author: Bennett J.

text:
    ARKANSAS INSURANCE COMPANY v. BOSTICK & RYAN.
    Policies of Insurance— What the words “lost or hot lost" evidence. — Insurers can, if such he the intention and agreement, make themselves responsible for a loss which has already happened 'when the policy is made, even if that loss be total and the subject matter of the insurance is then non-existent, and this intention is expressly evidenced by the clause “ lost or not lost,” in the policy.

      Same — When contract of insurance becomes complete. — The contract of insurance, on an open or running policy, does not become complete until a declaration of a desire to insure is made by the assured, and until this is done the contract is incohate and incomplete, and if not made at all, the risk'will be regarded as not having commenced.

      Same — What will not work a forfeiture. — The fact that, in the application for • insurance and the policy, it is-understood that the assured are to insure all goods consigned to or shipped by them, in the company, will not, of itself, on the failure of the assured so to do, work a forfeiture of the policy, unless such were the express terms of the instrument. '
    Same— When act of agent works estoppel.- — "Where goods were reported to the agent of an insurance company as having been shipped from a given point, and the agent, by agreement with the assured, entered them as having been shipped from an intermediate way point, whatever may have, been the requirements in this 'respect in the policy, the company will be estopped by the act of their agent from setting up this supposed deviation as a ground of defense.
    APPEAL EROM PULASKI CIRCUIT COURT.
    IIon. John Whytock, Circuit Judge.

      Benjamin $ Barnes, for Appellant.
    We submit:

      First. That where a party takes out an open policy of insurance, and his application is an agreement that he will insure all property shipped and belonging to him during the existence of said policy, and fails to do so, it avoids and vitiates the policy, is a fraud on the company and they are entitled to cancel the policy as soon as they find it out. Sec. 2 Parsons on Maritime Laios, p. 153-4-59, and cases cited ; Bemistown vs. JAllie, 3 Bligh, 232.-

      Second. That the appellees holding an open policy of insurance, requiring them to insure from the port where the goods sire shipped, their application for insurance from an intermediate point was a fraud upon the company, and the company liad, a right to reject their application for insurance and cancel the policy. See Ilodgeson'vs. Richardson, 1 JBL, 463; Reid •ns. Haney, 4 Dow, 97 ; Selan vs. Law, 1 Johns.’ eases, 1; Nander-Iravel vs. United States Ins. Co., 2 Johns., 451; Palmer vs. Warren Ins. Co., 1 Story, 8G0.

      Third. Tliat the application for insurance being after the loss, and from a way or intermediate point, the company had si right to reject the application. See. Danville vs. Mutual Ins. Co., 12.La. An. 251; Orient Ins. Co. vs. Wright, 23 How. (U. ■S.) 401.

      Clark $ Williams, for Appellees.
    Wo submit:

      First. That the fact that the goods were lost before the -shipment of them was reported to the agent of the company, would not prevent the plaintiffs from recovering.’ See Davenport vs. Peoria Ins. Co., 17 Iowa, 276; Kelle-g vs. Commonwealth Tits. Co., 10 Bosw., (N. Y.) 82; 2 Bar-sons on Cont., 364, 368; Paddock vs. Franklin Ins. Co., 11 Pick., 227; Orient Mat. Ins. Co. vs- Wright, 28 How. U. 8., 401, 406, 411; Mark vs. Etna Ins. Co., 29 Lid.,’ 390; 1 Phillips Ins. chap. 5, sec. 2,p- 25.

      Second. In the absence of an express stipulation to that effect in the policy, the fact that plaintiffs did make other shipments not insured in the company, would no.t vitiate their policy. Sec Danville’vs. San Ins. Co., 12 La. An. 259; Orient Ins. Co. vs. Wright et al., 23 How., U. S., 401, 411; E. Carrier Co. vs. Manufad. Ins. C'o., 6 Gray {Mass.), 214; N. Y. Ins. Co. vs. Roberts, 4 Daer, 141; Parsons on Conts., 368, 396.
   Bennett J.

This was an action on what is called an open or running policy of insurance; trial had; -verdict and judgment in favor of Bostick & Ryan; motion for a now trial by defendants overruled, and appeal granted.

