-104,
53,
24,
-24,
115,
54,
-122,
124,
47,
89,
-88,
98,
98,
34,
1,
-1,
-112,
-72,
6,
-34,
-115,
-89,
-112,
24,
43,
97,
-68,
29,
124,
20,
5,
-2,
-10,
21,
19,
111,
-125,
-50,
-42,
-111,
15,
-22,
-110,
11,
-18,
-125,
32,
112,
-49,
-94,
92,
103,
51,
-37,
-121,
-72
] |
Hart, J.,
(after stating the facts). Sec. 6889 of Crawford & Moses’ Digest gives the landlord a lien upon the crop grown upon the demised premises in any year for rent. Sec. 6890 gives the landlord a lien for any necessary supplies, either of money, provisions, clothing, stock, or other necessary articles advanced to the tenant with which to make and gather the crop. The section further provides that the lien shall have preference over any mortgage of the crop made by the tenant.
The bank insists, however, that it is only liable to the plaintiff for the amount of the rent due him,. and is not liable for the note signed by the plaintiff, because the plaintiff signed the same as surety for the tenant. Hence they claim that the ease falls within the doctrine of Kaufman v. Underwood, 83 Ark. 118, where it was held that the landlord may not claim a lien as for supplies furnished to his tenant where the tenant purchased a horse for whose purchase price the landlord went security.
On the other hand, the plaintiff relies upon the case of Walker v. Rose, 153 Ark. 599. In that case it was held that where a landlord directed a merchant to furnish supplies to the tenant for which the landlord agreed to pay, and subsequently paid, the landlord, in effect, furnished the supplies to the tenant, and was entitled to a preference lien therefor. In that case, as here, a bank had a valid mortgage on the crop of the tenant, but knew that the tenant was raising the crop on the land of the plaintiff. The landlord had also become responsible to a mercantile company in the amount of certain advances made by it of money and supplies which were used by the tenant in the cultivation of his crops. The court held that the facts justified a finding that the money and supplies furnished through the mercantile company were ill reality furnished by the appellee. Hence it was held that it was not a case of a landlord becoming a mere surety for his tenant, but that the facts warranted the conclusion that the landlord himself was primarily responsible to the mercantile company.
In the instant case, according to the testimony of the plaintiff, he in reality furnished the money to the tenant with which to buy the rice bags for the purpose of preserving the rice. It was absolutely necessary to put the rice in bags after it was thrashed' in order to preserve it. Although the note shows that Botts, the plaintiff, signed it as surety, yet, under the attending circumstances, the chancellor was warranted in finding that Botts was primarily liable for the money, which was used in purchasing the rice bags to preserve the crop. The landlord paid the note at the bank, and the purchase of the rice bags inured to the benefit not only of the landlord but his tenant, and to the bank, which was the ten ant’s mortgagee. The bank knew that the rice was grown on the land of the plaintiff, and therefore it is liable to plaintiff for its value to the extent of the landlord’s lien for rent and the supplies furnished by him, which was established by the proof.
It is next insisted that the judgment should be reversed because the suit was not brought within six months after the rent was due and payable*. The bank was not made a party to the suit until the 2nd day of September, 1921, and it is insisted that the rent Avas at least due at the end of the year 1920.
It will be remembered, however, that this suit was commenced by the landlord against the tenant and some laborers who were attempting to assert laborers’ liens on the rice crop. The object of the suit was to establish the landlord’s lien as superior to that of the laborers for the rent, and also the money advanced by him for supplies. Menard, the tenant, was appointed receiver by the chancery court to take charge of the rice and hold it in a designated warehouse until the further orders of the court.
It is true that the bank testified that it took the rice from the warehouse and sold it under authority given by the tenant. The court was warranted, however, in finding from the evidence of the plaintiff and the tenant that no authority Avas given to the bank to take charge of the rice and sell it under its mortgage. The action of the bank therefore amounted to a conversion of the rice which was in the hands of the court. Hence the limitation of six months provided by the statute for the continuance of a landlord’s lien after the rent shall become due has no application.
It folloAvs that the decree will be affirmed. | [
-16,
124,
-36,
109,
74,
96,
42,
-104,
99,
-92,
39,
83,
-23,
-46,
20,
45,
-25,
93,
69,
-88,
69,
-93,
37,
66,
-14,
-69,
-45,
-43,
-71,
111,
-57,
-33,
77,
20,
66,
-41,
-26,
-112,
-127,
-36,
-114,
-119,
-117,
97,
-3,
64,
52,
43,
68,
73,
97,
-123,
-77,
36,
49,
87,
79,
46,
105,
37,
-32,
-32,
-70,
-115,
123,
5,
-79,
38,
-108,
69,
-38,
12,
-104,
49,
1,
-24,
82,
54,
-106,
84,
47,
-101,
9,
98,
98,
0,
101,
-1,
-102,
-120,
47,
-34,
13,
-90,
-112,
88,
43,
43,
-65,
-99,
126,
20,
-90,
118,
-3,
20,
15,
105,
3,
-114,
-42,
-77,
13,
112,
-102,
-117,
-49,
-121,
49,
97,
-49,
-86,
92,
103,
118,
-37,
-114,
-5
] |
Wood, J.
This action was brought by the appellees against the appellant. The appellees alleged in their complaint that they are the owners of certain lands which they described; that these lands are situated at the foot of Pigeon Roost Mountain and north of Point Remove Creek; that there is a branch or ravine into which the waters along the side of the said mountain drain and which flows on to and across the lands of defendant, adjoining plaintiffs’; that defendant is digging a ditch and building a levee at the foot of said hill on his land for the purpose of diverting and changing the natural flow of water and forcing the same to flow on to the lands of plaintiff, which will overflow about fifty acres of plaintiffs’ land, to plaintiffs’ irreparable injury and damage. The complaint concludes with a prayer for a mandatory injunction requiring the defendant to remove all levees and other obstructions and to fill up such ditches as he had dug to divert the natural flow of the water.
The appellant, in his answer, denied all the material allegations of the complaint, and alleged that he was digging the ditch complained of on his own land for the purpose of straightening the natural flow to where it has a natural outlet under the public road by a large culvert that was put there by the road construction people, and that said watercourse had been there for years, unknown to the defendant. He alleges that he is cutting away from plaintiffs’ land a part of the overflow of water that would naturally come through there during high water, and is thus benefiting plaintiff’s land, instead of injuring it.
The cause was heard upon the depositions of the witnesses taken at the instance of the respective parties and the exhibits to these depositions, and the court entered a general finding for the appellees, and entered a decree directing the appellant “to clean out the channel of the branch leading from the road culvert at the foot of the hill north of Point Reimove Creek on the Hattieville & St. Vincent Road in Road District No. 4, from where same passes under said culvert, beginning at the east side, to where same empties into Point Remove Creek, and to completely fill up the ditch dug by him, within ten days from the rendition of the decree.” The court further decreed that the appellant be “perpetually enjoined from reopening said ditch or filling said branch, or placing any obstruction in said branch which might cause same to refill, or in any way change or divert the natural flow of the water. ’ ’
It is the contention of the appellees that the appellant has dug a ditch and built a levee on his own land which has t'he effect of diverting and changing the natural flow of surface waters through a branch or ravine which runs across and through the lands of the appellant, emptying into Point Remove Creek, and forcing them to flow in a body on to the lands of the appellees, to their great and irreparable injury. On the other hand, the appellant, while admitting that he has dug the ditch and built the levee as alleged, nevertheless contends that the ravine or branch, which the appellees claim he has obstructed, was nothing more nor less than the left-hand prong of a wet-weather branch which had only about a quarter of a mile to gather water in, and that this prong really brings water on to the land of the appellant from the appellees’ land, and that it meanders over appellant’s rich bottom land, about two acres, and that he dug the ditch and built the levee for the purpose of reclaiming his own land from the effect of the surface waters which were gathered up and brought on to his land through this wet-weather branch or ravine; that appellant’s purpose was only to control this surface water, and that the building of the ditch and levee only had the effect of turning the water and causing it to flow in a natural channel that went through the appellee’s land and emptied into Point Remove Creek; that the ditch and levee thus constructed did not in any manner injure the appellees’ land, but, on the contrary, would have the effect of benefiting, the same.
The parties litigant introduced testimony to sustain these respective contentions. The testimony is exceedingly voluminous, and it could serve no useful purpose to set forth and discuss in detail the testimony of the wit nesses. After a careful reading of the record we have reached the conclusion that this is one of those cases where it is utterly impossible for this court to determine where the preponderance lies. In Leach v. Smith, 130 Ark 465-470, we said: “When chancery causes reach this court on appeal they are taken up for trial de novo on the record made up in the lower court, that is, on the same record, but the law and the facts are examined the same as if there had been no decision at nisi prius. In determining the issues of fact by this court in chancery causes, no weight is given to the findings of fact by the trial court, unless the evidence is so conflicting as to leave the minds of this court in doubt as to where the preponderance lies. Where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, then the findings of fact by the chancellor are persuasive. But the issues of fact, as well as law, are tried by this court anew.”
We have carefully reviewed the evidence in this record, and it is so conflicting, and, to our minds, so evenly poised that we are unable to say which of the litigants is entitled to the preponderance. We are not convinced that the findings of the trial court are clearly against the weight of the evidence, and therefore must adopt the findings of the chancellor as our own. To be sure, if the appellant had done nothing more than merely divert the flow of surface waters, and was doing so in good faith for reclamation of his own land,' and with no purpose of injuring the adjoining lands of the appellees, and if the appellant could not have reclaimed his own land, by reasonable care and expense, otherwise than in digging the ditch and building the levee complained of, then he would have had the right to do so, provided that, by so doing, he did not unnecessarily obstruct the natural flow of the surface water in such manner as to injure the land of the appellees. Little Rock & Fort Smith Ry. Co. v. Chapman, 39 Ark. 463; Baker v. Allen, 66 Ark. 271; Ames Shovel & Tool Co. v. Anderson, 90 Ark. 235; McCoy v. Board of Directors of Plum Bayou Levee Dist., 95 Ark. 345-349.
The converse of the doctrine above stated is equally true. If the trial court found that the appellant was dealing with the surface water, it must also have found that he unnecessarily diverted its natural flow by digging the ditch and building the levee mentioned, and that by so doing he did the appellees an.irreparable injury. We cannot say that such finding of the trial court would be clearly against the preponderance of the evidence, for there was testimony to justify the court in finding that the appellant, instead of handling the surface waters as he was attempting to do, could, at much less expense, and with greater benefit to himself, and without any injury to the appellees, have cleaned out the channel of the branch which he had obstructed and allowed the water to flow through the same and in its natural course and outlet into Point Remove Creek. Furthermore, the court was justified in finding from the evidence that the appellant had gathered up the waters, which, through various small drains or tributaries, made their way into what counsel for appellant called the “left-hand prong of this surface water branch, ’ ’ and by digging the ditch and building the levee had cast these waters in a body into the prong, depression, swale, or slough, that ran into and upon the land of the appellees, where there was no sufficient natural outlet for them, and thereby had caused appellees’ land to overflow, and which overflows, in times of high water, would result in practically destroying several acres of valuable land.
The facts, as the court might have found them, bring this phase of the case well within the doctrine of St. Louis, I. M. Ry Co. v. Magness, 93 Ark. 46-53, where we said: “Even if these waters had been nothing more than surface waters, appellant'could not gather them into its ditch and cast them in a body upon the lands of appellees. This was practically the effect of appellant’s ditch. For the evidence shows that when the waters of Thomas Creek were by this means added to the waters that usually passed through other lower natural and artificial drains, these drains were insufficient to carry them off, so they passed on over and overwhelmed appellees’ lands.”
Where a person, by a ditch or levee, or other means, asserts his right to continuously cast the surface waters in a body upon the lands of another, to the irreparable and permanent injury of the latter, the party causing such injury is guilty of a private nuisance. The party injured may, if he so elects, resort to a court of chancery for a'mandatory injunction to abate such nuisance and to have the offending party forever enjoined thereafter from causing and maintaining such nuisance. Wellborn v. Davis, 40 Ark. 83; Taylor v. Rudy, 99 Ark. 128; High on Injunctions, secs. 794 et seq.; Farnham on Water Courses, 582a.
We find no reversible error in the record, and the decree is therefore affirmed. | [
-11,
108,
-76,
-84,
-118,
97,
120,
-74,
89,
-95,
-11,
87,
-17,
-61,
0,
97,
-29,
-3,
-11,
123,
-43,
-78,
127,
-126,
-14,
-13,
-13,
77,
-16,
76,
-28,
87,
76,
32,
-62,
-43,
66,
40,
-51,
-40,
6,
7,
-101,
69,
-47,
64,
52,
59,
82,
79,
117,
31,
-30,
44,
21,
-29,
9,
44,
-17,
61,
83,
120,
-72,
21,
31,
4,
33,
102,
-72,
67,
-38,
123,
-112,
48,
0,
-24,
115,
-90,
-112,
117,
3,
-101,
8,
114,
98,
3,
109,
-25,
-88,
25,
14,
-34,
9,
38,
-15,
56,
67,
96,
-74,
-99,
116,
16,
-28,
126,
-20,
-51,
93,
-20,
7,
-57,
-44,
35,
-33,
-80,
-116,
3,
-17,
3,
48,
116,
-49,
-30,
92,
-17,
113,
-97,
31,
-40
] |
Hart, J.,
(after stating the facts). Under the Federal Control Act the rights and remedies against common carriers enjoyed at the time the railroads were taken over by the President, except in so far as such rights or remedies interfered with Federal operation, were preserved to the general public. Under the act suits might be brought and prosecuted against the railroad company for a cause of action which had become vested before the Director of Railroads took charge of the common carriers under the act of Congress. Mo. Pac. R. Co. v. Ault, 256 U. S. 554.
- According to the allegations of the complaint, the Missouri Pacific Railroad Company purchased the railroad which was the alleged cause of the injury to the plaintiff, some time after the injury occurred. Hence the plaintiff’s cause of action had become vested before the purchase was made of the railroad by the Missouri Pacific Railroad Company.
The complaint does not contain any allegation that the plaintiff had recovered judgment against the company operating the road at the time he received his injury, and that on this account a judgment against the operating railroad company would bind its property in the hands of another company purchasing it. In the absence of an allegation in the complaint that the plaintiff had recovered judgment against the company, or the receiver thereof operating the railroad, at the time the plaintiff received his injury, the Missouri Pacific Railroad Company, which subsequently obtained possession of the road by purchase under a decree of a chancery court, is not liable, and no lien can be fixed against its property. Williams y. Mo. Pac. Rd. Co., 134 Ark. 366, and C. R. I. & P. Ry. Co. v. McBride, 136 Ark. 193.
The complaint does not. allege that any suit was filed against the St. Louis, Iron Mountain & Southern Railway Company or against the receiver of such railway company and judgment obtained thereunder. The complaint does show that the injury was received by the plaintiff while the St. Louis, Iron Mountain &• Southern Railroad Company or its receiver was operating the road.
Therefore the court properly sustained a demurrer to the amended complaint, and the judgment must be affirmed. | [
-80,
124,
-71,
-114,
122,
96,
50,
-102,
99,
-30,
-89,
-45,
-49,
64,
-111,
37,
-25,
-85,
113,
59,
84,
-93,
87,
35,
-46,
-109,
123,
-51,
-73,
73,
100,
-41,
77,
18,
74,
-11,
103,
66,
-59,
30,
-118,
36,
-102,
-26,
-39,
64,
48,
107,
86,
79,
17,
11,
-13,
46,
24,
93,
41,
45,
-18,
-95,
-47,
112,
-102,
77,
125,
16,
1,
68,
28,
39,
-56,
10,
-104,
49,
19,
-68,
107,
-74,
-121,
-12,
33,
-55,
8,
34,
99,
33,
69,
-81,
-84,
-72,
47,
90,
31,
-122,
-124,
8,
43,
35,
-65,
-99,
87,
4,
7,
-6,
-8,
69,
25,
44,
7,
-118,
-106,
-77,
127,
-26,
-98,
3,
-49,
-107,
52,
96,
-52,
-78,
95,
7,
57,
-101,
15,
-65
] |
Wood, J.
The petitioner, Brown & Hackney, Inc., was sued by the respondent, John C. Stephenson, in the circuit court of Chicot County, upon the following complaint:
“Comes the plaintiff, John C. Stephenson, and for cause of action against the defendant, Brown & Hackney, Incorporated, states: ‘ ‘ That the defendant, Brown & Hackney, Incorporated, is and was on the 7th day of March, 1921, a foreign corporation and incorporated under the laws of the State of Tennessee and authorized to do business in the State of Arkansas, and is and was on said date engaged in the business of buying logs and manufacturing same into lumber, and has a designated agent in said State upon whom service of process,may be had. That on said 7th day of March, 1921, at Kilbourne Louisiana, the defendant purchased of and from the plaintiff two hundred and sixty-six logs, amounting to 61,525 feet, at an agreed price of $1,540.62; that said logs were bought by defendant f. o. b. cars Kilbourne, in said State, and, pursuant to said contract, the plaintiff immediately delivered said logs to the defendant at said place; that said logs were accepted by said defendant; that same were loaded on cars and consigned to defendant at Little Bock, Arkansas, where they were refused. That defendant refused and still refuses to pay plaintiff therefor. Wherefore, plaintiff prays judgment against the defendant, Brown & Hackney, Incorporated, for the sum of $1,540.62, interest, costs, and all other proper relief.”
Summons Avas issued in said cause for the defendant therein, the petitioner here, and on the 16th day of January, 1922, was served on R. B. Hackney, the agent for service designated by said Brown & Hackney, Inc., in the State of Arkansas.
At the March, 1922, term of said court, the defendant appeared especially for the purpose of questioning the jurisdiction of the court, and for that purpose filed its motion to quash the service, as follows:
“Comes the defendant, Brown & Hackney, Incorporated, and, not entering its appearance, but for the purpose of quashing the service in this case alone, says: That plaintiff is a citizen and resident of the State of Louisiana; that defendant is a corporation organized under the laws of the State of Tennessee, and domiciled in Memphis, Tennessee; that the plaintiff claims that the alleged contract, upon which this action was founded, was entered into in the State of Louisiana; that the defendant is not incorporated in the State of Arkansas, but is doing business in the State of Arkansas as a foreign corporation only; that the defendant is not subject to answer to such an action as this in the courts of the State of Arkansas; that to require it to answer, to submit to a trial and a personal judgment'in such an action as this in this court, will deny to the defendant the equal protection of the laws and due process of law afforded to the defendant by the Constitution of the United States. Wherefore, defendant asks that this cause of action be dismissed'as to it, and that it be no longer threatened or imperiled with such unlawful process.”
On the hearing of the motion the same was overruled, and the defendant, declining to further plead, judgment was on March 15, 1922, rendered by said court in favor of the plaintiff in said cause against the said defendant for the sum of sixteen hundred thirty-four and 85/100 ($1,634.85) dollars.”
On July 18, 1922, Brown & Hackney, Incorporated, filed in this court the petition now before the court for a writ of certiorari to bring before this court the record of tbe proceedings had in the cause 'between the parties in the circuit court of Chicot County for review and for the purpose of determining whether the judgment of that court was rendered without jurisdiction.
The petition sets out the facts disclosed by the foregoing complaint and motion to quash, and alleges that the circuit court of Chicot County was without jurisdiction of the person of the defendant therein or of the cause of action upon which the judgment was there rendered; that the enforcement of said judgment would deprive this petitioner of its property without due process of law, in contravention of the 14th Amendment to the Federal Constitution.
It further avers that the petitioner here is without remedy to obtain a review of the proceedings of said circuit court other than by writ of certiorari.
We are met at the threshold with the issue as to whether or not certiorari will lie to correct the ruling of the circuit court in refusing to quash the service had in that case upon Brown & Hackney, Incorporated (hereafter called petitioner). The petitioner contends that the circuit court was without jurisdiction of the person of the petitioner, and also had no jurisdiction of the cause of action upon which the judgment of the circuit court was rendered.
An examination of the allegations of the complaint filed by Stephenson (hereafter called respondent) against the petitioner in the circuit court will discover that the complaint states a cause of action which is transitory in character. The circuit court of Chicot County therefore had jurisdiction of the subject-matter of the action, and the only issue here is whether or not it had jurisdiction of the petitioner. The circuit court did not exceed its. jurisdiction in determining* the issue as to whether or not service of summons could be had upon the petitioner in Arkansas upon the cause of action stated in the complaint. It was peculiarly within the juris'dic tion of the circuit court to determine whether the service could be had upon the petition in this State, and the decision on that issue raised by the motion to quash the service, if erroneous, could and should have been corrected by appeal. The doctrine is well established by numerous decisions of this court “that a writ of certiorari cannot be used in any case where there has been a right of appeal, unless the opportunity of appealing has been lost without the fault of the petitioner; or unless the court, in the proceedings which the petitioner seeks to have reviewed and quashed by certiorari, has acted without, or in excess of, its jurisdiction.” Lamb & Rhodes v. Howton, 131 Ark. 211; Hilger v. J. R. Watkins Medical Co., 139 Ark. 400, and other cases cited in Cumulative Sup. Crawford’s Ark. Dig., title Certiorari, §§ 4,12; Stroud v. Conine, 114 Ark. 304-09; Caroline v. Caroline, 47 Ark. 511; Gregg v. Hatcher, 94 Ark. 54; Griffin v. Boswell, 124 Ark. 234; and numerous oases cited in 1 Crawford’s Digest, p. 908 (Certiorari).
After the petitioner entered its special appearance and moved to quash service, it was certainly within the jurisdiction of the trial court to determine whether the petitioner had been duly served with process, and, if the court erroneously decided that issue, the petitioner had a complete and adequate remedy, to correct the error by appeal. But, while the petitioner concedes that it would have had a remedy by appeal, it nevertheless contends that such remedy is not as efficient as the remedy by certiorari, and hence' petitioner is entitled to the latter remedy, the trial court having exceeded its jurisdiction. Petitioner unquestionably would be correct in this contention if, as petitioner assumes, the trial court had exceeded its jurisdiction in deciding that petitioner had been served with summons. See Stroud v. Conine, and Gregg v. Hatcher, supra. But the issue here is hot whether certiorari would afford a more or less effectual remedy than appeal. The question is whether the trial court had jurisdiction to decide that petitioner had been served with summons in the action against it by respondent. Having concluded that the circuit court had jurisdiction to determine that issue, we do not reach the interesting question, so ably argued in briefs of counsel, of whether an action can be maintained in this State by a nonresident against a foreign corporation doing business in this State, upon a cause of action of a transitory nature arising in a foreign State. Petitioner rested on its motion to quash the service, and allowed judgment final to be entered against it. It follows from what we have said that such judgment must be affirmed. It is so ordered. | [
-76,
111,
-8,
-116,
24,
-32,
50,
-72,
90,
-95,
101,
83,
-17,
-57,
0,
101,
98,
93,
117,
122,
69,
-109,
27,
103,
-62,
-109,
-39,
-57,
-71,
75,
-27,
-44,
76,
48,
-62,
-123,
-125,
66,
-59,
28,
-34,
8,
-87,
-20,
-39,
114,
48,
-21,
69,
75,
113,
-114,
-5,
44,
49,
75,
105,
44,
-19,
40,
90,
49,
-70,
23,
45,
31,
-95,
-92,
-120,
1,
104,
60,
-112,
49,
0,
-24,
115,
-78,
-122,
-12,
47,
-119,
9,
102,
102,
35,
-123,
-25,
-116,
16,
39,
-38,
-103,
-90,
-32,
41,
67,
105,
-65,
-107,
126,
16,
87,
122,
-4,
-44,
-111,
108,
7,
-81,
-44,
-89,
-121,
-96,
28,
19,
-21,
11,
50,
85,
-49,
-14,
93,
7,
58,
-101,
-98,
-13
] |
Humphreys, J.
Suit in replevin was commenced in the Pike Circuit Court by appellant, a foreign book corporation, against appellee, who had purchased certain law books under written contract that the title to them should remain in appellant until the payment of the entire purchase money. At the time of the institution of the suit a balance of $95.25 was due on the books, which appellee refused to pay. The written contract was made the basis of the suit.
The main defense interposed by appellee, and the only one presenting a question for determination on this appeal, was that the contract is void and non-enforceable because made in this State by a foreign corporation, without complying with the laws of the State of Arkansas authorizing them to do business in the State.
The cause was submitted to the court, sitting as a jury, on the pleadings and testimony, which resulted in a judgment in favor of appellee, from which is this appeal.
The facts are undisputed, and, in substance, are as follows: Two sets of law books, the Encyclopedia of Evidence and of Procedure, were sold to one McNeill, a resident of Pike County, upon order secured by appellant’s traveling salesman, subject to approval of appellant at its home office in Los Angeles, Calif., and to be shipped from a point outside of Arkansas to McNeill at Murfreesboro, Arkansas. Volumes 1 to 14 inclusive of the Encyclopedia of Evidence and six volumes of the Encyclopedia of Procedure were shipped to and received by McNeill. Under the written contract, the title of the books was retained in appellant until the purchase money should be paid. Judge T. AV. Rountree obtained the books from McNeill in payment of a law fee. Subsequently the agent of appellant ascertained the whereabouts of the books and claimed them for appellant under the McNeill contract. Judge Rountree examined the contract, and told the agent to take them. The books were at the time in the grand jury room. Judge Rountree was county judge, and had the books in the grand jury room where he could conveniently use them. In about two hours, and before moving the books, the agent returned and proposed to resell the two sets of books complete, with supplements, to appellee under contract similar to the McNeill contract in form. A price was agreed upon, and the proposed contract entered into, subject to the approval of appellant at its home office in Los Angeles. The books in the grand jury room were delivered to appellee, and the remaining books necessary to complete the sets were to be shipped to him upon his order, by appellant. The contract was approved and the undelivered books afterwards shipped to and received by appellee. All of the purchase money except $95.25 was paid by appellee. Appellant made no attempt to comply with the laws of Arkansas so that it might transact business in the State.
Suits cannot be maintained, either in law or equity, by foreign corporations upon their contracts covering intrastate transactions, without complying with the statutory requirements as a prerequisite to doing busmess in this State. Section 1826 and 1832, Crawford & Moses’ Digest.
' The sole question therefore presented by this appeal for determination is, whether the facts relating to this sale made it an intrastate transaction. In the recent case of Coblentz & Logsdon v. L. D. Powell Co., 148 Ark. 151, this court, in considering a contract in which L. D. Powell Company retained title in books until the purchase money was paid, which it sold on order and shipped into this State, said:
“The taking of an order from the appellants by the appellee’s traveling salesman for certain books, which order was transmitted to the appellee and accepted by it and the books shipped to the appellants under a contract by which the title was reserved in the appellee until the purchase money was paid, is not the doing’ of business in this State, in contemplation of act of May 13, 1907, p. 744 (Crawford & Moses’ Digest, § 1826); see also § 1832.”
The larger part of the books in the instant case were not sold on order to Judge Rountree for future delivery, but were in the, State when sold, and were immediately delivered to him. Appellee contends that the presence of the goods in the State at the time of the sale, and the immediate delivery thereof to the purchaser, made it an intrastate transaction. The case of Hogan v. Intertype Corporation, 136 Ark. 52, is cited in support of the contention. In the Hogan case the machinery had been shipped into the State to shipper’s own order for the purpose of selling same to Hogan after demonstration, and was retained as the sole and independent property of the Intertype Corporation until after demonstration and sale to him. In the instant case the books were not shipped into the State as the sole and independent property of appellant for the purpose of selling them to appellee or any other person. On the contrary, they were shipped into the State by appellant to McNeill on an order for future delivery, obtained by appellant’s traveling agent. The McNeill contract clearly covered an interstate transaction. Coblentz & Logsdon v. L. D. Powell Co., supra. The recovery of the books under the McNeill contract amounted to a collection growing out of an interstate transaction. The collection was made in books instead of money, and we think the resale of them, in order to convert them into money, was a continuation of the interstate transaction. It was the only practical method by which a collection could be completed against one who had defaulted on an interstate contract. Otherwise it would have been necessary to incur the expense of shipping the books out of the State in order to convert them into money. The statutes of this State requiring foreign corporations to comply with certain conditions before doing intrastate business were not intended to place such a burden upon the enforcement of good faith interstate transactions-. We think the doctrine announce 1 in the case of Rose City Bottling Works v. Godchaux Sugars, Inc., 151 Ark. 289, is applicable and controlling in this case.
On account of the error indicated, the judgment is reversed, and the muse is remanded with instructions to render judgment for appellant. | [
48,
-20,
-12,
44,
42,
96,
56,
-70,
120,
3,
37,
-13,
-23,
-57,
0,
83,
-25,
109,
84,
107,
70,
-78,
38,
-28,
82,
-77,
-15,
-59,
-75,
79,
-68,
-42,
76,
56,
-62,
65,
-62,
-62,
-55,
30,
-86,
0,
25,
96,
-39,
-64,
48,
-77,
52,
7,
101,
-106,
-13,
40,
31,
-53,
105,
44,
123,
41,
89,
-47,
-101,
7,
61,
5,
-111,
38,
-104,
1,
-40,
94,
-108,
49,
24,
-24,
115,
-78,
-122,
84,
75,
-103,
8,
38,
99,
2,
32,
-121,
24,
-120,
63,
31,
13,
-90,
-94,
88,
43,
105,
-106,
-99,
124,
16,
5,
-14,
-8,
-59,
31,
108,
11,
-49,
-106,
-93,
-113,
108,
-42,
3,
-21,
17,
16,
84,
-57,
-14,
92,
-57,
59,
-101,
-98,
-46
] |
Smith, J.
On March 11, 1920, J. E. Hollingsworth, a building contractor doing business as J. E. Hollingsworth & Co., sued the Leachville Special School District, alleging that on or about May 20, 1919, he and the said district entered into a written contract, whereby he agreed to erect and complete a certain brick school building in the town of Leachville, according to the plans and specifications made a part of the complaint, for the sum of $34,000. That he began the construction of the building under his contract, and had expended thereon the sum of $20,178.80, and that he had been paid by the school district, on the certificate of the architect, the sum of $12,800, leaving a balance due him of $7,378.80. That on or about December 10, 1919, the school district forcibly took possession of said partly constructed building, and refused and declined to permit him to complete same, and that such action on the part of the school district was unlawful and wrongful, in that he was constructing the building in accordance with the plans and specifications.
On March 27, 1920, the school district filed its answer and cross-complaint. It admitted the execution of the contract sued on, but denied that the building was constructed according to the plans and specifications, and denied that it had, without right, forbidden plaintiff to continue the work, and averred that its reason for not permitting plaintiff to continue was that he had refused to construct and complete the building in accordance with the plans and specifications.
In its cross-complaint the school district set up the contract, and alleged the execution of a bond for its faithful performance by the Maryland Casualty Company as surety. The plaintiff, the surety and Mitchell Sellig mail, tlie architect, were made parties to the suit. It was alleged that, the architect had conspired with the plaintiff to obtain the contract for the plaintiff, and that the architect had fraudulently permitted the plaintiff to make substitutions of defective material, and had fraudulently approved defective work by the contractor.
Answers were filed by the cross-defendants, denying all the allegations of the cross-complaint, and alleging that the work of the contractor was in accordance with the plans and specifications, and had been accepted and approved by the architect, whose decision, according to the terms of the building contract, was final with respect to the work, and averred failure to give notice of default.
The final decree dismissed the complaint, and also the cross-complaint in so far as the architect was concerned, but gave the district a judgment against Hollingsworth and his surety, and this appeal is from that decree.
The record is very voluminous, consisting of over a thousand pages, and the briefs, which are correspondingly large, discuss at length the conflicting testimony of the numerous witnesses. We shall not undertake to review all this testimony, although we have considered it, and have reached the conclusion that the findings of fact upon which the decree of the court below was based were not clearly against the preponderance of the testimony except as to two items, which we think were improperly charged against the contractor.
For the reversal of the judgment it is insisted:
1. That there was a substantial performance of the contract on the part'of the contractor up to the time of his discharge; and this is the principal question in the case.
2. That there was no certificate by the architect of a failure on Ihe part of the contractor to comply with the contract, it being’ insisted that Selligman was the architect authorized by the contract to make that certificate.
3. That, if the associate architect, who made the certificate upon which the directors acted in discharging the contractor, was authorized to so certify, he should have clone so in connection with Selligman, and not individually as he did do.
4. That proper notice, as prescribed by the contract, was not given by the district to the contractor of his discharge.
5. That the decision of the architect as to compliance with the contract was final, and could be impeached only by proof of fraud or mistake so gross as to imply bad faith and the exercise of dishonest judgment, and the evidence does not justify that finding.
6. That there was no notice of default, and the surety was, on that account, relieved of its obligation to pay liquidated damages for delay.
7. That the district waived strict compliance-with the terms of the contract requiring the completion of the building within five months.
8 and 9. That the district did not properly prove the damages allowed it.
The propositions stated are substantially questions of fact, as the principles of law which control their decision are well settled and are not in dispute between the parties, and we will not undertake a separate discussion of each of these propositions.
There are provisions in the building contract which make the architect the final arbiter between the contractor and the district, and it becomes important, therefore, to determine who the architect was, as Hollingsworth took the position, when the first disagreement arose, that Edelsvard was not the architect, and Hollingsworth demanded that Selligman approve the findings and directions of Edelsvard before he would as.sent thereto. On that question we quote from the contract as follows : ‘ ‘ This agreement, made this 20th day of March, 1919, by and between the Leachville Special School District, party of the first part, hereinafter called the owner, and Mitchell Selligman, party of the second part, hereinafter called the architect, with G. A. Edels varcl, associate, witnesseth:” The same instrument defines the terms, ‘ ‘ owner, ” “ architect, ’ ’ and ‘ ‘ contractor, ’ ’ the definition of “architect” being “the term ‘architect’ refers to Mitchell Selligman or associate.”
Selligman and Edelsvard were partners, as Selligman & Edelsvard, at the time the district contracted with them as architects, although the negotiations leading to their employment were conducted by Selligman, and that member of the firm acted for the firm in the award of the contract to Hollingsworth, the plaintiff in this suit. However, “the plans and specifications were prepared by Edelsvard.
The court below was of the opinion that Edelsvard, as well as Selligman, was the “architect,” as that term was used in tlie contract, and we concur in that finding.
