text:
    Overton vs. Matthews et al.
    1. Alteration : Promissory note avoided by.

    A material alteration of a note in its date or other parts by the payee or holder, without consent of the maker, avoids it as against the maker even in the hands of a bona fide holder without notice of such alteration.

      2. Same : Inserting wrong date in note: Bona fide holder.

    If the date of a note be left blank, any holder may insert the true date; but if he insert an improper date, it will avoid the note as between him and the makers, but not as between the makers and a purchaser for value before maturity without notice of the improper dating.
    3. Same : Pleading.

    A plea that the blank date of a promissory note was fraudulently filled by the payee with an improper date, is good against the payee, but not against his assignee for value before maturity, without averment of notice, etc.
    4. Instructions: To find for plaintiff or defendant.

    An instruction that upon the evidence in tjie case the jury should find for the plaintiff or defendant, should not be given except in cases where there is no evidence to sustain the cause of action or defense, and the court can so say as matter of law.
    5. Alteration: Whether material, is for court.

    "Whether a change made in a note is a material alteration, is a question of law for the court to determine, and not of fact for the jury.
    APPEAL from Drew Circuit Court.
    Hon. T. F Sorrells, Circuit Judge.

      Wells and McCain, for appellant.
   English, C. J.

This suit was brought in the circuit court of Brew county, by Fernando C. Overton, as assignee, upon ■the following note, against the makers thereof:

“Bloomfield, Iowa, June 18, 1877.

“ §125. Six months after date I promise to pay to the order of Great Western Well Auger Works, for value received, one hundred and twenty-five dollars, payable at bank at Pine Bluff, with interest at the rate of 10 per cent, per annum, and 10 per cent, attorney’s fees if collected by suit,

“W. J. Matthews,

“W. M. Larkin,

“ T. H. Matthews,

“ J. H. Hammock.

,. Indorsed — “ Pay the within to Fernando C. Overton.

“Great Western Well Auger Works, “Stephen Rtan, Proprietor.,”

The complaint set out the note, and alleged that on the first day of July, 1877. and before the maturity thereof, the Great Western Well Auger Works in their name as such, by Stephen Ryan, proprietor, indorsed said note in writing, and delivered the same to the plaintiff, etc.

The defendants filed an answer with two paragraphs, the first of which was struck out, and the second was as follows:

“And the defendants ¿further state that they never signed or ratified the note exhibited in the plaintiff’s complaint, nor did any person authorized by them ; but they state that they did, in the first part of the year 1877, sign such writing, in blank as to date, and it was agreed and understood by and between the parties to the note that said note was to be dated upon the delivery of a certain auger to the defendants by the Great Western Well Auger Works, due six months after date, as stated as to interest, etc., and upon no other consideration or different consideration ; and that the Great Western Well Auger Works fraudulently, and without any authority from said defendants, and without fulfilling any of the conditions whatever, did, with the design and intention of cheating and defrauding said defendants, fill up said blank, thereby altering and making void said note. Wherefore0 the defendants pray judgment,” etc.

To this answer the plaintiff demurred, and the court overruled the demurrer.

The case was submitted to a jury, and the parties introduced the following evidence, in substance:

Plaintiff read in evidence the note sued on, and rested.

Thomas H. Matthews, one of the defendants, testified that the note in suit was sent to the Great Western Well Auger company, signed by all the defendants, but with the date left blank, which date was to be filled up when said company should deliver to defendants a well auger, which the note was to pay for, but the auger was never delivered. The company do business at Bloomfield, Iowa.

The company.after the note was sent to them, acknowledged its receipt by the following letter:

“Office of Great Western Well Auger Works, Bloomfield, Iowa, July 13, 1877.

“W. J. Mathews, Esq., Montieello, Ark:

“Dear Sir — Your favor of July 3 to hand and contents noted, and would say, in reply, that your papers are satisfactory, and we will forward j-our auger, etc., in a very few days. In consequence of the heavy rains in this country of last month, which damaged the railroads and made it impossible for us to get material to work on, we have fallen some behind with our work, but your note will be void until the auger is received by you. We are now running a large force, and gaining on our lost time very fast.

“Yours, etc., Gt. W. W. A. W.

“B.”

Plaintiff objected to the introduction' of this letter, but the court overruled the objection, and permitted it to be read to the jury.

Witness supposed Smith was the corresponding secretary of the company, as lie signed all the letters. Here •witness exhibited several letters from the Well Auger company, signed “per Smith.”

John H. Hammock, another of the defendants, testified, substantially, the same as witness, Matthews, and defendants rested.

The deposition of plaintiff, Overton, taken the thirtieth of April, 1878, was read in evidence, and he deposed, in-substance :

That he was thirty-three years of age, and resided in Bloomfield, Iowa. That he was' the owner of the note in suit, and bought it from William S. Smith, July 24, 1877, and paid him for the note $120. That he knew nothing of the consideration for which the note was executed by its makers, only that William S. Smith, who had been an employee of the Great Western Well Auger Works represented the note to be perfectly good.

In the negotiation of Smith to sell witness the note, he showed him a letter purporting to bé from ITon. W. E. Slemons, M. C. of the Second district of Arkansas (which is attached to his deposition) on which he relied almost, entirely as to the genuineness of the note and the responsibility of its makers.

That the note was dated, when he first saw it, “June 18, 1877,” and he had no knowledge whatever that said date was not placed there at the execution of the note, nor that it was put there by any one but the proper person having a right to date the same.

. That on the fifteenth of December, 1877, he notified the makers of the note, and had sent it to Truelock Brothers, bankers at Pine Bluff, for collection, to which notice he received, by postal card, the following reply, (attached to deposition):

“Monticello, Ark., Dec. 24, 1877.

“Sir — Yours fifteenth inst. to hand. In reply will say, the note is void. The auger has never been shipped. The company is a fraud — a set of swindlers. I will give them a free notice in the next ‘Monticellonian,’ our county paper; and if they do not return the note, I will advertise them in the ‘State Gazette.’ Yours, truly, T. H. Matthews.

‘•E. C. Overton, Esq., Bloomfield, Iowa.”

Plaintiff further deposed that when he took said note, on July 24, 1877, he did not know that there was any defense to it, or any grounds.of defense.

On cross-examination, he deposed that there was such a company as the Great Western Well Auger Works, located in Bloomfield, Iowa, and that its business was the making and selling well angers, and selling territory, and he had no personal knowledge of its responsibility. He had known said company in a general way for two years or more, but had no knowledge of its responsibility. He was in no manner connected with it. At the time he traded for the note, he did not know any thing about its consideration. He had learned from defendants, since the note was sent for collection, that the consideration for its execution had not been complied with, and from said company that they offered to, and were ready to ship the property, but that defendants had refused to receive the same.

The letter of Hon. W. E. Slemons, attached to plaintiff’s deposition, follows:

“Monticello, Ark., July 8,1877.

“ Sir — Mr. W. J. Matthews has asked me to write to you, in answer to your postal card inquiring after the responsibility of him and securities. I am glad to state that Mr. Matthews and brother, and Mr. Hammock, are entirely responsible for the amount mentioned. Mr, Matthews is a farmer, Mr. Hammock sheriff of the county, the other Matthews a merchant,

“ Respectfully, W. E. Slemons,

“ Second District Arkansas M. 0.”

Plaintiff also read in evidence the deposition of William S. Smith, who deposed, in substance, that he was thirty years of age, and resided at Bloomfield, Iowa. That he sold the note in suit to plaintiff. July 24, 1877, for $120. That he had been for more than a year an employee of the Great Western Well Auger company, and received the note from the company on salary due to him from them-That before he took the note, he had in his possession the above letter from Hon. W. F. Slemons, recommending the makers of the note to be solvent, and transferred the letter to plaintiff with the note. That he had no knowledge- as to the date of the note, except what the note showed on its face, and it did appear dated “June 18, 1877,” when he received it from the company.

That while he was employee of the company, if a note was sent by its makers without being dated, or defectively drawn, it was under all circumstances returned to the maker's for the proper correction.

That he did not know of the non-fulfillment of the contract for which the note was given, or of its consideration having failed, or whether the contract was completed or not, or anything against the validity of the note when he got it.

On cross-examination, he further deposed that there was such a company as the Great Western Well Auger Works; that its place of business was Dloom.fi.eld,,Iowa, and it manufactured and sold well augers and territory, and he did not know of its present responsibility. He supposed plaintiff’ had some general knowledge of the company, but did not know what he knew of its financial condition and responsibility. Did not know that plaintiff’ had any knowledge, at the time he sold him the note, of the consideration for which it was executed, or of the condition on which it was given, nor did witness know wdiether the conditions had been complied with.

The above being the substance of all the evidence introduced at the trial, plaintiff' moved the following instructions :

“1. If the jury believe from the evidence that defendants executed the note sued on in blank as to date, and delivered the same to the Great Western Well Auger company, and the date was afterwards filled, and before the note become due and payable, the plaintiff', Overton, purchased the note for value, without notice of an.y defense to the note, he is entitled to recover.

“2. If the jury believe all the evidence in the case, they should find for plaintiff.

‘‘ 3. IJnder the testimony in the case, the jury must find for plaintiff.