The facts in the case, as appeal’ on and admitted in the-bill of exceptions, are as follows: The plaintiffs below, Bostick & Ryan, were manufacturers of tobacco at Fort Smith,. Arkansas, and in the Indian country, west of Arkansas. On' the first of May, 1868, they took out and received from the-defendants, the Insurance Company, an open policy, or, what is sometimes called a running policy of insurance, which was; to continue for one year from that date. About the first of April, 1869, Bostick & Ryan ordered a shipment of tobacco from Leopold & Co., of Louisville, Kentucky, which was,, by Leopold & Co., shipped on hoard the steamboat “ G. A_ Thompson,” which was a good and insurable boat, and was then hound for Fort Smith. The invoice of these goods was. received by Bostick, one of the firm of Bostick & Ryan, the-consignees, at Fort Smith, on Sunday, the lltli day of April,, 1869, and, on Monday the 12th, immediately after breakfast hours, lie (Bostick) reported theshipment to James II. Sparks,, who was the acting and accredited agent of the company at thátplacc, for the purpose of being indorsed as insured under the policy. Sparks examined the invoice, and asked Bostick whether he desired the goods to be insured from Louisville., or only from Memphis, when Bostick said he was satisfied to have them take the risk only from Memphis, or words to that effect. Whereupon, Sparks indorsed the goods as insured, under the policy, from Memphis to Fort Smith, and forwarded the application or report to William II. Fulton,, secretary of the company, at Little Rock, and which reached the secretary on the 14th of April. The “ G. A. Thompson/'’ with these goods on board, proceeded along her voyage, passed Memphis, entered the Arkansas river, and proceeded to a. point about forty miles up the river (below Little Rock), where she struck a snag, sunk and was burned, and the goods; were a total loss. The boat was lost during the night of the-9th, or early in the morning of tile 10th of April; and it was proven that the loss occurred l>3 the perils insured against. The loss was fully known to the company at Little Rock when Bostick’s report or application was received from the agent, Sparks, on the 14th of April, but was not known to either Sparks or Bostick, or to any of the plaintiffs at the time Bostick reported the goods to Sparks for insurance, as aforesaid, on the 12th day of April. When Fulton, the secretary, received the report from Sparks it was regularly spread upon the book of risks, but there was a protest against allowing the insurance or paying the claim by members of. the company; but it was agreed that it shouldbe spread upon the books (which -was the regular course according to the rules and the course of business of the company, for all such reports of goods insured) until the plaintiffs should have notice, in order that they might have a hearing on the question • of rejecting the application and refusing the insurance. After-wards, the report was rejected, the insurance s.et aside and the plaintiffs’ policy cancelled by the board of directors of the company, and the plaintiffs’ claim for pay for the value of the goods was rejected and refused,' and notice of this was served on the plaintiffs through the agent of the company, Sparks, at Fort Smith, on the 2.6th day of July, 1869. But previous to receiving this notice, plaintiffs had shipped other goods and reported them to Sparks in the same manner for insurance under the policy, and Sparks had received them, charged up the premiums and forwarded them to the secretary 'at Little Rock, and they were duly entered on the book of risks, but were afterwards set aside, together with the setting aside of the risks on the lost goods, as aforesaid. At the time of reporting the goods to Sparks for insurance, no premiums were paid, but were charged up by Sparks to plaintiffs in a regular account book which he kept for that purpose; and it was the regular custom of the. company, with those who held policies of this kind, to charge up the premiums on the report of shipment of goods, and the account of premiums were collected quarterly. It was further proven that the plaintiffs, after taking out this policy and before the shipment of the goods which were lost, made two or three other small shipments of goods which they did not report to the company, and the company did not receive premiums'on them; they did this with a view of taking the risk of these small shipments themselves. It was further proven that one shipment of goods made by them, after the issuing of the policy and before the shipment' of the lost goods, was'insured in another company, at Louisville; but that shipment was made by the order of the plaintiffs, sent by mail, and the insurance in the other company was effected by the consignors, in Louisville, unknown to the plaintiffs, and the ■ plaintiffs, on receiving the invoices, reported the goods, as usual, to the company, through the agent, Sparks, and the premium was regularly charged and paid to defendant by plaintiffs. Further, it was proven that the goods lost were worth the invoice price, to-w-it: $1000. Further, it was proven, by the rules and regulations of the company, that persons holding open ■policies of the company wore required to report their goods immediately on receiving the invoices, but not at the time the shipment was made, except when the policy holder was the consignor.