The contract specified what supervision the architect should give the building and what his duties should be in that connection, and we think it was contemplated by the parties that either Selligman or Edelsvard might perform those duties. The contractor was therefore in error in disputing Edelsvard’s authority as architect.
Pour bids were received by the district for the construction of the building as originally advertised. The lowest bid was $34,737, and was made by TI. E. Monk; the next lowest bid was $34,887, and this bid was made by the plaintiff Hollingsworth. The district had only $34,000 to spend for the building, and did not accept any of these bids. Selligman undertook to revise these plans by reducing the cost of the building by $887, and after doing so Hollingsworth’s bid was accepted.
' The alterations thus made were indicated on the plans as “Addenda A,” and much stress is laid on these alterations by the district as tending to show collusion between Selligman and Hollingsworth. Monk testified that the alterations made by Selligman did not reduce the building cost only $887, but that the amount of the reduction was $2,134, and he testified that, if he had been given an opportunity to revise his bid after the alterations had been made, he conld, and would, have reduced his own bid by that amount, whereas Hollingsworth reduced his bicl only to. the extent of $887.
There was testimony on the part of the district that Selligman refused to give Monk an opportunity to revise his bid on the ground that Monk probably could not make the required bond, the intimation being, of course, that Monk was not a responsible bidder. The insistence of the district, in this connection, is that Selligman and Monk were unfriendly, and that the relations between Selligman and Hollingsworth were unduly friendly. Selligman denied that this was true, and he denied that the alterations in the plans which he made warranted a difference of more than the $887 reduction necessary to bring Hollingsworth’s bid within the money the district could pay, and he testified that he was not asked by the directors of the district to figure with any other bidder on any reduction of the amount bid.
The first issue between Selligman and Edelsvard came over the allowance of an estimate which Hollingsworth asked the district to pay. Edelsvard testified that he told Selligman the sum demanded was in excess of the amount then payable under the contract, and Selligman admitted this was true, but insisted that the estimate be approved notwithstanding that fact, but Edelsvard refuse to do so. Selligman denied this. An issue also arose between' Selligman and Edelsvard over the approval of the work covered by this estimate. Edelsvard went to Leachville and condemned -a lot of the work, and, among other things, ordered brick walls torn down. Hollingsworth declined to obey Edelsvard’s direction, and insisted that his work was not defective, and had been approved 'by Selligman. In this connection there were introduced certain telegrams and correspondence, which, it is strongly insisted, show Selligman’s entire good faith. Edelsvard wired Selligman that Hollingsworth had disputed his authority and claimed to have his (Selligman’s) approval of the work. Selligman an swered by wire affirming Edelsvard’s authority, and denying that he had given a blanket approval of Hollingsworth’s work. The issue between Edelsvard and Hollingsworth remained unsettled, and Selligman himself went to Leachville. Upon Selligman’s return home he wrote a letter to the school directors, in which he expressed the opinion that Hollingsworth was correct in his contention. In the same letter Selligman insisted, first, that the alleged defective work was not so defective that it could not be remedied, and, in his testimony, explained the remedy he would have applied. He also stated in the letter that such defects as did exist resulted from defects in the plans, and not from faulty materials or work. Edelsvard insisted to the contrary, and the directors accepted his view as correct. There was a meeting at which all parties in interest were present or were represented, and the directors announced their approval of Edelsvard’s position, and called upon the representative of the surety company to comply with Edelsvard’s directions and complete the building after Hollingsworth had declined to do so.
It was insisted at that meeting, as Hollingsworth had all along insisted, that the trouble was with the plans, and there is much testimony in the record which supports that contention. In fact, if the case was disposed of on the testimony of the witnesses who qualified as experts, and testified as such, it must be confessed that the clear preponderance of the testimony shows that the plans were defective, and the troubles complained of by Edelsvard were attributable to the defect in the plans.
The testimony of these experts appears to be overcome, however, by the undisputed fact that the defective work was torn away and the building was completed according to the plans which the experts had testified were defective, and there is no disagreement that the district has a satisfactory building.
The principal defect complained of in the plans was that the weight of the building had not been properly distributed over the foundation, and the explanation is offered that it became possible to erect a good building under the plans used only because the foundation had properly settled. Of this we shall have more to say.
It is conceded that there were numerous departures from the plans. It is said, however; that most of these were unimportant and immaterial, and resulted chiefly from the inability of Hollingsworth to obtain the articles called for in the specifications, resulting from the congestion of railroad traffic existing at the time, and the inability to have builder’s orders promptly filled. It is also insisted that such variations as might be deemed material did not impair the value of the building, and were authorized by Selligman in good faith.
It is undisputed that many defects existed at the time Selligman and Edelsvard disagreed, and, as has been said, the chief issue of fact was the cause of these defects — whether defective plans, or defective work— and it is undisputed that one of the brick walls fell, and the remaining walls were torn down. One of the orders which Edelsvard had given, and which Hollingsworth refused to obey, was to tear down these walls. Hollingsworth accounts for the falling of the wall by saying that the building had been left unoccupied from October 20, 1919, to January 5 thereafter; but the court did not accept this explanation, and neither do we. The walls were shown to have been out of plumb, some of the witnesses placing the variation in this respect as high as four inches; and the testimony shows an insufficient quantity of cement was used, and that the mortar was not properly mixed. A number of witnesses testified that brick could be, and were, pulled out of the walls like pulling books out of a book-case. The other defect in the walls was that the walls had cracked. There was no dispute about that fact, although there was the sharpest conflict as to the extent and cause and probable effect of these cracks.
It was insisted by Selligman that these cracks were not as serious as Edelsvard claimed, and could have been closed by certain excavations of tbe foundation; and the witnesses who testified in Hollingsworth’s behalf as experts expressed the same opinion. One of these witnesses, in response to a hypothetical question which assumed as existing the conditions which Edelsvard and the other witnesses for the district had testified did exist, admitted that, under the facts assumed, the -building should have been torn -down, and nothing else could have been done to make the building safe.
We do not concur in the view that there was any trouble with the foundation. The building was located on “confined” sand, and the testimony is all to the effect that only solid rock makes a better foundation — the coarser the sand the better the foundation.
Building operations entirely ceased on October 20, 1919, this being’ the date when the contractor and the representative of the surety company definitely refused to take down and reconstruct the building; and building operations were not resumed until January 5, thereafter. During this time there may have been, and probably was, some additional settling of the concrete foundation on which the walls were erected; but we do not think this settling made it possible to build a good building, whereas before it had been impossible to do, and such was not the theory of the experts, their chief objection to the plans being that the weight of the building had not been properly distributed over the foundation.
Upon the first submission of the cause the court prepared a written opinion in which he announced certain conclusions which he liad reached. Among other findings of the court was one to the effect that Hollingsworth and his surety did not have the right to rely on the decisions of Selligman, for two reasons. The first was that Selligman had given up the work before the time for the more important decisions; and the second reason was that his inattention to the work amounted to bad faith, though there was no satisfactory proof of fraud. Selligman’s contract with the district provided for personal attention on the job at least once every two weeks, but, despite re peated calls when the board of directors were complaining of defective work, he made only three visits in five months.
The court found as a matter of law that ‘ ‘ a substantial compliance by the contractor is all that is required under the law, he being charged (where there is a substantial compliance) with the difference in value between the work as done and as contracted to be done, or the replacement of defective work where this can be done, or the replacement of defective work where this can be done without great expense or material injury to the structure as a whole.”
We approve both the finding of fact stated and this declaration of law.
The court, after making certain general findings of fact, propounded the following question: “The question for decision therefore is: 'Could the defective masonry have been replaced with reasonable expense without tearing down the whole structure? If it could, then the district is entitled to charge only what such cost would have been, together with difference in value of brick, steel, lugs, caps, bases, etc., furnished and those contracted for. On the other hand, if the inferior masonry was all over the building so that the structure was unsafe (and the maximum of safety is required for school buildings where hundreds of little children are housed) and it was necessary to rebuild in order to be certain of durability, then the district was justified in dismantling the house ás a whole and in the rebuilding to use materials conforming strictly to the contract.”
The court then directed’that additional testimony be taken for the purpose of enabling him to determine the questions stated, and what damages should be awarded the district if it was found the structure had to be torn down; and the additional testimony was 'taken, and the court thereafter rendered a final decree assessing- as damages the cost of tearing down and removing defective work and rebuilding in accordance with the original plans.
We will not set this testimony out in detail. There is much conflict in it, and much of it cannot be reconciled. As we have said, the preponderance of the expert testimony supports the contention of Hollingsworth, but the decided preponderance of the practical testimony — that of the men who tore down the old work and replaced it— supports the finding of the court below. We are largely controlled by the fact that a satisfactory building has been erected according to the plans and specifications which the expert witnesses condemned.
After Hollingsworth was discharged, Monk was employed to complete the building, and was paid for this, service on the basis of cost plus ten per cent. He testified that in tearing down and removing the condemned parts of the building he discovered that much material of a cheaper kind than that called for by the specifications had gone into the building, and he estimated this difference amounted to $2,336. Complaint is made of the commission paid Monk; but it does not appear that the work could have been contracted on more advantageous terms at that time. Monk testified that a wall fell before he took the job, and he did not know what conditions he would find.
Edelsvard furnished the district a certificate that the total cost to the district for the construction of the building was $64,400.59, and that there were credits against this amount of $34,722.63, leaving abalance above the original contract price of $28,677.96, and that the building remained uncompleted for 400 days after October 20,1919, the date of the expiration of the five months’limit allowed for the construction of the building, and that the liquidated damages for that period at $25 per day, the sum specified in the contract, amounted to $10,000.
The original contract gave the architect the right to make such a certificate against the contractor; but we think no binding effect can be given to the certificate of Edelsvard for the reason that Monk’s work was not done under the contract. Edelsvard’s certificate and his testimony in regard thereto are competent as evidence of the facts recited, hut they are not conclusive, and we do not approve the figures made hy him in their entirety for the reasons hereinafter stated.
Objection is made to the fee paid Edelsvard. This fee was not paid Edelsvard under the old contract, but was his compensation for services in connection with the tearing down and rebuilding of the sehoolhouse, and the testimony showed the sum paid him was a necessary expense under the circumstances.
It is said certain errors in addition appear in Edelsvard’s figures amounting to $363.30, and no explanation of what appears to be an erroneous addition is made, and this error must, of course, be corrected.
It is insisted that Monk used a more expensive brick than Hollingsworth was required to use, and an additional cost of $572 was incurred on that account. The testimony does not appear, however, to support the charge that a .more expensive brick was used than the original contract called for. Certain other disputed items may be disposed of similarly.
The court allowed an item of $525 covering the expense of a watchman during the reconstruction of the building. Such an expense does not appear to have been provided for in the original contract, and we think no authority was shown for making this charge against the contractor and his surety.
The court refused to allow the liquidated damages certified by Edelsvard, but did allow liquidated damages from the time Hollingsworth refused to proceed until the directors commenced work on the building. In other words, the court took no account of the period of time in excess of the five months amounting to 400 days, but did charge Hollingsworth for the time covered by his refusal to proceed before the district took over the work. We think this was not unfair to Hollingsworth, and the surety company was advised of the issue between the par ties and refused to complete the building, as it had the right to do, and it is chargeable therefore with liability for the liquidated damages assessed as a part of its obligation as a surety.
The decree will be modified by reducing it to the extent of the error in addition, and the charge for the services of the watchman, and, as thus modified, will be affirmed. | [
-110,
124,
-52,
109,
-102,
-120,
58,
-98,
-47,
-85,
-27,
87,
-51,
-60,
25,
47,
-91,
105,
-44,
121,
-29,
-77,
83,
38,
-14,
-13,
119,
-43,
-71,
77,
-16,
-106,
92,
52,
-62,
29,
-122,
-62,
-51,
24,
14,
-127,
-85,
-18,
-39,
99,
52,
127,
56,
15,
97,
-116,
-77,
46,
20,
67,
105,
62,
121,
-71,
65,
-15,
-110,
5,
93,
79,
-79,
103,
-98,
67,
72,
76,
-104,
53,
-124,
-7,
50,
-90,
66,
-12,
1,
9,
-120,
32,
98,
18,
-95,
-9,
-16,
-40,
62,
-2,
-119,
-89,
-93,
72,
50,
-122,
-66,
-97,
112,
82,
-122,
122,
102,
69,
27,
105,
-125,
-53,
-10,
-110,
-49,
-96,
-100,
3,
-1,
10,
32,
116,
-55,
-102,
92,
-61,
51,
-101,
14,
-39
] |
Hart, J.,
(after stating the facts). According to the testimony of Reed, Mrs. Gannon let him have the jewelry for the purpose of obtaining a loan on it. Mrs. Gannon denied this, and said that she deposited the jewelry with him for safe-keeping. She did not know that he had obtained a loan on the jewelry until after he had done so. Hence, according to the undisputed evidence, Reed did not act or assume to act as the agent of Mrs. Gannon in obtaining the loan. In such cases the owner may subsequently confirm the sale or pledge of the property, but this he cannot do by a simple ratification. His confirmation must rest upon some consideration upholding the confirmation, or upon an estoppel.
In Lafargue v. Markley, 55 Ark. 423, where a husband sold his wife’s horse, in her absence and without her consent, and executed a bill of sale therefor, this court affirmed a judgment for the recovery of the horse by the wife on the ground that there was no evidence in the case tending to show either an estoppel against her or a consideration for the confirmation of the sale of her horse by her husband. In discussing the question- the court said: ‘ ‘ There was no evidence that he was or assumed to act as her agent, There was no question of agency, and consequently there was nothing to ratify. She could have confirmed the sale, but this could not have been done by a simple ratification. A confirmation, to have been binding upon her, must have rested upon some consideration upholding it, or upon an estoppel.” (Citing authorities).
Here the facts are essentially different. The undisputed evidence shows that Reed executed a bill of sale to Mrs. Gannon to the jewelry in question on the 16th day of May, 1921. Mrs. Gannon, with full knowledge that he had deposited the jewelry with the Citizens’ National Bank as security for a loan of $2,600, accepted the bill of sale and sent a copy of it to the bank. According to her own testimony, she had become discouraged about the matter, after waiting so long for Reed to redeem his pledge of the jewelry, and wanted something to show that she had title to it. He had had the jewelry pledged for a loan for eighteen months, and Mrs. Gannon knew that fact.
The recital in the bill of sale by Reed to her that it was made subject to a loan of $2,600 from-the Citizens’ National Bank, and with directions to the bank to deliver the jewelry to Mrs. Gannon, upon the payment of the loan by either Mrs. Gannon or Reed, was a sufficient consideration for the execution of the bill of sale. This was the fixing of a definite basis of their rights in the property, and amounted to a compromise or a settlement between Mrs. Gannon and Reed.
This court is committed to the doctrine that the compromise of a disputed claim furnishes a sufficient consideration to uphold the terms of a compromise, though the asserted claim is without merit and could not have been sustained in the courts. First National Bank of Mena v. Allen, 141 Ark. 328, and cases cited; Bankers’ & Planters’ Mutual Insurance Assn. v. Archie, 145 Ark. 481, and Fair v. Beal-Burrow Dry Goods Co., 148 Ark. 340. The reason for the rule is that parties unable to agree about matters in dispute may go into court and have their rights adjudicated, or they have the right to settle their differences between themselves in any way they choose.
The bill of sale in this case recognized the rights of the bank to hold the jewelry as security for the loan made to Reed by it, and directed that the jewelry be delivered to Mrs. Gannon upon payment of the loan either by herself or by Reed. This, as we have already seen, was in effect a settlement between Mrs. Gannon and Reed of their differences in the matter, and this was in itself a sufficient consideration for the bill of sale. The testimony in this respect is undisputed. We have no concern as to which party was right. It is sufficient that it settles their differences.
It follows that the court erred in not directing a verdict in favor of the bank, and for that error the judgment must be reversed.
Inasmuch as the case has been fully developed, no good purpose could be served by remanding it for a new trial, and the case will be dismissed here. | [
49,
124,
-48,
-19,
74,
96,
42,
-104,
-31,
-69,
39,
19,
-31,
-62,
20,
57,
-75,
-17,
85,
43,
-44,
-77,
95,
83,
114,
-45,
89,
-35,
-75,
-4,
-26,
95,
13,
32,
-62,
-43,
102,
-117,
-55,
88,
-122,
-128,
26,
-23,
-7,
-64,
48,
-81,
84,
75,
101,
-42,
-13,
47,
29,
79,
107,
46,
107,
61,
-8,
104,
-81,
15,
127,
22,
55,
84,
-100,
5,
-38,
14,
-104,
49,
1,
-24,
122,
-74,
-118,
84,
77,
-119,
8,
118,
42,
-95,
-51,
-3,
-80,
-100,
111,
113,
15,
-125,
-110,
89,
72,
35,
-73,
-100,
121,
16,
36,
-22,
-30,
-99,
93,
108,
26,
-81,
-106,
-125,
29,
126,
-104,
9,
-9,
-44,
53,
80,
-50,
32,
93,
67,
120,
-101,
-114,
-3
] |
McCulloch, C. J.
R. W. Miller was, in April, 1920, elected to the office of city clerk and city collector of North Little Rock (a city of the first class) and, in accordance with an ordinance, he executed his official bond to the city in the sum of $5,000 with appellant as surety thereon, conditioned that he should “ faithfully discharge and perform the duties of his office, and at the expiration of his term of office shall render unto his successor in office a correct account of all sums of money, books, goods, valuables, and other property, as it comes into his custody, as such clerk and collector of said city of North Little Rock, Arkansas, and shall pay and deliver to his successor in office, or any other person authorized to receive the same, all balances, sums of money, books, goods, valuables and other property which shall be in his hands and due by him. ’ ’
Miller resigned in April, 1921, and it was found that he was short in his accounts to the city and also to three separate local improvement districts for which he had collected funds. According to the audit of Miller’s accounts, which has been found to be correct, he owed, the city of North Little Rock $5,531.63, and also owed the three improvement districts, in the aggregate, the sum of $6,734.37, and he had in a bank, to his credit as collector, the sum of $3,843.61.
This action was instituted in the chancery court of Pulaski County by the city of North Little Rock against appellant to recover the amount on the bond. In the complaint the facts were set forth concerning the amount of funds on hand in bank to the credit of the collector, and an accounting was asked as between the city and the improvement district concerning* the application of these funds. The improvement districts were joined as defendants in the action, and each filed a cross-complaint asking for recovery on the bond of the respective pro rata of the liability to eacli of the districts.
The chancery court decided that each of the improvement districts was entitled to protection under the bond jointly with the city of North Little Rock and to share in the recovery pro rata according to their respective amounts due from Miller, the principal in the bond. The court in its decree credited on Miller’s account with the city and each of the improvement districts a pro rata part of the fund in bank, and, after thus ascertaining the net amount of Miller’s shortage with each party, rendered a decree against appellant for a recovery by the city and each of the improvement districts of their pro rata, part of the liability under the bond. Under this decree the recovery against appellant was as follows:
City of North Little Rock..................................$2,198.33
Street Improvement District No. 15............ 1,209.77
Sewer Improvement District No. 1............ 773.83
Street Improvement District No. 16............ 620.82
Street Improvement District No. 18............ 197.25
Total..............................................................................$5,000.00
Appellant prosecuted its appeal to this court, and the city of North Little Rock has cross-appealed.
The first question arising in the case relates to the apportionment of the credits for the funds in bank so as to ascertain the amount of shortage in Miller’s account with the city of North Little Rock and the local improvement districts. The amounts due from Miller were proved beyond dispute, as hereinbefore stated, and it was also proved that the funds collected by Miller from the city and districts were jointly deposited in bank in his name as collector. It was impossible to show from what particular source these funds came further than that they were collections for the benefit of the city and the districts. There is no way, from the testimony, to separate the funds, and, if being shown to be a joint fund, it can only be divided pro rata in accordance with the .amounts due by Miller to each.
In the recent decision of this court in Miller v. State, 155 Ark. 13, which was a criminal prosecution against R. W. Miller for embezzling funds of the city of North Little Rock, we decided, under the same proof as is involved in this case, that the funds belonged to the city and the improvement districts jointly, to be credited pro .rata on the balances due the city and the improvement districts. We think that the chancery court was therefore correct in ascertaining the amount of shortage in Miller’s accounts with the city and the several improvement districts.
Tlie principal question in the case, however, is whether or not the bond protects the improvement districts .as well as the city, so as to permit the improvement districts to share in the recovery.
The ordinances of the city of North Little Rock provide that the city collector shall give bond in the sum of $5,000, conditioned that he will account for and pay all funds coming into his hands which belong to the city or any improvement districts within the city; but the bond in this case was executed to the city alone, and, unless the city collector is, under the statute of this State, constituted as the collector of improvement districts in a city of the first class, the bond does not afford indemnity to the districts for moneys received by the city collector. This phase of the case therefore comes down to the question whether or not the statutes of this State constitute the city collector as the collector of local improvement districts.
Our laws governing the organization of improvement districts and providing for the procedure in their operation began with the statute enacted by the General Assembly in the year 1881. Acts of 1881, p. 161, Mansfield’s Digest, § 825 et seq., Sandels & Hill’s Digest, § 5321 et seq. A section of that' statute (Sandels & Hill’s Digest, § 5360) provided that the board of improvement of local improvement districts should appoint the collector and treasurer of the district, but that section was amended by the act of April 19, 1895 (Acts of 1895, p, 161), so as to provide that in cities of the first class the city collectors should collect the improvement district assessments. The last mentioned statute was again amended by the act of February 11, 1897 (Acts of 1897, p. 23) reenacting the old statute to the effect that the collector and treasurer of local improvement districts should be appointed by the board of improvement, but providing that the cities of Little Rock and Pine 'Bluff should have the power, by ordinance, to make the city collector ex-officio collector of improvement districts. The last mentioned statute has been brought forward by subsequent digesters, and it appears in Crawford & Moses’ Digest as § 5702.
It is contended on behalf of counsel for the improvement districts that this statute was amended by the act of May 3, 1901 (Acts of 1901, p. 264), so as to provide that in all cities the city collector shall be the collector for the improvement districts. The section of that statute which, it is contended, amends the act of 1897, supra, reads as follows:
“Section 7. That § 5337 of said digest (Sandels & Hill’s) be amended so as to read as follows:
“That within forty days after the passage of said ordinance, unless the time be extended by the city or town council, the city clerk, or town recorder shall deliver to the city collector a copy of said assessment of benefits containing a description of said blocks, lots and parcels of land in said district, and the amount assessed on each, duly extended against each lot, block or parcel of land, and shall deliver it with his warrant attached thereto the city or town collector, which warrant may be in the following form:
“State of Arkansas.
“City (or town) of..........................................ss.
“To the collector of said city (or town) of..........................................
“You are hereby commanded to collect from the owners of real property described in the annexed copy of ordinance No............., the assessments on the same and as extended thereon for the current year and to pay to the treasurer of Local Improvement District No____________of said city (or town) within sixty days from this date.
“Witness my hand and seal of office on this.............day of............, 19.............
“And like writs shall be issued annually until said local assessment shall be fully paid.”
That section has also been brought forward in Crawford & Moses’ Digest as § 5669. There is no direct repeal by this statute (the act of 1901) of the former stat ute (1897) authorizing the board of improvement to appoint the collectors. If the repeal or amendment has been accomplished, it must be by implication only, and such repeals are not favored. That principle is elemental and needs no citation of authorities to -support it. This court has often announced that rule of construction. There is no reference made in this statute to the act of 1897, but, on the contrary, the section under consideration expressly refers to another statute, viz., § 5337 of Sandels & Hill’ Digest, which relates merely to the method of certifying the assessments by the city clerk. At the time of the enactment of § 5-337, Sandels & Hill’s Digest, the statute provided that assessments for local improvements should be according to valuation as appraised for general taxation purposes, and that section provided that, immediately after the passage of the ordinance authorizing the improvement, the city clerk, should procure, at the expense of the district, a copy of the last assessment made by the county assessor and deliver the same to the collector of the improvement district, with his warrant attached, directing the collection of the assessments. The manifest purpose of the amendment of § 5337 was to give further time for the certification of the list of assessments, giving forty days after the passage of the ordinance, and also providing that there should be certified a list of assessments as appraised by the assessors of the district, instead of a list of valuation made to the county assessor as required under the former statute. That part of the section which prescribes the form of the certificate was a mere formula and nothing more, and it cannot be presumed that the lawmakers intended in this incidental way to repeal or amend an important feature of the former statute. If such had been the intention, the lawmakers would doubtless have adopted more direct language expressing that intention. As an indication that such a change was not in the minds of the framers of the statute in prescribing the formula for certifying the assessments, it was pro vided that the warrant should be directed to the collector of the city or town, whereas there is no such office as collector of an unincorporated town. The statute does not provide for any such office, and that office pertains only to cities. If the statute in question is construed to repeal the former statute, then there is no provision at all for a collector for local improvement districts in incorporated towns.
We are constrained therefore to hold that the act of 1901, supra, was not intended to repeal any former statute, but that the provision for certifying the assessments merely prescribed a form in which there occurred a clerical error with respect to certifying to the city collector, instead of to the collector of the improvement district.
We hold, in accordance with this view, that the act of 1897 (‘Crawford & Moses’. Digest, § 5702) is still in force, and provides for the election of collectors of improvement districts by the respective boards of improvement in all municipalities except in the city of Little Bock and in the city of Pine Bluff, Miller was therefore not a collector of the improvement districts cle jure, and the bond did not cover his defalcations as to funds received by him which belonged to the improvement districts. Having received the funds, however, for the benefit of the improvement districts, he became, in fact, a bailee, and was subject to prosecution for embezzlement, as we announced in the former opinion in the criminal case against Miller, but the sureties on his official bond are not liable for the defalcation, for the reason, as before stated, that Miller was not, in law, the authorized collector of the districts.
It follows therefore that the decree was wrong in awarding any sum to the0 improvement districts, but the bond protects the city of North Little Bock to the extent of Miller’s defalcation of said funds. After crediting Miller’s defalcation to the city with the pro rata of the funds in 'bank, there was a deficit of $3,703.04, and the city is entitled to a decree against the surety on the bond for that sum.
The decree is therefore reversed and dismissed as to the improvement districts, and a decree will be entered here in favor of the city of North Little Rock for the snm mentioned above, to which it is entitled. This decree will be entered here as of the date of the decree below, so as to bar interest from that date. It is so ordered. | [
50,
-19,
-96,
76,
-102,
-64,
26,
58,
91,
-87,
53,
83,
-119,
94,
25,
97,
-29,
125,
-43,
105,
-90,
-78,
67,
103,
-54,
-109,
-21,
-121,
-102,
-35,
-20,
-57,
30,
60,
-54,
-103,
-108,
-64,
-57,
-4,
-50,
5,
11,
-36,
125,
65,
52,
-85,
34,
-117,
101,
62,
-26,
60,
36,
-30,
109,
40,
-51,
11,
80,
-13,
-102,
13,
93,
21,
1,
-58,
-112,
7,
96,
46,
-72,
53,
-116,
-20,
58,
-90,
-122,
-44,
37,
-99,
44,
110,
38,
26,
-107,
-13,
-96,
-116,
4,
-70,
-115,
-91,
-46,
121,
11,
99,
-74,
-99,
75,
-53,
6,
-4,
106,
-107,
89,
108,
7,
-50,
-44,
-109,
0,
113,
-123,
3,
-37,
1,
116,
117,
-51,
-26,
-34,
-49,
51,
-101,
70,
-47
] |
Humphreys, J.
Appellant instituted suit in the Benton Chancery Court to quiet title to the SE¼ NW¼ sec. 16, T. 21 N., R. 29 W., in Benton County, Arkansas, ag’ainst appellee, alleging ownership thereto under purchase at his own execution sale under an execution issued out of the Benton Circuit Court, upon a judgment obtained by him against C. S. and Sarah Mitchell.
Appellee filed an answer and crossbill, asserting and seeking to enforce a mortgage against the property which he obtained from the owners, C. S. and Sarah Mitchell, on the 17th day of February, 1909, to secure a note of even date in the sum of $295, due on the 17th day of February, 1910, on which the following payments had been made: September 13,1909, $49; June 20, 1914, $10; and June 17, 1919, $10. The mortgagors were made parties defendant in the crossbill, who filed an answer admitting the indebtedness and the execution of the mortgage to secure same.
Appellant filed an answer to the crossbill, alleging that the mortgage indebtedness was barred as to him under §§ 7382 and 7408 of Crawford & Moses ’ Digest.
The cause was submitted to 'the court upon the pleadings and the oral and documentary testimony, which resulted in a refusal to sustain the plea of the statute of limitations, and the rendition of a decree in favor of appellee for the mortgage indebtedness, and foreclosure of the mortgage to pay same, and a dismissal of appellant’s bill for the want of equity, from which decree an appeal has been duly prosecuted to this court.
The facts are undisputed, and are as follows: On February 17, 1909, C. S. and Sarah Mitchell were indebted to W. L. Black in the sum of $295.62, and to secure the indebtedness executed a mortgage to him on said real estate. The indebtedness was evidencd by note of even date with the mortgage, bearing interest at the rate of 8 per cent, per annum from date until paid, being due and payable on the 17th day of February, 1910. Three payments were made upon the indebtedness and credited on the notes, as follows: September 13, 1909, $49; June 20, 1914, $10; and June 17, 1919, $10. The mortgage was recorded, but the credits were not noted on the margin of the record until April 18, 1918. Appellant obtained a judgment against C. S. Mitchell in a magistrate’s court for $226.85, which was filed on the judgment docket of the Benton Circuit Court on November 3, 1917. On the 12th day of. April, 1918, the exe cution was issued upon the judgment levied on said land, which was sold to satisfy the judgment. Appellant purchased the land at the execution sale, and, after the expiration of the right of redemption, procured the sheriff’s deed thereto. On the 18th day of April, 1919, before the sheriff’s deed was executed, a notation of the amounts theretofore paid on the notes was made upon the margin of the record. The only question presented by this appeal is whether the mortgage lien was barred as against appellant. This must depend on whether the purchaser at an execution sale is a third party within the meaning .of §§ 7382 and 7408 of Crawford & Moses’ Digest. Those sections provide that payments upon a mortgage indebtedness shall not operate to revive the indebtedness or to extend the operation of the statute of limitation, so far as the same affects the rights of third parties, unless the mortgagee, trustee or beneficiary shall, prior to the expiration of the period of the statute of limitation, indorse .a memorandum of such payment with date thereof on the margin of the record where such instrument is recorded, which indorsement shall he attested and dated by the clerk. In construing these statutes this court has ruled that strangers to the mortgage, with full knowledge of the existence of such mortgage, may avail themselves of an apparent bar of the debt, if payments which would stay the limitation are not indorsed on the margin of the record of the mortgage. Martin v. Ogden, 41 Ark. 186; Wright v. Graham, 42 Ark. 140; Hill v. Gregory, 64 Ark. 317; Morgan v. Kendrick, 94 Ark. 394. Third parties, as used in the statutes under construction, necessarily mean strangers to the mortgage. This being true, we think an execution purchaser at his own sale, who was not a party to the mortgage, is a third party within the meaning of the statutes. In the instant case the payments which prevented the statutory bar between the mortgagor and mortgagee were not entered upon the margin of the record of the mortgage until long after the debt was apparently barred, and after appellant had purchased the land at the execution sale. The payments did not therefore stay the limitation as to appellant.
On account of the error indicated the decree is reversed and the cause is remanded, with directions to quiet appellant’s title to said real estate as against the mortgage lien of appellee. | [
-10,
108,
-12,
76,
74,
-64,
42,
-102,
75,
-127,
39,
83,
-7,
-58,
4,
101,
-28,
25,
-11,
121,
-59,
-77,
59,
73,
-46,
-77,
21,
-57,
-80,
-51,
-28,
-105,
92,
41,
66,
17,
-62,
-64,
-121,
28,
14,
-127,
41,
76,
-7,
80,
48,
-85,
84,
13,
37,
-73,
-77,
45,
61,
107,
77,
44,
123,
13,
80,
122,
-102,
77,
-35,
7,
17,
103,
-102,
65,
106,
24,
-112,
53,
9,
-88,
115,
-122,
-58,
116,
70,
25,
8,
100,
102,
10,
-27,
-17,
-72,
-120,
14,
-2,
29,
-90,
-94,
120,
10,
41,
-65,
-99,
124,
1,
7,
-16,
-19,
-123,
28,
104,
5,
-49,
-106,
-109,
29,
-99,
-100,
3,
-1,
23,
52,
116,
-49,
-30,
93,
71,
19,
-101,
-114,
-15
] |
McCulloch, C. J.
Appellee instituted this action at law against appellant to recover possession of a tract of farm land in Columbia County. 'Both parties claim' title from a common source, and the facts, as they appear from the pleadings and proof, are undisputed.
The land in controversy was originally owned by Lizzie Rowe, who, on May 22, 1916, conveyed it by deed of trust to R. K. Mason, as trustee, to secure a debt to appellee in the sum of $360, evidenced by a promissory note of that date, due and payable on January 1, 1917, with interest.
Lizzie Rowe conveyed the land to appellant by warranty deed dated September 27,1918, for a price, part of which was paid at the time of the conveyance and the remainder was to be subsequently paid. On January 26, 1920, Lizzie Rowe executed to appellee a warranty deed purporting to convey the land in controversy to appellee in satisfaction of the said mortgage debt to appellee and the further sum of $150, paid at the time of the convey; anee, and appellant took possession of the land under his conveyance from Lizzie Rowe, and this action was instituted against him by appellee in November, 1920. Subsequently R. K. Mason, the trustee in the deed executed by Lizzie Rowe in May, 1916, was, on motion of appellee, joined as a plaintiff in the action. This was done over appellant’s objection.
The complaint of appellee alleged that the conveyance of Lizzie Rowe to him on January 26, 1920, “was made and executed in settlement o^ the indebtedness shown by said deed of trust hereinbefore referred to.” Upon the facts shown,' the. court gave a peremptory instruction in favor of appellee.