“4. The mere filling up of a date to a note, given without date, when it does not give a date anterior to that of the delivery of the note, is not a material alteration.”

The court gave the fourth, but refused to give the first, second and third of these instructions, and plaintiff excepted.

For defendants, and against the objection of plaintiff, the court gave the following instruction :

“ If the jury believe from the evidence that there was a material alteration of the note sued on after its execution, affecting the rights of defendants, and without'their consent, they will find for defendants.”

The jury returned a verdict in favor of defendants, upon which judgment was entered.

Plaintiff' moved for a new trial on the grounds :

That the court erred in refusing the first, second and third instructions moved for plaintiff; and in giving the instruction asked for defendants ; and in permitting defendants to read in evidence their letter from the Great Westerft Well Auger Works to them.

1. Altera-

'Promissory not© avoidedby.

2. — Inserting holder.

The court overruled the motion, and plaintiff took a bill of exceptions and appealed.

The note sued on appears on its face to be negotiable paper, and is subject to the rules of the law merchants. Gantt’s Dig., sec. 566; 1 Daniel on Negotiable Instruments, secs. 61-62.

A material alteration of a note in its date or other parts, by the payee or holder, without the consent of the makers, . . , . avoids it as against the makers, even in the hands of a bona fide holder without notice of such alteration. 2 Daniel on Negotiable Instruments, secs. 1378, 1376; Lemay v. Williams, 32 Ark., 166; Inglish et al. v. Breneman. 5 Ark., 377.

the date be left in blank, any holder has the right to ,J * ° 0 insert the true date (Inglish et al. v. Breneman, sup.), and should he insert an improper date, though it will avoid the note as between him and the makers, yet, by the law merchant, one who takes the note for value before maturity, without notice of such improper filling of the Blank date, may recover upon it against the maker. 1 Daniel on Negotiable Instruments, secs. 142-143, 843.

It seems from the evidence in this case that the makers of the note intrusted it to the payees (the Well Auger company), with authority to fill the blank date on delivery of the auger for which it was given, and that they in bad faith filled in the date, and transferred the note without delivering the auger, blit that appellant purchased the note for value, before its maturity, it being fair on its face, without any notice of such wrongful filling of the blank date. Appellees, by confiding in the auger company, put it in their power to fill the blank date wrongfully, and impose the note on strangers, and they must suffer for the wrongful act of the company, in whom they reposed confidence, and intrusted with such authority, rather than appellant, who was a stranger to the transaction, and a bona fide assignee of the note.

3.---Noticed.ine'

4> instruo-

§efendfnt^

5.. Altera-

whether material is for court.

If the well auger company had sued on the note, the plea of appellees would-have been good, but it was bad as to appellant, for want of averment of notice, etc.

The court should have given the first instruction moved for appellant.

In the second and third instructions moved for appellant, the court was, in effect, asked to charge the jury that appellant was entitled to a verdict upon the evidence. Such instructions should not be given, except in cases where there is no evidence to sustain the cause of action, or defense, and the court can so say as matter of law, it being the province of the jury to judge of the facts, and of the court to declare the law. Constitution, art. 7, sec. 23.

The court should not have given the instruction moved for appellee. Where a change has been made in a note, it • • r> 1 . is a question of law for the court, and not of fact for the , ' . jury, to determine whether or not it amounts to a material alteration. Whether or not the appellant took the note for value, before maturity, and without notice of the wrongful filling of the blank for the date, were questions for the jury. 2 Daniel on Negotiable Instruments, sec. 1401.

The letter from the auger company to appellees tended to prove the agreement between the makers and payees of the note, but in no way affected the rights of appellant as a bona fide holder of the note.

The court erred in overruling the demurrer to the answer of appellees, and also in refusing appellant a new trial.

Reversed and remanded for further proceedings.


source: Caselaw Access Project

author: Rattle, Special Judge.

license: Public Domain

text:
    Haney vs. Caldwell.
    1. Evidence: Oral, when admissible to explain written contract.

    As a general rule, oral evidence is not admissible to contradict or vary the terms of a valid written contract. But if a contract is not certainly intelligible by itself, extrinsic evidence is admissible to show the intention of the parties; and this intention will be taken as the meaning of the parties expressed in the instrument, if it be a meaning which may be directly derived from a fair and rational interpretation of the words actually used. But if it be inconsistent with such interpretation, the instrument will then be void for uncertainty or incurable inaccuracy.
    2. Same: Answer of witness not excluded if part admissible.

    When only part of a witness’ answer to a question is objectionable, a motion to exclude the whole should be overruled.
    3. Contract : Whether a written instrument is, or not.

    When oral testimony of extrinsic disputed facts is necessarily admitted to show whether an uncertain written instrument is a contract or not, it is a question of fact for the jury, under the instruction of the court, to determine whether it is a contract and the meaning of it, and not for the court.
    4. Same.
    A contract for service, “at a salary of $2,500 per annum,” is not a contract for any definite time, and at a fixed price, the complete performance of which is a condition precedent to a light to compensation It is but a stipulation of the rates at which the employee is to be compensated for the services performed. He is not bound to serve for any definite time to entitle him to compensation.
    APPEAL from Pulaski .Circuit Court.
    Hon. J'. W. Martin, Circuit Judge.

      Rose, for appellant.

      Kimball, Yonley ¿> Whipple, contra.

   Rattle, Special Judge.

The plaintiff, John K. Haney, in substance, states, in his complaint, that the defendant, Josiah Caldwell, on the twenty-first day of December,. 1871, by letter, employed him to act as his engineer in connection with his contract for the completion of the Little Bock and Fort Smith railroad, at a salary of twenty-five hundred dollars per annum; that plaintiff accepted said employment and served defendant as such engineer-in and about said contract for one year and one month from the date of such employment; and that by reason thereof defendant became indebted to him in the sum of twenty-seven hundred and eight dollars and thirty-three-cents; and for said sum and interest asks judgment and other relief.

A copy of the letter referred to was filed as an exhibit with the complaint, and is in the words and figures following, to wit:

“Little Bock, Dec. 21,1871.

“J. H. Haney, Esq.:

“Dear Sir — You are hereby employed to act as my engineer in connection with my contract for the completion of the Little Bock and Fort Smith railroad, at a salary of twenty-live hundred dollars per annum.

“Yours, truly, Josiah Caldwell.”

The defendant answered, in substance and effect, denying that he employed plaintiff, as stated in the complaint, or otherwise, and that plaintiff ever served him as engineer or otherwise; and saying that, if he wrote the letter referred to, it was with the distinct understanding between him and plaintiff’ that the employment and salary of plaintiff' were both wholly dependent and contingent upon defendant’s obtaining and carrying out a contract to complete the Little Bock and Fort Smith railroad, and that if he obtained the contract to complete said railroad, plaintiff was to be employed by him ; that the contract to com■píete said, railroad was never obtained by defendant; and •that he had fully paid plaintiff for all the services he had :at any time rendered him.

Plaintiff', in his own behalf, testified, in substance, as follows: He is a civil engineer by profession, and was a member of the boai’d of directors of the Little Rock and Kort Smith Railroad company from the twenty-fourth day -of August to the twentieth or twenty-first day of December, 1871. Mr. Scott was the president of the company. Plaintiff' understood from the defendant, about the third Monday in December, 1871, that defendant could get the money to build the road, if he could get certain persons named elected directors of said company. At the election •of directors forffhe company, held on the third Monday in December, 1871, the certain persons named by him were elected such directors. He also understood from the ■defendant that Mr. Scott wished plaintiff to be engineer of the company; that defendant was to have a contract for building the road, and that defendant had contracted with the company to pay one-half of the salary of plaintiff' as such engineer. Plaintiff then demanded that his salary ■should be five thousand dollars a year, and Scott agreed to it. As plaintiff wanted the matter definitely agreed upon and .understood, he saw defendant, who, at the suggestion ■of plaintiff, wrote the letter referred to and handed it . to plaintiff'. Plaintiff accepted it and thereafter held himself ready to do any work under the contract, as engineer of the road, until the twentieth day of January, 1873, when he resigned. Plaintiff’s duty as engineer, under this contract with defendant, was to see that defendant carried out his contract with the railroad company. No work was done on the road after this contract with defendant was ■entered into before plaintiff resigned, and plaintiff performed no services under his contract with defendant. During this time plaintiff was not idle, but was doing a real estate agency business in Little Rock, which he could have attended to and discharged the duties of engineer under his contract with defendant.

James Lawson, a witness for plaintiff, testified that defendant said he had or could make a contract with the Southern Security company to get money to build the road; that Scott was to select the engineer, and defendant said he would pay one-half the salary of such engineer; that Scott employed plaintiff as engineer of the company; that the contract of the defendant and road was not made; and that he “understood the whole thing was contingent.”