. The bill of exceptions and motion for a new trial present but three material points for adjudication.

First. It is contended that the company are Tiot liable on their policy, because the goods were lost before the shipment of them was reported to Sparks, the agent, or the company’s officer at Little Rock, Arkansas.

An indorsement upon the policy requires a report of each shipment to be made to the office of the company, at Little Rock, Arkansas,, by mail or otherwise the same day the shipment is made, or, if on goods and merchandise to be received, the same day advice or the invoice of the shipment comes to hand, for entry on the office records and for protection purposes.

In the body of the policy is found the following stipulation : “ That the Arkansas Fire, Marine, Life, Accident and General Insurance Company do, by these presents, cause Bostick & Ryan to be insured, lost or not lost, etc.”

In the determination of our first proposition, it will be necessary to fully understand the meaning and import of the clause “lost or not lost.” Policies are frequently effected, not only on ships and goods in home ports, but on those, also, which are in foreign ports, or actually at sea on. their way either to this or other countries, and with regard to which, it is, of course, uncertain whether they may not actually have been lost b.efore the policy was effected. These words have been inserted in all marine insurance. Arnold, in his work on Insurance, vol. 1, p. 26, says: “This clause, however’, though never’ omitted, does not appear to be strictly neees-. sary,'as there can be no reason why a previous loss of the subject insured should prejudice an insurance subsequently effected, if both the assured and the underwriters were equally ignorant of the loss at the time.” This opinion of the author is sustained by [Marshal], in his work on Insurance, pp. 338, 340, 1 Phill. Ins. 72, 438; 3 Kent (6 ed.) 258, note c.

It was decided by Lord Denman, in the case of Mead vs. Davidson, 3 Ad., and, Ell. p. 303, that a policy containing this clause was good when the subject of insurance was accepted for insurance and the premium paid before loss, although the policy was not executed until after a loss had happened to the knowledge both of the assured and underwriter.

Phillips, in his work on Insurance, vol. l,p. 925, says: “The risk may be assumed by the underwriters for an anterior period, and cover losses prior to the date of the policy, provided there is no concealment or misrepresentation by either party. For this purpose, the clause ‘lost or not lost’is introduced. But this clause is not necessary; it is.sufficient, if it appear by the description of the risk and the subject of the contract? that the policy is intended to cover previous losses.”

It is, then, evident that insurers can, if such be the intention and agreement, make themselves responsible for a loss which has already happened when the policy is made, oven if that loss be total; so that the subject matter of insuranee is then non-existent, and this intention is expressly evidenced by the clause “lost or not lost,” in the policy.

The material question then, presented under this proposition is, whether or not the company were under a contract, within any of 'the terms and conditions of the policy, to insure the goods at the time the loss occurred. This contract of insurance arises out of an open or running policy, which, from the very nature of such policies, enables merchants, etc., to insure goods shipped at a distant point, when it is impossible for him to be advised of the particular boat, or all the circumstances attending the shipment at first. The contract, however, does not become complete until a declaration of his desire to insure is made by the assured. Until this is done, the contract is inchoate and incomplete, and, if not made at all, the risk is regarded as not having commenced. Was such a declaration made by the plaintiffs in the case before us ? We think there can bo no dispute as to that fact. It is shown by the testimony, that the invoice of the goods were received on Sunday, April 11, 1869, by Bostick, one of the firm, of Bostick & Ryan, and on Monday, the 12th, immediately after breakfast hours, he, Bostick, reported the shipment to James

IT. Sparks, who was the acting and accredited agent of the company, and such invoice was received by him at that time, and the amount of- premium charged to Bostick & Ryan, as was the usual custom of the agency at Fort Smith. Applying the principles of law regulating policies of this kind, and the requisite act necessary to be done by the assured and the company, we arc confident the company are liable under their policy, whether the goods were “lost or not lost” at the time the insurance was effected, unless the policy had been rendered null and void by previous act' of the parties. The principles of law and rules of construction governing policies of this description appear to be well settled, as may be seen by reference to the authorities collected in the text writers, and by the following leading cases: Hammond vs. Peoria Pis. Co., 17, Iowa, 276; Kelly vs. Commonwealth Ins. Co., 10, Bos. N. Y., 821; Paddock vs. Franklin Ins. Co., 11, Pick. 227; Orient Mutual Ins. Co. vs. Wright, 23, How, (U. S.) 401; Mark vs. Ætna Ins. Co. 29, Ind. 390; E. Carver & Co. vs. Manufacturing Ins. Co., 6, Gray, 215.