We are of the opinion that, without discussing the question of the correctness of the court’s ruling in permitting Mason, the trustee, to be made a party, the court erred in deciding in favor of appellee, and that the decision, upon the undisputed facts, should have been in favor of appellant. Appellee is not the legal owner of the land, and never has been such owner. The legal title did not pass to him, either under the deed of trust or under the warranty deed subsequently executed to him by Lizzie Rowe, and he could not maintain the action for possession. The defeasible legal title passéd under the deed of trust to Mason, the trustee, and not to appellee as the beneficiary under the deed. At the time of the execution of the warranty deed by Lizzie Rowe to appellee in settlement of the mortgage debt, the legal title had passed from Lizzie Rowe to appellant under her prior deed executed to appellant. It is contended, however, by counsel for appellee that the trustee was properly 'made a party and that, notwithstanding the conveyance of the land by Lizzie Rowe to appellant, an action cóuld be maintained by the trustee to recover possession for the purpose of taking the rents and profits to apply on the mortgage debt' or for the purpose of foreclosing under the power contained in tbe deed. It is correct to say that a trustee in a deed of trust can, after a breach of the conditions and before the satisfaction of the mortgage, maintain an action at law for the possession of the land. Reynolds v. Canal & Ranking Co., 30 Ark. 520; Danenhauer v. Dawson, 65 Ark. 129. The answer to this contention is that, according to the allegations of appellee’s complaint and his own statement of the facts in Ms testimony, the debt secured by the deed of trust had been settled, and the defeasible legal title, which had passed to the trustee by the terms of the deed, had been thus defeated. There was no right of action remaining in the trustee under the terms of the satisfied deed of trust. Appellee has therefore neither alleged nor proved a right of action, either legal or equitable. If there is any relief from the effect of the acceptance by appellee of the warranty deed from Lizzie Rowe in satisfaction of the mortgage, sufficient facts are not stated in the complaint to entitle him to that relief.
The judgment of the circuit court is therefore reversed, and the cause is remanded with directions to enter a judgment in favor of appellant. | [
-14,
108,
-8,
-52,
-86,
-32,
40,
-104,
104,
-95,
37,
-45,
-21,
-60,
0,
105,
-32,
57,
97,
121,
-26,
-78,
7,
-63,
-46,
-77,
-77,
-57,
-79,
77,
-12,
87,
76,
48,
-54,
125,
-62,
-128,
-51,
28,
-114,
-122,
-120,
76,
-39,
-64,
52,
107,
84,
77,
113,
30,
-13,
44,
29,
66,
40,
46,
107,
57,
-48,
-8,
-101,
13,
95,
3,
49,
102,
-124,
-125,
74,
42,
-104,
49,
1,
-7,
122,
-90,
-106,
116,
3,
-103,
8,
38,
102,
32,
108,
-17,
-72,
-104,
46,
126,
-99,
-90,
-14,
88,
19,
106,
-66,
-99,
84,
-63,
70,
116,
-17,
-115,
29,
108,
13,
-49,
-44,
-127,
13,
52,
-102,
3,
-9,
-109,
48,
96,
-51,
98,
92,
103,
49,
-101,
-113,
-5
] |
Hart, J.
A. E. Ottinger sued School District No. 25 of Jackson County, Ark., to recover $250 alleged to be due him for a ¡breach of contrast to teach school. The directors of the school district denied that they had committed a breach of the contract sued on.
It appears from the record that the school directors of School District No. 25 of Jackson County, Ark., entered into a written contract with A. E. Ottinger to teash a common school in said district for the term of seven months, commencing on the 5th day of July, 1920, and agreed to pay him therefor the sum of $125 for each school month. After Ottinger had taught the school for five months, the directors discharged him and refused to let him teach the remaining two months. Ottinger asked the directors upon what grounds they discharged him, and they refused to tell him. They told him that if he brought suit for the balance alleged to be due him, they would give their reasons for his discharge in defending the suit.
Ottinger was unable to secure another school for the remaining two months of his contract, and sued the district to recover his salary for two months.
The jury returned a verdict in favor of the defendant school district, 'and the plaintiff, Ottinger, has duly prosecuted an appeal to this court.
The main reliance made by the plaintiff for a reversal of the judgment is that the undisputed evidence shows that he was discharged without cause, and that he was entitled to a directed verdict in his favor.
The law applicable to cases of this sort was well stated by Judge Hemingway in School District v. Maury, 53 Ark., 471. In discussing a contract made by a school teacher with directors to teach a school, the learned justice said:
“If the defect arises from the failure of the teacher to carry out his undertakings, the keeping of the school in the way that the law contemplates demands that he be required to comply with his contract. This contract necessarily implies that he is competent to teach properly, and that he will conduct himself in a moral and skilful manner in discharging his undertakings. If he cannot or will not do either, he violates the contract, and its termination comes through his breach. We do not mean to say that every act of immorality would be a breach of the contract to justify its termination; but it would be such whenever, from the character or notoriety of the act, it impaired the services of the teacher in properly instructing or advancing the pupils. A teacher might properly instruct, yet his character for morality be so notoriously bad that he would lose the respect of his pupils and fail to advance them. He would not then be a competent teacher, though there were no defects in his'learning or facility to impart it.”
The undisputed evidence shows a valid contract to' teach the school for seven months, and that the plaintiff was discharged by the directors after he had taught five months. The directors seek to' justify their act in dis charging the plaintiff on the grounds that he permitted the schoolhouse to become dirty, and also that he would chew tobacco during school hours and spit through the screen windows.
With regard to the first ground, the plaintiff testified that the inhabitants of the district would have box-suppers and other entertainments at night in the schoolhouse without his knowledge or consent, and that the schoolhouse would in this way become dirty and littered up with scraps of paper and boxes. He stated further that he always cleaned the schoolhouse as soon as possible after finding it in this condition. His testimony in this respect is uncoiitradicted.
He admitted that he chewed tobacco, but denied chewing it during school hours, or that he spit through the screen windows. Conceding that he did spit tobacco juice through the screen windows on the several occasions testified to by some of the pupils, we do not think that •his conduct in this respect was sufficient ground for his discharge. He had been employed by the school district to teach two schools prior to the execution of the contract in question, and his personal habits were well known. Besides, we do not think that this conduct would justify his discharge in the application of the rule above announced.. It might be a good reason for not employing him in the first instance, but it would not be a sufficient ground for his discharge after he had been employed.
Some other testimony was admitted as to remarks made by him while teaching his first school in the district. We do not deem it necessary to set out these remarks, for the reason they would not be grounds for the discharge of the plaintiff under the contract sued on. Matters which occurred under a previous contract would not be grounds for the avoidance of a subsequent contract.
It follows that, under the undisputed evidence as disclosed by the record, there should have been a judgment in favor of the plaintiff against the defendant for the sum of $250, his salary under the contract for two months. He was discharged the latter part of January, 1921, and had two more months to teach under his contract. This would have made his contract terminate the latter part of March, 1921, and the balance of his salary would have been due at that time. Hence the clerk is directed to enter judgment here against the district in his favor for the sum of $250, with interest thereon at the rate of 6 per cent, per annum from'April 1, 1921, until paid.
It is so ordered. | [
-110,
-8,
-44,
45,
58,
96,
58,
-102,
113,
-93,
55,
83,
-19,
85,
20,
125,
-63,
101,
80,
72,
-42,
-77,
98,
36,
-106,
-13,
-7,
-59,
-70,
79,
-96,
-35,
76,
48,
-62,
-35,
38,
-62,
-55,
-104,
70,
2,
-85,
110,
83,
-63,
56,
61,
48,
15,
33,
-74,
-21,
43,
29,
-61,
109,
62,
92,
-87,
70,
-16,
-78,
13,
111,
68,
-77,
39,
30,
3,
-64,
-20,
-120,
53,
15,
-8,
50,
-74,
-62,
84,
1,
9,
-120,
98,
102,
50,
-68,
-59,
-108,
-103,
46,
-2,
-115,
-90,
-111,
104,
58,
13,
-66,
28,
114,
86,
-121,
-2,
101,
-59,
18,
44,
6,
-117,
-12,
-79,
13,
109,
-106,
-125,
-1,
3,
48,
80,
-115,
-66,
93,
71,
115,
-97,
74,
-99
] |
Wood, J.
This action was instituted by the appellee against. C. E. Ferguson, H. A. Bowman and appellant, Weidemeyer, to condemn for street purposes a strip of land. The city engineer testified that the street which the appellee was seeking to open on the land of appellant and others was sixty feet wide and 330 long. The land of appellant taken by it would be a little over .45 of an acre, not quite a half acre. On the west side of the street there would be .2272 of an acre, or thirty feet by three hundred thirty feet, a little under a quarter of an acre. On the west side of the street the entire tract of appellant contained 2½ acres and on the east side a little over half an acre. The acreage taken out of both tracts, measured in lots of the usual dimension of 50 x 140, would be one and two-thirds lots. When this acreage is taken out, appellant would have a trifle over 2¾ ajares left. After the proposed land is taken out for street purposes, it will leave appellant close to eight lots. It will leave him six lots on the west side, and on the east side a fraction over one lot. The opening up of the street would take one and two-thirds lots .and leave appellant seven and a fifth lots on Broadway Street. The land taken would cut off the back end of appellant’s home site to an amount equal of one and two-third lots. This witness exhibited and introduced a plat showing the location of the street as it affected appellant’s land.
Witnesses who were familiar with the property, and who were engaged in the real estate business and -had knowledge of property values in the vicinity, testified. One of them stated that “after the street or extension of the street is made the value of the land caused by the proposed improvement would be about $1,500 per lot. * * * The lots would be worth $1,500 when the street was open, and would sell at $2,500 if the street was fixed up.” In witness’ judgment the benefit derived from the extension is nearly une hundred per cent, of its present value. What he has left would be worth twice as much as it is now. Another testified that “the value of the lots on the east side as they stand today would be worth from twelve to fifteen hundred dollars per lot. Those on the other side from eighteen hundred to two thousand. * * * After the street was opened up the'value of the land would be about $500 a lot more.”
The appellant testified that he owned a block of ground on which was his home. It was a piece of ground more than 330 feet square. His home fronts on Arch Street. The proposed street will take off of his property a piece of ground 30 x 330 feet and also a piece 30 x 60 feet, approximately one and two-thirds lots. Appellant has about twelve lots in the tract. Appellant had owned it all of his life practically, it being given him by .his father. Appellant had been living there for forty years, and had ample opportunities to notice land values out there. Appellant was asked the following question: “I will ask if running* this street through and taking off of this part of your property will increase the value of what you have left?” Appellant answered, “Not a cent.”
On cross-examination appellant was asked this question :• “What is that worth at the present time in acreage ? ’ ’ Appellant answered, ‘ ‘ It has no value. I haven’t it on the market. I have had an opportunity to sell it if I wanted to. The Jews wanted to make a New Jerusalem out there, and I wouldn’t let them have it. That is my home site, and it is going down to posterity and to my children as long as I can hold it. Some of you gentlemen didn’t think I can hold it, hut I think I can.” In response to a question as to whether appellant thought he was competent to place a value on it after it was platted and turned into lots, the appellant answered, “I haven’t gone into it. There is no use. of asking a question if the street is there and if I want to plat it. It is worth more, but I haven’t got it there for that purpose. I don’t want to, but nobody can keep me from doing it if I wanted to do it. ’ ’ He further testified that the figures of the city engineer were about correct. The land as acreage has no value because it is not on the market. It is worth more if it be platted, but appellant did not have it there for that purpose, because it was his home and he wanted to keep it as such, and it was not going to increase it in dollars and cents by having a strip taken off of it.
Another witness, Davis, who was in the horseshoeing business, and who had never been in the real estate business, but whose wife owned a piece of property out there, testified that he knew the value of the land in that community, and if the proposed street would open up Broadway Street to the railroad, the value would be very handsome, but they are not opening it up to the railroad. It goes to the south line of Ferguson’s property, giving no outlet to town, and does not increase the value of the property to Mr. Weidemeyer.
The court instructed the jury to return the following verdict: “We, the jury, find that the benefit to be derived by the improvement to be made by each of the defendants exceeds the value of the property taken for such improvement.” The court rendered a judgment which, in substance, recites that by reason of the fact that the benefits accruing to the remainder of the tracts of said defendants were in excess of the value of the tracts so taken, the appellant should recover nothing from the appellee. Prom that judgment is this appeal.
The question for decision on this record is whether or not the court erred in directing the verdict and entering a judgment in favor of the appellee. In Cribbs v. Benedict, 64 Ark. 556-559, we said: “The view which seems to us to accord with reason, and which is supported by high authority, is that where the public use for which a portion of a man’s land is taken so enhances the value of the remainder as to make it of greater value than the whole was before the taking, the owner in such case has received just compensation in benefits. And the benefits which will be thus considered must be those which are local, peculiar and special to the owner’s land, who has been required to yield a portion pro bono publico.” This doctrine has since been steadily adhered to, and was reannounced in the comparatively recent ease of Paragould v. Milner, 114 Ark. 334-337. The undisputed testimony shows that the condemnation of appellant’s land as a street for city purposes would make the remaining property of appellant more valuable than it was before the taking. The case on the facts is thus brought directly within the doctrine of the above cases.
While the appellant, at one place in his testimony, says that “the taking will not increase the value of this property one cent,” and again that “it is not going to increase it in dollars and cents by having the strip taken off,” yet, when his whole testimony is considered together, it i$ manifest, and must be conceded as uncon trover ted, that the opinion of the appellant thus expressed was grounded entirely upon the fact that the appellant was holding and using the property as his home, and did not intend to use it in any other way, and therefore he didn’t consider that it had any market value. He concedes that if the street is opened up and a market value placed upon the property afterwards, it would be worth more than in its present condition, for he says, “There is no use asking a question if the street is there and I wanted to plat it. It is worth more, but I haven’t got it there for that purpose. I don’t want to, but nobody can keep me from doing it if I wanted to.” Likewise the testimony of the witness Davis, considered as a whole, shows that if the property were his and a street were opened through it, he wouldn’t know what value to put upon the lots. It occurs to us that a close analysis of the testimony of the appellant and Davis shows that the opening of the street would in fact render the remaining property more valuable if the same were platted and valued as city lots, than the whole property is worth in its present condition. The testimony of Davis, on cross-examination, shows that in his opinion the property in that neighborhood was worth three or four thousand dollars per acre without any street or road touching it, but if a street were opened up it would be worth three to four thousand dollars a lot, provided the street went on to the railroad. Davis did not know and did not testify as to the value of appellant’s land if it were platted and sold in lots after the proposed condemnation.
In Fort Smith & Van Buren Bridge District v. Scott, 103 Ark. 405-412, we said: “The measure of the owner’s compensation for the land condemned is the market value thereof at the time of the taking for. all purposes comprehending its availability for any use to which it is plainly adapted, as well as the most valuable purpose for which it can be used and will bring the most in the market.” No issue is raised here as to the right of the appellee to condemn the property for street purposes. Such fight being conceded by the appellant, we find that there is really no conflict' in the evidence that the land, after the taking of the strip proposed, would he more valuable in city lots, for which it would he plainly adapted, than it would be on the market if sold in its present condition and to be used in its entirety perpetually as a home, and for no other purpose.
The court did not err in directing the verdict of the jury. The judgment is correct, and it is therefore affirmed. | [
-15,
127,
-8,
-20,
26,
96,
26,
-40,
72,
-80,
-74,
127,
-99,
-38,
24,
101,
-89,
-3,
-47,
43,
-59,
-29,
71,
3,
-112,
-45,
-13,
77,
-71,
76,
-10,
85,
76,
32,
-62,
-107,
70,
-62,
-51,
92,
-114,
-83,
-119,
72,
-37,
96,
52,
59,
40,
75,
49,
-2,
-13,
40,
24,
-41,
-24,
44,
-33,
-88,
-111,
-8,
-72,
-99,
-70,
14,
-96,
102,
-68,
3,
74,
88,
-112,
53,
-107,
-120,
119,
-90,
-122,
118,
5,
-101,
8,
34,
102,
17,
101,
-81,
-8,
-55,
14,
-38,
-87,
-89,
-16,
24,
66,
96,
-100,
-109,
93,
16,
7,
126,
-18,
85,
25,
44,
-121,
-93,
-12,
-15,
-49,
-6,
-104,
3,
-21,
11,
16,
113,
-53,
-86,
93,
109,
54,
-37,
-98,
-39
] |
Hart, J.,
(after stating the facts). In the case of Bush v. Beauchamp, 132 Ark. 582, the court held that, inasmuch as the term “baggage” has a generally recognized meaning, the carrier cannot, by rules and regulations, limit its meaning so as to exclude articles which are usually included in the generally accepted meaning of the term.
In that case, following its earlier decisions, this court also held that jewelry suitable to the condition in life of the passenger and intended for personal use on the journey is baggage.
We are now asked to overrule that decision upon the authority of a ruling of the Interstate Commerce Commission. This we decline to do.
It follows that the judgment will be affirmed. | [
-76,
120,
-43,
63,
26,
98,
35,
-70,
115,
-84,
103,
19,
-117,
-38,
-108,
115,
-9,
111,
117,
91,
-10,
-77,
87,
-78,
-42,
-105,
-46,
-57,
49,
123,
-30,
124,
77,
96,
-22,
-43,
102,
-53,
-55,
92,
-50,
0,
-70,
73,
-63,
-45,
32,
98,
18,
31,
85,
-113,
-29,
44,
26,
-57,
-87,
46,
107,
-11,
-56,
88,
-66,
79,
127,
0,
-77,
36,
-99,
37,
-40,
12,
12,
49,
64,
-24,
115,
-92,
-46,
116,
47,
-69,
-120,
98,
98,
-123,
73,
100,
-68,
-100,
47,
74,
-113,
-89,
-106,
24,
-55,
15,
-122,
-67,
81,
1,
47,
122,
-14,
84,
94,
112,
79,
-114,
-108,
-77,
-115,
104,
-116,
39,
-5,
-29,
51,
80,
-52,
-110,
92,
65,
60,
-109,
-106,
-118
] |
Smith, J.
After twice amending her complaint, appellant elected to stand upon it, a demurrer thereto having been sustained, and this appeal is from the decree dismissing it.
Appellant is the widow and administratrix of Thomas E. Holland, who was a stockholder, director and president of the Pasteurized Milk Company, a domestic corporation having its principal place of business in the city of Hot Springs.
The complaint alleged that on and prior to November 3, 1917, the corporation had become largely indebted to various parties in sums aggregating approximately $16,000. On that date a stockholders’ meeting was held for the purpose of considering the affairs of the corporation, and a resolution was adopted by them authorizing the directors of the corporation to borrow the sum of $16,000 for the purpose of paying the existing debts and to mortgage all the assets of said corporation as security to the persons making the loan. A copy of this resolution was made an exhibit to the complaint.
It was alleged that, pursuant to said resolution, and under and by virtue thereof, the directors of said corporation, on the 11th day of December, 1917, borrowed the sum of $10,000 from certain of the defendants, who were directors and stockholders of the corporation, and notes were executed by the corporation to each of said parties for the amount loaned. The complaint further alleged that “said sum” ($10,000) “being thought at the time sufficient to liquidate the indebtedness of the company sufficiently to enable it to continue the operation of its business.” And further, “that thereafter, to-wit, on the 16th day of October, 1918, it having first been ascertained that the loan first made by the above named defendants was not sufficient to liquidate the indebtedness af said company, and that the amount first borrowed by said company was left, to the determination of the board of directors, who fixed the amount at ten thousand dollars, a further resolution by the said board of directors was passed, authorizing the completion of the loan first authorized, by the execution of notes of the said company in the sum of five thousand dollars, and the execution to defendant Roht. Neil, as trustee, of a second mortgage on the property described in the deed of trust executed as security for the amount of money first loaned to said company,” etc.
It appears from the exhibits to the complaint that a resolution of the board of directors preceded each of these'loans, and the resolution under which each loan was made was incorporated in the deed of trust securing the loan.
In the first resolution it was recited that, “whereas, the said party of the first part, desiring to raise money for the purpose of discharging or paying the debts against said corporation heretofore necessarily incurred in its business, has, by a resolution of its board of directors, duly authorized the negotiation of a loan in the sum of $10,000, and the execution and delivery of a deed of trust, conveying all of the property, both real and personal, belonging to said corporation, for the purpose of securing said loan,” etc.
The second deed of trust recited that a resolution of the board of directors • had been duly adopted authorizing the negotiation of a loan in the sum of $5,000, and the execution of a second deed of trust conveying all the property of the corporation for the purpose of securing that loan. This second deed of trust recites that the authority of the directors was derived from the resolution of the stockholders adopted on November 3,1917, and contained the usual covenants of warranty, but excepted from the warranty the first deed of trust dated December 11, 1917.
After setting out these facts, the complaint prayed that the two deeds of trust be treated as a single instrument, securing a single debt, and there was a prayer that the court take over the assets of the corporation, order them sold and prorate the proceeds of such sale to the holders of the indebtedness secured by the second deed of trust in proportion to the amount of their holdings, and without reference to the deed of trust by which the indebtedness was secured.
In other words, the stockholders authorized the directors to borrow $16,000. The directors were of opinion that a loan of $10,000 would suffice, and borrowed that sum of money on December 11, 1917, and executed a mortgage of the company’s assets. This loan proved insufficient, whereupon the directors, under the authority of the original resolution of the stockholders, .borrowed an additional $5,000, and gave a second mortgage on all the company’s assets, being the same-property conveyed in the first deed of trust. The second deed of trust recited the second resolution of the board of directors adopted when it was decided to borrow the $5,000, and mentions the fact that the first loan was not for the full amount authorized by the stockholders’ resolution, and that the $5,000 was badly needed to pay off and discharge pressing debts and obligations and to successfully carry on the business of the company.
It is first argued, for the reversal of the decree of the court sustaining the demurrer to the amended complaint, that the court permitted an insolvent corporation to prefer certain of its creditors, in violation of the statute preventing preferences among creditors of insolvent corporations.
The good faith of these mortgages is not questioned. Indeed, appellant’s intestate was the president of the company, and, as such, executed both deeds of trust. It appears that the persons advancing the money under both deeds of trust were stockholders, and five of them were directors. The resolutions authorizing the loans did not specify that the money should be borrowed from either directors or stockholders, and the loans could have been made under the resolutions by any person who was willing to make them. The first $10,000 was advanced as follows: Rix, Van Leer and Jones, each $2,000: Col-lings, ’ $1,000; Stearnes, $1,500 5. Holland and Hebert, $500 each; Solmson and Berg, $250 each. The loan eov-' ered 'by the second mortgage was made by Rix, Jones, Van Leer, Codings and Holland, who each advanced a thousand dollars. Stearnes, Hebert, Solmson and Berg advanced no part of the $5,000. Holland is the only person who advanced parts of both loans, and whose interest in the second loan was greater than his interest in the first loan. It would therefore be to the advantage of his estate if the court should hold that the two mortgages covered a loan of $15,000, negotiated under the resolution of November 3, 1917; and we think the real point in the case is whether it is true there was in fact but a single loan.
In answer to the contention that the corporation is preferring certain of its creditors, it is pointed out that the beneficiaries in the deeds of trust were not creditors prior to the execution of those instruments; and those instruments were not executed for the benefit of the cestuis que trust in the sense that they were being_paid demands due them, but they'themselves advanced money to be used in paying other creditors, and the deeds of trust were executed to secure those advances.
However that may be, the statute sought to be invoked cannot be applied, for the reason that these deeds of trust were executed on December 11, 1917, and October 17, 1918, and this suit was not filed until November 3,1921; whereas the statute against preferences provides that “no such preference shall be set aside unless complaint thereof be made within ninety days after the same is given, or sought to be obtained.”
We think appellant is not entitled to the relief prayed under the doctrine of subrogation, as contended by her. The loan of $10,000 did not pay all the debts; the loan pf $5,000 did not pay any part of the $10,000 loan; and the beneficiaries in the two deeds of trust are not the same. The beneficiaries in the $10,000 deed of trust are entitled to their security, whatever it is, and they are not required to share it with the beneficiaries in the second deed of trust, -unless those instruments are construed as being in fact one instrument, securing one debt, and that a debt of $15,000 incurred under the stockholders’ resolution authorizing the negotiation of a loan of $16,000.
As we have said, the beneficiaries are not the same in the two deeds of trust. It is true the money secured by both deeds of trust was used in paying debts outstanding before the execution of either deed of trust; but the loans were made under separate resolutions of the board of directors, and the first resolution passed by that body recited the fact that $10,000 was believed to be sufficient to answer the purpose of the stockholders’ resolution. Under that resolution, and the recitals of the first deed of trust, the beneficiaries therein were given a first lien on the company’s assets. Can we assume, as a matter of law, that they would have made this loan if they had not been offered the security which the deed of trust purported' to convey, and had not relied upon the recital in the directors’ resolution that a loan of $10,000 would suffice? We answer this question by saying that we do not feel warranted in dividing or diminishing the- security which the first deed of trust purports to give. We reach this conclusion from a consideration of the recitals of that instrument itself, and are reenforced in that view by the recital in the covenant of warranty in the second deed of trust that the warranty excepts “the deed of trust heretofore executed by the party of the first part to the party of the second part, bearing -date December 11, 1917.”
This case is distinguishable from the case of Hoehler v. W. B. Worthen Co., 154 Ark. 444. There we held that bonds, issued at different times, to construct the same improvement, were without priority, the one issue over the other; but we did so because the holders of each issue derived their right to a lien on the property in the improvement district from the statute under which the district was organized. There was but a single statute authorizing a bond issue, and the lien was derived from that statute.
The case of Penzel v. Brookmire, 51 Ark. 105, was cited in the above-mentioned case. The case of Pensel v. Brookmire involved the question of priority between notes maturing at different times, and held by different parties, 'but secured by the same mortgage. The court held that, in the absence of any special equities arising out of the assignments of the notes secured by the mortgage, the proceeds of the sale of the mortgaged property should be applied pro rata in part payment of the several notes, irrespective of the dates of their maturity or assignment, and in announcing that conclusion Judge Battle, for the court, said: “The comparison of a mortgage given to secure several notes to successive mortgages given to secure each one of them does not support the doctrine it is made to prove. To make the case analogous, the mortgages to secure each note must bear the same date, and be executed, delivered and filed for record, and recorded, at the same time, and the property mortgaged must be the same. In the latter case the mortgages would be concurrent; neither one would have preference over the others, and all would have equal claims to be paid ratably out of the property mortgaged. ’ ’
■ Here the deeds of trust cover the same property, but the dates are different; the beneficiaries axe.not the same, and the debt itself is different, and the priority of the lien of the first deed of trust is not discharged because the proceeds of both deeds of trust were applied to debts outstanding before either deed of trust was executed.
It appears that the trustee has sold certain real estate owned by the corporation, and included in both deeds of trust, for the sum of $4,000, and, as has been shown, a prayer of the complaint was that the $4,000 be distributed among the beneficiaries of the two deeds of trust ratably in proportion to the amount of the indebtedness owed by them; but, for reasons stated, that relief will be denied.
The complaint, however, contains a prayer in the alternative for judgment against the corporation for the $1,500 advanced by appellant’s intestate, and for a foreclosure of this second deed of trust. The indebtedness secured by this second deed of trust is past due and unpaid, and the beneficiaries therein are, of course, entitled to foreclose this second deed of trust, subject, of course, to the prior deed of trust; and, as all parties in interest appear to have been made parties, the decree of the court below will be reversed and the cause remanded, with directions to grant the alternative relief prayed in the complaint. | [
50,
124,
56,
-116,
10,
96,
42,
-101,
120,
-30,
-91,
-13,
-87,
74,
20,
127,
-26,
61,
81,
120,
-42,
-77,
23,
106,
-46,
-109,
-8,
-35,
-79,
76,
-12,
-44,
73,
52,
74,
-115,
102,
-128,
-53,
62,
78,
-127,
-87,
-23,
89,
-126,
48,
119,
52,
73,
65,
-50,
-29,
44,
25,
74,
105,
46,
127,
-87,
-64,
-8,
-126,
-123,
127,
6,
17,
118,
-100,
-27,
-56,
30,
-104,
49,
0,
-32,
112,
-74,
-122,
-12,
33,
-103,
8,
50,
98,
-126,
-123,
-25,
-40,
-100,
62,
-2,
-115,
-57,
-59,
80,
3,
64,
-68,
28,
116,
22,
-121,
122,
-18,
5,
92,
108,
-124,
-54,
-10,
-110,
15,
-68,
-100,
-109,
-25,
-74,
32,
113,
-55,
34,
92,
71,
123,
-101,
-49,
-112
] |
Humphreys, J.
This suit was instituted in the circuit court of Lonoke County by appellant against appellees to recover $750 and interest upon a note in said sum, executed by appellees to themselves and transferred to the Industrial Transportation Company, a corporation, for stock in the concern. It was alleged that the note was given for a valuable consideration, and was sold to and purchased by appellant for a valuable consideration, before maturity.
Appellees filed an answer admitting the execution of the note, but denying that it was given for a valuable consideration, and that the plaintiff purchased it before maturity for a valuable consideration, in good faith, and without notice of their equities. They also alleged' that the note was without consideration, and was procured through fraud and deceit, in which appellant participated. They also alleged that the note had been annulled, and its collection enjoined, by the chancery 'court, in a suit wherein appellees and others were petitioners and said Industrial Transportation Company was respondent.
By agreement of the parties, the cause was transferred to the Lonoke Chancery Court, where it was heard upon the pleadings, and oral and documentary evidence, which resulted in a decree dismissing appellant’s hill with prejudice.
The cause is before this court upon appeal for trial de novo.
The Industrial Transportation Company, a Washington, D. C., corporation, established an office in Little Bock for the purpose of selling its preferred and common stock. Its plan was to seíl a certain amount of stock in a town or city, and to build and operate a general store for the purpose of selling goods to its stockholders cheaper than they could purchase them elsewhere. The company employed a number of agents to sell stock, paying them a commission of fifteen or twenty per cent. The stock was sold at par for one-half cash and one-half on time, evidenced by promissory notes. The stock was to be delivered when the notes were paid. Appellant came to Arkansas from South Dakota, and was employed by the company in February, 1920. For the first few months he •accompanied the -other agents on stock selling tours. In April he began to sell stock, and made his first sale to appellees. He sold stock to the amount of $10,000 the first three months, and continued to work as a stock salesman until the following--December. During the time he visited the offices every week or two -and conversed and consulted with the officers of the company. Occasionally he sold on credit entirely, and took two notes in payment; one to the company for one-half the amount, and one to himself for the balance. When lie did this, he sent the company its note and cash in lieu of the note executed to himself. When he quit working for the company, he had notes in about the sum of $3,000 which he had obtained in this way. The $750 note in question was the only one he ever purchased from the company. He testified that he gave $735 for it in adjusting his commission and account; that he never knew of the comoanv ever selling any other note at a discount; that he bought the note from Gamble, the vice-president of the company, who turned' it over to Austin Hart to be used in settlement of commissions which the company owed him; that the company owed him about $2,300, all of which it would have paid him in cash had he not bought the note.
A copy of the note carrying the following indorsement was attached to the complaint:
“Pay to the order of Melvin Johnson, without recourse.
“Industrial Transportation Company,
“By---
“Treasurer.”
The note was introduced in testimony, and the name of Austin Hart appeared on the blank line after “By” and before “Treasurer.” Appellant testified that he did not know when Austin Hart signed his name to the indorsement. He also testified that he sold appellees $1,000 of the stock, but not the particular stock for which the note in question was executed; that he represented the company to be solvent and prosperous, stating, in explanation, that he thought it was, and that, as far as he knew, he was telling the truth. He denied, on cross-examination, that he represented to the Sliys and other stock purchasers that he had personal knowledge, or a knowledge from an examination of the records and books, that the company had a surplus, or •sinking fund, to pav 8 per cent, interest on all stock all the time, and ample funds to maintain the stores; but that he stated the books of the company were subject to audit by the United States Government once a year. He also stated that he discovered the failing condition of the companv in December, and quit working for them; that at that time he had in his possession $4,000 in notes which he had taken for stock' in Texas, that he turned back to subscribing stockholders.
S. L. Shy, one of the appellees, testified in part as follows: “Q. This is a suit on a note for $750 for stock you bought; are you acquainted with the plaintiff? A. Yes. Q. Who influenced you to buy this stock? A. Johnson. Q. What representations did he malee to you? A. He stated that they would at all times keep a full stock of goods in the store; that they had a charter from the government, and it was under government control, and the company would investigate the books every thirty days, and the government would audit the books once a year, and the company would audit the books every thirty days, and that the stock would pay eight per cent, all the time. Q. Did he represent that he would guarantee that would be done, or that was his understanding? A. He said it was positive. Q. Did he say anything at all about paying eight per cent, interest? A. He said you could buy all the stock you wanted, and that the company would pay eight per cent, interest on all stock. Q. Did he say there was any surplus or sinking fund for that purpose? A. Yes, he said the money was already made; they had that before. Q. Did he state that as facts ? A. Yes. Q. And that he knew about it? A. Yes. Q. He said he knew about it? A. He said he had examined the records and books to find out.”
He also testified that, while he did not buy the stock for which the note was given, directly from appellant, it was purchased on account of representations made by appellant when he first sold him stock; that when he purchased this stock at the office he treated it as appellant’s sale, and told them to allow -appellant the commission on it.
It was agreed by counsel for the respective parties that Mrs. Neeson, Mr. Sanders, and other witnesses for appellees would testify to substantially the same representations made by appellant to them, when selling them stock, as Shy testified were made to him by appellant.
The decree of the chancery court of Lonoke County, of date February 17, 1921, in which appellees and others were petitioners and the Industrial Transportation Company was respondent, was introduced showing 'that the note in question, as well as many others which had been executed .for stock in said, company, had been annulled for the want of consideration, and because procured through fraudulent misrepresentations.
Appellant contends that the decree is contrary to a preponderance of the evidence. He contends that the note was without consideration as between appellees and the Industrial Transportation Company, but contends that the record reflects, by a preponderance of the evidence, that he was an innocent purchaser of the note before maturity, for value. We cannot agree with him in this contention. The record reflects facts and circumstances sufficient to have put a man of ordinary prudence and caution upon inquiry, which, if followed up, would have revealed the fraudulent intent in selling its stock. This particular note was selected at'random from a large number and sold, contrary to custom, at a discount. It was inferable from the evidence that the instrument was signed by Hart after the suit was instituted. The note was purchased by appellant with a knowledge that the stock, for which it had been given, had not been delivered, and without seeing to it that same was delivered. The whole testimony tends to show a very close relationship between the officers of the company and appellant. The weight of the testimony warranted a conclusion that appellant wilfully misrepresented the financial condition.of the company in order to sell its stock.
The finding and conclusion of the court that the note was obtained by appellant with a knowledge that it was procured through fraud and deceit, and without consideration, is supported by the decided weight of the testimony.