The defendant then offered and read the deposition of himself as evidence, in his own behalf, which is, in substance, as follows: “ In the month of December, 1871, negotiations were pending for a consolidation of the Little Rock and Eort Smith, and the Memphis and Little Rock Railroad companies, with the view of leasing the consolidated lines to the Southern Railway Security company, that company having previously entered into an agreement to take a lease upon certain terms, amongst which they required that the Little Rock and Eort Smith railroad should be completed to Eort Smith. A contract was entered into between the Little Rock and Eort Smith Railroad company and defendant, by which he was to complete the railway, if said companies were consolidated, and the two railroads, so consolidated, wmre leased as aforesaid. The Southern Railway Security company refused to accept the lease, and the consolidation failed, and defendant’s contract expired. Plaintiff was engineer of the Little Rock and Eort Smith Railroad company, and was present at many of the interviews had during the negotiations for consolidation, and was well aware of the fact .that the Southern Railway Security company had declined to accept the lease, and that defendant’s contract with the Little Rock and Fort Smith Railroad company had come to an end. During the negotiations, and before the lease had been tendered and refused, defendant tendered to plaintiff the appointment of engineer in connection with his contract, and wrote,the above mentioned letter, with the understanding that if the consolidation and lease should be made, and his contract should thereby become effected, he (defendant) would give the position of engineer to the plaintiff in connection with his contract, if he would accept it. Plaintiff never accepted the appointment of engineer from defendant. After the failure to consolidate, defendant notified plaintiff that defendant’s contract to complete the railroad to Fort Smith was at an end, and that he would not require plaintiff'’s services. Plaintiff' made no objection, and never has made any demand against defendant for any salary or pay, until the commencement of this action. Plaintiff has never performed a single act or duty under any appointment of engineer by defendant, and defendant is not indebted to him in any sum.”

On the twenty-first day of December, 1871, Charles G. Scott was elected president, and plaintiff' was appointed engineer of the Little Rock and Fort Smith Railroad company. There was some discussion about the salary that should be paid plaintiff as such engineer. Any salary that was voted plaintiff- was to be paid by said company. There was no agreement on the part of defendant to pay one-half of plaintiff’s salary.

The plaintiff, at the time the deposition of defendant was offered in evidence, objected to, and movéd to exclude, so much thereof as is in the words following: “ To the fifth interrogatory he saitli that the letter therein referred to was written expecting the consolidation and lease before mentioned would be carried-out, and conditioned thereon, that the work under his contract would proceed, and in that event, with the intention of giving the plaintiff', ITaney, the position of engineer, if he was disposed to accept it.”

And also, at the same time, moved to exclude so much of said deposition as in the words following: “To the seventh cross-interrogatory he saith that there was no agreement on his part to pay the plaintiff, Haney, one-half of his salary, nor did he ever offer to pay, nor did he ever pay •him any salary whatever, except in the event of his (defendant’s) contract becoming operative, and of his (the plaintiff Haney’s) assuming the duties of engineer thereunder. The contract becoming inoperative, there being no duties for the plaintiff, Haney, to perform thereunder,-as he was fully aware, and he never having accepted the position or performed any duties thereunder.”

The court overruled both objections and motions to exclude, and allowed the portions of the depositions objected to to be read in evidence, and plaintiff excepted.

The plaintiff being recalled by defendant, testified, in substance, as follows: “ He understood from the contracts of defendant with, the Little Rock and Eort Smith Railroad company and with plaintiff, respectively, that he (plaintiff') was to become the engineer of the company, and that de-, fendant was to pay-one-half of his salary. Defendant had no control over him as an engineer, by virtue of the contract sued on ; he understood that he was to become subject to the control of the company, and not to that of defendant; he (plaintiff') never accepted employment under the contract as the defendant’s engineer, nor accepted the contract with the understanding that he should enter defend.-ant’s service, or do anything for him ; but he accepted the •contract as it is written, and held himself ready to perform it, as he understood it; he was the engineer of the company, and not of the defendant; he never acted as, or intended to become, the engineer of defendant.”

Plaintiff asked for the following, among other instructions, to-wit: -

“ 3. That'if the jury find the plaintiff accepted the contract as it is written, it is wholly immaterial whether he regarded himself as being under the control of the defendant or not. If he accepted the contract and held nimself ready to perform the services under it, the jury will find for the plaintiff.”

The court amended it by striking out the words, “it is wholly immaterial whether he regarded himself as being under the control of the defendant or'not. If he accepted the contract,” and gave it as amended. To the refusal of the court to give it as asked, the plaintiff at the time excepted.

The defendant asked for, and the court gave, the following instructions, to-wit:

“1. That unless the jury believe from the evidence that the plaintiff, Haney, accepted the proposition contained in the letter of December 21, 1871, to employ him as the engineer of defendant, Caldwell, and actually consented thereto by agreeing to become such engineer of said defendant, they must find for defendant.

“2. That the letter of December 21, 1871, from defendant, Caldwell, to plaintiff, Haney, is a proposition from said Caldwell to employ said Haney as the engineer of said Caldwell, and that said proposition contained in said letter could only be accepted by said Haney by his agreeing and consenting to become the engineer of said Caldwell accord-lug to the terms of said proposition ; and unless the jury find from the evidence that said Haney did in fact accept said proposition, and consent to be and act as the engineer of said Caldwell, according to the terms of said contract, they must find for the defendant.

“3. The court instructs the jury that the evidence introduced before them, tending to show that there was an agreement between said Caldwell and the Little Rock and Fort- Smith Railroad company that said ITaney should be employed as engineer of said railroad company, and that ■said Caldwell would pay one-half of his salary as engineer, is at variance with the complaint in this cause, and is not pertinert to the issue joined in this suit, and the jury are, therefore, directed to entirely exclude 'the said evidence from their minds in arriving at a verdict in this case,5 so. far as it may be inconsistent with the written contract set up.

“4. That if the jury find from the evidence that by the letter of December 21, 1871, the defendant employed the plaintiff as his engineer, and that the plaintiff did not hold himself at any time in readiness to do or perform services as such engineer for the defendant, and subject to his proper orders, and that if said plaintiff actually performed no services as such engineer, and that he did not accept such employment, he can not recover in this action.”

To each and all of which instructions, and the giving thereof, the plaintiff excepted.

The jury returned a verdict for defendant, and judgment was rendered in favor of defendant against plaintiff for costs. Plaintiff' moved for a new trial, because the court erred in refusing to give the instruction asked for by him, set forth in this opinion; and because the court erred in giving each and every instruction asked for by defendant. The motion for new trial was overruled, and plaintiff excepted. Plaintiff preserved his exceptions in proper manner, and asked for and the court granted to him an appeal herein.

ieviden'ce:

when°adSpfain6 *2 contract,

2.-: witness not mfssibie d"

1. Did the court err in refusing to exclude so much of' the deposition of defendant as is an answer to the fifth interrogatory propounded to him ?

As a general rule, oral evidence is not admissible to eontradict or vary the terms of a valid written contract. The-law will not make, nor permit to be made, for parties, a contract other than that which they have made for themselves. But if a contract is not certainly intelligible by itself, extrinsic testimony is admissible to show the intention of the parties,and this intention will be taken as the ^meaning of the parties expressed in the instrument,, if it be a meaning which may be distinctly derived from a fair and rational interpretation of the words actually used-But if it he incompatible -with such interpretation, the instrument will then be void for .uncertainty, or incurable-inaccuracy.” In all such cases the extrinsic testimony is not admitted to prove what the parties to the instrument may have secretly intended; or to add to, take from, change, vary, contradict, or modify; but to find out what is the meaning of the written words they have used, and the true sense thereof as they used them. 2 Parsons on Contract, 60, 78; and 1 Greenleaf on Evidence, secs. 275, 277, 282.

The answer of defendant in his deposition to- the fifth interrogatory propounded to him was not admissible as evidence, and the court erred in refusing to exclude the same and allowing it to be read as evidence.

2. Plaintiff moved to exclude the whole of the answer-in defendant’s deposition to the seventh cross-interrogatory ProPounded to him by plaintiff.

The-seventh cross-interrogatory is as follows: “Was there not an agreement between the president of said company and yourself that you would pay one-half of Haney’s salary as engineer of said company?” A portion of the answer to this question is, that he did not agree to pay one-half of such salary. Plaintiff testified in his own behalf that defendant, in his contract with tne Little Rock and Fort Smith Railroad company, did agree to pay one-half of his salary. In the aforementioned letter defendant says he employed plaintiff’ to act as his engineer, in connection with his contract for the completion of the Little Rock and Fort Smith railroad. Plaintiff, in his testimony, endeavors to show that these words meant that he would pay one-half of his salary. A part of the answer to the seventh cross-interrogatory, if true, disproves any such meaning or intention, and wTas clearly admissible. The motion of the plaintiff' being to exclude the whole of the answer, and a part thereof being admissible, the court below did not err in overruling the same. Day v. Rotte, 18 N. Y. (4 Smith), 448; Graham v. Dunnigan, 2 Boser, 516

3. The first and second instructions given at the instance of the defendant may be considered together. In these instructions the court below told the jury that the letter referred to was a proposition of defendant to employ plaintiff', as the engineer of defendant, and that unless they believed from the evidence that plaintiff consented thereto by agreeing to become the engineer of the defendant, they must fiud for defendant. In doing so the court usurped the province of the jury. The character, effect and obligation of the letter depended entirely' upon oral testimony. By itself it was uncertain and unintelligible. Extrinsic testimony was necessary to ascertain its meaning. To explain it, each party testified in his own behalf. The plaintiff testified, in effect, that the Little Rock and Fort Smith Railroad company and defendant jointly employed him to serve said company in the capacity of engineer; that defendant agreed to pay one-half of his salary, and the company the other half; that defendant, to bind himself for the payment of one-half, at the request of plaintiff and after such agreement was entered into, gave him the letter above mentioned; that he served said company in the capacity of engineer; and that defendant is indebted to him for one-half his salary for the time he served. On the other hand, the defendant denies this statement of plaintiff, and testifies, substantially, that he contracted with said company to complete their road,.on condition that said company and .tne Memphis and Little Rock Railroad company were consolidated,and the road of the consolidated companies should be leased to the Southern Railway Security company; that the lease was never made; that with the failure to lease, his contract with the said Little Rock and Fort Smith Railroad company expired; that while negotiations to consolidate and lease were pending, the defendant wrote the letter mentioned above; that it was understood between him and plaintiff that said letter was not to become a contract, or go into effect, until his said contract to complete the Little Rock and Fort Smith railroad became absolute; that plaintiff'never accepted the employment offered him thereby; that he gave plaintiff- notice of the failure to perfect and make final his contract to complete the Little Rock and Fort Smith railroad and the failure thereof, and that his services would not be needed ; that plaintiff offered no objection ; that he never rendered any services under the letter referred to, and that he is not indebted to him for any services.