The second point raised by the pleading and-facts is : Was the policy rendered nugatory by the previous act of the plaintiffs in not insuring all the goods consigned or received by them under the policy ?

It is conceded that plaintiffs did make several shipments of goods which they did not report to the company, and upon which they did not receive premiums, and it was further pi-oven that the plaintiffs did insure one shipment of goods in another company, but such insurance was effected by the consignors of the goods, and not by the procurement of the plaintiffs.

Conceding, for the purpose of argument, that, in the application for insurance and the policy, it was understood that the plaintiffs were to insure all the goods consigned to or shipped by them in this company, a failure on the part of the plaintiffs to do so, would not work a forfeiture of the policy, unless such were the express terms of that instrument. Such a provision would doubtless be a condition pfecedent, the performance of which by the plaintiffs would be indispensable to their right of recovery, unless it had been dispensed with or waived by the defendant. Inman vs. Western Ins. Co. 12, Wend. 460.

It is only when a duty is created by the law that renders a contract void by non-performance of some requirement, and not when the duty is created by implication by the contract. Harmony vs. Bingham, 2 Kern, 99. Under this policy of insurance, the duty of the plaintiff may have been to report for insurance all goods shipped to them; but this duty was created by the contract, which does not fix a penalty for the failure to do so, and the law of insurance will not arbitrarily say it, ifso facto,, works a-forfeiture. Even if this was the general principle, in the case before us, the facts will justify us in saying the company have waived all rights to this defense.

Bostick reported the shipment to James II. Sparks, an ac•credited and acting agent of the company, at the place where he resided, for the purpose of having the shipment indorsed as insured under this policy. Sparks, the agent, indorsed them as insured. From that moment the company were liable for any loss that might have or had occurred. The agent reported the application to the home office, at Little Rock, as he was required to do by the indorsement of the policy, “ for entry on the office records, and for protection purposes.”

The words “ protection purposes,” to be found in tire indorsement, can not be construed to mean that the company might receive or refuse the application upon arrival. It was not the intention or understanding between the parties, at the time of taking out the policy, or when .the insurance was effected. Sparks was acting as the agent of the company, at Fort Smith, with general powers. The validity of his acts to third persons did not depend upon the approval of the ■company. Nor can they secretly reserve the right of approval or disapproval, at a future period. The company have not the power to say, by their agent, to a person desiring insurance, “ your shipment is insured,” and leave him under that impression until after a loss has happened, and then say to him, that their election has not been made. Honesty and fair dealing forbid it.-

If there had been any previous dereliction on the part of the plaintiffs in reporting shipments or payment of premiums previous to this transaction, the act of the company’s agent, in insuring this one, must be considered as a waiver of it so far as the insurance of this is concerned. ' As to whether the plaintiffs aré not liable to pay premiums on all goods shipped by them during the life of the open policy we are not called upon to decide, but that non-payment of them works a forfeiture of the policy on this shipment, we deny. There is not even a provision in the policy or application to this effect, and'the law will not certainly annex one for the parties.

The third point for adjudication is, whether the goods were insured under the policy, as they were shipped from Louisville, Kentucky, and reported and indorsed for insurance from Memphis, a way -port.

The evidence shows that the goods were reported to the agent, Sparks, as shipped from Louisville, and the agent entered them, by agreement between him and Bostick, as insured from Memphis. The insurance from Memphis was the proposition of Sparks, the agent, and whatever may have been the requirements in this respect, in the policy, we are clearly of the opinion that the defendants are estopped in the present case, from any supposed deviation, as a ground of defense by the act of their agent. By this act the plaintiffs had a right to regard any objections on this ground, as waived, when there was no concealment on their part as to where-the goods were shipped from. Certainly, it cannot be allowed ás a defense to this action without operating as in the nature of a fraud on the plaintiffs, who have acted on the belief that the acts of the agent were the acts of the company,, and who, knowing all the circumstances, indorsed the goods from Memphis instead of from Louisville.