The decree is therefore, affirmed.. | [
112,
92,
-16,
-116,
26,
-32,
58,
-70,
80,
-95,
37,
115,
-23,
-27,
81,
121,
-25,
29,
-12,
104,
-25,
-77,
3,
122,
-46,
-109,
123,
-123,
-76,
79,
-28,
-42,
77,
33,
74,
29,
-58,
-48,
-57,
-100,
78,
32,
43,
104,
121,
0,
48,
-85,
80,
71,
113,
-114,
-22,
41,
22,
74,
109,
47,
109,
-87,
-48,
-6,
-102,
-59,
127,
23,
48,
68,
-102,
5,
-56,
12,
-104,
49,
104,
-88,
50,
-90,
-122,
-12,
41,
25,
8,
34,
98,
18,
-123,
-89,
12,
-116,
38,
-2,
13,
-89,
-80,
40,
11,
65,
-65,
-100,
28,
18,
7,
-44,
-2,
-115,
17,
104,
7,
-49,
-106,
-109,
45,
-28,
-100,
19,
-21,
-105,
48,
96,
-50,
-77,
93,
71,
58,
-101,
-114,
-77
] |
Humphreys, J.
On the 27th day of April, 1921, appellant instituted suit in the Union Chancery Court against appellees to compel them to convey the frl. "W. half of sec. 5, and frl. E. half of sec. 6, tp. 20 S. R. 16 W., Union County, Ark., to him, in performance of the terms of a contract entered into on the 20th day of June, 1901, between appellant and his mother, Alvira Goff, whereby she agreed in writing to will him all her real estate in consideration that he remain with and take care of her during the remainder of her life. It was alleged in the hill that he immediately entered upon the performance of the contract, and fully complied with the terms and conditions thereof by caring and providing for his mother until her death on the 1st day of December, 1915; that on said date she died intestate the owner of said real estate, leaving surviving, as her only heirs, appellant and appellees; that during the lifetime of his mother they resided upon said lands, and that after her. death he occupied them openly, exclusively, and adversely, paying’the annual taxes thereon, under absolute claim of ownership.
Mrs. M. J. Reams, one of the defendants in the case, conveyed her undivided interest in said lands to appellant, and filed no answer.
Annie Beaty for herself, and Walter Brown, guardian ad litem for G. W. Goff, filed a joint answer, admitting that their mother died intestate, owner of said, lands, hut denying all -other material allegations in the bill; and, by way of further defense, pleading the five-year statute of limitations in bar of appellant’s right to' enforce the alleged contract.
The cause was submitted to the court upon the pleadings and testimony introduced 'by the parties responsive to the issues, which resulted in a dismissal of appellant’s bill because -the action was not commenced within five years after the death of Alvira Goff.
The record reveals that Alvira Goff donated the land in question in 1880 from the State of Arkansas; that she and all her children, except Annie Beaty,'immediately moved on the place, .'cleared it up, and established a home; that the family consisted of the mother and four children, George, Mary, Rachel, and Bruce (appellant); that at the time George was twenty-one and Bruce nine years old; that the girls, as well as the boys, cleared and cultivated the land; that Rachel resided in the home until she attained to the age of thirty, at which time she died, leaving no direct heirs; that Mary lived in the home a number of years before she married and moved to a home of her own; that three years after moving on the place George developed a mild form of insanity and was sent to the asylum for treatment, where he remained for six months; that he was not entirely cured, but returned and continued to reside in the home and cultivate a part of the land until two years after the mother died, when he was again sent to the Hospital for Nervous Diseases, where he has since remained; that, when affliction incapacitated George, the management of the farm devolved upon Bruce; that on the 20th of June, 1921, Bruce accompanied his mother to town, where she executed the contract sought to be enforced, which is as follows:
“Junction City, Arkansas, June 20, 1901.
“I have agreed to will all my reai estate of land to my son, B. B. Goff, for taking care of me and caring for me, Alvira Goff.
“W. half W. half S. 5 T. 20 B. 16................................................55.92
“E. half E. half, ¡3. 6, T. 20, B. 16..........................................56.35
“One dollar to other heirs. 112.27
her
“Alvira X Goff.
mark
“J. B. Bishop, J. IV’
That when executed the contract was delivered to and accepted by him as an inducement to get him to remain at home; that he had expressed an intention to leave home unless some such arrangement was made; that the execution and delivery of the contract was not divulged to appellant’s brother and sisters until three months before the institution of this suit; that, prior to the execution of the contract, Bruce was manager of the farm, and handled all the proceeds derived therefrom, expending same in the maintenance of the farm and family; that his relationship to the place before and after the agreement was the same; that six or seven years before his mother died he married and took his wife into the home; that after his mother died appellant, his immediate family, and George remained upon the plac.e for about two years; that George was then sent to the asylum, since which time appellant has resided upon the farm and applied the proceeds therefrom to the payment of improvements, repairs, taxes, and support of his family, accounting to no one for rents and profits; that no demand was m,ade upon him for rents and profits by his brother and sisters; that about three months before bringing suit appellant attempted to get his sisters to join him in an oil lease upon the lands to J. M. Brown; that they refused to do so, whereupon he asserted title to the lands under the contract for a will to them,.
While the testimony is somewhat conflicting as to the contributions of the several children toward the support of their mother, the decided weight thereof shows that the appellant met all the requirements of the contract after June 20, 1901, hi maintaining and supporting his mother.
Appellant contends that under the record made he is entitled to the specific performance of the contract, or-, failing in that, to a decree quieting his title by reason of seven years’ adverse possession of the land.
The right of action, under the contract, accrued against the heirs of Alvira Goff at the time of her death. 40 Cyc. 1071. She died on the first day of December, 1915. Under § 6955, Crawford & Moses’ Digest, suits upon contract in writing must be brought within five years after the right of action accrues. This suit was not commenced until the 27th day of April, 1921, more than five years after the action accrued, hence was barred by the five years’ statute of limitations.
There was no change in the attitude of appellant toward the land before and after the execution of the contract in question. The character of his possession was exactly the same. He resided with his mother upon it, managing it, and controlling it for the benefit of the family. No claim of adverse or exclusive possession was asserted or claimed against his mother. In fact, absolute secrecy was maintained concerning the execution of the contract for a will. After the death of Alvira Goff, appellant and appellee, G. W. Goff, occupied the farm together for two years, each cultivating a part of it. Five years after the death of Alvira Goff, appellant tried to get his sisters to join in an oil lease upon the lands to J. M. Brown. All of appellant’s acts and conduct relating to the possession of the lands, after the death of Alvira Goff, are perfectly consistent with, and may be attributed to, a tenancy in common.
The decree is therefore affirmed. | [
49,
110,
-12,
44,
-88,
-8,
24,
-102,
-5,
-95,
37,
-45,
-7,
80,
21,
109,
97,
45,
117,
105,
97,
-77,
22,
32,
80,
-13,
-79,
-41,
32,
77,
-28,
-34,
72,
32,
-54,
29,
-30,
-30,
-25,
24,
30,
-64,
13,
-20,
-35,
80,
48,
-71,
84,
15,
117,
-81,
-13,
-81,
61,
99,
104,
46,
125,
41,
106,
-23,
-114,
-57,
-2,
7,
1,
-26,
-102,
-63,
72,
26,
-104,
53,
0,
-8,
51,
-90,
-122,
116,
87,
-103,
8,
100,
102,
58,
-27,
-17,
-88,
8,
7,
62,
29,
-90,
-13,
104,
66,
106,
-65,
-99,
56,
-112,
15,
-14,
-81,
-51,
20,
104,
0,
-113,
-42,
-77,
29,
-88,
-98,
27,
-29,
39,
48,
117,
-49,
-90,
76,
71,
118,
-101,
30,
-38
] |
Hart, J.,
(after stating the facts). Where a cause is tried before the court, the finding of a court sitting as a jury will not be disturbed on appeal if there is any substantial legal evidence to support it. Greenspan v. Miller, 111 Ark. 190; Youngblood v. Thorn, 145 Ark. 466; and Thomas v. Thomas, 150 Ark. 43.
According to the testimony of the defendant, he was a gratuitous bailee, and, under the rule just announced, the finding of the circuit court to that effect will not be disturbed on appeal. A gratuitous bailee is only bound to use slight care in the protection of the property intrusted to him, and is responsible for its loss only-in case of gross negligence. Baker v. Bailey, 103 Ark. 12; Strange v. Planters’ Gin Co., 142 Ark. 100, and Rollins v. East St. Louis Cotton Co., 144 Ark. 146.
According to the cases cited, gross negligence is nothing more than a failure to bestow that care which the property in its situation demands; and whether this existed was a question of fact for the court sitting as a jury to determine.
According to the testimony of the defendant, he had no control whatever over the cotton stored in his warehouse.- The persons owning the cotton placed it in there and tagged it themselves. When the defendant got ready to use his warehouse he notified them, and they came and took away their cotton. The defendant had no control whatever over it, and it cannot be said, under the facts and circumstances, as viewed from his standpoint, that he was guilty of gross negligence in the premises. The court having found in his favor on this point, we are not at liberty to disturb the finding on appeal.
It follows that the judgment must be affirmed. | [
-96,
-22,
-68,
-115,
74,
96,
58,
-102,
64,
-19,
35,
83,
125,
-13,
16,
47,
-13,
95,
117,
43,
-44,
-77,
7,
83,
-38,
-45,
-46,
-121,
53,
-21,
118,
-2,
13,
48,
-126,
-107,
-26,
-64,
-63,
-40,
-114,
-121,
-104,
69,
97,
112,
56,
-94,
86,
89,
112,
-98,
-21,
46,
25,
-57,
10,
40,
-53,
61,
112,
-7,
42,
15,
127,
20,
-79,
-92,
-98,
-89,
-40,
58,
-104,
17,
1,
-24,
123,
-76,
-126,
84,
107,
-101,
12,
102,
98,
1,
45,
111,
-72,
-95,
55,
-57,
15,
-89,
20,
72,
75,
43,
-74,
-97,
103,
6,
-82,
-4,
-18,
21,
94,
108,
3,
-57,
-76,
-77,
-121,
36,
-98,
2,
-58,
-125,
48,
49,
-51,
-86,
92,
5,
81,
-37,
-116,
-116
] |
Smith, J.
Appellee brought separate suits in ejectment against appellants, to recover certain parcels of land situated in section 22, township 14 north, range 12 east. The cases are identical, and were tried together and disposed of as a single case. The court made findings of fact, on all the issues raised, in appellee’s favor, and the recital of these findings will explain and state the case. They were as follows:
“1. That the defendants are living upon and occupying land in the W½ of section 24, township 14, range 12 east, and have been occupying and claiming the same since the year 1911, without color of title thereto.
“2. That the lands occupied by them are situated within the meander line of what is known as Hudgens Lake.
‘ ‘ 3. That the plaintiff had color of title to and was claiming, clearing up and had actual possession of the lands occupied by the defendants at the time of and prior to the occupancy of the defendants.
“4. That after the defendants took possession of said lands, and within seven years, the plaintiff commenced an action in the chancery court of the Osceola. District of Mississippi County, Arkansas, against them to recover said land from them and quiet his title thereto, which action is still pending and undetermined.
“5. That after said action was commenced by the plaintiff in the chancery court, and within seven years after defendant took possession of said lands, the plaintiff and defendants entered into an agreement, whereby plaintiff and defendants agreed to let the ownership of the land abide the decision of the Department of the Interior, the defendants agreeing, in case the Department of the Interior decided in favor of the riparian owners, to vacate said lands immediately.
‘ ‘ 6. That the Department of the Interior decided, in the year 1920, that there was no error in the original survey of Hudgens Lake and, including the lands claimed and occupied by the defendants, belonged to and were owned by the riparian owners, including the plaintiff.”
Inasmuch as the case was heard by the court sitting as a jury, these findings must be accepted if the testimony is legally sufficient to support them, when given its highest probative value in appellee’s favor, and we think it is sufficient for that purpose.
It is undisputed that appellants were squatters, who entered upon and occupied the land on the theory that it was government land and did not belong to the riparian owners. At the time of their entry it was insisted by them that the government survey was in error in showing the land which they entered upon to be a lake; and the Government Land Office was induced to verify this survey. A finding was made by the Department that no error had been made in the original survey. The Department of the Interior reviewed this finding, and affirmed it. The effect of that action was, of course, to conclusively determine the fact that at the time of the government survey the land in litigation was a lake, and was therefore owned by the riparian proprietors.
It is insisted by appellee that if the lake bed was apportioned among the riparian proprietors in accordance with the rules for such apportionment, the land in litigation would fall within the boundaries of appellee’s land; but the court-made no finding to that effect — -the finding being merely that the lands covered by Hudgens Lake were owned by the riparian owners, including ap pellee — and we do not feel called upon to attempt to determine whether the land would fall to appellee in this apportionment. Indeed, the determination of that question would involve the validity of appellee’s title as a riparian owner — a question which, we do not decide,' as the case must be affirmed upon other grounds.
Appellee had color of title to the land in litigation; and we think the testimony shows he had actual possession thereof at the time appellants entered; in fact, he had cleared about one hundred acres of land in the south half of the section, and had it about ready for the plow when appellants entered upon it.
It is undisputed that, after appellants took possession of the land, and within seven years, appellee commenced an action in the chancery court to recover the land from them and to quiet appellee’s title thereto; and this action is pending and undetermined. This was the court’s fourth finding of fact, and it is insisted that it is conclusive of the case.
We think, however, this fact is not of controlling importance, and would not operate to prevent the running of the statute of limitations against this suit, considered by itself; and, while the pendency of that suit would prevent the running of the statute of limitations against it, its pendency would not prevent the running of the statute of limitations against this one, as there was no connection between the two cases, and- no nonsuit had been filed in the first one. Such is the effect of the holding of this court in the case of Hill v. Pipkin, 72 Ark. 549, and Wallace v. Swepston, 74 Ark. 520.
In 25 Cyc. p. 1290, it is said: “The defense of the bar of the statute of limitations applies strictly to the particular action to which it is pleaded, and hence if that suit be not brought within the statutory period, the bar of the statute cannot be avoided by showing that another action had been brought by plaintiff against defendant on the same cause of action within the period limited by the statute.” Numerous cases are cited in support of the text quoted, including- the two cases from this court mentioned above. See also 2 Wood on Limitations (4th ed.) p. 1197; 8 C. J., sec. 166.
The fifth finding- of fact is, however, decisive of the question of limitation'; and we think there was testimony legally sufficient to support that finding. Appellee testified that, after the suit in chancery had been brought, he discussed the suit with appellants, who insisted that they made no claim to the land except that it was government land and was subject to entry for homestead purposes, and appellee stated to them that, if the land was government land, he had no claim to it, and was willing for appellants to perfect their homestead claims, and with this understanding, and because of it, he did not press the suit until the character of the land had been finally determined by the Federal Government. This finding of the Department of the Interior was made on December 18,1920; but appellants refused to vacate, and thereafter these suits were brought in the spring- of 1921.
We think this agreement — which the court found the parties hád made-^operated to prevent the running of the statute of limitations until the character of the land had been determined by the Department of the Interior; •and, with the period of time covered by this agreement excluded, the statute of limitations could not have run against this suit. Shirey v. Whitlow, 80 Ark. 444; Hudson v. Stilwell, 80 Ark. 575.
Appellee had possession under color of title. He was therefore entitled, as against appellants (who, under the facts of this record, were mere trespassers), to maintain this suit. Cotton v. White, 131 Ark. 273. The^ judgment of the court below is therefore affirmed. | [
-12,
-18,
-28,
108,
56,
-32,
56,
-78,
75,
-95,
117,
83,
-17,
79,
8,
21,
-29,
61,
117,
121,
-58,
-77,
95,
-94,
16,
-77,
121,
69,
-72,
76,
-20,
-42,
8,
-80,
74,
85,
70,
96,
-59,
88,
-50,
-127,
-119,
104,
-39,
66,
60,
99,
16,
79,
117,
-114,
-14,
45,
49,
67,
105,
46,
-49,
-65,
64,
120,
-98,
69,
95,
22,
33,
101,
-102,
-125,
72,
26,
-112,
49,
-120,
-56,
115,
50,
-122,
116,
77,
-103,
44,
34,
102,
15,
-112,
-25,
104,
25,
46,
-66,
-103,
-90,
-30,
80,
67,
64,
-74,
-103,
124,
16,
71,
-6,
-27,
-123,
29,
104,
-121,
-18,
-106,
-79,
15,
44,
-117,
19,
-29,
3,
52,
112,
-53,
-30,
92,
71,
120,
-101,
-114,
-47
] |
Smith, J.
On September 15, 1921, appellees filed seven separate suits before a justice of the peace against the appellant railroad company to recover damages for seven head of cattle which they alleged were killed and crippled by one of defendant’s trains on the 6th day of August, 1921. A summons was issued in each case, and on September 29, 1921, a separate judgment was rendered in each case for the amount sued for. The judgment in the first case was for $60 for one heifer; that in the second case was for $60 for another heifer, and the judgments in the four other cases were for different amounts aggregating $180.
On October 7, 1921, the railroad company paid and satisfied the judgment in the first case filed, and on October 12, 1921, appealed the remaining six cases to the circuit court.
There is some controversy about the conversation which occurred between the attorney for appellee and the attorney for appellant at the time the first judgment was satisfied, as to the purpose in satisfying' it and in not satisfying the other judgments; but we regard this conflict as unimportant, for the reason that the railroad company had the right to satisfy the judgment if it saw proper to do so.
Upon the appeal the cases were consolidated and tried together, after the railroad company had filed an answer setting up the facts stated above, and pleading the satisfaction of the first judgment in abatement of the other suits.
There was testimony from which the jury might have found that the railroad company had not overcome the statutory presumption of negligence arising from the killing of the animals by a moving train. The animals were struck about 9:50 p. m. by a night passenger train, during a drenching rain, and the engineer and fireman testified that the cattle were bunched together and were lying near the point of a curve, and were not seen by them in time to have avoided striking them, be cause of the curve. The testimony on the part of appellees was to the effect that the animals were found lying along the track, and one witness stated that the last animal killed was lying 225 feet from the first animal killed. The other animals were lying between. Other witnesses .for appellees placed the animals nearer together than we have stated, but none of them place the entire distance at more than 225 feet, and we state the testimony most favorably to appellees. One of the animals struck by the train was not killed, but was' injured, and strayed away from the railroad, and was not found for several days.
The jury found for appellees, and the court rendered judgment in their favor for the value of the stock as found by the'jury, but assessed the costs against appellees, and the railroad has appealed.
We think the plea in abatement should have been sustained, as appellees had but one cause of action, and had no right to split this cause of action into parts.
In Sutherland on Damages, page 381, (4th ed.) it is said: “The principle is settled beyond dispute that .a judgment concludes the rights of the parties in respect to the canse of action stated in the pleadings on which it is rendered, whether the suit embraces the whole- or only a part of the demand constituting the cause of action. It results from this principle, and the rule is fully established, that an entire claim arising either upon a contract or from a wrong cannot be divided and made the subject of several suits; and if several suits be brought for different parts of such a claim, the pendency of the first may be pleaded in abatement of the others, and a judgment upon the merits of either will be available as a bar in the others.”
This statement of the law accords with our own cases on the subject. Reynolds v. Jones, 63 Ark. 259; Hemingway v. Grayling Lumber Co., 125 Ark. 400. Numerous cases are cited in the brief of counsel for appellant which support the text we have quoted.
Counsel for appellee cite the case of Mo. Pac. Ry. Co. v. Scammon, 41 Kan. 521, in which the owner of a mare was permitted to sue for and recover its value after having sued for and recovered the value of a colt which had been killed by the same train which had killed the mare. The facts recited in the opinion of the court were that the colt was first struck and killed, and then the mare was struck and injured at a point thirty rods from where the colt was struck. The court said there was a difference of time and locality, and that this difference made and constituted separate and distinct causes of action. The court stated the fact that the killing of the colt might have been prevented by the exercise of ordinary care, while the injury of the mare must have been the result of gross negligence. The court, however, recognized and stated the principle which controls here, for it was there said: “When two horses are killed by the cars of a railroad company at the same time, or when different chattels are taken by one trespass, or converted by one person at the same time, but one recovery can be had. This rule applies in all such cases where the tort, trespass, or conversion consists of one entire and undivided act.”
We think the jury was warranted in finding that the injury to the stock could have been averted had the proper precautions been taken, notwithstanding the character and the location of the curve at the point where the .animals were struck; but we think there was but a single act of negligence, and that there was no intervening time during which anything could have been done, or was omitted, which constituted an additional act of negligence. A train moving at the rate of 40 to .45 miles per hour would travel the distance of 225 feet in such a short space of time that nothing could have been done, after striking the first animal, to prevent striking the others, even though we assume that the animals were not thrown or carried any part of that dis tance by the train but were in fact that far apart when the first one was struck.
The first suit is a bar to the others, and the judgment-must therefore be reversed and the cause dismissed. | [
-16,
116,
-116,
-19,
10,
96,
42,
-102,
69,
-96,
-25,
83,
-51,
-61,
17,
101,
-26,
61,
85,
43,
-10,
-109,
87,
-94,
-101,
-45,
59,
-51,
-67,
109,
108,
-10,
77,
48,
74,
21,
-26,
-22,
-63,
92,
-50,
21,
-87,
-19,
41,
16,
56,
117,
22,
103,
49,
-34,
-21,
46,
24,
83,
41,
46,
107,
-83,
-64,
113,
-70,
69,
61,
2,
33,
102,
30,
1,
74,
62,
-104,
53,
0,
-40,
114,
-96,
-121,
92,
41,
-103,
12,
38,
102,
33,
29,
-49,
56,
-120,
47,
-2,
-113,
-90,
2,
16,
19,
39,
-66,
29,
16,
80,
-121,
126,
-12,
-59,
-36,
32,
-127,
-49,
-106,
-90,
-49,
-20,
-102,
23,
-21,
-93,
50,
113,
-39,
-78,
92,
69,
126,
-101,
15,
-105
] |
Wood, J.
The appellee is a foreign corporation, engaged in the lumber business and having its principal office in Memphis, Tennessee. Dr. W. E. Yount is a physician residing at Cape Girardeau, Missouri. He owned some timbered land in Arkansas, near Rhoads Bros. & Company’s sawmill. Rhoads Bros. & Company was a partnership, composed of J. T., W. W., and S. S. Rhoads, engaged in running a.sawmill near Black Oak, Arkansas. E. B. Ellis was a merchant of Black Oak, Arkansas. On October 17, 1917, W. E. Yount entered into a contract with the Rhoads Bros. & Company whereby he sold to them all the timber standing on 880 acres of land, more or less, for the consideration named in the contract of $17,600. No cash was to be paid, but the consideration named represented the value of clearing the lands mentioned in the contract. The provisions of the contract in regard to the clearing are as follows:
“In consideration of the foregoing, and to pay for said timber, the parties of the second part (Rhoads Bros.) agree to clear all said land ready for cultivation and ready for the plow, by removing therefrom all standing timber and underbrush and all down timber and logs and all other foreign matter which interferes with farming 'said land, except only the tract fenced off into a field at the tenant house, which tract is east of the cultivated field, and is grown up in young timber, but has no saw timber thereon. This tract was formerly cleared, but has now grown up in young timber. The parties of the second part agree that they will begin the work of cutting the timber and clearing said land during the month of October, 1917, and will give said work their time and attention and push the same forward to completion as rapidly as can be, and will finish all said work of clearing within two years from this date, and will thus finish not less than two hundred acres thereof before May 1, 1918. All land when thus cleared is to be turned back to said Yount for cultivation. They also agree that they will begin at the- south side of said land near the present millsite, and will cut timber and clear for cultivation as they advance from the south end of said land northward, in strips about four hundred feet wide, and that they will cut no timber on more than forty acres of said land in such strips in excess and advance of land cleared for cultivation as aforesaid, and that said Yount shall have a lien on all of the timber, log's and products thereof on the yard to secure the prompt and faithful performance of this agreement on the part of the second parties; but no lien herein mentioned shall ever be construed to authorize said Yount to prevent or interfere with the selling or marketing of said timber products, so long as second parties are not in default under the terms of this contract; and it is distinctly understood and agreed that the said sum of $17,600 is to be paid by second parties by and through their above described clearing work, and that said sum of $17,600 shall be deemed fully paid when said clearing work has been fully performed by said second parties under this contract.”
Prior to May 12, 1919, Rhoads Bros. & Co. had entered into a contract with L. D. Leach & Co. of Chicago, Illinois, by which Rhoads Bros. & Co. was to manufacture lumber for that company, and it was to make advances to Rhoads Bros. & Company as the lumber was manufactured. Baker-Matthews Lumber Company took over the Leach & Company contract and reimbursed it for the advances it had made to Rhoads Bros. & Company. On the 12th of May, 1919°, Rhoads Bros. & Co. entered into a contract wtih the Baker-Matthews Lumber Company. This contract provided for the manufacture of 2,250,000 feet of various kinds of lumber at specified prices, which was supplemented by an agreement of August 12, 1919, changing the prices. On September 22, 1919, Rhoads Bros. & Co. entered into a supplemental agreement with Yount, whereby the terms of the former contract for clearing, which would have expired on October 22, 1919, were to remain in full force and effect for an additional period of eighteen months. This -contract -of Sept. 22, among other -things, provided:
“In consideration of the foregoing the parties of the second part do hereby agree that they will forthwith proceed in a diligent and business-like way to clear said lands ready for cultivation as provided in said former contract, and that they will clear not less than one hundred acres per month, and that they will, before the last day of October, 1919, clear one hundred acres of said land in addition to what is already cleared, and that they will likewise clear one hundred acres each month thereafter until they have fully complied with the terms of said original contract by having all the lands cleared ready for cultivation on which they have cut any timber, les-s only forty .acres, by May 1, 1920. * * * It is further agreed -and understood that this extension agreement is not in any way to release or impair the lien which was retained by party of the first part on timber and the products thereof as provided in the original agreement, and it is further agreed that, if the parties of the second part make default in any -of the provisions and conditions Of this contract, they are to have n-o further right to cut or remove any timber from any of said land or to remove any lumber from .said land until this contract is fully complied with.”
On November 3, 1919, Rhoads Bros. & Company entered into another contract with Baker-Matthews Lumber Co., which was entirely independent of the former contract between those parties of May 12, 1919. The contract between Rhoads Bros. & Company of November 3, 1919, provided that Rhoads Bros. & Company should manufacture for the Baker-Matthews Lumber Co. 2,000,000 feet of lumber at prices specified therein, and this contract also provided: “Performance of this contract by parties of the second part (Baker-Matthews Lbr. Co.) is contingent upon said first parties obtaining from Dr. W. E. Yount a release from any and all claims which he has, or might have, against the lumber to be delivered under this contract; such release to be subjéct to the approval of said second parties.”
On November 7, 1919, W. E. Yount executed the following instrument: “For and in consideration of the .sum of one ($1) dollar and other good and valuable considerations in hand paid, the receipt of which is hereby acknowledged, I hereby release any and all liens or claims I may have against any and all lumber cut from and off my property in Craighead County, Ark., and also any lien or claim which I may have against any and al'l timber and lumber which may hereafter be cut from and off of any land owned by me in said county, and in lieu of said lien or claim Baker-Matthews Lumber Company agree to hold the sum of six ($6) dollars per thousand feet on all lumber hereafter cut and delivered to them by Rhoads 'Bros. & Co. coming from my property, and particularly all lumber to be cut on a certain contract executed November 3, 1919, between Rhoads Bros. & Company and Baker-Matthews Lumber Company for two million feet of lumber; said sum of six ($6) dollars per thousand feet to be held by said Baker-Matthews Lumber Company, to be paid out by them on the mutual agreement between myself and Rhoads Bros. & Company. It is understood that B'aker-M'atthew® Lumber Company are not to retain the sum of $6 per thousand feet on any lumber except that manufactured and delivered under a certain contract dated November 3, 1919, between Rhoads Bros. & Co. and Baker-Matthews Lumber Company.”
A sum in excess of $2,000 had accumulated in the hands of Baker-Matthews Lumber Comapny under the provisions of the last-mentioned instrument. On June 3, 1920, Yount executed to Rhoads Bros & Company the following instrument:
“For value received I hereby transfer, set over and assign to Rhoads Bros. & Company, all of my right, title and interest in and to the sum of two thousand dollars ($2,000) now in the possession of Baker-Matthews Lumber Company under the provisions of the contract dated November 3, 1919, between Rhoads Bros. & Company and Baker-Matthews Lbr. Co., or under any contract subsequently executed between the same parties, and also under the release or contract of date of November 7, 1919, and signed by me, and also signed by Rhoads Bros. & Co., agreeing to the provisions of the release or contract of date November 7, 1919, hereby waiving all my rights of every bind .and description which I may, or might, have under any of said contracts as to the said sum of two thousand dollars ($2,000).
“Witness my hand this 3rd day of June, 1920.
(Signed) . “W. E. Yount.
“Witnesses: Frank Kelley, W. E. Walker.”
On June 7, 1920, Rhoads Bros. & Company wrote to Baker-Matthews Lumber Company as follows:
“G-entlemen: As we have been in an awful pinch, and Mr. E. B. Ellis was one of our largest, creditors and has helped us out on the balance of the $2,000, we hereby ask that you pay the $2,000 released awl mentioned above to him and charge to our account.
“Rhoads Bros. & Company
“By J. T. Rhoads.”
Upon receiving the above communication, Ellis presented same to the Baker-Matthews Lumber Company, and they wrote him the following letter on June 8, 1920:
“Memphis, Tenn., June 8, 1920.
“Mr. E. B. Ellis,
“Black Oak, Arkansas.
“Dear Sir: You have presented to us this morning the assignment and release of W. E. Yount dated June 3, 1920, transferring $2,000 of the fund in our hands arising under certain contract of date November 7, 1919, and some subsequent contracts, with an order to pay the amount of this fund to you.
“We- desire to advise you that we cannot pay this sum today, for the following reason: First. We do not know what amount will be due Rhoads Bros. & Co. under our contract until all the lumber is taken up and shipped out, which we hope to have done this week. If you are not already advised, it is true that Rhoads Bros. & Company, under their contracts with us, guaranteed the title to this lumber to be free and clear of all incumbrances. We are in litigation with a creditor of Rhoads Bros. & Co. at Jonesboro in which this question is involved, and we therefore must say to you at this time we cannot pay out this money to you.”
On June 11, 1920, Baker-Matthews Lumber Co. instituted this action against Yount, Ellis, and Rhoads Bros. & Company. Plaintiff alleged that it had in its hands over $2,000 which it had been holding for the protection of Yount; that it had advanced large sums of money to Rhoads Bros. & Company to pay for labor and to purchase timber; that, according to the 'contract with Rhoads Bros. & Co., the lumber manufactured by them was to be kept free from all liens; that this provision had been violated by permitting A. B. Jones Company to procure a judgment for over $2,500 and to' levy an execution on the lumber, for which plaintiff had brought replevin. The plaintiff alleged that Yount had attempted to assign the sum of $2,000 to Rhoads Bros. & Co., who had attempted to reassign the same to Ellis; that plaintiff had refused to accept the assignment; that the account between plaintiff and Rhoads Bros. & Co. involved large sums of money; that final settlement was not due until time of shipment of the lumber, a portion of which had not yet been shipped; that the account was so complicated and uncertain that it could not be determined whether plaintiff would be indebted to Rhoads Bros."& Company or not on the completion of their contract. The plaintiff then tendered the sum of $2,000 into court, to be held pending the replevin litigation with A. B. Jones Company and final completion of the contract with Rhoads Bros. & Company and a settlement of its account with the plaintiff.
Ellis filed a separate answer, setting up his ownership of the $2,000 under the instrument signed by Yount. and Rhoads Bros. & Company, above mentioned, and denied the right of plaintiff to withhold payment of the same. He also set up that Rhoads Bros. & Company were indebted to him for supplies furnished it in opening up and clearing the lands for W. E. Yount, and alleged that the transfer and assignment of the $2,000 was made for his benefit to enable him to furnish Rhoads Bros. & Company the supplies necessary to enable the latter to perform its contract with Yount. He made his answer a cross-complaint, and asked for judgment in the sum of $2,000 with interest from June 8, 1920, the time plaintiff refused to pay him.
Rhoads Bros. & Company also answered denying the allegations of the complaint, and made their answer a cross-complaint, setting up á breach of the lumber manufacturing contract between it and Baker-Matthews Lumber Company. Yount also filed a separate answer and cross-complaint against the Baker-Matthews Lumber Company, alleging its failure to pay him $6 per thousand feet for stumpage. The matters growing out of this cross-complaint were settled, and Yount has passed out of the case. It is not necessary to make further reference to the pleadings filed by him.
The plaintiff filed a supplemental complaint against Rhoads Bros. & Company to foreclose a mortgage executed by it to the plaintiff, which was answered by Rhoads Bros. & Company. Further reference to the pleadings on the foreclosure of this mortgage is also unnecessary.
Upon the pleadings and the documentary evidence as above set forth, and the depositions of witnesses, the court found that the only issue presented to it for decision was that raised by the complaint of the plaintiff and the answer and cross-complaint of Ellis concerning the sum of $2,000 which had been tendered'into court and deposited with the American Trust Company, under the court’s direction. On this issue the court found “all the issues of fact and law in favor of the plaintiff, Baker-Matthews Lumber Company, and against the defendant and cross-complainant, E. B. Ellis,” and en teredits decree dismissing the cross-complaint of Ellis for want of equity, and directing that the sum of $2,000 in the hands of the depository trust company be paid over to the plaintiff. The court also found that the defendant, Rhoads Bros. & Company, was indebted to the plaintiff in the sum of $3,202.60, for which amount it rendered .judgment against the individual members of the partnership. This decree was entered on January 7, 1922, from which Ellis prayed an appeal. Later, on April 21, 1922, the court made findings and rendered a final decree against Rhoads Bros. & Company, from which they prayed an appeal, but which has not been prosecuted by them to this court. At least, no brief has been filed in their behalf, and therefore their appeal will be treated as abandoned. We will decide only the issues presented by this record as they pertain to the controversy between Ellis and the Baker-Matthews Lumber Company. Such other facts as we deem necessary will be referred to as we proceed.
For convenience, the Baker-Matthews Lumber C!ompany will hereafter be called the appellee, Ellis will be referred to as the appellant, and Rhoads Bros. & Company will be called Rhoads Bros.