3. Contract:

w he n jJtrumVnt iSi Drnot-

In the instructions given at the instance of defendant, a the court below ignored a material and important part of the testimony of plaintiff and virtually withdrew it from the consideration of the jury, and decided questions of fact. In this the court erred. It was the province of the jury to determine whether or not the above mentioned letter became a contract, under the instructions of the court as to what is necessary to constitute the same a contract ; and the meaning thereof being dependent on extrinsic facts, which are disputed, it was a question of fact for the jury to decide, under the instructions of the court as to the law in the case. Scott v. Pentz, 5 Sanford, 572; Edelman v. Teakle, 27 Pa. St., 26; Gardner v. Clark, 17 Barb., 538; School District v. Lynch, 33 Conn., 330; and The Illinois Central Railroad Company v. Cassell, 17 Ill., 389.

In the first two instructions given at the instance of defendant, much importance was attached to the word “my,” used in connection with the word “engineer” in the letter referred to. It is of but little importance. It, the word engineer, and the words preceding it in the letter, construed together, evidently mean that defendant proposed to employ, or had emplo} ed the plaintiff’ in the capacity of an engineer, as the proof may show the letter a contract or not. Defendant could have employed the plaintiff to serve another, in the capacity of an engineer, as well as himself. As to the interpretation of this letter, the question is, is it a contract? and if a contract, what services did defendant thereby employ plaintiff to render, and what did he thereby agree to pay for such services.? If it is a contract, it was immaterial whether plaintiff' regarded himself subject, by the terms of the contract, to the control of defendant or not, provided he performed, or offered and held himself ready to perform, the stipulated services.

The court below, therefore, erred in giving the first and second instructions asked for by defendant.

4. The third instruction given by the court at the instance of defendant, is erroneous and should not have been given. The letter copied above, was, by itself, uncertain and unintelligible, and the testimony the court instructed the jury to exclude from their minds in arriving at a verdict, was admissible to explain the meaning thereof and to enable the jury to determine whether or not there was such a contract as the one set up in the complaint' and was pertinent to the issue in this action, and should have been considered by the jury in arriving at a verdict-

5. In the fourth instruction given by the court at the instance of the defendant, the jury were required to return a verdict for the defendant, if they found from the evidence that the defendant, by the letter mentioned, employed the plaintiff in the capacity of an engineer, and that plaintiff did not hold himself at any time in readiness to do or perform services as such engineer. The letter referred to was not a special‘contract fora definite time, and at a fixed price, the complete performance of which was a condition precedent to a right to compensation. No time is fixed in the letter, or any outside agreement, during which plaintiff was to act as engineer. The letter says the plaintiff was employed to act as engineer at a salary of twenty-five hundred dollars a year. The twenty five hundred dollars was the stipulated rate according to which plaintiff was to be compensated for his services when performed. Plaintiff was not bound by the terms of the letter referred to, to serve, or offer and hold himself in readiness to serve, as engineer, for any definite period as a condition precedent to a -right to compensation. If plaintiff was employed by the letter to serve as engineer, and he served as such engineer according to the terms thereof, or offered and. held himself in readiness to do so, for any period of time,, he was entitled to compensation for such period at the rate agreed upon, unless he was dismissed or discharged by act of the defendant, or otherwise, before the expiration of such period, in which event he would be entitled to compensation at the same rate for so much of said period as expired before his dismissal or discharge. The court, therefore, erred in giving the fourth instruction asked for by defendant. Wright v. Morris, 15 Ark., 444.

We deem any comment on the third instruction as asked for by plaintiff, or on the same as amended and given by the court, unnecessary, as sufficient has already been said in this opinion upon all questions raised by the exception of plaintiff to the refusal of the court to give the same as asked.

The judgment of the court below must be reversed, and this cause remanded, with instructions to the court below to grant plaintiff a new trial.

Chief Justice English did not sit in this case.


author: Eakhsí, J.

text:
    Person vs. Wright & Montgomery.
    1. Judicial Notice: Of seasons and growth of crops.

    Courts take judicial notice of the seasons and the course of nature, which includes the growth of the staple crops of the country.
    2. Keplevin : Designation of specific property.

    A mortgage for a certain number of bales out of a crop of cotton is uncertain in description, and until separation or designation of the specific property, no action of replevin can be maintained for it.

      3. Same: Demand.

    Where the original taking of property is not tortious, hut only the unlawful detainer is complained of, a demand of the property before action is essential, unless the defendant is claiming or using it as his own.
    4. Same : Parties in, for mortgaged property.

      It is not necessary for a mortgagor to be made a defendant in a suit by the mortgagees against his vendees for the mortgaged property.
    5. Pleading : Answer when sufficient.

    A demurrer to an answer which contains a defense to the whole or any part of an action should be overruled.
    6. Same: In replevin, plaintiff need not allege his source of title.

    It is not necessary for a mortgagee, in an action of replevin for the mortgaged property, to show in his complaint the source of his title. It is sufficient to allege his ownership, general or special; and if he alleges the mortgage, he need not allege the non-payment of the debt for which it was given.
    7. Replevin : Can not be maintained against co-tenant.

    Replevin can not be maintained against a defendant for a bale of cotton of which he is part owner.
    8. Lien: Contracts for, etc., not good against subsequent mortgage.

    A contract between a landlord and tenant that the tenant should transfer the crop to the landlord to secure supplies furnished by him, and the subsequent delivery of the crop in performance of the contract, will not hold in law against a mortgage made and recorded between the contract and delivery.
    APPEAL from Miller Circuit Court.
    Hon. J. L. Witherspoon, Special Judge.

      Williams Battle, for appellant.
    Cook, contra.

   Eakhsí, J.

Appellees, wbo are merchants and partners, brought this action of replevin against appellant, Person, who is a landlord, to recover eight bales of cotton in his possession, which he had received from divers renters upon his place, for supplies furnished, and the use of mules. The defendant gave bond, and retained the property.

Plaintiffs in their complaint base their right of possession upon several distinct mortgages, executed to them by several of said renters, about the first of July, 1873, and duly recorded, setting them forth, substantially, as follows :

1. A mortgage by one John Smith, to secure money and supplies, furnished and to be furnished during the year, of “ his entire interest in, or right, title or claim to, all the crop or crops of corn and cotton, or other produce, which he might plant, cultivate or gather, or be otherwise interested in, to the extent of two five hundred pound bales of cotton, on the farm or plantation ” specified, or any other during the year 1873, conditioned: to be void on payment to the mortgagees of all just demands to be held by them on the first day of January, 1874, with power to the mortgagees, on failure, “to take possession of all of the above described and granted property,” and sell the same, on ten days’ notice,.to the highest bidder for cash ; apply the proceeds to the debt and expenses, and pay over the surplus. They say that said Smith is indebted to them for supplies furnished, during the year, in the sum of $69.25 ; and file the account. By virtue of this mortgage they claim a special ownership in, a lien upon, and right to the possession of two bales of cotton, marked “ J. S.,” grown upon the place by John Smith, and in defendant’s possession.

2. A mortgage, for the like consideration and purposes, from Steve Canada, of “ his eutire interest in. etc., all the crop or crops of corn .or cotton and other produce” which he might gather or be interested in on said plantation, or elsewhere during the same year. This mortgage was conditioned, and gave powers substantially as that from Smith. They say Canada became indebted to them, under the mortgage, in the'sum of $71.56, and by virtue of that and said mortgage they have ownership, lien and right to possession of three bales of cotton, marked “O. S.,” grown by him on the place, and which is in defendant’s possession.

3. A like mortgage, for like purposes, and with like ■stipulations and powers, from Joseph Foster, jr., of his entire interest in any crop grown by him on said place. They claim as his debt the sum of $107.26, and that they have a like ownership, lien and right of possession of two bales of cotton, marked “B.,” raised by him upon the place, and in •defendant’s possession.

4. ' A like mortgage from Burrell Butler, with like powers, of all his interest in his crop “ to the extent of one five hundred pound bale.” They claim as his debt $52.50, and for like reasons a special ownership and right to possession of one bale, marked “B.,” in defendant’s possession.