Having fully considered all the propositions, as raised in the trial of the case, and finding no error, the judgment is in all things affirmed.


source: Caselaw Access Project

author: Gregg J.

license: Public Domain

text:
    LAMBERT v. KILLIAN & PREWITT.

      Appeals — When objections not considered. — -This court will nob consider objections or errors in a record where there was no .motion for a new trial in the court below.
    APPEAL PROM ASHLEY CIRCUIT COURT.
    'IIon. Henry E. Morse, Circuit Judge.

      G. W. Murphy and, Farr § Fletcher, for Appellant.

      J. W. Van Gilder, for Appellees.
   Gregg J.

The appellees brought replevin before a justice ■of the -peace -for eight bales of cotton. Their claim to the cotton was founded upon throe several mortgages executed, by laborers, to secure the payment of supplies furnished them while cultivating appellant’s lands. The laborers were to have one-half the cotton grown upon the lands and the appellant the other; and the supplies were to be paid for out of the laborers’ cotton. The appellant furnished supplies' until in May; the appellees furnished them the remainder of the year, and took the mortgages above referred to on the laborers’ share in the crop. Sixteen bales of cotton were produced and ginned and baled, appellant furnishing the bagging and rope. No division had been made and the cotton was all in the possession of Lambert, and the laborers had demanded half of it from him. The cotton was alleged to be worth .§480.

Upon the proof of the above facts and the value of the cotton, each party asked the court to instruct the law to the effect, that upon the -facts each had a right to recover against the other. The court gave the appellees’ instructions, and refused those of appellant. To all of which he excepted, and tendered his bill of exceptions containing all the evidence and instructions given and refused, and his exceptions thereto.

The jury returned a verdict for the eight bales of cotton, or $805Tj$¡- as its value. Without moving for a new trial, Lambert appealed to this court, and here insists that the Circuit Court erred in taking jurisdiction of the case and in giving and refusing instructions.

In-the case of Stock vs. Mahar, 26 Ark., 536; Merriweather vs. Erwin, and Worthington vs. Welch, I dissented from the opinion of the court, wherein the majority held that exceptions, such as are taken in this case, could not be considered i for want of a motion for a new trial. Hnder that ruling the errors in this record cannot be considered, because the party aggrieved did not move the court below to correct such errors. The only additional question in this case is, that the record showp that the jury found the sum in controversy to be above the jurisdiction of a justice of the peace. No exception was taken to this in either of the courts below, and the plaintiff there alleged the value of the cotton at only $480, a sum within the jurisdiction, and that averment was in no way put in issue or controverted by the defendant. And if the jury returned a verdict for more than was claimed, it should have been set aside or the judgment arrested; but no motion was made, and the case, in this particular, also falls within the rule above referred to, which, as indicated, without my concurfence, has become stare decises.

The judgment of the court below is affirmed.


author: Bennett, J.

text:
    PARKE v. MEYER.

      Judgments — When may he several. — Under the Code of Practice, a several judgment may "be entered whenever a several suit might have been brought.
    APPEAL FROM SEBASTIAN CIRCUIT COURT-MOTION TO DISMISS APPEAL.
    IIon. E. E. Ham, Circuit Judge-

      Walker ^ Sogers, for Appellant.

      U. M. Sose and Clark £ Williams, for Appellee.
   Bennett, J.

Meyer -sued Parke and Tibbetts, on an accepted draft, in the Circuit Court of Sebastian county. Service was liad on Parke; none on Tibetts. 'When the cause was .called, Park defaul ted, and a final judgment ivas rendered against him, and an alias writ, issued against Tibbetts, and the cause continued.

Parke appealed. Appellee, Meyer, now files his motion to dismiss the appeal, alleging that there is no final judgment from which an appeal will lie. '.