It will be observed that the contracts between Yount and Rhoads Bros, provided for the clearing of the timber on the lands of Yount by Rhoads Bros, within a certain time and in a certain manner therein specified. To secure the performance of the contract on the part of Rhoads Bros., Yount retained a lien on all timber, logs and products thereof. The fact is established by the undisputed evidence that Rhoads Bros, had not complied with the terms of the contract, and were therefore in default, which, under the express terms of the contract, rendered the lien of Yount effective. As shown by the contract between appellee and Rhoads Bros, of November 3, 1919, the appellee had knowledge of the lien retained by Yount on all the timber and products manufactured by Rhoads Bros, from Yount’s land, lie-cause on that day appellee entered into a contract with Rhoads Bros, for the purchase of two million feet of lumber, at certain prices therein specified, to be manufactured from the timber on Yount’s land, and the performance of this contract on the part of the appellee was contingent upon Rhoads Bros, obtaining from Yount a release of any and all claims which Yount had or might have against the lumber, such release to be approved by the appellee. Rhoads Bros, obtained such release, as evidenced by the instrument of November 7, 1919, signed by Yount, the effect of which was to release his lien on all the lumber cut from his land, provided the appellee would hold for his benefit the sum of $6 per thousand feet on all lumber cut and delivered to the appellee by Rhoads Bros., which sum was to be held by the appellee and to be paid out by it on the “mutual agreement between Yount and Rhoads Bros.” By an indorsement on the instrument, Rhoads Bros, authorized the appellee to carry out the terms of the instrument.
The allegations of the complaint and the undisputed testimony show that the $2,000 now in controversy had accumulated in the hands of the appellee under the terms of the contract of November 3, 1919, between Rhoads Bros, and the appellee, and the instrument of November 7, 1919, which hereafter, for convenience, will be referred to as the “stumpage agreement.” On the third day of June, 1920, for value received, Yount transferred or assigned his interest in the $2,000 to Rhoads Bros., waiving all rights of every kind which he had on said $2,000 under his contract with Rhoads Bros., and on June 7, 1920, Rhoads Bros., by letter, requested the appellee to pay the same to Ellis, which the appellee refused to do.
Now, considering the various written instruments set out above, especially the contract between Rhoads Bros, and the appellee, of November 3, 1919, and the stumpage agreement of November 7, 1919, to which the appellee became a party, and by which it was bound in purchasing and receiving from Rhoads Bros, the lum ber manufactured by them, with knowledge of Yount’s lien; and considering likewise the correspondence between Yount and the appellee, and the oral testimony, we have reached the conclusion that the $2,000 in controversy was a trust fund, of which Yount was the sole beneficiary. A letter in the record from Yount to the appellee designates the same as a “trust fund,” and a letter from appellee to Yount refers to the fund; and states that it is to be paid out by the appellee on the joint agreement of Yount and' Rhoads Bros., and asks Yount to get Rhoads Bros.’ written order authorizing the appellee to pay the balance due on the fund. Baker, in his testimony, designates it as “a sort of trust fund held for these parties, to be determined between them as to whom this was to be paid.” The fund was in lieu of the lien which Yount had on the lumber which the appellee had purchased from Rhoads Bros. The appellee, knowing that Yount had a lien on the lumber, agreed, in effect, that, if Yount would release his lien and allow it to purchase the lumber from Rhoads Bros, unincumbered by such lien, they would hold this sum of $2,000 for his sole benefit and would pay the same on the mutual agreement between Yount and Rhoads Bros. Such is the unambiguous wording of the stumpage agreement, by which, as we have said, the appellee was bound. The assignment of June 3, 1920, of Yount to Rhoads Bros, and the written order of Rhoads Bros, of June 7, 1920, asking that the appellee pay the $2,000 to Ellis, was tantamount to a mutual agreement between Yownt and Rhoads Bros, that Ellis should receive the fund. The testimony of Yount and J. T. Rhoads was to the effect that the $2,000 in controversy was to constitute a kind of budget, the larger part of which was to be paid to Ellis. Yount so understood it at the time he executed the assignment. Yount realized that he would receive the benefit from the use of the fund by Rhoads Bros, in paying Ellis the amount advanced by him to Rhoads Bros., because that would better enable Rhoads Bros, to carry out their contract of clearing Yount’s land. At any rate, that was a matter solely for the determination of Yount and Rhoads Bros., a right which appellee, the trustee, could not challenge.
Having reached the conclusion that the fund in controversy was a trust fund, the appellee could not refuse to pay Ellis, to whom the fund had been assigned, without a breach of the trust. 'The appellee could not hold the -fund as if the same belonged to Rhoads Bros, and claim the right to set-off against it any indebtedness that Rhoads Brothers might be due the appellee. A trustee cannot set-off against the trust indebtedness an independent debt due him individually. The trustee is not a debtor. Therefore, any debt owing by him or due to him individually is not due in the same right or capacity as a trustee, and lacks mutuality. He cannot set-off such debts against the trust fund, but must pay the same to the beneficiary or the one to whom the trust is properly assigned. The trustee cannot in this way reap a personal advantage from his trust relation. 39 Cyc. 479; 24 R. C. L. sec. 16, p. 808; Knowles v. Goodrich, 60 Ill. App. 506; Dodd v. Wishi, 133 Mass. 359; Smith v. Perry, 197 Mo. 438. See also Sorrels v. Childers, 129 Ark. 149.
Having reached the conclusion that, as between Ellis and the appellee, the fund in controversy belongs to Ellis, the other interesting questions presented in the elaborate briefs of counsel pass out. The decree is therefore reversed, and the cause will be remanded, with directions to enter a decree for Ellis in accordance with the prayer of his cross-complaint. | [
48,
109,
-4,
-99,
-118,
-40,
10,
-102,
94,
-85,
101,
91,
-19,
-69,
73,
117,
-93,
93,
-47,
122,
-121,
-13,
123,
-70,
-47,
-109,
-13,
-19,
56,
-52,
-68,
84,
68,
56,
-54,
-103,
-126,
-32,
77,
28,
-36,
-59,
41,
104,
-43,
113,
58,
-81,
4,
73,
117,
-98,
-69,
44,
80,
-61,
101,
-82,
-27,
9,
82,
-8,
-86,
5,
-9,
23,
1,
-62,
-80,
17,
72,
78,
-112,
52,
6,
-24,
87,
-76,
71,
116,
5,
-115,
8,
50,
39,
2,
-47,
-81,
-56,
-100,
14,
-102,
-119,
-91,
-31,
25,
83,
89,
-68,
20,
91,
24,
22,
126,
-8,
69,
21,
40,
3,
-113,
-44,
-89,
-107,
-68,
28,
27,
-17,
-113,
49,
117,
-49,
-93,
93,
5,
50,
-97,
-114,
-71
] |
McCulloch, C. J.
Appellant instituted an action in the circuit court of Crittenden County to recover possession of an undivided half interest in a tract of land in that county, title to which appellant claims as tenant in common of appellees. The statute of limitation was pleaded as one of the defenses, and the cause was transferred to the chancery court on motion of appellees, ap parently without objection on the part of appellant; at least there is no objection urged here.
The facts are undisputed with respect to the origin of the title asserted by the respective parties. The land in controversy was originally owned and actually occupied as a farm by William F. Beattie, who died intestate and without issue in the year 1881, leaving surviving his father, Madison Beattie, and sister and brother, Mary B. McKinney and George A. O. Beattie, respectively. The land was a new acquisition, and under the statutes of this State (Crawford & Moses’ Digest, § 3480) ascended to his father, Madison Beattie, for life, and then descended in remainder to the collateral kindred of the intestate.
Immediately after the death of William F. Beattie, his father, Madison Beattie, took possession of the land and occupied it until he died on July 31, 1885, leaving a last will and testament, by which he undertook to devise the whole of the land to his son, George A. C. Beattie. The will of Madison Beattie was probated in Virginia, where he resided, and also in Crittenden County, Arkansas, and his son, George A. C. Beattie, immediately took possession of the land and occupied it until his death in the year 1919. The appellees are the children and only heirs at law of George A. C. Beattie.
According to the undisputed evidence, George A. C. Beattie was the sole occupant of the land from the time he took possession immediately after the death of his father, and he occupied it as his own and did not share the rents and profits with his sister, the appellant. She testified that she made no claim to the land for the reason that she believed, until after the death of her brother, George A. C. Beattie, that her father, Madison Beattie, had inherited the land in fee simple from William F., and that the title passed to George A. C. Beattie under the will of hér father.
We think that the evidence justified the finding by the chancery court that the possession of the land by the father of appellees was adverse for more than the statutory period, and that such possession constituted an investiture of title. The evidence shows that the possession of George A. G. Beattie was, from the start, adverse and not in recognition, either expressly or impliedly, of the rights of any one else. It is true that, according to the testimony of appellant, both she and her brother were resting under the belief that the latter had acquired title under the will of their father, Madison Beattie, but this does not alter the fact that the possession was in fact adverse to the rights of the cotenant, and constituted in law an ouster, which put the statute of limitation in motion. We say this in full recognition of the rule that possession of one of the cotenants is possession of both, but in this case the adverse occupancy was brought home to appellant as one of the cotenants, and constituted such disseizin as put the statute of limitation in motion.
The facts in the case were sufficient, we think, to completely satisfy the rule stated by this court in Singer v. Naron, 99 Ark. 446, as follows: “In order therefore for the possession of one tenant in common to be adverse to that of his cotenants, knowledge of his adverse claim must be 'brought home to them directly or by such notorious acts of an unequivocal character that notice may be presumed.”
Mere ignorance on the part of appellant concerning her inheritance, or even the joint mistake of law on the part of appellant and her brother as to their respective rights to the land, did not affect the operation of the statute. Ignorance of the law, or even of facts, afford no- immunity from the operation of the statute unless the mistake is caused by fraudulent concealment or misrepresentation. McKneely v. Terry, 61 Ark. 527; Hibben v. Malone, 85 Ark. 584; Conditt v. Holden, 92 Ark. 618, 135 Am. St. 206.
Finding that the court was correct in its decree in favor of appellees on the ground of the bar of the statute of limitation, it is unnecessary to discuss the other grounds upon which the decree is sought to he upheld.
Affirmed. | [
-76,
78,
-68,
12,
-24,
-32,
106,
-102,
66,
-85,
-95,
83,
-21,
-64,
21,
33,
-30,
109,
-27,
121,
-30,
-73,
50,
97,
114,
-13,
-7,
-57,
51,
73,
-18,
-41,
64,
56,
-54,
85,
-62,
-94,
-51,
-34,
-122,
14,
9,
108,
73,
64,
52,
99,
78,
79,
113,
-97,
-30,
42,
29,
-61,
40,
47,
77,
-66,
89,
120,
-117,
5,
127,
20,
1,
118,
-112,
-125,
74,
10,
-104,
49,
4,
-8,
115,
38,
-122,
116,
3,
-103,
12,
102,
98,
40,
-20,
-17,
40,
24,
15,
54,
-107,
-89,
-126,
72,
3,
75,
-74,
29,
122,
-48,
-50,
118,
-32,
-51,
16,
108,
39,
-113,
-42,
-95,
15,
60,
-108,
3,
-53,
3,
48,
112,
-51,
-29,
93,
70,
49,
-101,
-114,
-42
] |
Humphreys, J.
Growing out of an alleged breach of contract between appellant, as landlord, and appellee, J. D. Stratton, as tenant, and an alleged unlawful attack upon 'appellant by appellee, appellant brought suit against appellee, in the White County Circuit Court, to recover possession of the land rented to him, damages for breach thereof, and rents, and for damages to his person inflicted by a gunshot fired by .appellee. It was alleged, in substance, in the complaint: first, that appellant rented 160 acres of land in said county to said appellee, under written contract, for three years, beginning January 1, 1919, and ending December 31, 1922; that the contract provided for J. A. Stratton to set out and cultivate eight acres in strawberries and ten acres in cotton; that he should pay appellant one-half the net proceeds of the berry crop in 1920 and 1921, in part payment of rent, and, in further payment thereof, to deliver appellant one-half of the lint cotton and seed, after paying for ginning same; that appellee failed to plant any cotton, to appellant’s damage in the sum of $200, and failed to divide the net proceeds of the berry crop in 1920, to his damage in the sum of $250; second, that appellee came upon appellant’s premises and unlawfully, maliciously, and feloniously shot him, to his injury in the sum of $10,000.
It was further alleged that said appellee’s codefendant was brought upon the rented land to unlawfully assist him in holding the possession thereof, and was a trespasser. . .
Appellees filed a demurrer to the .complaint upon the ground that it did not state facts sufficient to constitute a cause of action against them.
The court sustained the demurrer, and dismissed appellant’s complaint, over his objection and exception, from which is this appeal.
The only question presented by the appeal for determination is whether the complaint states a cause of action. It is provided by statute in this State that a failure to pay rent when due, after three days ’ written notice to quit, shall constitute an unlawful detainer, justifying an action by the landowner against the tenant for the possession of the premises. Sec. 4838, Crawford & Moses ’ Digest. This is true, regardless of whether the rental contract or lease makes a failure to pay rent a ground of forfeiture. Parker v. Geary, 57 Ark. 301. The facts alleged in the complaint meet all the statutory requirements of an action for unlawful detainer. The court erred therefore in sustaining the demurrer.
.An attempt was made to join an action sounding in tort with an action for unlawful detainer, but this was not ground for demurrer. This error should have been met by a motion to strike the action improperly joined, or to require appellant to elect as between the actions pleaded. Jett v. Theo Maxfield Co., 80 Ark. 167.
For the error indicated the judgment is reversed, and the cause is remanded, with directions to overrule the demurrer to the complaint. | [
-80,
107,
-4,
-115,
26,
104,
10,
-68,
115,
-95,
119,
-41,
-7,
-41,
24,
45,
-31,
109,
85,
120,
69,
-77,
11,
98,
-48,
-45,
-23,
-43,
-80,
79,
-3,
-42,
64,
53,
-62,
17,
-62,
-62,
-87,
28,
-114,
-127,
-85,
96,
-43,
64,
48,
-71,
84,
75,
81,
-122,
-13,
34,
81,
-37,
73,
41,
-53,
45,
-32,
-24,
-102,
13,
-53,
22,
-80,
103,
-102,
3,
-56,
92,
-112,
49,
9,
-24,
115,
54,
-126,
116,
7,
-103,
12,
38,
102,
18,
-19,
-81,
-120,
-71,
47,
-66,
-115,
-90,
-80,
64,
91,
8,
-66,
-99,
116,
84,
71,
118,
-4,
-43,
21,
104,
3,
-57,
-108,
-13,
13,
-80,
-106,
3,
-25,
7,
32,
113,
-49,
-94,
93,
103,
113,
-101,
-113,
-33
] |
McCulloch, C. J.
This is an action instituted against appellant, a fraternal benefit society, on a benefit certificate or policy of insurance, issued by appellant to Henry C. Mode, one of its members, the amount of the benefit being the sum of $1,000, payable on the death of the member to the appellees, three of his minor children, who sue by their guardian.
Henry C. Mode joined the society and received his benefit certificate on March 19, 1920, and came to his death on May 11, 1920, from a pistol shot wound which entered his right temple and went clear through his head.
The application for membership contained a stipulation, in accordance with the laws of the order, which reads as follows:
“I further agree that if, within two years after becoming a 'member, and the date of my certificate, my death shall occur by suicide, whether sane or insane, except in delirium resulting from disease, or while under treatment for insanity, then the only sum which shall be paid or which is payable to my beneficiaries named in my beneficiary certificate shall be the amount which I may have paid into the beneficiary fund of the order during the term of my membership. ’ ’
Liability on the part of the society is denied on the ground that Henry O. Mode came to his'death bv suicidal act which did not fall within anv of the exceptions stated above. In other words, the contention is that death resulted from suicide committed while not in delirium resulting from disease. On the other hand, the contention of appellees is that the evidence is sufficient to warrant the finding, in the first place, that death (lid not result from suicide, and that, even if it was suicide, the act was committed during “delirium resulting from disease.” It is conceded that the deceased was not under treatment for insanity, and that there had been no judicial declaration of insanity. There was a trial of the issues before a jury, resulting in a verdict in favor of appellees.
There is little, if any, conflict in the 'statements of the witnesses concerning the facts of the case, but there are conflicting contentions of the respective parties concerning the inferences which may be drawn -from the testimony. Appellees contend that the evidence warranted a finding that deceased did not take his own life, and that, if he did so, he was laboring under delirium resulting from disease. On the other hand, counsel for appellant contends that the undisputed evidence shows that deceased committed suicide, and that there was no evidence at all that he was laboring under delirium at the time.
Henry O. Mode and his wife resided in their own home at 1819 Louisiana Street, in the city of Little Rock, at the time his death occurred. Mode owned the property, and lived in the lower story, but rented the upper story to Mr. and Mrs. Chaney. About one o’clock on the day in question Mrs. Chaney was on her sleeping-porch, and heard two shots fired below. Other witnesses heard the shots, and when the house was entered Mrs. Mode was found dead in the doorway between the kitchen and the sleeping-porch, and Mode himself was found in a dying condition, lying on the bed on the sleeping-porch. Mrs. Mode was shot through the head, and Mode was, as before stated, shot through the temple. Mode had a .45 calibre army pistol in his hand when found, and died within a few minutes after his condition was discovered. The ‘pistol turned out to be one owned by Mr. Chaney, which was kept in a scabbard lying on top of a wardrobe trunk on the sleeping-porch upstairs. Mr. Chaney was not at home on the day in question, and did not testify as a witness in the case. Mrs. Chaney was a witness, and she identified the pistol as one belonging to her husband, and stated that she did not know how it came into the possession of Mode.
Mrs. Chaney testified that on the day in question she went up town for awhile, and on her return a little after noon she stopped in the rooms below for a few words with Mrs. Mode, the wife of deceased. She testified that before she left that morning Mrs. Mode stated, in a conversation with her, that Mr. Mode was angry, and the witness stated that when she returned she saw Mode sitting on a trunk on the sleeping-porch, and his appearance was such that it excited her fears, and that she went upstairs and locked herself inside the sleeping-porch. She said that Mode had a set, angry, or mean look, as she expressed it, on his face. She testified further that Mode was an automobile mechanic, but had not been at work for several days or longer. This witness testified that Mrs. Mode was ironing at the time with an electric iron, and, when the witness discovered the body, after the firing of the shots, the iron was found in the kitchen, on the board, still heated, and had burned through the cloth on which it rested.
Mrs. Chaney testified that, after the shots were fired, when she came out on the sleeping-porch, she found in front of her door a sealed envelope addressed to Mode’s brother at Conway, his former home; that she took the letter down stairs and' laid it on the railing, where menu hers of the police force, who came in a few minutes láter, found it and picked it up. Captain Pitcock of the police force testified that he ooened the envelope and found, a letter therein signed by H. C. Mode, and addressed to his brother at Conway. He read the letter, and he and another police officer who heard the letter read testified concerning its contents. Proof was made that the letter had been lost. Thev testified that, the letter snoke, in substance, of the writer preparing to commit some deed or leave for some place, and requested his brother to look after his children, and expressing the hope that they would meet in heaven. The witnesses also testified that there was an inside envelope, on which was written the words, “fragments of our trouble,” or “scraps of our trouble,” and that on tearing open this inner envelope it was found to contain writings torn to fragments and in such small pieces that the writing on the paper could not be deciphered.
The proof shows that the two shots were fired a few minutes apart, and there were no sounds of voices heard, though one of the witnesses testified that after the first shot was fired he heard a sound like a body falling on the floor. A bullet hole was found through the pillow and mattress on the bed on which Mode’s body was lying.
The shooting occurred, as 'before stated, in broad daylight, and the testimony of the various witnesses is conclusive of the fact that there were no other inmates in the house except Mode and his wife and Mrs. Chauev.
We are of the opinion that the proof is conclusive that the death of Mode resulted from his own act in firing a pistol shot through his head, immediately after having killed his wife.
There is, as we have often held, a presumption against suicide, 'but it is a rebuttable presumption, and we think that the presumption in this case has been entirely overcome by the undisputed proof. It is unnecessary to discuss in further detail the evidence in the case, but it would do violence to reason to «ay that, under the circumstances of this case, as proved, the death of Mode could have occurred in any other way except by his own act.
The further question arises whether or not there is enough testimony to warrant the conclusion that the act was committed by Mode while laboring under “delirium resulting from disease.”
There are many reasons for believing that the act was not prompted by a sane and balanced mind. There are no sufficient reasons, in the first place, shown for the tragic homicide and the suicide which immediately fob lowed. Little, if any,'motive is shown, even if the testimony as to Mrs. Mode’s statement to Mrs. Chaney, introduced by appellant, be held to be admissible. The man-' ner in which the man attempted to communicate with his brother and the fragments of the writing inclosed in the envelope afford strong circumstances tending to show that the man’s mind was unbalanced.
Insanity alone, however, is not sufficient to justify the suicide under the contract and to permit recovery on the policy. Whether sane or insane, the act must be done under delirium resulting from disease in order to justify recovery on account of death caused by suicidal act.
There is sufficient proof that deceased was suffering from the disease of diabetes. A physician at Conway, the former home of deceased, testified that he examined deceased about three weeks before the tragedy and found that he was suffering from diabetes. This physician also testified as an expert witness, and stated that the disease in question ordinarily affects the nervous, system and brain of the sufferer, that the subject becomes emaciated, loses appetite, and develops many complications; that it causes nervousness, loss of sleep, and affects -the eyesight. He stated that sometimes patients suffering from that disease will lapse into coma and frequently into delirium — that they have hallucinations. In other words, the witness stated that the disease frequently causes delirium and hallucinations.
According to this testimony, if the jury found that the deceased was laboring under delirium or some hallucination at the time he committed the suicidal act, it was the result of the disease described by the physician.
We must accept the word “delirium,” as used in the policy or benefit certificate, in its ordinary sense. The word is defined as follows: “A morbid condition, often the result of fever, in which mental action is abnormally rapid, incoherent, and characterized by illusions, hallucinations, or erratic fancies; wandering of the mind,” Standard Dictionary. In another dictionary it is defined as follows: “A more or less, temporary state of mental disturbance, which manifests itself by mental irritation and. confusion, more or less transitory, delusions and hallucinations, disordered, senseless speech, and motor unrest; mental aberration; a roving or wandering of the mind. It occurs in insanity, but usually results from a fever or some other disease, from intoxication, or from injury.” Webster.
• There was evidence sufficient to justify the conclusion that the deceased was laboring under a delirium resulting from disease at the time he committed the suicidal act. His own conduct at the time and immediately theretofore manifests the elements of delirium, illusions or hallucinations, which, according to the testimony of the physician, resulted from his physical disease. The testimony of Mrs. Chaney is not against the theory of delirium on the part of the deceased, but, on the contrary, it supports that theory. She testified that when she last saw Mr. Mode, as she stárted upstairs, he was sitting on a trunk and was “staring at Mrs. Mode;” that he had “a rigid expression,” and “looked mean, too.” The jury would have been justified in believing that Mrs. Chaney misinterpreted the emotions of deceased as manifested by the expression on his countenance, but it justified the conclusion that those emotions were unusual and manifested a state of mind not normal.
There is other evidence in the case tending to show that Mode had been a sick man for several weeks, and we are of the opinion that the inference was justified that he was in a state of delirium, within the meaning of the policy, at the time he committed the homicidal and suicidal acts.
The only question urged on this appeal is that of the lesral insufficiency of the evidence, and we are of the opinion that the evidence was sufficient to justify the finding of fact upon which the contract imposes liability. The judgment is therefore affirmed, | [
-80,
92,
-40,
-114,
8,
96,
72,
26,
114,
-30,
37,
115,
-23,
-45,
68,
111,
-23,
45,
113,
105,
-75,
-73,
23,
11,
-13,
-13,
-29,
-59,
-79,
77,
-18,
-3,
8,
40,
-22,
80,
-62,
10,
-59,
-36,
-114,
-116,
-103,
-31,
25,
16,
48,
118,
-36,
15,
117,
-34,
-93,
46,
31,
-50,
41,
104,
73,
-88,
-64,
-79,
-113,
13,
-21,
19,
-93,
70,
-68,
-115,
-53,
26,
88,
-79,
68,
-8,
17,
-74,
-122,
52,
103,
-119,
-116,
102,
103,
-127,
81,
-19,
-88,
-120,
-113,
30,
-67,
-121,
-74,
85,
49,
45,
-107,
-39,
112,
52,
15,
126,
120,
-44,
29,
40,
1,
-97,
-42,
-95,
-34,
-8,
-36,
-85,
-5,
43,
48,
113,
-49,
114,
92,
71,
126,
-101,
14,
-106
] |
Smith, J.
This is a suit by appellee to quiet his title to two tracts of land which were owned by one J. H. Cates at the time of his death. The complaint alleges the proceedings in the probate court whereby the administrator of Cates was directed to sell the land, and at the administrator’s sale appellee, John Henry Cates, was the purchaser. This sale was duly approved and confirmed by the probate court, and on the — day of January, 1914, the administrator executed and delivered his deed to said lands to John H. Cates, and that deed was approved by the court and duly recorded. Actual and continuous possession of the land by appellee since the date of this deed was alleged and proved.
The description contained in the administrator’s deed to appellee was “frl part of NE¼ section 6, township 19 S., range 15 W., 126.81 acres; frl E½ of NW¼ section 6, township 19 S., range 15 W., 66 acres.”
It is conceded that the administrator’s sale was regular in all respects except as to the description of the land. In all the court proceedings leading up to the administrator’s sale the land was described as follows: “Fractional NE¼ section 6, township 19 S., range 15 W., 126.81 acres. Fractional E½ of NW¼ section 6, township 19 S., range 15 "W., 66 acres.”
The fractional E½ NW¼ section 6 was described as containing 66 acres, when, in fact, its area is 69:47 acres; hut the intestate owned it all.
The area of fractional NE¼ section 6 was recited in the deed is 126.81 acres, when, in fact, that quarter section contained 141.81 acres, there being 15 acres in this quarter section owned by a man named Johnson which was never claimed by the intestate Cates.
Section 6 is shown by the government survey to he a fractional section, and the word “fractional” was copied from the survey,.and has remained associated with the description thereof since the survey was made, and was used in the patents from the United States, and appears to have been used in the mesne conveyances.
The heirs and the administrator of J. H. Cates were made defendants. One of these heirs is Desimus Cates, who is a minor and a grandson of J. H. Cates, and there was a prayer that a guardian ad litem be appointed for this /minor, and, upon that appointment being made, an answer was filed for him attacking the entire probate proceedings, and praying judgment for an undivided one-sixth interest in the land, this being the interest the minor has in the land .if the probate sale is void. The other defendants made default, and the court granted the relief prayed, and this appeal has been prosecuted on behalf of the minor child.
The appellee contends, and the court found, that the description of the land employed in the proceedings of the probate court leading up to the execution of the administrator’s deed sufficiently described the land, and that the use of the word “part” in connection with the description of the NE fractional quarter of section 6 in the administrator’s deed is a mere clerical error, and does not affect the validity of the sale, and that appellee was entitled to have the administrator’s' deed reformed to conform to the description employed in the court proceedings.
Appellant contends that the description employed in the probate court proceedings was also insufficient, and that the sale was therefore void.
It is insisted that the abbreviation “frl.,” when used in connection with a land description, is synonymous with the word “part,” and when that term is used the description is void for uncertainty. A number of cases are cited in which this court has held that the word “part” is an insufficient description.
But the words “fractional” and “part” are not synonymous. In the case of Graysonia-Nashville Lbr. Co. v. Wright, 117 Ark. 151, this court held that “fractional,” when used in connection with a subdivision of a section in describing it, means either that there is more or less land than is usually contained in such de scriptions, and generally less, in the sectionizing of same by the government survey.
It is pointed out that the fractional E½ NW¼ section 6 is described as containing 66 acres, when the correct area of this half of the quarter section is, in fact, 69.47. This difference is not of controlling importance. The description, fractional E½ NW¼ section 6, purports to convey the east half of the quarter section, and is sufficient to do so, although the acreage is not correctly stated.
In the case of Rucker v. Arkansas Land & Timber Co., 128 Ark. 180, it was said: “A description used on taxbooks, like a description used elsewhere, has reference to government surveys, and a mere specification of the section or subdivision thereof is sufficient. If it is in fact a fractional section or subdivision, it is so indicated on the government survey, and it is unnecessary to use the word ‘fractional’ as á descriptive word, and, on the other hand, the improper use of the word, when the section is not fractional, does not invalidate the description. The fact that the acreage is stated incorrectly does not lessen the certainty of the description.”
Counsel argues that this court, in so holding, misapplied the decision in the case of Little Rock & Ft. Sm. Ry. Co. v. Evins, 76 Ark. 261, which was there cited, for the reason that in the last-mentioned case the abbreviation “frl.” followed the quarter section to which it related, whereas in the Rucker case the abbreviation “frl.” preceded the quarter section to which it related.
We think this difference unimportant. “Frl. E½ NW¼ section 6” is identical in meaning with “E½ NW frl. ¼ section 6.” Either description would cover all the land in the E½ NW¼ section 6, and the employment of the abbreviation “frl.” would indicate only that the half of the quarter section described was of irregular size. This is the necessary effect of the two cases cited above. See 'also Brinkley v. Halliburton, 129 Ark. 334.
What we have just said is equally applicable to the description frl. NE ¼ section 6. It is insisted, however, that, while appellee claimed all of the E½ NW¼ section 6, he admits that he did not acquire title to 15 acres in the NE¼ section 6. This is true; but both descriptions purport to convey all the land the intestate owned in both quarter sections. The administrator sold all land owned by the intestate in both quarter sections, and there was employed throughout the court proceedings a description sufficient to cover that interest, as it included the half of one quarter section and all of the other. There is no attempt to acquire, or to cloud, the title to Johnson’s 15 acres. Indeed, a description is now furnished which expressly excludes Johnson’s land from the description in the deed.
The effect of the decision of the court below is that the proceedings in the probate court sufficiently described the land owned by the intestate to pass his title thereto upon the confirmation of the sale thereof; and, this being true, it was proper to so reform the administrator’s deed as to properly evidence that fact. 4 Pomeroy’s Eq. Jur. 871 and 1376.
The decree of the court below is therefore affirmed. | [
-16,
108,
-36,
-8,
-70,
-32,
10,
-120,
106,
-16,
-75,
83,
-19,
18,
1,
37,
-9,
45,
81,
123,
-25,
-77,
114,
-93,
16,
-77,
-11,
-35,
-12,
77,
124,
-42,
76,
36,
74,
-107,
-58,
-30,
-51,
92,
94,
13,
-88,
-23,
-37,
64,
56,
43,
82,
77,
85,
63,
-5,
46,
17,
67,
104,
44,
-1,
-88,
-120,
-6,
-70,
-108,
121,
30,
48,
71,
-38,
75,
74,
-118,
-110,
53,
-116,
-24,
83,
-74,
86,
-12,
3,
-117,
40,
34,
102,
17,
-55,
-25,
-16,
-40,
14,
-14,
-103,
-90,
-61,
88,
67,
104,
-74,
-104,
120,
-128,
-113,
-2,
-26,
21,
92,
104,
-123,
-81,
-42,
-125,
78,
-8,
-120,
3,
-5,
-101,
48,
80,
-55,
-94,
92,
103,
52,
27,
-114,
-48
] |
Smith, J.
Appellant was arraigned on an indictment containing two counts. The first count charged that he had robbed E. J. Mason. The second count charged that Jim Wise had robbed Mason, and that-defendant had concealed the crime and had harbored and protected the criminal, thereby becoming an accessory after the-fact.
There was a demurrer to the indictment, and a motion to require the. State to elect, both of which were overruled, and exceptions saved. The testimony was di rected entirely to an effort to prove the allegations of the first count, and no testimony- was offered in support of the second count. At the conclusion of all the testimony, and upon the submission of tlie case to the jury, an instruction was given in which the jury was advised that the State elected to stand on the first count alone, and did not ask a conviction upon the second count. Defendant was found guilty on the first count, and his sentence fixed at five years in the penitentiary. He thereafter filed a motion in arrest of judgment, in which he again called into question the sufficiency of the indictment, because it contained the two counts.
These counts should not have been joined, and the court should, at the beginning of the trial, have compelled the State to elect, because the offenses charged are not the same, and there is no statute authorizing them to be joined. One may be charged with having committed a crime himsélf, and as being an accessory before the fact to its commission, in different counts of the same indictment, and no election in such cases will be required; but this is true because the crime charged is the same, and the counts merely allege different methods by which it was committed. Harper v. State, 151 Ark. 338; Gill v. State, 59 Ark. 423.
When one becomes an accessory after the fact, a second crime is committed. It is a crime which is committed by one who has full knowledge that a first crime has been committed, and who, with such knowledge, conceals it from the magistrate, or harbors and protects the person charged with, or found guilty of, the crime. Sec. 2310, C. & M. Digest; Joyce on Indictments, § 394.
But, inasmuch as no testimony was offered in support of the second count, and the jury was instructed to consider only the question of defendant’s guilt of the first count, no prejudice resulted, and the motion in arrest of judgment was properly overruled.
Defendant assigns as error the action of the- trial court in admitting, over his objection, the testimony of Charles Craig, chief of police of Jonesboro, as to an arrest of defendant on a charge of robbery occurring in April, 1922, five months previous to the robbery of Mason, and detailing a conversation he had with defendant while he had him under arrest. Craig testified that while he had defendant under arrest he searched his room, and found an old hat, doubled up in the pocket of a coat, which defendant admitted was his. He also found a mask in one of the pockets of the coat, and a pistol'under the pillow on the bed, and in the pocket of one of the doors of defendant’s automobile he- found a sandbag, but defendant denied knowing that the sandbag was in the car. Craig further testified that a sandbag was an instrument used by hold-up men in cases of robbery, the victim being struck with it and rendered unconscious without being killed. Craig exhibited to the jury the hat, mask and sandbag* referred to.
We think no testimony should have been admitted in reg’ard to the commission of the first robbery, as there was no relation whatever between it and the robbery of Mason; and the majority think, for the same reason, that testimony should not have been admitted in regard to the hat, mask and sandbag.