It appears that the mortgages are all alike as to their conditions and powers, differing only in this, that Smith and Butler limit the extent of their conveyances ■; the first to two, and the last to one bale of cotton, without designating any means by which the bales are to be set apart from the balance of the .crop. The other mortgages convey the entire interest The plaintiffs value the cotton at $480; say the defendant has possession without right, and unlawfully detains it.

Defendant demurred because the mortgagors were not made parties, and for a number of other reasons, all of which are included in the last: that the complaint fails to state facts sufficient to constitute a cause of action. The ■demurrer was overruled, and defendant excepted.

The answer admits the execution of the mortgages, as .alleged, but denies that by .virtue thereof, or otherwise, the plaintiffs had an ownership in the cotton, or right to possession, in part or in whole. With regard to the debts-claimed as due from Canada, and Burrell Butler, to plaintiff's, be denies all knowledge, but avers on information that they have been" paid. With regard to those claimed, from Smith and Foster, he denies any knowledge or infor-'" mation sufficient to form a belief, and insists upon proof.

Judicial Notice:

Of seasons and growth of crops.

With regard to the hales claimed from Smith and Canada,, as part of the crop, he sets up a contract made with them,, severally, in February, 1873; by wdiich he agreed to furnish them mules and supplies, for which they agreed to assign and transfer their crops as security. He sets up their indebtedness, and says the bales were paid to him on that account and in pursuance of the contract. This was independent of the rent. ”

With regard to the bale marked ‘-B,” which plaintiff's-claim under the mortgage from Burrell Butlei’, he says that in February, 1873, he rented lands jointly to Burrell and Ellick Butler, who made a similar contract with him to transfer the crop for hire of mules and supplies. That he did furnish mules and supplies, and that they, being thus indebted, transferred to him the bale marked “B,” with other bales, in payment of the joint debt — which still- remained, in fart, unsatisfied, save by said cotton. The answer states, further, that plaintiffs did not, before the action, demand the cotton, or any part of it.

The court sustained a demurrer to this answer, upon the ground that it did not set up matters constituting a defense. The defendant excepted, and rested. Whereupon plaintiffs waived damages for the detention, and both parties agreed to a valuation of the cotton at the aggregate sum of $400. Judgment for plaintiffs, and appeal.

The court takes judicial cognizance of the seasons, and the course of nature, which includes the growth of the staple crops of the country. The crops must have been growing on tbe first of July, 1873, and considerably advanced. The mortgages taken by the plaintiffs about that time are not amenable to the legal objection that they were upon property not in esse. If otherwise valid, the powers therein conferred gave the plaintiffs the right to the immediate possession of the crops, on default of payment, on or after the first of January, 1874. With regard to the mortgages by Canada and Foster, there is no objection to their validity, and for the cotton made by them, the plaintiffs were entitled to bring this action. The demurrer to the complaint, admitting that their debts remained unpaid, and going to the whole complaint, could not', on this point, have been^sustained. If good at all, it was for want of demand.

2Replevis:

tionSofipti erty. prop"

'Demand,

In passing, we remark upon the mortgages set up from Smith, and Butler, that they were uncertain in the description of the property.

Equities may arise upon such mortgages, as contracts, which courts of chancery may protect against purchasers with notice, or without valuable consideration; as in case of mortgages, formerly, of future crops ; but until separation, or designation of the specific property, no action of replevin could be maintained.

The demurrer to the complaint was based, also, upon the want of demand. It is well settled that -when the original taking is not tortious, and only the unlawful detainer is complained of, a demand of tile property, before action, is essential, unless the complaint shows not only the possession of defendant, but that he is claiming, or using it as his own. Otherwise, he can not be considered in the wrong. There is no cause of action against one who, from all that appears, may be acting with propriety. The demurrer to the complaint should, in this view only, have been sustained.

4. -: Mortgagor not necessary party.

5PLEADING:

Answer: When sufficient.

In replevin plaintiff need not state his source o f tit.e.

It was not necessary to make the mortgagors defendants.

The defendant, however, chose to answer, and supplied the defect in the complaint by showing that he had taken the property as his own, and claimed adversely to plaintiffs. It remains to be seen whether his answer set up any matter constituting a defense to the whole or any part of the action. If so, it was error to sustain the demurrer of the plaintiffs.

It was not necessary for plaintiffs to have shown in their complaint the means by which they acquired title. It would have sufficed to allege their ownership, general or special; their right to the possession ; and that defendant unlawfully detained it after demand, or was holding' and using it as his own adversely to their right. These were the material allegations necessary to-show cause of action, and all that the defendant was required to answer. lie does so, and puts in issue their ownership and right to possession.

Moreover, it was shown by the complaint, although unnecessarily, that the whole special ownership, and right of possession in the plaintiffs, depended upon the non payment of the debts due them from the mortgagors. If they had been paid, the right of possession on the part of plaintiffs would have no longer existed. Defendant averred, in reference to two of the debts, that they had been paid; and, with reference to the other two, denied all knowledge or information on which to found a belief; and insisted upon proof. This made issues with regard to all, although it may have been that, upon the trial of the issues, the burden of proof of payment of the debts from Canada and Burrell Butler would have been on the defendant.

7. Replevin:

Can notbe maintai n - ed against a co-tenant

8. Lien:

Contracts for, etc., not good again s t subsequent mortgage.

Moreover: The defendant avers that one of the. bales rec.ei'ved by him was the common property of Burrell and Ellick Butler. If so, he was entitled to hold Ellick’s part, and for that bale no action of replevin would lie.

Eor the rest, the title to the property, set up by defendant in the answer, as derived through the contract with the renters, in February, 1873, would not hold, in law, against the recorded mortgage of complainants, .'executed in July. The superior lien of the landlord extended only to the rents, not to supplies, and the hire of mules. If,, indeed, there had been any c:rcumstances forming an equitable estoppel, against the plaintiffs, from the assertion of their priority, they would have been proper for the consideration of a court of equity. None, however, are alleged.

But, for the other reasons, above stated, the answer did present grounds of defense; and the demurrer to it was erroneously sustained.

Reverse the judgment, 'and remand the cause, with leave to the parties to amend their pleading, if advised; and for further proceedings consistent with this opinion.


author: Harrison, J.

text:
    Vance and Wallace, Adm’rs, vs. The State, use Crittenden County.
    1. State Scrip : Receivable for court-house tax.

    State scrip issued before the passage of the act of March 28, 1871, authorizing the county board of supervisors to issue bonds for the building of court-houses, was receivable for the taxes levied to pay said bonds; and the board of supervisors could sell or exchange the scrip at its real value, for such bonds; and the county treasurer making such exchange by its direction, should be credited in his settlement with the scrip exchanged.

      2. County Treasurer: Settlements with: Exhibiting county funds.

    It is only at a settlement that the treasurer may be required to produce the money which is found should be in his hands, for counting.
    3. Sam® : Can pay over only to successor.

    A county treasurer, or his administrator, can pay over the county funds in his hands, only to his successor in office.
    4. Administrator : Ifo personal judgment against.

    In a suit against an administrator and others, it is error to render a personal judgment against him.
    APPEAL from Crittenden Circuit Court.
    Hou. L. L. Mack, Circuit Judge.
    Adams, for appellant.
   Harrison, J.

This was a suit on the bond, of Robert C. Wallace as treasurer of Crittenden county, against his administrators, William Vance, jr., and Eliza Wallace, and J. W. Guerrant, John R. Jenkins and R. N. Wallace, the sureties in the bond.

The bond was given on the fourth day of June, 1873, and was in the penal sum of $10,000. The breach of the condition assigned, was, that the said Robert 0. Wallace, upon a settlement, by him as such treasurer with the county court, on the twenty-second day of February, 1875, was found to have íeceived, and. which was unexpended, the sum of $1,499.94 in money or currency of the United States, and th e further sum of $1,995 in money or like currency of the court-houfee and jail fund; and that although demand was made upon him for said moneys, he, in his lifetime, failed to bring the same into the county court, nor did he disburse the same fcfr the county, nor had his administrators, since his death, paid or brought the said moneys into the .county court, or accounted for the same.

The defen dants, in their answer, denied that the said sum of $1,995, belonging to the court-house and jail' fund, was received by said "Wallace in money, but averred that it was paid to him by the collector in treasurer’s certificates, or state scrip, and that the board of supervisors, on the sixteenth day of October, 1874, made an order, that the state scrip belonging to the court-house and jail fund, in the county treasury, should be exchanged by the treasurer for court-house and jail bonds, or the coupons of such bonds, at the rate of four dollars in scrip for one of bonds or coupons ; that he, in obedience to the order, exchanged the scrip • for $500 in past-due coupons ; and that at the time of his settlement, he brought said coupons into and tendered them to the county court in lieu of the state scrip, to be canceled; and they made, in their answer, a tender of the coupons to the plaintiff.

It was not denied that upon the settlement, Wallace was found to have received — and which he had not disbursed or paid out for the county — the $1,499.94 in currency ; but without averring that he had afterwards dis bursed or paid out any part of it, they denied, in general terms, that he owed, or that they owed the same, or any part of it to the county.