The motion to dismiss, no doubt, is based upon the provision of see. 80, chap. 133, Gould’s Digest, which says : “When there are several defendants in a suit, and some of them appear and plead, and others make default, an interlocutory judgment, by default, may be entered against such as make de- • fault, and the cause may proceed against the others, but only one final judgment shall be given in the action.”. The practice, however, under the Code, has been changed, or may be. Secs. 400 and 401 say : “Judgments may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.”

“ In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others, -whenever a several judgment is proper.”

Thus, it is to be seen, the Code allows a several judgment to be entered, whenever a several suit might have been brought. The plaintiff might have brought a several suit against Parke, on the accepted draft, and, by proving that the name of the firm had been used by him without authority from Tibbetts, have recovered a several judgment.

Inasmuch as we are only required to, pass upon the question as to whether this judgment was a final one, from which an appeal would lie, we will leave the merits of the case to be hereafter considered. Motion to dismiss overruled. ■


author: Gregg, J.

text:
    GARDNER et al. v. HERSHEY et al.

      Injunction — Whan should he made perpetual. — Lands were mortgaged, with power of sale, to secure payment of note; note was assigned; assignor and assignee each demand payment in his own right; the lands were advertised for sale. On bill by mortgagor, offering to pay, praying that receiver bo appointed, claimants required to interplead, and sale be enjoined. Held: That, after interpleader was decided, and payment by receiver, it was error to dissolve the injunction, but that the same should have been made perpetual.
    APPEAL EROM SEBASTIAN CIRCUIT COURT.
    IIon. E. D. IIam, Circuit Judge.

      B. T. Du Val and A. U. Garland, for Appellants.

      Bose 8¡‘ Green, for Appellee.
   Gregg, J.

The appellants, as heirs of John Gardner, deceased, filed their complaint in equity against the appellees, alleging that John Gardner, in his lifetime, borrowed -one thousand dollars of the appellees, Sarah, and Nancy Clark, now deceased; and, to secure the re-payment of said sum, he gave them a mortgage, with power of sale, .on certain real property ; that the defendant, Ilershey, claimed to be the assignee of, said Sarah, and the absolute owner of the demand against the estate of John Gardner, and that, as such assignee, he had advertised for sale the lands embraced in said mortgage, etc., and that said Sarah also claimed to be the absolute owner of said demand. She denied that she had transferred the title therein to Ilershey, and said the note had only been assigned to him, as security, and for collection. Each party had demanded the mouey, and forbid its payment to the o„ther. Appellants could not tell to whom payment should be made, and they offered to pay as the Chancellor might direct, and prayed for an injunction, andtliat'the parties might be required to interplead, and have their rights determined by the court. The Chancellor ordered that the. money be paid to a receiver, and that injunction then issue against .the sale. Ilershey and Clark interpleaded; the court found for Ilershey, -and ordered the money paid over to him, and that Clark 'pay ten per cent, on the amount, as damages, for the delay caused by the injunction, and decreed accordingly; and also decreed that the injunction bo dissolved. Gardner appealed.

So far as the record shows, there was no objection made to any ruling in the court below; no bill of exceptions filed, or appeal prayed; in fact, nothing tending to show that the parties did not- all intend to abide the rulings and decrees of that court. But, after that court had adjourned, an appeal was obtained from the clerk of this court, from which we might infer the record entry dissolving the injunction was inadvertently made, and that counsel, not being as vigilant as they should have been, failed to scrutinize this record until after the close of that court. Be this as it may, when the Gardners paid all the money demanded of them, as they did, Ilershey had no right to ask a dissolution of the injunction, and the order restraining him from selling the property should have been made perpetual.

The decree is reversed, and a perpetual injunction will be entered in this court.


text:
    STREET, Trustee Etc. v. SAUNDERS.

      Dower — Not allowed out of personal property in trust. — Where S. conveyed his growing crop, in trust, to secure the payment of certain indebtedness, and died, and the crop so conveyed was not sufficient to liquidate the indebtedness intended to be secured; on claim of dower, in the crop, by the widow, Held: That the growing crop was personalty; that S. did not die seized, thereof, and that the widow was not entitled to dower therein, although she was not a party to the trust deed.
    APPEAL PROM CHICOT CIRCUIT COURT.
    IIon. Henry B. Morse, Circuit Judge.