In 23 R. C. L., p. 1157, it is said: “On the trial of one indicted for robbery, as in the case of other criminal prosecutions, the general rule is that evidence is not admissible which shows, or tends to show, that the accused has committed a crime wholly independent of the offense for which he is on trial. Under this rule, therefore, evidence of another separate and distinct robbery, committed the preceding night, by the defendant u-pon another person, in the same neighborhood, in much the same way, is not admissible in evidence against one who is being* tried for robbing a pedestrian on the street in a city by pointing* a pistol at him. Such is not an exception to the.rule that evidence of matters other than those charged in the information are inadmissible. It is only when the testimony as to the separate offense will have some tendency to prove the offense charged in the information that it is admissible. It must therefore have' some logical connection with the offense charged.”
In the opixxioxx of the writer, the testimoxxy about fixxdixxg the mask axxd sandbag was competent, for the reasoxx that the instrumexxts mexitioxxed are those of crimixxals, used ixx the commission of crime, axxd proof of their possessioxx tended to show that defexxdant was equipped axxd prepared to commit the crime charged. It was a circumstaxxce of probative value on the question of idexxtity, ixxasxnuch as the defexxse offered was that defexxdaixt had xxot beexx sufficiently idexxtified as the robber, the robbers being masked at. the time the crime was committed, although there was no proof that a saxxdbag had beexx used in robbixxg Masoxi.
Ixx admitting the testimoxxy of Craig, the prosecutixxg attorxxey said he would ask the couxd to instruct the jury that it was to be eoxxsidered for xxo purpose unless the jury fouxxd that these articles were possessed by dcfexxdaxxt for the purpose of robbeiy, axxd uxxless they further fouxxd that they had somethixxg to do with the robbeiy at Jonesboro about which Craig had testified, and the court limited the testimony as requested. But, as thus limited, it was not rendered competent, for the consideration of the testimory involved a determination by the jury of the question whether defendant had anything to do with the robbery at Jonesboro, a circumstance which the State had no right to prove for any purpose.
The court permitted the State to introduce and examine Ed Carey, whose name was not indorsed on the indictment. We considered this question in the recent case of Cole v. State, 156 Ark. 9, and held that the court should, on the application of the accused, require the State to indorse the names of the witnesses on the indictment, or to furnish the accused a list thereof. In that case, as in this, there was xxo showing that the witness in question had testified before the grand jury, and we held that § 3010, C. & M. Digest (the statute requiring the names of witnesses examined before the grand jury tó be indorsed on the indictment) was directory, and in this case, as in that, no effort was made to show that the witness in question introduced any issue of fact which took the defendant by surprise. .
The court permitted Craig to testify that when Mason returned to Jonesboro, where he lived, Mason told him he recognized defendant, who also lived in Jonesboro, as one of the men who had robbed him. This was error. In the case of Rogers v. State, 88 Ark. 451, the syllabus reads as follows: “In a prosecution for robbery the prosecuting witness cannot be corroborated by proof that, two hours after the robbery, lie stated to a police officer that defendant committed the robbery, nor is such testimony admissible as part of res gestae.”
An instruction was asked on the subject of the sufficiency of testimony to support a conviction where the State relied wholly on circumstantial evidence to secure the conviction, but the court refused to give it, and an exception was saved. A sufficient reason for refusing to give this instruction was that the State did not rely wholly on circumstantial evidence. Nordin v. State, 143 Ark. 364.
For the errors indicated the judgment will be reversed and the cause remanded for a new trial. | [
112,
-8,
-84,
-66,
27,
96,
40,
-72,
-126,
-30,
-28,
-109,
-19,
78,
0,
59,
-119,
123,
85,
97,
-60,
-77,
23,
75,
-78,
-77,
25,
-41,
-74,
79,
-81,
-4,
4,
52,
66,
-43,
102,
-118,
-27,
88,
-50,
-128,
-88,
97,
-14,
66,
116,
103,
20,
47,
113,
30,
-5,
42,
51,
67,
105,
40,
95,
-65,
-32,
-7,
-104,
5,
-51,
22,
-77,
39,
-65,
71,
88,
46,
-40,
57,
0,
-40,
115,
-106,
2,
-44,
111,
25,
-116,
98,
98,
0,
-99,
-61,
-80,
-47,
62,
54,
-99,
-25,
-48,
73,
75,
44,
-74,
-35,
-17,
52,
46,
98,
-27,
69,
17,
108,
-127,
-18,
-10,
-79,
-51,
52,
-50,
19,
-29,
-127,
0,
112,
-52,
-30,
92,
69,
115,
-101,
-57,
-47
] |
Humphreys, J.
This suit was commenced in the Western District of the Clay Circuit Court by appellee, J. R. Briney, against appellant to recover an alleged balance of $2,410.29 upon a written contract entered into on the 23rd day of July, 1919, by and between appellant and appellee, J. R. Briney, for the manufacture and delivery of different kinds of lumber oh board cars at Tipperary, Arkansas, at prices specified in the contract.
Appellant filed an answer admitting the execution of the contract, but alleging breaches thereof by said appellee, in failing to manufacture grades contracted for, and in failing to deliver same as per contract. By way of further defense, appellant pleaded that it was compelled to purchase a superior title to that of appellee to said lumber from George A. Burr and W. O. Poole, who had a lien thereon for the purchase money of the timber out of which the lumber was manufactured, and asked to be subrogated to the rights of Burr and Poole. It also alleged that Burr and Poole warranted the title thereto and agreed to hold it harmless. It also alleged that George Booser was the real party in interest, instead of J. R. Briney, and asked that Booser, Burr, and Poole be made parties defendant in its cross bill against them and Briney, in which it was alleged that said appellant sustained $5,000 damages on account of a failure to deliver the lumber to it.
George A. Booser filed an answer denying any interest in the litigation.
George A. Burr and W. O. Poole filed an answer denying that they guaranteed a title to the lumber when they sold same to appellant, but asserted a right to sell same under a vendor’s lien, retained by them in their timber- deed of date September 19, 1918, to F. C. Mullinix as trustee in bankruptcy of George A. Booser, bankrupt, from whom said appellee, J. R. Briney, purchased the logs out of which the lumber in question was manufactured. They asked and obtained a transfer of the cause to the chancery court of the Western District of said -county for the purpose of enforcing their alleged lien rights against the timber and lumber.
The cause was submitted to the court upon the pleadings and testimony, which resulted in a dismissal of appellant’s cross bill and a judgment against appellant in favor of appellee, J. R. Briney, in the sum of $839.43 with interest, from which is this appeal.
The record reveals that on the 19th day of September, 1918, George A. Burr, W. O. Poole, and his wife, Dora C. Poole, conveyed the timber on 1,566.42 acres of land in the said county to F. C. Mullinix, trustee in bankruptcy of George A. Booser, bankrupt, for $20,000, $1,000 cash, and the balance in deferred payments, evidenced by said trustee’s certificates. The deed contains the usual granting, habendum and warranty clauses appearing in deeds of real estate. It also contains the following clauses:
“If default be made for a period of thirty days in the payment of principal and interest, the entire remaining purchase money and interest to become immediately due and payable,- and at such time all cutting, removing and manufacturing of the timber herein sold shall immediately cease. “And in consideration of the foregoing grant the said F. C. Mullinix, as trustee in bankruptcy, agrees that he will pay every sixty days for all timber removed by him from any lands, at the rate of two dollars per thousand feet for all soft wood, and five dollars per thousand feet for all hard wood, the amount of such payments to be credited on the notes first falling due after payments. Said W. O. Poole and George A. Burr retain a lien on all timber herein conveyed, except as herein provided, until said notes and interest be fully paid.”
The timber deed was placed on record immediately after execution and delivery. F. C. Mullinix cut and removed a large amount of timber, and cut quite a little which he did not remove. The down timber was principally in section 24. Mullinix sold the down timber in that section to J. R. Briney, who manufactured about 362,000 feet of it into lumber. Briney produced his returned check for $886.06, payable to F. C. Mullinix, evidencing that he had paid the contract stumpage price for the timber. George A. Booser testified that he kept the books for F. C. Mullinix, trustee, showing the amount of all timber cut and all money paid by Mullinix to Burr and Poole under the timber deed. According to his testimony, which was undisputed, Mullinix cut 1,365,157 feet of soft wood, and 352,546 feet of hard wood, paying therefor the stumpage price of $2 per thousand for soft wood and $5 per thousand for hard wood, or a total of $4,358.02, in .addition to $1,000 cash paid by him when the contract was entered into. Prior to the time Burr & Poole declared a forfeiture for the nonpayment of the purchase money due by F. C. Mullinix. trustee, J. R. Briney purchased the down logs in said section 24. During the period of default on the part of Mullinix, and before the forfeiture was declared, J. R. Briney entered into a written contract with appellant which is made the basis of this suit, and manufactured 275,589 or more feet of lumber which was stacked on the mill yard and marked by appellant’s agent, upon which appellant advanced $544.39, and afterwards expended $1,237.36 in hauling and placing same on board cars at Tipperary. This contract provided, in substance, for the cutting of not less than 200,000 and not more than 1,000,000 feet of lumber of different kinds by Briney. for appellant, at fixed prices; that the lumber should be log run No. 2, common and better; that the lumber should average not more than 20 per cent. No. 2; that said lumber .should be first stacked and dried at a sawmill on the land. and. after inspection, hauled to ,Tipperary and placed oil board cars by. Briney at Ms expense, when directed to do so by appellant; that advances shoMcl be made to Briney every two weeks, as the lumber was being manufactured, at the rate of $14 or $15 per thousand, balance to be paid when loaded on cars; that appellant should be allowed 2 per cent, discount on cash advanced.
Long after the lumber had been manufactured and stacked, to-wit: in the month of March, 1920, Burr & Poole declared a forfeiture because Mullinix defaulted in the payment of the purchase money certificates, and served notice on all parties that they claimed a lien on all the timber, including the lumber stacked on the mill yard. Thereupon appellants purchased the timber and lumber from Burr & Poole, and obtained a quitclaim deed thereto from them. Immediately after obtaining the deed, appellant took charge of the lumber, inspected, sold, and shipped same to its customers.
The testimony adduced by appellant tended to slow that it gave appellee every opportunity to haul and place the lumber on board cars at Tipperary, and that he refused to do so, and abandoned his contract. The testimony adduced by said appellee tended to show that he requested* appellant to permit him to haul and place the lumber on board cars, and that appellant refused to let him do so. We deem it unnecessary to set out the testimony upon this issue. Suffice it to say that, after a careful reading thereof, we cannot say that the finding of the chancery court, to the effect that Briney did not breach the contract is contrary to a clear preponderance of the evidence.
Appellant contends that the chancery court erred in holding that it obtained title to the lumber in question from Burr & Poole through Mullinix and Briney. It is argued that because Mullinix made default in the payment of the purchase money he automatically forfeited all right to cut the standing timber and to sell' or remove the down timber. In support of this argument appellant relies upon the following clause in the timber deed of date September 19, 1918:
“If default be made for a peifiod of thirty days in the payment of principal and interest, the entire remaining purchase money and interest to become immediately due and payable, and at such time all cutting, removing and manufacturing of the timber herein sold shall immediately cease.”
Appellee Briney made the contention that the clause quoted had no application to down timber which had been paid for according to the stumpage prices fixed in the deed. In support of this contention appellee relies upon the following clause in said timber deed:
“And in consideration of the foregoing grant the said F. C. Mullinix, as trustee in bankruptcy, agrees that he will pay every sixty days for all timber removed by him from any lands, at the rate of two dollars per thousand feet for all soft wood, and five dollars per thousand feet for all hard wood, the amount of such paym'ents to be credited on the notes first falling due after payments.”
Our interpretation of the evidence makes it unnecessary to determine, under the terms of the contract, whether down timber which had been paid for according to the fixed stumpage prices had been released from the vendor’s lien retained in the deed. At the time Briney purchased the logs from Mullinix and during the time he manufactured, the lumber, no forfeiture was declared by Burr & Poole. On the contrary, after default in the payment of the purchase money, they made continuous efforts to collect same. They permitted Briney to manufacture the down logs, which he had purchased from Mullinix, into lumber for appellant. We think Burr & Poole clearly estopped, by this contract, from asserting a lien upon the down logs for which it had been paid according to stumpage prices. Appellant acquired the right to the possession of the lumber, upon which it had made advances, from Briney. It was therefore unnecessary for appellant to purchase the pretended claim from Burr & Poole to the lumber in order to get possession thereof.
Appellant also contends that the court erred in stating the account between it and Briney. The alleged error consists in the fact, first, that the court made no allowance to appellant on account of there being more than 20 per cent, of No. 2 common, in the lot of lumber. The record fails to show that appellant sustained any damage on this account; second, -that the court charged appellant $15 per thousand for No. 3 lumber. The contract did not specify any price for No. 3 lumber. Testimony adduced was conflicting as to the value of that grade of lumber, and the court’s finding that it was worth $15 per thousand is not contrary to the clear preponderance of the evidence.
Appellant’s last contention is that the court erred in dismissing his crossbill against George A. Booser, George A. Burr and W. O. Poole. The record does not show that Booser had any interest in the litigation, and he disclaimed any. The timber deed procured by appellant from Burr & Poole to the lumber in question was a quitclaim deed. It is true, it contained an agreement to defend all suits which might be brought by Mullinix, or his assignees, for the purpose of defeating title to the timber conveyed. The expense of defending the suit was not made an issue in the case. The crossbill against all three of the parties was properly dissmissed.
No error appearing, the decree is affirmed. | [
80,
112,
-4,
-115,
8,
104,
42,
-70,
113,
-95,
37,
87,
-1,
-57,
1,
37,
-25,
121,
117,
106,
-27,
-77,
19,
75,
83,
-109,
-47,
-25,
-72,
-53,
-27,
-41,
12,
48,
-54,
21,
-61,
-30,
-51,
28,
78,
-96,
61,
-20,
-39,
113,
48,
-49,
116,
75,
97,
-122,
-5,
45,
24,
75,
73,
44,
109,
9,
82,
-71,
-78,
-123,
-35,
22,
1,
70,
-104,
1,
104,
28,
-112,
53,
10,
-32,
115,
-74,
-58,
-44,
1,
-99,
8,
102,
103,
2,
-123,
-25,
-120,
-72,
46,
-70,
29,
-90,
48,
72,
19,
72,
-65,
-99,
122,
80,
20,
122,
-17,
69,
29,
108,
3,
-113,
-74,
-125,
-113,
108,
-100,
-109,
-49,
-89,
52,
84,
-97,
-96,
93,
7,
82,
-101,
-113,
-37
] |
Humphreys, J.
This is an appeal from the Benton Circuit Court, challenging the right of appellee' to recover commissions for negotiating a sale of the stock of merchandise owned by appellant to one Hughes. The material issues presented by the pleadings in the trial court and upon which the case turned were, first, whether appellee expressly warranted the financial ability of the proposed purchaser, Hughes; second, whether the contract entered into between appellant and Hughes was for the sale and purchase of said stock or merely an option for the sale thereof. The cause was submitted to the court, sitting as a jury, upon the issues joined and the testimony adduced, which resulted in a verdict that appellee did not warrant the financial condition of the purchaser produced by him, and that appellant accepted said purchaser and entered into a valid contract with him for the sale of said stock of merchandise. Based upon the findings, a judgment was rendered in favor of appellee for a commission in the sum of $237.50.
Appellant’s first insistence for reversal is that the undisputed evidence shows that appellee warranted the financial condition of the proposed purchaser, Hughes, to pay cash for the stock of merchandise on a basis of $1.05 on the dollar, according to the invoice price thereof; that when the invoice was about -completed, showing the total value of the stock to be about $8,500, said purchaser was unable financially to pay for same. Appellant testified that his contract with appellee provided that he should produce a purchaser able and willing to buy the entire stock of merchandise, and that, when he produced Hughes, appellee informed him that Hughes was A No. 1, and had a “barrel of money.” Appellee denied making the statement attributed to him. but, on the contrary, said that when he had found Hughes he and appellant went to Mr. Nowlin, cashier of the American National Bank, and inquired of him concerning the financial ability of Mr. Hughes, and were informed by the cashier that Hughes was A No. 1, whereupon appellant entered into a written contract with Hughes for the sale of the stock at $1.05 on the dollar, the total amount to be determined by the invoice. These conflicting statements made the issue of whether appellee warranted the financial condition of Hughes a disputed question of fact, and the finding of the court against appellant is conclusive. The finding is supported by evidence of a substantial character.
Appellant’s next and last insistence for reversal is that the undisputed evidence shows that the contract was an option to buy, and not a sale of the stock of merchandise; that the purchaser refused to take the stock after the invoice was about completed, and for that reason appellee should not receive a commission' under his contract to sell the stock of merchandise. The record reflects that appellee agreed to sell the stock, or at least to produce a purchaser acceptable to appellant, for which services he was to receive the usual real estate commission of 5 per cent, on the first $1,000 and 2% per cent, on each additional $1,000 shown by an invoice; that appellee produced Hughes, with whom appellant .contracted in writing for the sale-of the stock. The written contract was lost. According to the oral evidence, establishing the contents thereof, it provided for a sale and purchase of the stock for $1.05 on the dollar, the total price to be determined by invoice. The contract was deposited in the American National Bank, at which time appellant and purchaser each deposited $1,000 therewith, to be forfeited to the other in case he should back out. When the invoice was nearing completion, Hughes declined to pay the balance and take the stock. Appellant accepted the $1,000 forfeit which Hughes had deposited in the bank, and made no effort to enforce the contract. He afterwards refused to pay appellee any commission, for the alleged reason that a sale had not been effected. We think that the evidence shows that a written contract had been entered into between the parties which could have been specifically enforced. Appellant arg'ues that the fact that each had placed a forfeiture in the bank stamps the transaction as an option to buy and not to sell. A forfeit presupposes a contract of sale. If not breached, the forfeit money is applied on the consideration for the sale, and if breached is treated as liquidated damages. An option is the payment of a certain amount for the privilege of buying something within a given time. It is quite clear that “forfeit,” as used by the parties to this transaction, was employed in the sense of earnest money to bind the contract for the sale and purchase of the stock, and which should go as liquidated damages to the one without fault in the case the contract was breached. The construction placed upon the contract by the trial court was correct.
The judgment is affirmed. | [
114,
-2,
-24,
-116,
26,
96,
42,
-86,
76,
-95,
39,
115,
-87,
-26,
16,
89,
-9,
29,
113,
107,
-41,
-77,
23,
97,
-42,
-109,
81,
-43,
-79,
75,
-76,
-42,
77,
48,
-22,
21,
-62,
-64,
-51,
22,
62,
1,
27,
104,
-3,
69,
56,
43,
16,
67,
33,
-82,
-13,
44,
29,
75,
109,
46,
111,
27,
64,
-7,
-70,
-115,
93,
23,
17,
36,
-104,
5,
-8,
78,
16,
48,
9,
-23,
114,
-90,
-122,
84,
107,
25,
8,
98,
39,
2,
1,
-27,
-100,
-120,
46,
-34,
-99,
-89,
-16,
24,
10,
105,
-66,
-99,
-68,
0,
21,
118,
-6,
-99,
-99,
108,
3,
-49,
-106,
-94,
-113,
108,
-98,
-125,
-38,
19,
20,
117,
-50,
-96,
93,
71,
62,
-101,
-114,
-37
] |
Humphreys, J.
Appellee instituted suit against appellant in the Third Division of the Pulaski Circuit Court, upon a personal accident policy, to recover $500 for the accidental loss of an eye. The issue joined by the pleadings was whether appellee was entitled to $500 or $150. This was dependent on whether appellee’s change in occupation from an “ice checker, not handling” to that,of a “laborer in foundry, not handling hot metal,” changed his classification from “C” to “XD” within the meaning’ of the standard pro rata clause contained in the policy, which clause is as follows:
“This policy includes the indorsements and attached papers, if any, and’ contains the entire contract of insurance except as it may be modified by the company’s classification of risks and premium rates in the event that the insured is injured or contracts sickness after having changed his occupation to one classified by the company as more hazardous than that stated in the policy, or while he is doing an act or thing pertaining to any occupation so classified, except ordinary duties about his residence or while engaged in recreations, in which event the company will pay only such portion of the indemnities provided in the • policy as the premium paid would have purchased at the rate but within the limits so fixed by the company for such more hazardous occupation. ’ ’
The cause proceeded to a hearing upon the pleadings and evidence, at the conclusion of which appellant requested the court to instruct the jury to return a verdict for $150 which it had tendered into court. The court refused to give the instruction over the objection and exception of appellant, and, over the objection and exception of appellant, sent the case to the jury to ascertain whether employment at the foundry was. more hazardous than at the ice company, and, if not, to return a verdict for appellee. The court, over the objection and exception of appellant, had, during the course of the trial, admitted evidence tending to show that the employment at the foundry was less dangerous than that at the ice company.
The jury returned a verdict in favor of appellee for $500, and a judgment was rendered in accordance therewith, from which is this appeal.
Appellant’s insistence for reversal is that the court erred in not construing the contract, under the undisputed evidence, to mean that the classification of appellee had been changed from ‘ ‘ C ” to ‘ ‘ XD ’ ’ by changing his occupation to one classified by the insurer as more hazardous than the one stated in the policy. The undisputed facts show that appellee stated, in his application, which was copied into and made a part of the policy, that he was employed by the ice company in the capacity of “ice checker, not handling;” also that the rate and classification manual, which became a part of the policy by express terms therein, shows that a laborer in a foundry, not handling hot metal, was rated and classified as class “XD;” also that appellee changed his occupation from that specified and classified in the policy as class “C” to that of a laborer in a foundry, not handling hot metal; also that appellant classified the occupation to which appellee changed as more hazardous than his occupation with the ice company.
The contract entered into between appellee and appellant provided that appellant might determine the relative danger between occupations. This being true, and appellee having changed his occupation from one specified and classified in the policy to one classified by appellant as more hazardous than the one stated in the policy; the pro-rate clause in the policy is applicable, and appellee was only entitled to recover the benefits which would have been provided in his policy if he had paid the same amount of premium and had been engaged in the occupation of laborer in foundry, not handling hot metal. Under the undisputed facts and terms of the policy appellee’s claim must be pro-rated from class “C” to class “XD,” entitling him to a recovery of $150. The trial court should have instructed a verdict for that amount.
On account of the error indicated the judgment is reversed, and judgment is directed to be entered here in accordance with the tender heretofore made. | [
16,
108,
-44,
-115,
88,
96,
42,
18,
85,
69,
39,
83,
-1,
-57,
28,
37,
-25,
105,
85,
59,
87,
-93,
23,
2,
-42,
-109,
-15,
-59,
-80,
75,
-12,
-42,
13,
49,
74,
81,
-26,
-126,
-59,
-44,
-62,
12,
57,
-24,
-7,
8,
56,
124,
112,
67,
113,
-98,
115,
42,
18,
-53,
41,
44,
123,
-87,
-47,
112,
-62,
5,
121,
17,
-79,
103,
-104,
37,
-38,
12,
-104,
49,
1,
-24,
115,
-74,
-58,
-76,
43,
-103,
-64,
98,
37,
16,
17,
-25,
-84,
-104,
54,
-2,
31,
-91,
-77,
120,
27,
9,
-73,
29,
112,
20,
23,
126,
-4,
20,
31,
105,
3,
-121,
-106,
-77,
-49,
100,
-66,
-89,
-1,
-122,
52,
81,
-50,
-88,
92,
71,
121,
-105,
-114,
-118
] |
McCulloch, C. J.
Appellant instituted this action against appellee in the chancery court of Pulaski County to compel specific performance of an alleged contract for the conveyance of certain real estate in Little Rock and a lot of furniture and other household effects in the building on the premises. The trial before the chancery court resulted in a decree dismissing appellant’s complaint for want of equity.
The real estate in controversy, a house and lot on West Third Street in the city of Little Rock, was owned by appellee and operated as a rooming house.
On May 18,1918, appellee entered into a written contract with appellant to sell the property to appellant for the sum of $9,500, of which sum appellant paid $1,000 in cash, assumed a mortgage to a banking institution of Little Rock in the sum of $4,000, and gave forty-five notes for $100 each, payable monthly. Appellant took possession under the contract and occupied the house, and paid sixteen of the notes as they fell due. The sale included also the furniture in the house at the stipulated prise of $2,000, making a total of $11,500 for the house and furniture. Later appellee conveyed the real estate to appellant by warranty deed, reserving a lien in the deed for the unpaid balance of the price.
On July 30, 1919, appellant, being still in possession of the premises, executed and delivered to appellee a quitclaim deed conveying to appellee all her interest in said real estate and personalty, and delivered possession of same to appellee.
It is alleged in' the complaint that at the time of the reconveyance of the property by appellant to appellee the latter entered into another contract in writing with appellant for resale of the property to appellant within one year upon the payment of the originál purchase price. Appellee denied this allegation in her answer as well as in her testimony. Appellant exhibited with her complaint what purports to be a written contract, for the resale of the property to appellant, but the instrument does not purport to have been signed by appellee. Appellant testified that the terms of the contract were orally agreed upon between her qnd appellee on the day she reconvéyed the property to appellee, and that the contract was prepared on that day, but that appellee postponed signing it, and finally refused altogether to sign it, claiming that she desired to make changes in the contract.
Appellee testified that she entered into no written •contract for the resale of the property, but that a day or two after the reconveyance of the property to her by appellant she orally agreed with appellant that she would resell the property to her upon the payment of the original purchase price in cash.
It. is undisputed that the contract exhibited with appellant’s complaint was never signed. It is conceded that the oral contract is within the statute of frauds, and this is undoubtedly true, for appellee was in possession at the time the alleged agreement was made, and nothing was paid under this agreement, nor was there ever any change of possession. Friar v. Baldridge, 91 Ark. 133; Barrett v. Durbin, 106 Ark. 332.
Appellant removed to Fort Worth, Texas, and letters passed between appellant and appellee, which are brought into the record as being sufficient to show a contract for the resale of the property, taking the transaction out of the operation of the statute of frauds. These letters, however, are wholly insufficient for that purpose, as they merely tend, in a remote degree, to show that there had been some understanding between appellant and appellee about a sale, but none of the letters contain any description of the property nor any of the terms of the alleged sale. St. L. I. M. & S. Ry. Co. v. Baldridge, 45 Ark. 17.
The alleged contract being within the statute of frauds and void, it is unnecessary to discuss the other questions in the case.
Decree affirmed. | [
-77,
-17,
-16,
76,
-88,
96,
40,
-104,
114,
-127,
53,
-45,
-17,
68,
16,
105,
-94,
125,
97,
105,
-92,
-78,
7,
34,
-46,
-77,
-15,
-57,
-67,
-49,
-12,
55,
76,
32,
-54,
-107,
-62,
-62,
-63,
28,
14,
-123,
-118,
76,
-39,
-64,
52,
59,
80,
9,
85,
-98,
-13,
44,
29,
74,
108,
46,
-19,
57,
88,
-72,
-117,
21,
127,
7,
17,
118,
-100,
5,
-54,
72,
-104,
53,
8,
-8,
115,
38,
-122,
84,
71,
-101,
8,
38,
102,
42,
-123,
-17,
-88,
-84,
39,
-66,
-115,
-90,
-14,
120,
11,
75,
-66,
-100,
92,
-62,
15,
-10,
-30,
-100,
25,
108,
15,
-17,
-42,
-93,
35,
60,
-107,
11,
-21,
3,
52,
112,
-49,
-30,
92,
71,
19,
-101,
-114,
-41
] |
Humphreys, J.
Appellee instituted suit against appellant in the Poinsett Circuit Court to recover damages in the sum of $2,000, on account of injuries received in alighting from its train at Gale, Illinois, through the alleged negligent act of its conductor in inviting and advising him to get off at that place. It was alleged that appellee was, at the time, accompanying a shipment of stock from Harrisburg, Arkansas, to St. Louis, Missouri, and in obedience to the advice of the conductor did alight from said train, with the result that he was thrown to the ground and seriously and permanently injured; that at the time it was so dark he could not tell how fast the train was moving, and in debarking acted solely upon the advice of appellant’s employee.
Appellant filed an answer admitting that appellee was a passenger upon said train, accompanying a stock shipment to St. Louis, but denied all other material allegations in the complaint. Appellant also interposed the following defenses:
First, contributory negligence on the part of appellee in alighting from a moving train.
Second, the written contract for transportation, which required the appellee to remain in the caboose attached to the train, while the train was in motion, and to get on and off the caboose while the same was still.
The cause was submitted to the jury upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and judgment against appellant in the sum of $2,000. From that judgment an appeal has been duly prosecuted to this court.
Appellee, plaintiff below, introduced testimony to the effect that early in January, 1921, he shipped two carloads of cattle and one carload of hogs to St. Louis, Missouri, from Harrisburg, Arkansas; that he accompanied the livestock, riding by right as a passenger in the caboose; that when they were getting into Gale, Illinois, the conductor told the passengers to get off at the yard house, and it would save them walking through the dark yards; that it was then about nine o’clock, and dark; that all of them got their baggage and followed the conductor to the door for the purpose of debarking; that, while standing in the door, the conductor again told them to get off;.that the conductor got off first, J. E. Arnold next, and appellee next, who, by reason of the rapid movement of the train, was thrown violently to the ground, some twelve feet distant, and injured; that at the time he stepped off he thought the train was barely moving.
Appellant introduced testimony to the effect that the conductor told the passengers, if the train stopped at the hill, to get off so they would have time to eat; that the train was slowing down, and the conductor remarked, “I believe we are going to stop at the hill”; that the engineer took slack and started down the hill, whereupon the conductor told the passengers not to get off until they reached the bridge, about one hundred yards below the yard house; that the conductor himself got off at the yard house in order to register the train in; that Arnold succeeded in getting off safely, but that appellee fell in the attempt to do so. Appellant also introduced the bill of lading for the shipment of the livestock upon which appellant traveled, which contained a provision to the effect that the party in charge of the stock should remain in the caboose attached to the train while in motion, and to get on and 'off the caboose while the same was still.
Appellant’s main contention for reversal is that, according‘to the undisputed facts, appellee was injured while attempting to debark from a moving train, in violation of his contract for transportation. In support of this contention, appellant cites the case of Illinois Central Railroad Co. v. Jennings, 229 Ill. 608, which decided that such a stipulation was valid. Conceding that the liability is determinable by the law of the State where the injury occurred, and that the Supreme Court of Illinois has upheld the validity of such a clause in a trans portat-ion contract as being- reasonable and just, the contract and adjudication, upholding- its validity, have no bearing upon or application to the instant case. This suit is not for a breach of the contract, but for an injury resulting from an alleged negligent act of appellant’s employee. The action is outside of the contract. It is based upon the maxim, “respondeat superior,” which imputes liability to a master for the negligent acts of his servant, within the scope of the servant’s actual or apparent authority, irrespective of any contract. 4 R. C. L. § 596.
Appellant’s next and last contention for reversal is, that the court erred in giving instruction No. 2, which is as follows:
“If you find from a preponderance of the evidence that, upon approaching, or while in or near the yards of the defendant at Gale, Illinois, the conductor in charge of said train of defendant advised the plaintiff to alight or get off of said train at the yard office, and if you further find that plaintiff acted upon the advice of said conductor, and attempted to alight from said train, and that in attempting to alight from said train he was in the exercise of due care for his own safety, and if you further find that the plaintiff was injured in alighting from said train and falling, you will find for the plaintiff; and, unless you find for the plaintiff under this instruction, your verdict will be for the defendant.”
The instruction is assailed because it assumed that the conductor acted within the scope of his authority if he advised appellee to get off of a moving train at the yard house; and, if such advice was given, that it constituted negligence as a matter of law.
The conductor was in command of the train, and necessarily possessed authority to direct passengers when and Avhere to get off. His own testimony reveals that he had such authority. In instructing the jury it was therefore proper for the court to assume that he was acting within the scope of his authority if he directed appellee to debark at the yard house.
It was also proper to assume, in instructing the jury, that if the conductor directed appellee to get off of a moving train, which threw him violently to the ground in the attempt to debark, it was a negligent act as a matter of law. The general law is that a carrier owes a passenger the highest degree of care consistent with the practical operation of its trains (2 Hutchinson on Carriers [3d ed.] § 1118), and to direct a passenger in the night time to debark from a moving train without furnishing ample means and protection for doing so is clearly in violation of this duty, amounting in the law to negligence. Jones v. Chicago, M. & St. P. R. Co., 42 Minn. 183; Eddy v. Wallace, 49 Fed. 801; Lake Erie & W. R. Co. v. Huffman, 97 N. E. 434.
The issue of contributory negligence on the part of appellee in debarking from the moving train was submitted to the jury under proper instructions.
No error appearing, the judgment is affirmed. | [
-80,
108,
-76,
-115,
42,
104,
42,
-102,
69,
-127,
55,
-45,
-19,
-63,
1,
33,
-25,
45,
-43,
43,
117,
-109,
87,
-30,
-109,
83,
57,
-59,
-108,
74,
32,
-42,
77,
1,
74,
17,
-58,
-56,
-59,
28,
-116,
32,
-87,
-24,
89,
-120,
56,
-7,
20,
71,
49,
-98,
-5,
42,
24,
65,
77,
47,
107,
-91,
-62,
120,
-118,
5,
53,
6,
33,
36,
-101,
5,
76,
24,
-104,
52,
1,
-68,
115,
-90,
-126,
-44,
105,
-39,
8,
98,
102,
32,
13,
-89,
44,
-72,
46,
-66,
31,
-89,
34,
4,
19,
1,
-65,
-99,
-80,
20,
29,
-6,
-3,
77,
28,
104,
3,
-114,
-108,
-77,
-65,
36,
-106,
23,
-5,
-107,
52,
117,
-50,
-78,
93,
71,
126,
-97,
-114,
-102
] |
Wood, J.
The appellant instituted this action against the appellee to recover certain lands which are described in appellant’s complaint. He deraigned title from the State through various mesne conveyances, which he sets out, copies of which he purports to make exhibits to his complaint.
The appellee, in his answer, alleged that he was the owner of the land described in the complaint, and specifically denied each and every muniment of title set up in appellant’s complaint.
In setting out the various conveyances in the chain of title appellant alleged that they were duly recorded. To establish his title appellant called as a witness E. H. Tharp, who testified that he was the attorney for the appellant, and as such examined the record of title, and he exhibited what he designated muniments of title dating back from the government on up to the present. He stated that the deeds which he exhibited were copies of the record; that the originals could not be introduced. He had compared the records and made copies of the deeds and instruments affecting appellant’s title, and offered these copies in evidence.