The cause-was tried by the court, without a j.ury, which found that there was in the hands of Wallace, as treasurer, at the 'time of the settlement, $1,499.94 in currency, and $1,995, but in what kind of funds was not stated, belonging to the court-house and jail fund; and rendered judgment for the plaintiff for the aggregate sum of $3,494.94 against all the defendants in personam.

The defendants moved for a new trial, upon the ground that the finding of the court was contrary to the evidence; their motion was overruled, and they appealed.

It appears that the county court of Crittenden county, under the authority given by the act of March 28,1871, issued bonds of the county to build a court-house and jail, and that $1,995 of the tax which it levied to pay the bonds, one-fifth of them maturing every year, was received by the collector and paid over by him to the treasurer, in treasurer’s certificates, or state scrip, and not, as alleged in the complaint, in money.

i. &¡mhs

issued before March 2M8ru re?¿rtkous®

2. cookty

Producing funds for counting,

That such certificates, if issued prior to the passage of the act referred to, were receivable for the tax, admits of • . no question. Gantt's Digest, sec. 2813; English v. Oliver, 38 Ark., 317; Parham v. Izard, 30 Ark., 557.

Those so received and paid over by the collector, the evidence showed, were issued prior to the act. "When the treasurer was directed to make the exchange for bonds and coupons, state scrip was greatly below par, and that received for the tax could not be applied to the purpose for which the tax was levied, except by a sale of it, or an exchange for bonds or coupons, as was done. It, therefore, appears to us that the board of supervisors, as the county court was then called, had the power to direct the treasurer to make the exchange he did; and.the county court should have canceled the coupons and given him a discharge for the scrip exchanged for them.

The demand upon "Wallace to bring the money into the county court was not alleged to have been made at the time of his settlement, or for the purpose of its being: . Jr Jr & counted. It is only at a settlement that the treasurer may be required to produce the money, which by such settlement is found should be in his hands, for counting. Gantt's Digest, secs. 1035, 1495.

It was not averred, nor was there any such proof, that Wallace had ceased, before his death, to be treasurer, and had failed to pay over the $1,499.94 to his successor in office; or that he had a successor, to whom his administrators might have paid it.

3.--: Can pay only to successor.

4. Administrator:

No perso nal j u d gment against.

It could have been paid over either by himself or his administrator, only to his successor in office. Aldermen, etc., v. Biscoe, 17 Ark., 417.

There was, then, no sufficient breach as to this money, alleged.

A new trial should have been granted.

If the finding of the court had been right, the judgment was wrong. It should not have been against Wallace’s administrators personally, but against them in their representative character, or as administrators.

The judgment of the coui’t below is reversed, and the cause remanded, w\th directions to allow the plaintiff to amend her complaint, if so advised, and for further proceedings.


text:
    Burke vs. Coolidge et al., Ex’rs.
    1. Administrators, etc.: Illegal expenditure disallowed, though authorized by probate court.

    If an executor claim credit in his settlement with the prohate court for an illegal expenditure, the court should reject it, although it may have previously approved the expenditure and authorized the executor to take credit for it.
    2. Certiorari : Improvidently issued.

    A certiorari improvidently issued should be quashed.
    APPEAL from Phillips 'Circuit Court.
    Hon. J. N. Cypert, Circuit Judge.

      Palmer, Trieber, for appellants.

      Tappan $ Hornor, contra.

   Harrison, J.

At the May term, 1875, of the prohate court of Phillips county, Charles R. Ooolidge and John J. Hornor, executors of the will of Henry P. Ooolidge, deceased, presented a report of certain expenditures made by them for the benefit of their testator’s estate, of which they asked the approval of the court. The substance of the report was: That they had, since the first day of January, 1874, and between then and the first day of May, 1875, expended in improvements upon, and in the management of, the plantation belonging to the estate known as the Coolidge — Polk place — $19,240.81, and in excess of the rents and profits of the same $16,345.46; the improvements consisting in the building of three tenements and certain other houses, particularly described; repairs to gin-house and other out-buildings; clearing land, ditching, leveeing, making fences, bridges, etc., the nature and extent of which was particularly stated; and they had paid to a person, whom they employed for the year 1874 to superintend the improvements, $800.

Hpon this report and another the court made the following order:

“Now, on this day, come Charles R. Ooolidge and John J. Hornór, executors of the last will and testament of H. P. Ooolidge, deceased, and file a report, stating that in accordance with the expressed, wish of the said Ooolidge, in his lifetime, they had caused to be erected a monument in Evergreen cemetery over his remains, at a cost of fifty-eight hundred dollars; and also filed their report of the improvements made and the expenditures in working the plantation belonging to said estate, known as the Ooolidge — Polk place — in Phillips county, which said report and the actions of said executors in and about said premises, and making said expenditures, are in ail things approved; and said executors,are authorized to take credit for the same in their settlement account upon the filing of proper vouchers.”

1. Adminis-

disallowed^ thomedaby probate court.

At the May term,. 1875, of the circuit court, Mary E. Burke — a devisee in the will, or claiming to be such — an infant, by F. N. Burke, her guardian, applied for a writ of certiorari, to remove the proceedings in relation to the expenditures on account of improvements on, and the management of, the plantation into that court, which was issued.

The circuit court, upon its l’eturn, quashed the certiorari.

The said Mary E. Burke appealed.

The effect of the order was not an allowance of a credit t° the executors for the expenditures reported by them, Such a credit could only be given or allowed upon the confirmation of their annual account, and the account must show the credit.

The statute says:

“Every executor or administrator shall, at the first term of the court after one year from the date of his letters, and at the corresponding term of said court every year thereafter, until the administration be completed, present to such court a fair written statement, or account current, in which he shall charge himself with the whole amount of the estate, according to the sales-bill and appraisement, including all debts due the estate, and money on hand at the death of the deceased, and credit himself with all sums of money lawfully expended in settling such estate, either by the payment of debts or otherwise, exhibiting with such account the receipts and vouchers for all moneys paid out.” Gantt’s Digest, sec. 121.

Such account, without being acted on, is to be continued until the next term of the court, subject to the inspection and examination of all persons interested in the estate; and the clerk is required, immediately after the term at which it was presented, to give notice by advertisement in some newspaper printed in the county, if there be any, and if there be none, by advertisements set up at the court-house door,- and in the office of the clerk, of the' filing of the account for settlement and confirmation, calling on all persons interested in the settlement of the estate, to come forward and file exceptions to it, if they have any, on or before the second day of the next term, and notifying them if they do not, they will be barred from thereafter excepting to it.

Any person interested in the estate as heir, legatee, devisee, or creditor, is entitled to file exceptions to the account on or before the second day of the term after which it was presented, and the court is required to hear and determine them; and the account, if found incorrect, is to be restated, and the court, after allowing the executor or administrator all just credits, is to strike the balance and determine what sums remained on hand, Ib., secs. 122, 126, 129, 131, 135.

The order complained of related to a matter the court could not at that time take cognizance of or consider, and evidently was not intended as conclusive against the estate, and could not in the nature of the case be so, for unless the credit was claimed in the account and allowed upon the settlement, it could not have reduced the amount the settlement showed the executors to have in their hands, and with which they would have been charged.

It would certáinly be competent, when the executors present an account and claim credit for the expenditures, for parties interested in the estate to except to the items, and if an unfounded or an illegal demand, it would be the duty of the court, notwithstanding the order, to disallow and reject it. Sumrall v. Sumrall, 24 Miss., 258.

2.. Certiorari:

Improvi de n 11y issued , auashed.

As the granting of the certiorari was in the discretion of the court, it was properly quashed, if, as it plainly was, improvidently issued.

Affirmed.


author: Eakin, J.

text:
    Stillwell, Sheriff, et al. vs. Oliver.
    Injunction : None against execution sale of chattels.

    A bill in equity will not lie to restrain the sale of chattels under execution, unless it shows that some damage will result to the plaintiff not fully remediable at law.
    APPEAL from Arkansas Circuit Court in Chancery.
    Hon. J. A. Williams, Circuit Judge.

      Halliburton, for appellant.
   Eakin, J.

On the fourth of March, 1868, E. Lockett executed to M. A. Lockett a writing obligatory for $11,834.,25 payable at twenty months, with interest; and at the same time, to secure the payment, executed to the payee a conveyance of certain lands in Arkansas county, “together with all stock of every description, farming implements, tools, wagons, drays, carts, etc.” The context sufficiently shows, that the personalty intended was all which was used upon, and considered as belonging to the place. The conveyance was to be void on payment. It was duly filed for record on the twentieth of April, 1868. A small credit of $200 appears indorsed upon the note, of March 26, (year not given), after which the name of M. A. Lockett is indorsed in blank. There is no formal assignment of the mortgage.

On the second of July, 1875, R. T. Oliver applied to the county judge for an interlocutory injunction, presenting this complaint, in which he sets forth the note and mortgage, and claims to be the legal owner, by assignment. He further says that he had instituted suit in the circuit court in chancery, on the seventeenth of May, for foreclosure, which suit is still pending.