      W. B. Street, for Appellant.
    "W e submit that Saunders, at the time of liis death, did not own, or did not die seized or possessed of the crop of cotton. The personal property acquired by the husband through the wife, and reduced to possession, becomes his absolute property; his conveyance of the saméis valid; she, having no' vested rights therein, is not entitled to dower as against the purchaser. Cook vs. Cook, 12 Ark., 381.
    Growing crops being emblements, go to the executor, unless the heir assigns the land sown to the widow for her dower, then she takes the crop upon the land assigned; but the right to the growing crop does not attach in favor of the widow until after her dower has been assigned. 2d Scribner, 727, et. seq. Parker vs. Parker, 17 Pick., 236. And if, before assignment, she receives the fruits and grain growing on her ■husband’s lands at the time of his death, she is liable for their full value. Kain -vs. Fisher, 2, Seld., 597. 3 Washb. Peal Prop., 339.

      Carlton Simms and H. Carlton, for Appellee.
    We submit that the deed of trust was a mere chattel mortgage, or unexecuted contract for the delivery of personal property at a future day, and that the widow is entitled to dower in the personal property of her husband. See Gould’s Digest, chap. 60, sec. 23.. That this deed is a mere mortgage, we think there can be no question, and in support of this, would refer the court to the following cases in addition to those in our own Reports, viz : Holmes vs. Crane, 2 Pick. 607; Ward vs. Sumner, 5 Pick., 28; 5 Johnson, 218; 9 Johnson, 341; 19 Johnson, 218; Boh. on Fraudulent <_ Conveyances, c. 5, sec. 3, and Second Term Beports, 587. There was no delivery of the property, and the widow will take her dower against all persons. Hill’s adrar, vs. Mitchell et al., 5 Ark., 608; Menefee, admr., vs. Menefee et al., 3 Ark., 9. There should be actual disseizin or dispossession, to defeat dower. Arnell vs. Arnott et al., 14 Ark., 57; James vs. Marcus, 18 Ark., 421.
   Bennett, J.

William B. Street, the appellant, at the March term, 1872, in the Circuit Court of Chicot county, filed his complaint to recover the possession of seven bales of cotton; of which cotton the defendant below, and appellee here, had possession, and claimed the same as part of her dower in the estate of her deceased husband. . This was an amicable suit, submitted to the court below upon the following agreed statement of facts: “That John TI. Saunders, on the 17th of July, 1871, executed his trust deed, in favor of appellant, to secure the payment of certain indebtedness mentioned therein. By said trust deed, Saunders conveyed his entire interest in his said crop to appellant, but the crop was left in the hands of Saunders for the purpose of gathering, etc., and should the proceeds of the saíne more than pay the claim of Street, the surplus was to go to Saunders. It -was, however, admitted that the crop was not sufficient to liquidate the indebtedness of Sauiiders. Saunders died the 15th of December, 1871, before delivering the crop, or any part thereof, to the appellant. His widow, the defendant below, became administratrix of her late husband’s estate; took possession of the said crop; the seven bales in question in this suit are a part of the identical crop covered by the trust deed; and tliat the defendant and widow of the said Saunders refuses to give up the said cotton, but claims it as part of her dower.” Upon this statement of facts, the court below found for the defendant, and held that the widow was entitled to these seven balps of cotton as dower. From which judgment Street appealed.

Under the common law, personal property was not subject to dower, but our law-making power, upon the highest principles of justice and publicpolicy, has altered this, and it is now provided in Gould’s Digest, chap. 60, sec. 21: “A widow shall be entitled, as a part of her dower, to the one-third part of slaves whereof the husband died seized and possessed, for her natural life, and one-third part of the personal estate in her own right.”

The only question is: Was this cotton personal property, and was John II. Saunders seized and possessed of itat the time of his death?

That the growing crop of cotton was personal we think there can be no doubt, and whether the wife was a party to the trust deed or not is unnecessary to discuss. The conveyance of personalty does not require the sanction or acquiescence of the wife. The trust deed, duly executed, acknowledged and recorded, shows that the only interest Saunders had in the crop 'was in the residue of the proceeds, after payment by the trustee- of all the indebtedness specified, and by the statement of facts it is admitted that Saunders did not have interest enough in the cotton to pay off these liabilities.