The court refused to permit the instruments to be considered as evidence, because same were not certified copies and therefore did not meet the requirements of the law to show the chain of title set up by the appellant. At the conclusion of the testimony the appellee moved the court to instruct the jury to return a verdict in his favor, which motion the court granted. The jury returned a verdict as directed. The court entered a judgment in favor of the appellee in accordance with the verdict, from which is this appeal.
Section 1531 of Crawford & Moses’ Digest provides as follows: “If it shall appear at any time that any deed or instrument, duly acknowledged or. proved and recorded as prescribed by this act, is lost or not within the power and control of the party wishing to use tlm same, the record thereof, or a transcript of such record certified by the recorder, may be read in evidence without further proof of execution.”
The appellant did not meet the requirements of the statute. He did not introduce the original deed, but offered only purported copies from the records,, which were not certified by the recorder, as the statute requires. When the purported copy of the record of a deed is of fered in evidence it must be certified by the recorder, as prescribed by the statute. “A plaintiff in ejectment must rely upon his own title, and not upon the weakness of the title of his adversary.” Boynton Land & Lumber Co. v. Hawkins, 122 Ark. 374.
The judgment is correct, and it is therefore affirmed. | [
-80,
108,
-55,
63,
-120,
-32,
58,
-72,
73,
-125,
103,
87,
-17,
66,
29,
39,
-13,
109,
-15,
106,
78,
-77,
102,
-125,
-46,
-109,
-37,
85,
-75,
72,
-26,
84,
76,
48,
-62,
53,
69,
66,
-27,
120,
-50,
-114,
-119,
72,
-39,
64,
52,
35,
42,
73,
113,
-105,
-13,
44,
29,
-61,
73,
44,
-21,
-104,
64,
120,
-65,
-51,
122,
7,
49,
53,
-84,
73,
-56,
10,
-112,
49,
0,
-24,
114,
-74,
-126,
-12,
11,
-103,
40,
102,
66,
49,
109,
-19,
-72,
-104,
46,
62,
13,
38,
-48,
8,
75,
105,
-114,
-99,
125,
-112,
103,
-10,
-24,
-43,
29,
108,
15,
-17,
-106,
-75,
13,
106,
-120,
3,
-17,
3,
-108,
80,
-49,
-22,
92,
101,
53,
-101,
-114,
-45
] |
Smith, J.
Appellant was indicted for assault -with intent to kill, alleged to have been committed by shooting one W. M. Emerson. He was convicted and given a sentence of ten years in tlie penitentiary, and lias appealed.
The evidence is amply sufficient to sustain the jury’s verdict, and there appears to have been no error committed, at the trial, except that the court gave an erroneous instruction, to which appellant duly excepted. The instruction is as follows:
“2. If yon are convinced from the evidence, beyond a reasonable doubt, that the defendant wilfully and with malice aforethought shot at the witness Emerson with intent to murder the said Emerson, then it would be your duty to find the defendant guilty of an assault with intent to kill, as charged in the indictment. If you believe from the evidence, beyond a reasonable doubt, that the defendant fired a pistol at Emerson, you should find that he intended to kill.”
The Attorney General concedes the instruction is erroneous, but contends that it was not prejudicial for the reason that the undisputed testimony shows that it was appellant’s purpose to kill Emerson.
The facts relating to the shooting, briefly stated,are as follows: Emerson was appellant’s tenant, and there was a disagreement about the amount of rent. Emerson had been twice ordered to vacate the premises. On the morning of the shooting appellant went to the house, and found Emerson still in possession. Emerson stated, however, that he was fixing to leave, whereupon appellant, without any provocation, drew a .45 caliber revolver from his pocket and commenced firing. The first shot was wild; but the second shot went through Emerson’s shirt and slightly burned his side, but inflicted no real injury.
Appellant did not testify, and offered no testimony in his own behalf, but sought by his cross-examination of the State’s witnesses to show that he was about to be assaulted by Emerson at the time he commenced firing. Emerson’s wife testified that when the second shot was fired she went to the door where appellant was standing and ordered him to leave, saying to him, “Go on away; you have done enough here already.” To this remarte appellant replied, “I have done just what I intended to do.” Appellant left the house, went to the sheriff’s office, and surrendered, and told the sheriff he had shot a man and thought he had killed him.
In defense of the court’s instruction the case of Coulter v. State, 110 Ark. 209, is cited. An instruction was there given reading as follows: “You are further instructed that every sane man is presumed to intend the natural and probable consequence of his acts.”
The instruction was held not prejudicial under the facts of that case, because Coulter admitted he shot the prosecuting witness with the- intent to kill him because he thought his life was in danger. Here appellant did not say to Mrs. Emerson that he intended to kill Emerson. It is only an inference that such was his purpose, drawn from the remark that he had done what he intended to do. The jury might have drawn some other inference from the remark, as, for instance, that what he intended to do was to make Emerson vacate by frightening lii-m,. or by inflicting some slight injury on him. It is true the testimony on the part of the State •shows that appellant stated in the sheriff’s office that he thought he had killed a man; but there was no testimony that he stated, in that connection, that he had done what •he had intended to do. He may have reached the conclusion that he had killed a man after having said to Mrs. Emerson that he had done what he intended to do.
Moreover, this testimony was not appellant’s admissions at the trial. It was testimony as to what appellant had said on the day of the shooting, and the jury may or may not have accepted it as true; and while, if believed, it would have supported the inference, in connection with the other facts and circumstances in proof, that appellant did intend to kill Emerson, still this was an' inference to be drawn by the jury from the testimony as a.matter of fact, and should not have been so declared by the court as a matter of law.
This identical question was so thoroughly considered by this court in the cases of Chrisman v. State, 54 Ark. 283, and Beavers v. State, 54 Ark. 336, that we need only to cite those cases to support the conclusion that the instruction was erroneous and prejudicial.
In the first of these cases the appellant, Chrisman, had assaulted one Stanfield with a knife, and had inflicted upon him a dangerous wound. The court said that, from the nature of the wound, and from the character of the knife, it could well be inferred that the knife was a deadly weapon. The court charged the jury that “if you believe from the evidence that the defendant assaulted and stabbed the prosecuting witness with a knife calculated ordinarily to produce death, without provocation, the law presumes that he did it with the felonious design to kill; and the burden of proof is on the defendant to show to .the contrary, either by proof on the part of the State or defense.”
It will be observed that this instruction merely imposed on the defendant the burden of proof to show that he did not intend to kill, if the jury found that defendant had assaulted and stabbed the prosecuting witness with a knife, calculated ordinarily to produce death, without provocation; while the instruction here complained of tells the jury to find that there was an intent to kill, if they found that appellant shot at Emerson. In other words, there was not a mere shifting of the burden of proof, but an absolute direction as to the inference to be drawn. Judge Mansfield. for the court, said: “Whether the defendant assaulted Stanfield with the specific intent alleged in the indictment was a question of fact which it was his right to have determined by the jury upon the whole evidence in the cause. But, under the instructions copied above, the jury were at liberty to presume the existence of a felonious intent to Mil from the facts mentioned in the court’s charge, without considering any others. We do not hold that it would have been improper to instruct the jury that the defendant should be presumed to have intended the natural and probable consequences of this act in stabbing the prosecuting witness. For it was clearly the province and duty of the jury to consider the nature of the weapon used by the defendant and his manner of using it, to getlier with all the other circumstances of the case, in determining whether the assault was in fact committed with the intent alleg-ed in the indictment. 1 Bishop Crim. Law, sec. 735 and note 1. But the objectionable charge shifted the burden of proof as to the question of such intent, which would still remain for the determination of the jury, although they believed that the facts recited by the court’s instruction had been established by the evidence. Ogletree v. State, 28 Ala. 693; State v. Neal, 37 Me. 468; Starkie, Ev. (10 ed.), 72; State v. Jefferson, 3 Harrington, 571.”
In the case of Beavers v. State, supra, the defendant was convicted of assault with intent to kill by shooting at one Pridmore with a pistol. Judge Hughes, for the court, there said: “The-intent to take life, even where a deadly weapon is used in making the assault, is not a presumption of law arising from the assault or the use of the deadly weapon, in a prosecution for assault with intent to kill; it is a question of fact for the jury to determine from the evidence. It is competent for the jury to infer, or find as a fact from the use of a deadly weapon, if the circumstances of the case warrant, that the person using it intended to take life. The presumption of such' intent does not arise as a matter of law from the act, but the use of a deadly weapon is an evidentiary fact or circumstance to be considered by the jury in making up their conclusion. The burden of proof as to the intent is upon the State.”
The instruction complained of was erroneous, -and does not appear not to have been prejudicial, and the judgment will therefore be reversed, and the -cause remanded for a new trial. | [
-15,
112,
-72,
-65,
26,
96,
104,
-72,
-16,
-62,
-78,
115,
109,
-53,
64,
57,
41,
127,
85,
105,
68,
-109,
55,
99,
114,
-77,
123,
-43,
-74,
-52,
-9,
-35,
4,
100,
-62,
85,
102,
8,
-27,
88,
-114,
-83,
-87,
-16,
-110,
66,
48,
55,
-20,
15,
97,
30,
-69,
42,
31,
-37,
41,
44,
75,
-81,
-64,
120,
-126,
13,
-55,
34,
-77,
-73,
-65,
11,
88,
40,
-103,
49,
0,
-8,
115,
-106,
-128,
84,
77,
-117,
12,
98,
98,
34,
-55,
-19,
32,
-56,
63,
110,
-99,
-89,
25,
65,
91,
36,
-97,
-33,
118,
116,
46,
98,
-19,
-33,
49,
100,
1,
-41,
-80,
-111,
-49,
40,
26,
-14,
-21,
-107,
16,
53,
-49,
-86,
92,
113,
120,
-69,
-113,
-108
] |
Hart, J.,
(after stating the facts). Sec. 4916 of Crawford & Moses’ Digest in effect provides that if any garnishee upon whom personal service has been had shall neglect or refuse to answer the„ interrogatories exhibited against him, the court before whom the matter is pending shall enter judgment against such garnishee for the full amount specified in the plaintiff’s judgment against the original defendant, together with costs. Under this act final judgment may be rendered against a garnishee upon default made by him, or when, on trial, the court finds that he is indebted to the defendant in the original judgment. Norman v. Poole, 70 Ark. 128; and Tiger v. Rogers Cotton Cleaner & Gin Co., 96 Ark. 1.
In the instant case, judgment by default was rendered against the garnishee. The only question raised by the appeal is whether the allegations of the complaint are sufficient to support the decree entered upon the default of the garnishee. Koons v. Markle, 94 Ark. 572, and cases cited.
It is claimed 'by counsel for the garnishee that the complaint is defective in that it did not charge as a fact that McCulloch was indebted to the defendants. *
It will be noted from our statement of facts that the complaint only alleges that plaintiff is informed and believes that B. W. McCulloch is indebted to the defendants in the sum of $11,775.' We -think the defect is fatal unless this form of pleading is allowed by our Code. There is no special form of pleading required in garnishment proceedings, and we must therefore look to our general Code provisions on the question.
Under § 1187 of Crawford & Moses’ Digest the complaint must contain a statement in ordinary and concise language, without repetition, of the facts constituting the plaintiff’s cause of action. This provision requires that the facts relied upon should be directly and positively alleged and not stated by way of argument, inference, or belief. The statute requires the facts to be alleged so that an issue may be made thereon. The statement in the pleadings should be made in direct and positive terms, so that, if it be necessary for the other party to respond to them, he may be able to do so in terms equally direct and positive. The issue tendered by the complaint is not as to the existence of the fact of whether or not the garnishee was indebted to the defendant, but as to the plaintiff’s information and belief on this matter.
Therefore the decree was not based upon a complaint which showed a good cause of action, and was erroneous.
A default after due service of summons admits only the allegation of the complaint, and, if they are insufficient to support the judgment, it will be reversed. Chaffin v. McFadden, 41 Ark. 42; Benton v. Holliday, 44 Ark. 56, and American Freehold Land Mortgage Co. v. McManus, 68 Ark. 263.
As supporting the views herein expressed see also Nichols & Sheppard Co. v. Hubert, 51 S. W. 1031, where the Supremo Court of Missouri held that a petition in a creditor’s suit, which avers that plaintiff is informed and believes certain facts, thereafter recited, which are essential to plaintiff’s case, is demurrable, as it does not allege the existence of the facts.
It follows that the decree must be reversed, and the cause remanded for further proceedings in accordance until the principles of equity and not' inconsistent with this opinion. | [
-78,
-20,
-120,
-51,
-86,
-32,
10,
-38,
-43,
11,
115,
-41,
-1,
70,
12,
107,
-10,
121,
68,
41,
84,
-94,
6,
1,
-46,
-105,
-46,
-43,
-75,
-49,
-18,
-36,
12,
-80,
-30,
-43,
-25,
-54,
-127,
-68,
-50,
15,
-88,
101,
113,
64,
48,
123,
91,
73,
97,
-100,
-13,
46,
19,
78,
44,
61,
-21,
-69,
-32,
-16,
-117,
15,
125,
20,
1,
54,
-100,
7,
88,
8,
-112,
49,
1,
-32,
122,
-106,
-126,
-44,
75,
-101,
76,
102,
-30,
-96,
40,
-19,
58,
-72,
111,
-36,
-97,
-121,
-37,
120,
11,
109,
-74,
-99,
42,
64,
-89,
-16,
-22,
-107,
-98,
-84,
3,
-113,
-74,
-79,
41,
116,
-6,
11,
-50,
-125,
54,
113,
-51,
-128,
92,
-57,
88,
-101,
4,
-37
] |
Wood, J.
This is an action by the appellees against the appellant to recover possession of a certain tract of land in Mississippi County. The appellees, among other things, alleged in their complaint that they were the owners and entitled to the possession of the lands, and that the lands were in possession of a negro tenant, and that appellant “turned said tenant out by force, fighting, by threats and other circumstances;” that she thus obtained possession and holds the same, without right or claim of title to the lands. They alleged and prayed for damages in the sum of $1,000 and for rents in the sum of $2,000.
The appellant answered denying; all material allegations of the complaint, and alleged that she was in lawful possession of the property, and had made valuable improvements on the same, and claimed she was the owner thereof. After the conclusion of the testimony the court instructed the jury, and there was a verdict in favor of the appellee for possession of the lands, but without damages. The court rendered a judgment, based on the verdict, in favor of the appellees against the appellant for possession of the lands and for their costs, from which is this appeal.
The appellant contends, first, that the appellees are not the real parties in interest and therefore cannot maintain this action. Under this head the appellant contends that there was no testimony tending to prove that the appellees, at the time the appellant took possession of the property, were in possession thereof; that the undisputed testimony proved that the party through which appellees claimed to have possession was their tenant, and that such tenant alone, and not the landlord, can maintain the action. Citing King v. Duncan, 62 Ark. 588, and other cases.
There was testimony on behalf of the appellees tending to prove that at the time the appellant took possession of the land in controversy the same was occupied by one George Smith, a negro. While one of the witnesses for the appellee states that the plaintiffs were in possession through their tenant, the witness further testified as to the nature of the contract with Smith as follows: “He had a contract with plaintiffs to farm practically all of the land in 1920.” This witness further testified: “The plaintiffs had charge of the possession of the property — had it in charge the year before— and the only trade that was made was made with George Smith.” The testimony tended to prove that the arrangement made by appellees through their agent with George Smith was that the latter should cultivate the land as a share-cropper. Smith himself testified that he had possession of the land that year, and was making a share-crop. Another witness stated that the lands were rented partly to Goforth and partly to George Smith, a share-cropper. One of the witnesses, explaining the contract which he made on behalf of the appellees, stated, “I was to furnish the mules, team, seed, mule feed and provisions, and he was to get one-half of the crop, and I was to get one-half.” At the time appellant entered into possession of the land in controversy he (Smith) was the only man on the place.
The above testimony was at least sufficient to justify the court in submitting to the jury the issue as to whether George Smith held the land as a tenant, or a mere laborer, or share-cropper. The testimony was sufficient to justify the court in refusing appellant’s prayer for instruction No. 8 for a directed verdict in her favor, and to warrant the court in giving appellees’ prayer for instruction No. 1 as follows: “One who cultivates lands under a contract by which the landlord furnishes land, teams and tools to make crop, and he works the land, and makes the crop for a specified portion thereof, is not a tenant, but a laborer.” See Gardenhire v. Smith, 39 Ark. 280; Hammond v. Creekmore, 48 Ark. 264; Rand v. Walton, 130 Ark. 431; 11 R. C. L. 1146, sec. 12. The testimony was sufficient to warrant a finding that the appellees were in possession of the land in controversy through George Smith; that Smith was not technically a tenant of the appellees, but only a share-cropper, or laborer.
Appellant next contends that there was no testimony tending to prove that the appellant took possession of the land in controversy by force. The appellees brought this action under § 4837 of Crawford & Moses’ Digest, and under that section force is the gist of the action. Miller v. Plumber, 105 Ark. 630, and cases there cited. Actual physical violence upon the person in possession by the one who takes possession is not a prerequisite to the maintenance of the action, but “if the demonstration of force is such as to create a reasonable apprehension that the party in possession must yield to avoid a breach of the peace, it is sufficient. It is not necessary that the party be actually put in fear. There need only be such a number of persons or show of force as is calculated to deter the person in possession from undertaking to send them away or to retain his possession.” 11 R. C. L., § 23, pp. 1160-1161. To determine whether or not force was used, the personnel and situation of the parties and the circumstances surrounding them at the time must all be taken into consideration. The testimony showed that George Smith, the share-cropper or laborer, was a negro. The appellant was a white, woman. She loaded her household goods in a wagon, and, in company with a white man, drove •over to the house occupied by Smith. She told Smith to get his things out of the house; that she was going to take possession of the place. Smith went up to the store on the place to consult with “Mr. Bob” about it. He didn’t see Mr. Bob, but asked Mr. Mike about it, who told him to go back down there until Mr. Bob came. When Smith went back, he found that the appellant had moved in, and she told Smith that she didn’t want him to give her any trouble. Smith moved away because he was afraid to stay there. His household goods liad been moved out in the back yard, and the appellant’s goods were in the house when he got 'back from the store.
This testimony was sufficient to warrant the court in submitting the issue to the jury as to whether or not appellant used force necessary to sustain the action under § 4837, C. & M. Digest, supra: The court submitted the issue to the jury under proper instructions.
Appellant next contends that the court erred in refusing to grant certain of its prayers for instructions which we deem it unnecessary to set forth and discuss in detail. Such of these prayers as were correct were fully covered by instructions which the court gave. We have examined them and find no error in.any of the -court’s rulings.
The judgment is in all things correct, and it is therefore affirmed. | [
-47,
-19,
-24,
-115,
8,
96,
104,
-72,
67,
-93,
38,
83,
-19,
82,
88,
109,
-29,
125,
85,
104,
70,
-77,
86,
35,
-112,
-45,
123,
93,
-71,
76,
-11,
84,
76,
48,
66,
-107,
66,
-80,
-27,
88,
-114,
-127,
-87,
76,
-39,
-64,
60,
-85,
16,
75,
85,
-65,
-5,
44,
113,
67,
73,
47,
111,
41,
-48,
120,
-102,
29,
127,
7,
17,
102,
-98,
-95,
-56,
104,
-112,
49,
0,
-24,
115,
54,
-122,
84,
13,
-103,
8,
38,
102,
26,
-84,
-17,
-120,
-103,
46,
62,
-99,
-90,
-64,
72,
3,
73,
-74,
-99,
124,
64,
103,
118,
-28,
5,
28,
104,
7,
-17,
-42,
-79,
5,
40,
-102,
3,
-29,
3,
52,
113,
-49,
-22,
92,
71,
114,
-101,
-117,
-37
] |
Humphreys, J.
Appellants brought this suit in the Benton Chancery Court against the appellees to cancel a tax deed for the S. E. ¼ N. E. ¼ sec- 23, tp. 19 N., R. 30 W., Benton County, Ark., .obtained by appellee, E. G. Carroll, from the State of Arkansas on July 21, 1919. Appellant, H. L. Shultz, alleged that he was the owner; and appellant, Peoples’ Savings Bank, Inc., that it had a special interest in said lands by reason of a mortgage lien acquired thereon. It was also alleged in the bill that the title acquired by F. G. Carroll was based upon a void forfeiture of the lands for the nonpayment of the taxes for the year 1916.
Appellees filed an answer denying the invalidity of the tax title acquired from the State of Arkansas.
The cause was submitted to the court upon the pleadings and testimony, which resulted in a decree upholding the tax title and dismissing appellants’ bill for the want of equity, from which is this appeal.
Appellants assailed the tax title upon many grounds, and now insist upon the reversal of the decree because the trial court did not sustain any ground of attack. We deem it unnecessary to set out or discuss, seriatim, the various grounds of attack. We think the eighth ground of attack should have been sustained by the court. It is as follows:
‘ ‘ Said sale and proceedings thereunder are null and void because the levying court failed to levy the taxes for which said property was sold.”
The. record of the levying court was introduced, and contains the following entry relative to the levy for school purposes:
“No. of Dist. Amt. taxes voted For what purpose 103 7 5 gen. 2 bldg.”
This entry as to amount is meaningless unless a presumption is indulged against the landowner that the figures 7, 5, and 2, standing alone, mean mills. Even the dollar mark does not appear in the heading above the figure 7 or above the figures 5 and 2, to indicate that 7, 5, and 2 were intended as some proportional part of dollars. We think the record should have affirmatively shown whether the levy for school purposes was voted in cents or mills. This court said, in Morris v. Levy Lumber Co., 103 Ark. 581, that: “Every essential proceeding in the course of the levy of taxes must appear in some' written and permanent form in the record of the bodies authorized to act upon them,” meaning, of course, that the recorded proceeding should be free from ambiguity.
Appellants suggest that the notice of sale of delinquent lands for the year 1916 was fatally defective in several respects, but we think the notice in form aud substance complied with all the requirements of § 10084, Crawford & Moses’ Digest. There was no defect in the publication of the notice. It was published for two full weeks, consecutively, between the second Monday in May and the second Monday in June, the first insertion being two full weeks and the second one full week before the day of gale. In construing this section the court ruled in the eases of Townsend v. Martin, 55 Ark. 192, and Martin v. McDiarmid, 55 Ark. 213, that the first insertion must be two full weeks before the day of sale, and thereby impliedly ruled that the second insertion must be one full week before the day of sale.
For the error indicated, the decree is reversed and the cause remanded, with directions to cancel the tax title acquired by said F. Gr. Carroll from the State of Arkansas.' | [
-10,
-18,
-4,
12,
42,
-64,
10,
-120,
88,
-95,
37,
83,
111,
-22,
16,
85,
-29,
29,
113,
105,
-44,
-73,
23,
75,
-46,
-109,
89,
-59,
-67,
77,
-27,
-42,
78,
41,
-54,
21,
68,
-30,
-83,
-36,
14,
40,
-85,
76,
-39,
100,
48,
43,
120,
79,
49,
-98,
-5,
44,
29,
75,
9,
44,
73,
53,
80,
-70,
-70,
77,
127,
7,
49,
102,
-104,
65,
72,
-120,
-112,
48,
12,
-24,
123,
-90,
-58,
84,
9,
-103,
9,
36,
103,
19,
-91,
-17,
-84,
8,
46,
-1,
29,
-122,
-110,
89,
19,
-81,
-73,
-100,
124,
-128,
-58,
114,
-26,
-123,
-99,
108,
7,
-49,
-42,
-77,
-113,
-84,
-104,
3,
-5,
11,
48,
112,
-113,
-58,
93,
71,
50,
-117,
-114,
-12
] |
McCulloch, C. J.
This is an action instituted by appellee against appellant to recover damages arising from an alleged breach of a contract for the sale by appellee to appellant of four carloads of lumber to be shipped from Starks, Louisiana, to appellant’s place of business in Drew County, Arkansas.
It is alleged in the complaint that appellant entered into an agreement (in the form of a written order and written acceptance) whereby appellant agreed to purchase four carloads of-lumber of the description set forth in the written order, and that appellant subsequently broke the contract by refusing to accept the lumber. Damages are laid in the sum of $1,324.12, alleged to be the difference ¡between the contract price and the price for which the lumber sold on the market after appellant’s refusal to accept it.
There was a trial of the issues before a jury, and the verdict was in appellee’s favor for $617.06 damages.
Appellants defended below on the ground that appellee had committed the first breach of the contract by shipping- inferior lumber not up to contract under a former order, but the court ruled that this constituted no justification for appellant’s refusal to accept the lumber, and gave the jury a peremptory instruction in favor of appellee on that.issue. We are of the opinion that the trial court was correct in giving the peremptory instruction in appellee’s favor.
■ Appellee was doing business at Beaumont, Texas, and appellant was engaged in the lumber business at Jeróme, in Drew County.
All the communications between the parties with respect to this and other transactions between them were in writing. Appellant sent in a written order to appellee on April 1 for two carloads of lumber, and they were shipped, one from Devers, Texas, and the other from Hawthorne, Louisiana. An order was sent in for another car on April 6,' 1920, and this car was shipped from Starks, Louisiana. The order involved in the present case embraced four carloads, and was dated May 15, 1920, the acceptance of appellee being- dated May» 18. Each of the orders was separate and had no reference to each other. There is not in the record any antecedent correspondence which could be treated as a part of either of the contracts or which throws any light upon them.
When the first carload of lumber shipped under the order of April 1, 1920, reached appellant’s place of business, there was a refusal of acceptance, on the ground of its being not up to the terms of the contract, but appellee accepted appellant’s inspection and settled on the latter’s terms. 'When the second ear under the order of April 1 was received by appellant’s place of business, it was also found to be not up to specifications, and appellee accepted appellant’s inspection on this car and permitted settlement to be made on appellant’s own terms. This car was received after the order of May 15, 1920, was given and accepted, and it was at that time that appellant undertook to cancel.the order on the ground that the shipments under a prior order were not up to the specifications of the contract. The car shipped under the order of April 6, 1920, was inspected by a national inspector, in accordance with the terms of the contract, and was accepted by appellant without complaint.
The 'Contention of appellant is that the fact that the two carloads of lumber shipped under the order of April 1,1920, not being up to the terms of the contract, justified a refusal to perform the contract represented by the order of May 15, 1920.
We recognize the well-established rule that one who-first breaks a contract cannot maintain suit to recover upon it, and that the failure of one party to comply with a contract releases the other party from performance. Missouri Pacific Ry. Co. v. Yarnell, 65 Ark. 320; Spencer Medicine Co. v. Hall, 78 Ark. 336; John A. Gauger & Co. v. Sawyer & Austin Lbr. Co., 88 Ark. 422; Ford Hardwood Lbr. Co. v. Clement, 97 Ark. 522; Keopple v. Delight Lbr. Co., 105 Ark. 233; Ensign v. Coffelt, 119 Ark. 1.
, The application of this rule is confined, however, to performance by the respective parties of the same contract, and not to the performance of distinct and independent contracts. The breach by one party to a contract does not release the other party from performance of another independent contract. 5 Page on Contracts, § 2976.
There is not a particle of proof in this case of any relation between the different contracts, nor is there any proof that the cars of lumber last ordered were not in accordance with, the contract. Each order was separate, and constituted a distinct and independent contract, and, as before stated, the fact that some of the lumber shipped under the first order was not up to specifications affords no justification for the refusal to accept the lumber tendered under the last contract.
One of the witnesses introduced by appellant testified that it was their method of business to buy lumber of certain grades for a special trade, but there is no testimony that this was communicated to the appellee or that it was incorporated in the order, for the order itself is in writing, and gives sufficient specification of the lumber to be shipped. Nor does the fact that all of the orders specify the same kind of lumber affect the question of appellant’s right to refuse performance of the contract on account of the lumber shipped on the former order being defective. Each order contained its own specifications of lumber to be shipped, and appellant undoubtedly bad the right to reject any lumber which was not in accordance with the specifications, but this is quite another thing from a refusal to permit performance of the last contract because there had been a breach in the performance of an independent contract.
There are several assignments with reference to the introduction of evidence, but these assignments become immaterial since we hold that, according to the undisputed evidence, appellant committed an unjustified breach of the contract, and appellee is entitled to recover damages on that account.
It is also contended that the order for the lumber is too indefinite to constitute n binding contract, in that it merely described the quantity of lumber as four carloads, without any other further specifications as to quantity. The order in this regard reads as follows:
“4 carloads 4-4" No. 2 common and better plain oak as follows:
“4-4 FAS ..............................................................................$150.00
“4-4 No. 1 common.........................................................110.00
“4-4 No. 2 common...................................................... 65.00”
The argument, is that four carloads of lumber may mean any quantity that appellee might see fit to ship in four separate cars. It appears from the record that the capacity of railroad cars is from 8,000 to 15,000 feet of lumber. Under the terms of the contract, appellee had a right to deliver four carloads of at least minimum capacity, and the specification, we think, was not too indefinite to constitute an enforceable contract.
It is also contended that the contract was too indefinite because it did not specify the quantity of-lumber of the different grades. The effect of the contract is to bind the purchaser to accept carloads of lumber of any of the kinds specified without regard to the quantity of the different grades. In other words, the contract constituted an undertaking to accept lumber of any of the grades specified.
Finally, it is contended that the verdict is not sustained by evidence sufficient to show the extent of the damage, but we are of the opinion that the evidence shows even more damages than the jury allowed. It is disclosed in the evidence that the parties corresponded for a time after appellant’s attempt to cancel the order, in an effort on the part of appellee to induce appellant to accept the lumber, and that the lumber was resold on the market within a reasonable time after appellant refused to accept it.
Judgment affirmed.
Wood and Hart, JJ., dissent. | [
-80,
-12,
-72,
-115,
10,
96,
40,
-102,
92,
-93,
37,
83,
-19,
-42,
12,
99,
-25,
125,
97,
122,
37,
-77,
6,
99,
-45,
-109,
-93,
-57,
56,
-53,
-28,
95,
76,
32,
-54,
-127,
-62,
-62,
-59,
-100,
-50,
-95,
-68,
-20,
-39,
72,
52,
123,
84,
75,
113,
-114,
-21,
44,
29,
75,
41,
44,
-19,
57,
-64,
-15,
-69,
29,
127,
7,
49,
4,
-104,
5,
-54,
62,
-112,
49,
-102,
-8,
114,
-78,
-122,
84,
11,
-103,
8,
38,
102,
32,
-116,
-19,
-100,
-72,
39,
-6,
-99,
-90,
-64,
56,
2,
67,
-74,
-100,
124,
82,
22,
126,
-22,
13,
25,
108,
11,
-25,
-108,
-77,
47,
-16,
92,
19,
-17,
-93,
54,
113,
-49,
-16,
93,
71,
27,
-101,
-122,
-29
] |
Hart, J.,
(after stating the facts). The practice in this State is that, where a defendant who has been constructively served seeks a new trial under the statute, he cannot have the judgment or decree vacated on the motion. The judgment or decree remains until the case is retried, to be then confirmed, modified, or set aside. Gleason v. Boone, 123 Ark. 523.
In the present case Ella Moreland showed no ground for setting aside the mortgage foreclosure proceedings. The proceedings themselves were regular in all respects. There was a valid mortgage and a subsisting debt due, which it was given to secure.
The court found the amount due under the mortgage, and ordered a sale of the land for the satisfaction of the debt secured by the mortgage. A commissioner was appointed to make the sale, and the land was duly sold by him. The sale was made in due time, 'and was also reported to the chancery court and 'approved and confirmed by the court. The court then directed the commissioner to execute a deed to the purchaser to the land, which was done. No showing was made by Ella Moreland to have these procedings set aside. She does not show that the foreclosure proceedings were erroneous in any respect. So far as the record discloses, -the mortgage was a valid one, and was executed by the father of Ella Moreland in his lifetime. He owned the land and owed the debt for which he mortgaged the land. Therefore the court was right in denying the- petition of Ella Moreland and dismissing it for want of equity. It did not make any difference whatever whether she was the sole heir of W. H. Larkins, deceased, or not. She would- have just as much right in the one case as the other to have the case retried; but in'either event she must show some meritorious defense to the action, and this she has failed to do.
It follows that the decree will be affirmed. | [
-45,
-17,
-44,
108,
-54,
96,
42,
-104,
66,
98,
53,
83,
-1,
-62,
16,
45,
-30,
75,
117,
105,
-43,
-78,
7,
9,
-14,
-45,
80,
93,
-11,
-49,
116,
-41,
76,
96,
90,
-43,
70,
-85,
-59,
80,
14,
-89,
-102,
69,
-47,
-64,
48,
35,
84,
13,
117,
110,
-29,
47,
17,
-26,
104,
40,
95,
61,
80,
56,
-102,
-123,
127,
1,
-111,
37,
-100,
-29,
88,
42,
-112,
53,
1,
-24,
115,
-74,
-122,
84,
64,
27,
40,
102,
98,
-111,
-59,
-17,
-71,
-102,
63,
-82,
-115,
-90,
80,
88,
-61,
43,
-73,
-39,
121,
0,
14,
-20,
-18,
-124,
124,
-20,
15,
-18,
-42,
-73,
-119,
28,
-104,
-125,
-57,
7,
48,
113,
-52,
-92,
92,
98,
93,
-5,
-114,
-67
] |
Hart, J.,
(after stating the facts). The first assignment of error is that the judgment should be reversed because the court gave instruction No. 1, over the objection of the defendant. The instruction is as follows:
“The court instructs the jury that, if you find from a preponderance of the evidence in this case that the plaintiff was in the employ of the defendant company and was working for it under the orders and directions of its foreman, and you find from the evidence that he was in the exercise of ordinary care for his own protection, and you find from the evidence that he had not assumed the risk, and you find from the evidence that he was injured on account of the negligence of the defendant company, its agents, servants or employees, as alleged in his complaint, it will be your duty and you are instructed to find for the plaintiff in this case. ’ ’
Counsel specifically objected to the instruction because there was no evidence-to the effect that the plaintiff was working under the orders and directions of his foreman, or that he was injured by reason of obeying any order or direction of his foreman.