Amongst charges against the administrator of E. Lockett not involved in the appeal,he complains that defendant, James Marks, on the seventeenth day of June, 1870, sued E. Lockett by attachment, in said court, upon a note, which attachment was levied upon a portion of the personal property included in the mortgage, consisting of certain mules and oxen, which were bonded by E. Lockett and the attachment released.- At the November term, judgment in that suit was rendered against Lockett, and the property which had been attached was condemned to be sold. An execution, issued upon this on the eighteenth of May, 1871, was returned, not executed. An alias, issued in 1872, was levied on a portion of the mortgaged property, but not returned. Another, issued on the second of June, 1875, in E. Lockett’s lifetime, was, on the third of June, after his death, levied on three mules, three oxen and a government wagon — a portion of the mortgaged property — but different, as complainant says, from the property attached. He charges that defendant, Stillwell, as sheriff, has advertised and is about to sell the property last taken in execution.

Defendant, Parker, is the administrator of E. Lockett, and is about to proceed to sell the mortgaged effects a part of his intestate’s estate, under order of the probate court. The bill seeks to enjoin these sales, and general relief.

The county judge directed the injunction to issue, as prayed; but the writ, as issued by the clerk, restrained the sheriff,' alone. Parker was- allowed to proceed and sell personal property of the estate, not embraced in the mortgage.

A demurrer to the bill was overruled, to which defendants excepted; and Marks, alone, answered.

He denied that the mortgage had been assigned to complainant, and relies upon the attachment and judgment of the circuit court in 1870, by which the attached property was ordered to be sold. He says that in 1872 he had execution issued against the attached property, so condemned ; upon which the sheriff took into his possession “certain” of it, and advertised it for sale. That M. A. Lockett sued for it in replevin before a justice of the peace, and upon trial said property was adjudged to be that of E. Lockett, and liable to the execution, which judgment was affirmed on appeal to the circuit court; all of which was before any assignment of the mortgage to complainant. Further, that on the second of June. 1875, he caused an alias execution to issue, for the seizure and sale of the attached property, which was levied on the said property, together with some other. He prays that the injunction be dissolved, and that the property be re-delivered to the sheriff, to be sold under the execution.

A demurrer to the answer was overruled.

Pending the suit it was, by consent, ordered that the property in the sheriff’s hands be sold, and the proceeds held.

The cause was heard upon the bill, answer and exhibits, and the Chancellor decreed that the injunction be made perpetual. Defendants appealed.

injunction

agajn^t °xFaFetl0of

The personal property in the mortgage was described with sufficient certainty. It was capable of identification, so as, at least, to bind the mortgagor, or his general creditors. They can not have greater rights than he could have himself asserted. It might have been different with respect to bona -fide purchasers for value of any part of the mortgaged property, without notice that it constituted a portion of the property on the place when the mortgage was made; or with respect to subsequent mortgagees without such notice, advancing a new and valuable consideration.'

The grounds, however, for equitable interference by injunction, upon an independent bill are not clear. The mortgagee, or the assignee of the debt, which carried the mortgage with it, had the right, on default, to take possession of the property, or foreclose. He adopted the latter course, and whilst the suit was pending might, upon proper application, have had a receiver in that suit, and a restraining order against the sheriff', or any one seeking to take the property by execution. There was no necessity for a distinct bill, nor valid grounds for one, without showing some irreparable mischief from the levy and sale, for which ordinary legal remedies would be inadequate.

The universal jurisdiction which courts of equity assume in matters of trust is directed to their honest enforcement between trustees and cestuis que trustent and the protection of their mutual equities. Generally, a trustee with legal title is left, as against strangers, to the usual legal remedies to recover or protect the property. Courts of equity, on his application, will interfere to protect the trust property against tort-feasors, and save it from waste and loss, on the same grounds that it would, protect that of claimants in their own right — not mainly because there is a trustee in the case, but upon the ground of threatened mischief, for which there would he no other full, complete and adequate remedy. Equity, for instance, will not aid in getting in property held adversely by strangers to the trust, and for which the trustee might resort to the ordinary Code remedies, analogous to the common law actions of replevin, trover, detinue, debt, trespass, or case. This court held in Lovette v. Longmire, 14 Ark., 339, that the sale under execution of a slave, levied on as the property of another, would not be enjoined, where there was no allegation that they would thereby be placed beyond the reach of the law, nor anything to show that the true owner would be deprived of a full and adequate redress at law against the purchaser. This doctrine had never been applied, however, to articles having peculiar value, or pretium affectionis, and so much of the decision as applied to slaves, was afterwards overruled in Sanders v. Sanders, 20 Ark., 610, upon the express ground of the peculiar nature of slave property — as to which there, often, might be affections and predilections to gratify,’and always were duties to be performed by the master which entitled him to protection against improper seizure and sale. The general principle as to personal property was, however, reasserted as well established, that a bill in •equity will not ordinarily lie to prevent the sale of chattels under execution, because, by a suit at law, a full compensation may be obtained in damages. Although the exceptions have been extended in other .cases with a considerable degree of liberality, it has always been subject to the pervading idea that equity, will not interfere for the protection of chattels, unless it should appear that in case of a sale, removal,'destruction, or damage, an injury would result to the owner for which’the remedy at law would not be full, complete and adequate.

In this case, complainant did not take possession of the mortgage property on default; nor, in his bill to foreclose, ask a receiver. The presumption arises that he relied upon the land as sufficient, or else that he was willing to trust the mortgagor with the possession. Subject to the lien of the mortgage, the property continued to belong to the mortgagor, and whether or not his interest in it, whilst accompanied by possession, was subject to seizure and sale under execution, it is clear that such sale would not-divest the mortgagee’s title, or right of possession ; which would be as effective at law against the purchaser as it was against the mortgagor, whose interest the purchaser would take, and there is no occasion for equitable interference, unless it be shown that some damage would result to the mortgagee, not fully remediable at law.

None is alleged, nor to be fairly inferred. The court can not cast about to imagine probable injuries. The mortgagee has voluntarily left the property for a long time in the owner’s hands for his use, and declined to ask a receiver on filing his bill for foreclosure. He does not now express apprehension of the loss of his debt, and asks only that the sale may be enjoined, and the property repaain in the former plight. The bill lacks equity, and the. demurrer should have been sustained.

The defendant, Marks, did not rest, but answered; and, pending the suit, consented to an order which made it proper for the court to retain the suit to dispose of the proceeds of the sale. He asks specifically that the injunction he dissolved, and that he have further relief, without making his answer a cross-bill. The principal point relied upon in his answer is, that the title to the property, had been adjudicated in a replevin suit between the same parties or their privies.

This would have been a good defense, if the magistrate had jurisdiction. The exhibits show the affidavit upon which the writ of replevin issued, from which it appears that the property exceeded $500 in value. Under the Constitution then in force, the magistrate had no jurisdiction, and the proceedings were void, and could not be affirmed on appeal.

After the sale by consent, there could be no further question of an injunction against it. Everything passed out of consideration save the disposition of the fund and the adjustment of costs. Both the answer and bill prayed general relief, under which the court should have itself devised the most equitable scheme to get rid of the fund in ■court. There was pending, a suit for foreclosure, and it was evident that the mortgagee’s lieu was prior to the attachment. Also apparent that Marks was entitled to the benefits of his execution, subject to the lien. The readiest ■solution of the difficulty would have been to retain the fund, consolidate the cases, foreclose the mortgage, pay the mortgage, and let in the execution creditor upon the balance. If that be no longer convenient, some equitable disposition of the fund should be made. It was error to neglect this, and perpetuate an injunction, which the consent of the parties had already -rendered futile.

Reverse the decree, and remand the cause for further proceedings consistent with equity and this opinion.


text:
    King & Clopton vs. Jarman.
    1. Sale or Chattels: Statute of frauds: Delivery.

    With regard to bulky articles, or those not immediately accessible, symbolical delivery, by something which may be proved in pais of a satisfactory nature, satisfies the reason and policy of the statute of frauds.

      2. Same : When title passes.

    Where the minds of the parties have assented to the present purchase and sale of a specific chattel, which may be clearly identified and separated from other property, and the sale be dependent on no conditions or contingencies, and such possession be given as the nature of the subject and the situation of the parties with regard thereto will permit of, and the vendor has done all that is required of him with respect to the property, the title will pass, notwithstanding something may still be necessary on the part of the vendee to ascertain the exact price.
    APPEAL from Phillips Circuit Court.
    Hon. J. N. Cypert. Circuit Judge.

      Tappan Hornor, for appellants.

      Pose, contra.

   Eakin, J.

Jarman sued King and Clopton in an action at law for the price of six bales of cotton, which, be alleges, be sold to them. They denied the sale, and that was the sole issue. It was tried by a jury, which found for the plaintiff, and the court rendered judgment accordingly. A motion for a new trial was overruled, and defendants appealed.

There is little or no conflict in the evidence, which reveals the following facts: Jarman,-who was a customer of King & Clopton, merchants and cotton buyers at Helena, and kept an account with them, had six bales of cotton in a warehouse there for sale, which had been weighed, and marked for identification. He came to town on the fifteenth of February, 1877; made some purchases, and was desirous of returning on the train, which left about 3 o’clock in the afternoon. He produced his samples taken that day to Clopton, one of the firm, who made him an offer to purchase the cotton at a fixed price per pound, which was accepted, being ten and a half cents for three hales, and eleven and three-fourths for the three others, whereupon he gave the following order upon the warehouse:

“ Helena, Ark., February 15, 1877.

“ Messrs. Paul E. Anderson & Co. will deliver my six bales of cotton to Messrs. King & Clopton, three bales marked ‘A. C. J. (S.),’ and three bales ‘ S. M. R.’

“ A. G-. Jarman.”

' He testifies that, upon giving the order, he told Clopton that the bales had been weighed ; that he could take the weight off' from the bales, place the amount to plaintiff’s credit, and send him a statement, to which Clopton, handing him back the samples, replied, “Very well. All right. I will send Dick Cook down to attend to. it.” He says, further, that he does not know of any uniform custom in Plelena as to selling cotton. After this the plaintiff' took the train and left town.

Dr. W. H. Jarman, who accompanied plaintiff" to King & Clopton’s store, and was present at the negotiation, says that plaintiff' was in a hurry to leave on the train. “ Col. Jarman was standing up, facing Mr. Olopton, and said that the cotton had been weighed since it was put in the warehouse ; ‘ all that you have to do is to get off the weights, and place the amount of the value of the cotton to my .credit-.’ Clopton said, ‘Very well, Col. Jarman. I will send Cook down right away.’ We then left the office, all parties being pleased.”

James W. Clopton’s account of the transaction is: “After a little conversation between us, we agreed upon the price. Col. Jarman asked me to go with him immediately and ieceive the cotton. He said he wanted to go on the train, and did not have much time to spare. I told him I could not possibly leave the office, but that Mr. Cook, our cotton man, was absent, and as soon as he came back I would get him to go and attend to it. He then wrote an order. * * * Col. Jarman left immediately, as he seemed to be in a great hurry, etc. In an hour, or half hour, he saw Cook, and gave him the order to attend to. He saw nothing more of Cook until next morning, when he still had the order.

“Meanwhile the warehouse had”'been destroyed by fire during the night. Only one of Jarman’s bales had been saved, which, by inadvertence, was afterwards shipped off with other cotton of King & Clopton’s, and for which they offered, and are still willing, to account with plaintiff.”

Charles Eostrop, an employee, of the warehouseman, says that on the evening before the fire, Mr. Cook met him at Burnell & Turner’s shed, and said he wanted to get Col. Jarman’s cotton, and have ticket changed. "Witness was busy, and could not go at once. Cook waited until it became too dark to go into the warehouse without a light, which the warehouseman would not permit. Witness then told Cook to wait till morning. Cook did not show any order. Witness always required the order before tickets were changed.

Anderson, the warehouseman, says that he .met Jarman on the street about 3 o’clock, on the fifteenth of February, 1877, who told him that he had given an order on him, to King & Clopton, for the six bales of cotton, and asked witness to take off the weights and marks and send them to him by mail. He told witness that he had sold the cotton to King & Clopton, and that Cook would come down to receive it; that he did not, himself, have time to attend to it. He directed witness to turn it over to King & Clopton. When Cook came it was too dark to go into the warehouse without a lamp.

The witness was asked on the trial, by plaintiff: “For whom were you holding that cotton, after you had a conversation with Jarman and Dick Cook, clerk of King & Clopton ?” To which he answered: “I would have given the cotton to King & Clopton, relying upon the integrity of the parties. I considered it theirs; and if I hadn’t, I would not have shipped it for them. I thought it was transferred to King & Clopton. I saw no order, nor was any delivered to me.” The single bale saved, the witness had shipped for King & Clopton without any special order, and, it seems, contrary to their intention.

Cook testifies that he had to wait upon the warehouse clerk upon the evening in question, until it was too dark to go into the warehouse and attend to the business. He •explained to the clerk that he wanted to see the cotton, re-sample and re-weigh it, and get the marks on it. The clerk promised to roll it out and deliver it next morning. About that time Anderson, the warehouseman, rode up,_ and promised to deliver the cotton next morning and give a receipt for it. The order was never presented.

Some witnesses deny that Jarman asked Clopton to go with him and receive the bales.

There was evidence of a general custom in Helena with regard to cotton buying; that when sales were made by sample, it was usual for the purchaser to proceed, with all convenient dispatch, to re-sample, and that he had the option to reject the cotton if the bulk should not correspond with the sample shown. After re-sampling, it was usual to pay the money or merchandise; and the purchaser, if it had been weighed, had the option to take it at the weights already fixed, or to have it re-weighed, and take a ticket. Some witnesses say, however, that there was no unvarying custom, but that these matters are subject to special agreement or understanding.

chat™ls°p f^uds.*6 of

Very full instructions on both sides, and of the court’s own motion were given. . Taken altogether, they substantially present the law, and no complaint is made in the motion for a new trial, with regard to them. It 'is simply based upon the grounds that the verdict was contrary to the law and the evidence.

The first question which arises is under the statute of frauds, which provides that no sale of property over the value of thirty dollars shall be binding unless there be: First, some note or memorandum of the contract for sale, signed by the party'to be charged; or second, unless the purchaser shall accept a part of the goods so sold, and actually receive the same; or third, shall give something in earnest to bind the bargain, or in part payment thereof

A simple order to deliver property to another, does not necessarily imply any contract for sale. It is compatible with many other intentions, than a transfer of title. It may be for change of custody, or to be held as a pledge, or in some other way, as bailee. It is not a note or memorandum of a sale. Nothing in this case was given as earnest. The credit t.o be entered was in futuro, when the amount should be calculated from the weights, either as shown by the bale marks, or, if the purchaser should choose, by ae: t-ually weighing. Bid the purchaser, then, accept and actually receive the cotton? That he accepted, and that unconditionally', .is shown by the evidence. Whatever may have been the general custom as to reserving the privilege of sampling; and whatever the law' may presume in case of such purchases by samples, as to the reserved right of testing the bulk, it is, nevertheless, very clear that parties may agree to an immediate transfer of property with or without samples. They maybe used only to influence the judgment of the purchaser, who may act upon his confidence in the seller, and make a positive purchase on the spot. Of course, he might rescind the contract in case of fraud, or recoup for difference of value, in case.the bulk should fail materially, to answer the samples, but there is no charge in this case of either. The jury had before them the facts — that the buyer and seller stood in the relation to each other of merchant and customer, reposing mutual confidence; that the vendor was pressed for time, and unable to attend to the usual course of sale; that he left without any other request than to be advised of the amount of the credit he would receive, or what was the same, of the weight of the cotton, of which he did not have with him the memorandum. This, a prudent man, careful of his affairs, would have naturally desired, if the contract had been expressly, and in the most indubitable terms, a present sale and transfer of property. The jury could not have well found room to doubt, upon the whole case, that the cotton was accepted, so far as the mind and intention of Clopton could constitute an aeceptanee, and that such acceptance, so far as the ownership was concerned, was unconditional.

^ .

Symbolical ¡shed by

Having the intention to accept, did he actually receive. The statute has never been, in this state, nor in England, whence we derived it, construed to abolish the doctrine of symbolical delivery. Whoever receives in such mode as the nature of the property, or its situation makes necessary, receives as actually as by manual caption, or asportation, or some direct interference with the corpus of the property. With regard to bulky articles, or those not immediately accessible, symbolical delivery, by something which may be proved in pais, of a satisfactory nature, satisfies the reason and policy of the statute. This court has expressly so held in similar eases. (See case of Puckett v. Read, 31 Ark., 131.) The order for delivery, although not evidence of a contract, nor even a memorandum of one, vras nevertheless a thing absolutely potent to confer the right of immediate possession, except as against warehouse liens (of which none are shown), and even stronger evidence of that right, than would have been a gin receipt. The jury, under the evidence and law of the case, as presented by the court, did not err in finding that the defendants received the cotton. This satisfies the statute.

%. chattel when title passes m*

It remains to inquire if anything more was necessary to pass the property. The common law principle applicable to this case, has been long settled, clearly formulated and reiterated in numberless opinions and text-books. It is ever arising again, not from any doubt as to its terms, but from the difficulty of its application am-idst the infinite shades of difference in the circumstances of different cases. It may be stated thus:

Where the minds of the parties have assented to the present purchase and sale of a specific chattel, which may be clearly identified, and separated from other property, and the sale be dependent on no conditions nor contingencies, and such possession be given as the nature of the subject, and the situation of the parties with regard thereto, will permit of, and the vendor has done all that is required of him with respect to the property, the title will pass. And this will be" so,. notwithstanding something may be still necessary, on tbe part of the vendee, to ascertain the exact price. That, when intrusted to'the vendee, is a matter of confidence not affecting the sale. One may sell and transfer to another a specific lot of neat cattle, for instance, to be paid for at so much per pound when butchered and sold; or a hogshead of meat, to be weighed by the vendee on taking it to his house, and paid for by the pound at a fixed rate. These things enter into the daily course of traffic, and it would be highly embarrassing to hold that, in such cases, title did not pass to the vendee until all should be done by both parties to fix quantity, quality, or price. The jury were, in this case, warranted in finding that the sale had been made.

In this case, the plaintiff had not only done everything required and expected of him, but more. He had seen the warehouseman, advised him of the sale and order, and directed him to act upon it; and had gone home, without any thought of seeing or claiming the cotton again. He trusted defendants to make proper credits, and advise him of the weights. Evidently, the defendants did not wish nor expect him to do anything more. They'should bear the loss.

Affirm.