We do not think this objection is tenable. The evidence shows that the plaintiff was a member of a section crew which worked under a foreman. He necessarily gave them orders about doing their work, and the instruction simply means that, at the time the plaintiff was injured, he was working under his foreman. It was true he was coming home from his work on a motor-car, but this was his usual and customary way of going to and from work. He had a regular place on the motor-car in which to sit, and he was occupying this place at the time the car ran off of the track. He was as much under the authority of the foreman at this time as he was when he was actually at work on the tracks. Arkadelphia Lumber Co. v. Smith, 78 Ark. 509; Gilkey v. La. & Ark. Ry. Co., 103 Ark. 231. The instruction did not mean to submit to the jury that the plaintiff was injured k while doing a particular act at the command of his foreman. This interpretation is negatived by all tlie testimony in the case. There is no dispute whatever about how the accident occurred. The only dispute is about the defective condition of the track and the negligence of the driver of the motor-car. We do not think that the jury could have been in anywise misled by this instruction.
The court gave, at the request of the defendant, instructions covering every phase of the case presented 'by the evidence.
Again, it is insisted that the instruction assumes that the defendant was negligent. We do not think so. The instruction plainly predicates the right of the plaintiff to recover upon a finding by the jury of negligence as alleged in the complaint.
It is next insisted that the court erred in giving instruction No. 7, which reads as follows:
“You are instructed that it was the duty of the defendant company to exercise ordinary care to see that its motor-car and its track and roadbed were kept in a reasonably safe condition, and you are further instructed that this duty that rested on the defendant company required it to make reasonable inspection to see that they were kept in a reasonably safe condition.”
It is first contended that there is no evidence to the effect that the defendant failed to make an inspection, and that the plaintiff knew as much about the condition of the track and roadbed as any one. The evidence for the plaintiff to the effect that the ties were rotten and that the rails had spread because the spikes had come out of them was evidence tending to show that the defendant had not inspected its tracks. Then, too, there was evidence of low joints in the rails which was caused by heavy loads being hauled over the rails and pressing them down into the ground, without a proper surfacing of the tracks. This evidence was sufficient to constitute negligence on the-part of the defendant ; for it was its duty to exercise ordinary care in furnishing the plaintiff a safe place in which to work. It is true that the plaintiff was a section hand, and rode over the rails every day, but this did not make it his duty to inspect the rails and the roadbed for defects in them. Therefore we hold this assignment of error is not well taken.
The nest assignment of error is that the court erred in giving instruction No. 8, which reads.as follows:
“The court instructs the jury that, if you find for the plaintiff, from the evidence in this case, you will assess his damages at such a sum as will compensate him for the injuries sustained, if any; the physical pain and mental anguish suffered and endured 'by him in the past, if any, by reason of the said injuries; his loss of time, if any; and his pecuniary loss from diminished -capacity for earning money, if any; and from these, as proven by the evidence, assess .such damages as will fairly compensate him for the injuries received.”
Counsel for appellant claim that there is not sufficient evidence in the record upon which to predicate an instruction for damages for permanent injuries, and rely upon the case of St. L. I. M. & S. Ry. Co. v. Bird, 106 Ark. 177, to support this view.
• We do not think that the facts in the two cases are similar. In that case one of the physicians, in testifying whether or not the injury was permanent, said that there was a probability that it was permanent, and that it was just about equally balanced in his mind whether or not the injury was permanent. Another physician testified that it was questionable whether the injured person would ever get well, and that, looking at his condition as a matter of probability, it was .discouraging to him as a physician. The court held the testimony to be insufficient, and said that, unless the testimony tended to -show with reasonable certainty that the injury was permanent, the -court should not permit the jury to assess any damages for permanent injuries.
Here there is something more than the balancing of probabilities by the physician. Dr. Williams was a graduate physician and surgeon, and had been practicing his profession for over forty years. He testified that he had examined the plaintiff several times, and' described minutely the result of his several examinations. Then, in response to a direct question, he testified that the plaintiff had a permanent injury of the hip and possibly of the soft part of the pelvis. Dr. Williams gave this as his positive opinion, based upon his personal examination of the plaintiff upon several different occasions, and, as above stated, described with particularity the result of his examination.
But it is contended that Dr. Williams should not have been allowed to give his opinion of the permanency of the plaintiff’s injuries. We cannot agree with counsel in this contention. A medical witness may be permitted to state the probable effects ’of an injury or other conditions observed by him in his examination and treatment of a patient. Mo. & N. Ark. Rd. Co. v. Collins, 106 Ark. 353; K. C. So. Ry. Co. v. Cobb, 118 Ark. 569; and Hines v. Patterson, 146 Ark. 367.
It is next insisted that the court erred in giving instruction No. 9, which is as follows:
“You are instructed that, if you find from the evidence in this case that the plaintiff did not sign the release pleaded in this case, or authorize any one else to sign it for him, or cash it, it would be no defense in this case.”
It is claimed that there is no evidence upon which to base this instruction. It is true that the evidence for the defendant tended to show that it settled with the plaintiff, and that he signed a release of all claims against the defendant with full knowledge of its purport. It was also shown by the defendant that the draft which was issued to G. C. Cook for $4.50 in settlement hf his claim was cashed by the Bank of Malvern and paid by the drawee in due course of business.
It cannot be said, however, that this testimony is undisputed. The plaintiff denied in positive terms that he signed the release, cashed the draft, or made. any settlement whatever with the company. He testified further that he had never heard of any settlement until the day before he testified. This was testimony of a substantive character tending to contradict the evidence of the defendant on this point, and warranted the court in giving the instruction now complained of. The credibility of the witnesses was for the jury, and we hold that this assignment of error is not well taken.
It is also insisted that the court erred in giving instruction No. 6, which reads as follows:
“You are instructed that no one can recover damages for injuries caused by the act of God alone, but you are further instructed that if the act of God, coupled with the negligence of man, causes injury or damage to persons or property, a recovery is not barred by the act of God.”
This court has held that, if the damage is caused by the concurring force of the defendant’s negligence and some other cause for which he is not responsible, including the act of God, the defendant is responsible if his negligence is one of the proximate causes of the damage. St. L. S. W. Ry. Co. v. Mackey, 95 Ark. 297, and St. L. I. M. & S. Ry. Co. v. Steel, 129 Ark. 520.
It is contended, however, by counsel for the defendant that the instruction is erroneous because it made the defendant responsible if the jury should find that its negligence, concurring with the act of God only in a remote degree, caused the injury. We do not think so. As stated in the above opinion, the act of God which excuses must be not only the proximate cause, but the sole cause. We think, under the language of the instruction, the concurring negligence of the defendant, with the act of God,as an efficient and co-operating cause, was submitted to the jury under the principles of law above announced.
It is next insisted that the verdict of $1,000 is excessive. According to the evidence of the plaintiff, he was permanently injured in his hip, and had a limp in his walk at the time of the trial. He cannot lift heavy loads, and his spermatic cord has been enlarged and become hardened as a result of his injury.
It is true that, according to the evidence for the defendant, he is not permanently injured, but the jury has settled the conflict between the witnesses on this point in favor of the plaintiff. Assuming the evidence for the plaintiff, on the character and extent of his injuries, to be true, it cannot be said that the verdict is excessive.
According to the evidence for the plaintiff, he was going home from work in a motor-car of the defendant, and was «till in its service. Arkadelphia Lbr. Co. v. Smith, 78 Ark. 505, and Gilkey v. La. & Ark. Ry. Co., 103 Ark. 231. Hence it was the duty of the defendant to exercise ordinary care for the safety of the plaintiff while carrying him to and from his work, and it was also its duty to make reasonable inspection to see that the motorcar and track were in safe condition.
Bearing this in mind, it is readily apparent that, under the evidence adduced for the plaintiff, the jury was warranted in finding the defendant guilty of negligence in one or both of these respects, as alleged in the complaint.
It follows that the judgment must be affirmed. | [
-80,
-4,
-104,
-84,
8,
96,
42,
-38,
69,
-127,
39,
-41,
-17,
-113,
25,
63,
-11,
63,
117,
43,
85,
-93,
23,
3,
-14,
-109,
83,
-43,
-73,
111,
118,
122,
77,
48,
-54,
-43,
103,
65,
-59,
86,
-114,
-124,
-70,
108,
25,
0,
48,
62,
20,
79,
33,
-98,
99,
46,
26,
-61,
107,
40,
107,
104,
-62,
-16,
-46,
13,
111,
4,
-95,
36,
-98,
39,
88,
36,
-128,
49,
1,
-8,
114,
-74,
-125,
116,
105,
-101,
8,
98,
102,
1,
29,
107,
-72,
-72,
14,
110,
13,
-89,
-103,
25,
11,
3,
-74,
-67,
127,
22,
86,
-18,
-22,
93,
95,
100,
3,
-49,
-108,
-79,
-51,
100,
-70,
-119,
-21,
-127,
17,
113,
-52,
-70,
93,
5,
83,
-101,
-97,
-114
] |
Humphreys, J.
Appellee, Mrs. Hosea Brady, as mother and next of tin to Louis Lindel Brady, recovered damages in Hot Springs Circuit Court against appellants, in the sum of $500, for injuries received by her child; and appellee, Hosea Brady, recovered damages against said appellants in the sum of $50 for injuries to his automobile, on account of alleged negligence of appellants through their servants. The- particular acts of alleged negligence was the backing of a train of flat-cars across a public road, upon which appellees were traveling in an automobile, without warning them of its approach, and which train was obstructed from their view by an office, other buildings, a fence and hedgerow, until within ten or twelve feet of the track, which train collided with the automobile and caused the injuries complained of,
Appellants filed an answer denying the allegation of negligence, arid pleading, by way of further defense, that the injuries were the direct result of negligence of appellees in driving the automobile onto and against the flat-cars, without taking any care or precaution to look or listen, or, if necessary in • the exercise of ordinary care, to stop for that purpose.
An appeal from tlie judgments lias been duly prosecuted to- this court, and the correctness of the judgments is assailed by appellants because the court gave certain instructions alleged to be erroneous, and refused to give others alleged to be correct, and erroneously modified others before giving them. The facts as reflected by the record.are in substance as follows: two railroad tracks of appellant, thirty feet apart, running north and south, crossed the public road at right angles where the alleged injuries occurred. Buildings between these tracks were on both sides of the public road. The office, fence and hedgerow were on the south side, and the mill and lumber yard were on the north side. Appellees were, going toward the east in the direction of Malvern, in a Ford oar owned by Hosea Brady. Mrs. Hosea Brady was driving, and her husband was sitting beside her holding the baby, then twenty-two months old. According to their evidence, they were driving at the rate of six or eight miles an hour, and, on account of the obstructions on the -south side of the road, did not see or hear the train until within ten or twelve feet of the track, at which time the train rapidly approached the crossing and -collided with their car before they could stop it; that, as soon as they discovered the train, Mrs. Brady put on the brake .and turned off the gas, and Mr. Brady turned off the engine; that the train was running much faster then than they had been traveling, and when they cut all the power off the automobile it reduced the 'speed enough to allow the front end bf the flat-car to get by them -some six feet before the collision occurred; that Mrs. Brady was accustomed to driving the car, and that she was looking to the front, as usual, when approaching the crossing.
According to the testimony of appellants, the flatcar was being backed across the road into the mill yard to place it for loading; that the train was moving about four to six miles an hour; that appellees were discovered forty or fifty feet from the crossing as they approached it; that the front end of the flat-car was then about thirty feet from the crossing; that immediately upon discover ing them the engineer shut the throttle, plugged the air valve and threw back the reverse lever; that, considering the speed of the train and other conditions, it could have been stopped within a distance of ten or twelve feet; that the reason the train reached the crossing first was because it was nearer than the automobile to the crossing; that the tracks did not cross a public highway, but a road hat was traveled by the people a good deal.
The undisputed testimony showed that the train was backed across the road crossing, which had been generally traveled by the people for many years, without giving any warning whatever of its approach, and without having any one on the front end of the flat-car to watch and give signals.
At the request of appellants, the jury was permitted to go to the scene and approach the crossing in automobiles as an engine was backing a flat-car up the track toward the road crossing, so that it might observe conditions at first hand. -
Appellants contend the instructions were erroneous because they did not take into account that the place where the injury occurred was private property and not a public road, thereby requiring appellants to exercise the same care to keep from injuring trespassers that they would have to exercise to keep from injuring travelers at a public road crossing. It is true, in instructing the jury, the court assumed that the place where the injury occurred was a public road crossing. All the witnesses testified it was such a crossing, unless it can be said that John A. Millen testified to the contrary. He did say the road was not a public highway, but at the time must have had in mind some technical conception of a public highway, for he admitted that the road had been generally traveled by the public for many years. We think the court’s assumption warranted, for there was no real dispute in the testimony upon the point.
Appellants also contend that the court erred in submitting the issue of negligence on their part. It is argued that there is no evidence upon which to base the issue. We think the evidence warranted the submission of that issue to the jury. The testimony tended to show that appellants backed two freight cars rapidly toward a public crossing without warning of any kind to travelers who might be approaching. The error, if any,' was against appellees, for, according to the undisputed testimony, the bell was not rung or the whistle blown in the manner required by the statute. Aside from the fact that the whistle was not blown or the bell rung, the evidence tended to show that, as the train approached the public road crossing, it was obscured from the view of travelers until they were within ten or twelve feet of the crossing, and, notwithstanding such facts, that no one was stationed at the crossing or on the front end of the flat-car to notify the public or to signal the engineer or fireman. An inference might well have been drawn by the jury from these facts that appellants’ train was operated negligently on that occasion. Appellants go further and assert the court assumed in several instructions that they were negligent in the operation of their train. After a careful reading of the instructions referred to, we do not think them susceptible of that construction.
Appellants also contend that the court erred in giving instruction No. 9, based upon the doctrine of discovered peril, for the alleged reason that there was no evidence to support the instruction. John A. Millen, acting brakeman, testified that the train was moving at the rate of four miles an hour; that he discovered appellees when they were forty or fifty feet from the road crossing, and immediately notified the engineer of their approach; that the front end of the flat-car nearest the road crossing was then thirty feet from it. C. J. Page, the engineer, testified that it was possible to stop the train within a distance of ten or twelve feet, at the rate it was moving. The jury would have been justified from these statement^ in drawing an inference that the appellants discovered the peril to appellees in time to have stopped the train and avoided the injury. It was proper therefore to submit that issue to the jury.
Appellants also .contend that the court erred in refusing to direct a verdict in their favor as to both appellees, upon the theory that the undisputed testimony showed that the negligence of Mr. and Mrs. Brady was the sole and proximate cause of the injuries. It is insisted that Mr. and Mrs. Brady should have stopped to look and listen as they approached the crossing. While it is necessary for a traveler to look and listen for trains as he approaches a public crossing, he is not required to stop for that purpose unless necessary to do so in the exercise of ordinary care for his safety. We cannot say, as a matter of law, under the facts in this case, that it was the duty of appellees to have stopped their car in order to look and listen. The testimony is in dispute as to whether the fence and hedgerow entirely obscured the train in the direction from which it came. There is nothing in the testimony tending to show that they could not have heard the Whistle, if blown, or the bell, if rung, while riding along at a low rate of speed. The record does not reflect that the train was passing on schedule time. According to the testimony, appellees were approaching the crossing slowly and looking to the front. We think it was a question for the jury, under the facts, to say whether the injuries resulted wholly from the negligence of Mr. and Mrs. Brady, or wholly from the negligence of appellants, or from the concurring negligence of both.
Appellants also contend that the court erred in giving appellees’ requested instruction No. 1, which is as follows:
“You are instructed that if you find from the evidence in this case that the defendant company, in the operation of one of their trains, negligently damaged plaintiff’s car, without fault or negligence on his part, as alleged in his .complaint, it will be your duty and you are instructed to find for the plaintiff, Hosea Brady, in what ever sum you find from the evidence that his oar was damaged.”
This instruction was erroneous because it ignored the negligence of the wife as a defense to the action of Hosea Brady for the injury to the automobile. Hosea Brady owned the automobile, and was in no sense a guest of his wife, so he had control, along with his wife, over the movements of the car. The negligence of Mrs. Brady, if any, therefore was imputable to Hosea Brady, and should have been taken into account just as his own negligence, if any, in determining whether there was liability on the part of appellants, for damage to the ear. The defect in instruction No. 1 was not cured by other instructions given by the court. The only one tending to cure the defect was in conflict with the one given.
The judgment in favor of Mrs. Hosea Brady, as mother and next of kin of Louis Lindel Brady, is affirmed; and, on account of the error indicated, the judgment in favor of Hosea Brady is reversed, and his cause of action is remanded for a new trial. | [
-16,
120,
-68,
-17,
58,
108,
10,
8,
-11,
-95,
-27,
-45,
-81,
-59,
9,
101,
-18,
127,
-11,
43,
-27,
-77,
95,
-62,
-110,
-109,
-69,
-123,
-112,
72,
-12,
-42,
77,
48,
74,
29,
102,
72,
-59,
-100,
-114,
-96,
-85,
-4,
25,
-62,
48,
126,
20,
7,
1,
-113,
-62,
42,
24,
95,
108,
47,
105,
-88,
-56,
112,
-126,
5,
79,
2,
48,
38,
-66,
-93,
72,
25,
-104,
48,
40,
-4,
115,
-90,
-110,
-12,
73,
-119,
8,
98,
103,
34,
77,
-27,
-68,
-120,
14,
-66,
-113,
-90,
50,
17,
27,
1,
-65,
-99,
82,
80,
29,
120,
-3,
77,
93,
96,
3,
-113,
-76,
-111,
-51,
32,
-114,
51,
-21,
13,
54,
117,
-49,
-90,
77,
5,
50,
-101,
31,
-109
] |
Smith, J.
On March 4, 1920, appellant purchased from appellee a house and lot for $5,700, making a cash payment of $700, and executing a number of notes for $100 each, payable one each month, and, in addition, assumed the payment of an outstanding mortgage. He made the payments due in May and June, but declined to make the July payment, contending that a fraud had been practiced upon him.- He brought suit in the chancery court, asking for a rescission, but, as appellee had sold the notes, appellant surrendered the premises and brought suit for damages for the alleged fraud.
Appellant testified that Mrs. Gill, tho saleswoman, showed the house to him and his wife at night, and made a number of representations in regard to it which induced him to ¡buy, but which were in fact false. In the course of this testimony he stated what Mrs. Gill had said about the house, and objection was made to this testimony on the ground that Mrs. Gill’s agency had not been shown. Mrs. 'Gill was then called, and her testimony was objected to on the same ground, and she was told to stand aside, and appellee’s husband was called, and he was asked about his own agency, with the obvious purpose of proving Mrs. Gill’s agency to show the property to prospective purchasers. An objection was made to the first question asked this witness, and the court ruled that “you cannot establish a subagency, or the delegation of authority, by the testimony of either the agent or the delegated agent.”
Appellant then offered in evidence the answer appellee had filed in the suit for the rescission of the contract, in which she admitted that her husband was her authorized agent in negotiating and selling the property, but an objection to this admission was made and sustained.
This exhausted appellant’s proof, and the court thereupon directed a verdict in appellee’s favor, from which is this appeal.
The court erred in its ruling excluding testimony. The existence of an agency cannot be shown by proving the acts and declarations of the agent, but the agent may himself testify in regard to his agency and the extent of his authority. The court should therefore have allowed appellant to examine both appellee’s husband and Mrs. Gill concerning their agency.
The court should also have admitted in evidence the answer in the rescission suit as an admission tending to prove her husband’s agency. Valley Planting Co. v. Wise, 93 Ark. 1.
Appellant also insists that, inasmuch as Mrs. Gill sold the property to him, appellee, by executing the deed, ratified all the alleged false representations made by her in the course of the negotiations leading up to the sale. This may or may not be true, but, inasmuch as the court did not admit the testimony showing the existence of Mrs. Gill’s agency, or the extent of her authority, we can only lay down a few general principles of the law of agency for the guidance of the court on the retrial of the cause, which must be ordered.
One is liable for the fraud and misrepresentation of his agent within the scope of the agent’s employment, and this is true whether the principal authorized or had knowledge thereof or not. See article on Principal and Agent in 21 R. C. L., p. 850, and cases cited in the footnotes. In section 38 of the same article, p. 860, it is said: “It is a general rule that, in all cases of delegated authority, where personal trust or confidence is reposed in the agent, and especially where the exercise and application of the power is made subject to his judgment or discretion, the authority is purely personal, and cannot be delegated to another, unless there is a special power of substitution, either express or necessarily implied. * * * He may, however, as a general thing, employ others to assist him in the purely .ministerial and unimportant details- of his duty. And their acts, when done in his name and recognized by him, either specially or according to his usual mode of dealing with them, are regarded as his acts, and as such binding on his principal. Furthermore, authority to employ subagents or assistants -may be inferred in the absence of an express authorization, wherever there is a necessity therefor or the employment 'of subagents is usual and customary.” The annotated cases cited in the note to the text quoted collect many cases which support the text. See also Roach v. Rector, 93 Ark. 521.
The question of ratification may not enter into the case after it has been fully developed. If the testimony shows that Mrs. Gill was appellee’s agent, and if, acting within the scope of her employment, she made false and’ fraudulent representations in regard to the property, then appellee is responsible therefor, but the responsibility arises out of the general principles of agency stated above, and not by way of ratification. On the other hand, if Mrs. Gill was not appellee’s agent when she made the false representations inducing the sale, if she made them, but became appellee’s agent before the sale was made, then appellee would not be liable therefor, unless she had knowledge thereof when she executed the deed, for knowledge is essential to ratification.
But we proceed no further with this discussion, as we do not know what details will develop when appellant is permitted to examine appellee’s husband and Mrs, Gill in regard to their agency.
For the errors in refusing to permit the examination of these witnesses, and in excluding the answer filed in the rescission suit, the judgment is reversed and the cause will be remanded for a new trial. | [
17,
122,
-24,
-83,
26,
96,
-86,
-70,
-40,
-32,
39,
83,
109,
74,
0,
37,
-89,
45,
113,
98,
69,
-78,
71,
43,
-14,
-77,
-5,
-35,
-75,
76,
-12,
-99,
76,
48,
-62,
-107,
102,
-118,
-121,
24,
14,
-127,
-120,
-20,
-39,
-62,
48,
-77,
0,
79,
69,
-34,
-13,
46,
57,
90,
45,
46,
111,
-79,
-16,
-8,
-98,
13,
125,
7,
48,
119,
-2,
67,
-24,
14,
-112,
53,
0,
-56,
115,
-74,
-110,
112,
79,
-101,
8,
34,
98,
34,
97,
-19,
-16,
-100,
46,
126,
-99,
-90,
-109,
88,
11,
105,
-66,
-97,
124,
0,
39,
-10,
-18,
-43,
29,
104,
11,
-81,
-42,
-93,
29,
114,
-102,
3,
-2,
-125,
48,
112,
-49,
-94,
92,
103,
115,
-101,
-114,
-55
] |
Humphreys, J.
The issue presented and determined by the trial court in this case involved the validity of two tax deeds executed by T. C. Merwin, county clerk of St. Francis County, on June 20, 1917, to appellant, pursuant to the certificates of purchase issued on the 14th day of June, 1915, under a sale of the land described in the deeds for the taxes of 1914. The lands are in sec. 32, township 6 N., range 2 E., one deed containing the S. W. ¼ N. E. ¼, assessed in 1913 at $160, and the other including the W. ½ of the N. W. ¼ N. E. ¼, assessed in the same year at $50. There was no assessment in 1914, the assessment of 1913 covering each year and holding good in 1914. In 1914 the clerk extended taxes against said S. W. ¼ N. E. ¼ upon an assessment or valuation of $80 instead of $160, and against the W. ½. of the N. W. ¼ N. E. ¼ upon an assessment or valuation of $25 instead of $50. This was done because the equalization board of the county appeared before the quorum court and asked said court to indorse the following resolution:
“Came N. B. Nelson, Lon Slaughter and W. R. Kendrick, the board of equalization, and presented a resolution asking approval and indorsement of their action in reducing the assessment of all the real and personal property of St. Francis County as returned by the assessment for 1914 on each list and tract of land 50 per cent, of its present valuation.” According to the records of the proceedings of the quorum court, the above resolution was adopted, and five mills was levied on one-half of the assessed valuation of the real and personal property of the county.
The trial court canceled the tax deeds in question, upon the theory that the forfeiture for the nonpayment of taxes for the year 1914 was void, because the taxes were levied and extended against the lands for only 50 per cent, of their assessed value, instead of their assessed value. The trial court, in doing this, agreed with the contention of appellees to the effect that the levy and extension of the taxes on said lands were void because based upon an attempted blanket reduction of the assessed valuation of the lands in the county by the quorum court at the instance of the equalization board. It is true that the equalization hoard had no right at that time, under the statute, to make a.blanket reduction of the assessments of lands in the county. Saline County v. Hughes, 84 Ark. 347. In fact, the equalization board had no right to equalize assessments of real estate at all in 1914. They only had the right to equalize assessments in 1913, and the assessment made by an assessor and equalized by them in 1913 held good for the year 1914. It may also be observed that the quorum court had no authority whatever to assess or approve an assessment of value for the purposes of taxation. The fact, however, that the taxes were extended by the clerk against the lands upon a 50 per cent, assessed valuation directed by the combined action of the equalization board and quorum court did not have the effect of rendering the forfeiture of that year void. The right to extend taxes-levied upon a larger valuation necessarily included the right to extend the taxes upon a less or smaller valuation. The extension of a smaller amount than should have been extended was an irregularity merely, and favored rather than injured appellees. According to the regular assessment against the lands for 1914, a larger sum total might have been levied thereon for general, State, and county purposes than was levied, and a greater amount for such purposes might have been extended against the property by the clerk than was extended. No substantial right of the appellees was invaded by either the levy or extension of the taxes. As we understand, no complaint is made that improper amounts were levied or extended against the lands for school purposes. The valuations fixed by the assessor in 1913 were used as a basis for levying and extending the school taxes.
■ The forfeiture of the lands for the nonpayment of taxes for 1914 was not void because the taxes were levied and extended against them on the 1913 and 1914 assessment, improperly and irregularly reduced by the equalization hoard, and it was error to cancel the two tax deeds based upon the forfeiture.
The decree is therefore reversed, and the cause is remanded with directions to enter a decree sustaining the tax titles and upholding the deeds evidencing same. | [
-11,
-52,
-12,
92,
-70,
-64,
66,
-115,
74,
-79,
-92,
83,
-95,
-48,
80,
113,
-93,
29,
117,
120,
-57,
-73,
114,
83,
-112,
-45,
-59,
-59,
53,
77,
-76,
-44,
76,
49,
-54,
-107,
-58,
-30,
-51,
-36,
-42,
-120,
41,
-19,
-39,
112,
60,
109,
112,
73,
113,
-82,
-21,
60,
52,
75,
104,
44,
73,
-88,
88,
-72,
-78,
-123,
89,
7,
17,
103,
-104,
1,
-56,
-82,
-104,
53,
68,
-8,
115,
-90,
-58,
84,
5,
-103,
40,
110,
38,
27,
101,
-17,
-24,
-40,
46,
-6,
9,
-90,
22,
72,
99,
-118,
-106,
-107,
124,
80,
71,
118,
-28,
5,
29,
104,
7,
-81,
-106,
-93,
15,
-84,
-126,
3,
-45,
43,
52,
113,
-113,
-62,
92,
79,
24,
-101,
-114,
-104
] |
Hart, J.,
(after stating the facts). This court has sustained as valid agreements by the vendor of a business, with or without limitations as to time, not to carry on the business within the limits of a certain city. Bloom v. Home Insurance Agency, 91 Ark. 367; Hampton v. Caldwell, 95 Ark. 387; Kimbro v. Wells, 112 Ark. 126; and Kimbro v. Wells, 121 Ark. 45.
Under this rule Crabtree might make a valid agreement with the purchaser of his stock not to engage in the same business again in the same city as the corporation which purchased his stock. Assuming (without deciding the question) that a contract in partial and reasonable restraint of trade, such as a covenant not to engage in a particular business within a designated territory, is as signable, still we do not think that the contract in question is valid under the particular facts and circumstances in this ease as shown by the record.
According to the testimony of Crabtree, which is corroborated by that of Moore, he made and executed the contract for the sale of his stock to the corporation which issued it before he -made or assigned the contract not to engage again in the transfer business in the city of Fort Smith. His sale of the stock was completed on the evening of June 23, 1914. This is shown by the minutes of the board of directors of the corporation held on that evening, and nothing is shown by any agreement on Crabtree’s part not to again engage in the same business.
It is true that the stock was not delivered to the corporation or the notes of the corporation delivered to Crabtree until the next morning. This occurred, however, because the stock of Crabtree had .been deposited in bank as collateral security. The stock was delivered to the corporation by Crabtree, and the notes of the corporation were delivered to Crabtree for the stock before anything was said to Crabtree about making an agreement not to engage again in the business. Crabtree at first declined to sign the agreement, but, upon the representative of the corporation insisting on it, he did sign it, but received no consideration for so doing. His testimony in this respect is corroborated by that of O. C. Moore.
Hence the chancellor was warranted in finding that the contract for the sale of the stock by Crabtree to the corporation and the contract by him with the corporation not to engage again in the transfer business in the city of Fort Smith were separate and distinct contracts, with no consideration for the latter.
It was competent to show by parol evidence that the two instruments were wholly independent and separate agreements, and that there was no consideration between the parties to support the agreement of Crabtree not to again engage in the transfer business in the city of Fort Smith. Kimbro v. Wells, 112 Ark. 126, and Kimbro v. Wells, 121 Ark. 45.
The chancellor found the issues in this respect in favor of the defendant, Crabtree, and it cannot be said that his finding of fact is against the preponderance of the evidence.
It follows that the decree will be affirmed. | [
116,
-1,
-48,
-65,
26,
-24,
58,
-70,
56,
-96,
103,
123,
-55,
-48,
13,
121,
-89,
125,
81,
0,
-11,
-77,
7,
56,
-14,
-109,
-53,
-43,
-79,
75,
-11,
93,
76,
32,
-54,
-43,
-90,
74,
-55,
-100,
78,
4,
10,
108,
-3,
-47,
48,
3,
0,
75,
69,
-114,
-13,
40,
21,
-49,
-83,
40,
105,
56,
-48,
-15,
-102,
15,
119,
5,
49,
100,
-104,
39,
-56,
110,
-104,
49,
9,
-23,
83,
-74,
-122,
116,
111,
-55,
8,
34,
35,
2,
101,
-17,
-100,
-100,
47,
-6,
-115,
-90,
-108,
24,
43,
79,
-65,
-97,
90,
2,
4,
-6,
-10,
28,
-103,
108,
13,
-114,
-42,
-93,
1,
116,
-110,
1,
-2,
7,
-79,
80,
-50,
-90,
93,
85,
50,
-101,
15,
-15
] |
Hart, J.
(after stating the facts). The judgment of the circuit court sustaining Mrs. Pannell’s plea of res judicata was correct. A comparison of the statement of facts made by the court in the suit brought in equity by Wilson against Mrs. Pannell to quiet his title to the lot with t.lie statement of facts in the present case will show that they are in all essential respects the same.
In the equity case Mrs. Pannell defended on the ground that she had the equitable title to the lot in controversy, and for that reason Wilson could not prevail in his suit to quiet title. The court dismissed the complaint on the ground that the equitable title to the lot was in Mrs. Pannell. This is clearly shown by a quotation from the opinion in the equity case as follows:
“Appellant insists that the court erred in dismissing his bill for want of equity. This must depend upon whether his grantor, W. G. Pannell, was in position to assert his legal title as against the equitable rights of Mrs. S. A. Pannell in a court of equity, for appellant cannot be regarded as an innocent purchaser, as the record reflects that he had a personal acquaintance with his grantor, W. G. Pannell, and-the appellee, Mrs. S. A. Pannell, and understood that they had lived apart for twenty-three years; that said appellee had been in the actual possession of the lot during that period, paying taxes thereon and claiming ownership thereto.” Wilson v. Pannell, 149 Ark. 81.
It is true that the court denied the right of Mrs. Pannell to have her equitable title in the lot quieted. This was not done, however, because the court was of the opinion that the equitable title was not in her, but relief was denied her on the specific ground that her husband had not been made a party to the suit, and that therefore it was a technical error for the court below to quiet the title in her.
As above stated, however, the court held in the equity case that Mrs. Pannell had the equitable title to the lot, and for that reason denied the prayer of Wilson to have his title quieted, holding that he was not an innocent purchaser and had no greater right in .the lot than his grantor, the husband of Mrs. Pannell.
Therefore in a suit between the same panties for the same property,under a state of facts essentially the same, the court having held that the equitable title was in Mrs. Pannell, her plea of res judicata is fully established. Under our Civil Code a defendant may set forth in his answer as many grounds of defense, whether legal or equitable, as he shall have. Crawford & Moses’ Digest, § 1194, 4th subdivision. Under this provision of the Code it is well settled that the defendant in an action at law must interpose all defenses, legal and equitable. Daniel v. Garner, 71 Ark. 484, and Wales-Riggs Plantations v. Banks, 101 Ark 461.
Therefore it necessarily follows that if the equitable title of Mrs. Pannell was sufficient to prevent Wilson from maintaining a suit to quiet title in the lot, it would also be sufficient, in a suit between the same parties,under substantially the same facts, to prevent him from maintaining an action of ejectment whereby he would recover possession of the lot and thus defeat the equitable title of Mrs. Pannell. In short, it would do no.good to hold that the equitable title to the lot was in Mrs. Pannell, if she could not interpose it to a legal as well as equitable suit for the property against one who had purchased the lot from her husband with full knowledge of her rights.
It follows that the judgment must be affirmed. | [
-16,
108,
-44,
-116,
-8,
96,
42,
-118,
99,
-128,
-89,
-41,
127,
-54,
48,
53,
-29,
127,
81,
104,
-41,
-77,
27,
-94,
118,
-109,
80,
-35,
-67,
-18,
102,
84,
77,
48,
-126,
-43,
102,
-64,
-59,
84,
-114,
13,
-88,
69,
121,
64,
54,
63,
-48,
77,
17,
-105,
-77,
40,
16,
71,
105,
47,
107,
51,
64,
-8,
-114,
5,
127,
22,
-109,
52,
-12,
-31,
88,
8,
2,
48,
0,
-24,
51,
-74,
-126,
116,
41,
-101,
40,
34,
103,
3,
109,
-17,
-80,
-104,
6,
120,
13,
37,
18,
72,
3,
65,
-66,
-99,
109,
0,
102,
118,
-22,
-107,
92,
104,
27,
-113,
-106,
-69,
13,
-8,
-104,
19,
-17,
-123,
52,
113,
-49,
-94,
92,
99,
113,
-77,
14,
-90
] |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.