The trust deed offered in evidence clearly shows that Saunders transferred to Street, as trustee, his entire crop for a valuable consideration, and bound himself to save and deliver the cotton to appellant. As soon as this deed was duly executed, the title to this crop passed to Street as trustee, and only remained in Saunders’ possession for the purpose, as specified in the deed, “to save and prepare said crop for market as- early as practicable.”

A widow is only entitled to dower in the property of which her husband was the owner at his death. The attempt of the appellee to say that the instrument of conveyance given by her husband to Street, as trustee, was only a mortgage, is an utter failure. Because it expressly states that “ I (Saunders) have bargained, granted and sold, and do hereby grant, bargain and sell unto ~W. B. Street, as trustee for said above mentioned parties, my entire crop of cotton and corn,” etc. No stronger language could be used to express a sale or transfer of property. Saunders did not own this crop at the time of his death, and only had possession for a specific pui’pose. It not being his, the widow cannot have any dower interest in it.

Therefore, the court below erred in so finding, for which error its judgment must be reversed, and the cause remanded, to be tried in accordance with the law.


author: Stephenson, J.

text:
    JOHNSON v. GRAVES.
    Vendor’s Lien — When creditor's right postponed to. — 'When the creditors of a vendee, take a conveyance of lands, encumbered with the vendor’s lion, from the vendee, without advancing any new consideration, merely as a security for the debts of the vendee contracted prior to his purchase of the lands from the vendor, they will be postponed to the rights of the vendor.
    APPEAL PROM ASIILEY CIRCUIT COURT.
    IIon. Henry B. Morse, Circuit Judge.

      Johnston $• Hawkins and U. M. Bose, for Appellant. ‘
    A vendor’s lien will not prevail against a purchaser without notice. Petit vs. Johnson, 15 Ark., -55; Shall vs. Biscoe, 15 Ark., 142.

      Mortgagees and trustees in conveyances made to secure the payment of debts are purchasers. Leading Cases in Equity II TP., vol. 1, p. 277; Story’s Equity, vol. 2, p. 481, see. 1229.
    A vendor’s lien will not prevail against a conveyance to creditors in consideration of antecedent debts. Bayley ,vs. Greenleaf, 7 Wheaton, 46; 'Dunlap vs. Burnett et al., Smedes $ Marshall, vol. 5,^.702-710; Roberts vs. Rose et al., 2 Humphreys, 145, 147.
    A bona fide purchaser is one who, at the time of his purchase, advances a new consideration, surrenders some security, or does some other act which, if his purchase were set aside, would leave him in a worse than his original position. Johnson is, in the strictest sense of the term, a bona fide purchaser without notice. Du Val vs. Bibb, 4, Henning $ Mun-ford, Í13, 120; Wood vs. Bank of Kentucky, etc., 5 Monroe, 194, 195; Bayley vs. Greenleaf, 7 Wheaton, 46.
    A vendor waives his lien for the purchase money by executing a deed to the purchaser. So tliat the iand may be sold under execution against such purchaser. Duncan vs. Johnson, 13 Ark., 180.
    When Graves declared by his deed to Bell that he had received all the purchase money, Johnson could not be expected to inquire whether the purchase money had been paid. Sugden on Vendors, vol. 2, 7 American Edition, p. 353; Bayley vs Greenleaf, 7 Wheaton, 46.

      J. W. Van GUder, for Appellee.
    That the vendor has a lien for the unpaid purchase, see 18 Ark., 142; 21 Ark., 203; 25 Ark., 272, 277, 510,
    If the matters stated in the answer in reference to the trust deed be taken as true, they do not constitute a defense. Eor it is distinctly charged in the complaint that the debts secured by the deed of trust were contracted before the deed of Graves to Bell, and is not denied by the answer, and the answer itself states facts which show that they were mere volunteers, paying nothing for their deed, and a vendor’s lien would have a preference over their claims. 1 Hilliard on Mortgages, 682; Chance vs. McWhorter, 26 Geo., 315; 7 Humphreys, 239; 2 Washb. on Heal Property, 8d ed., p. 89, secs. 11, 13; 3 Parsons on Contracts, 5th eel., p. 277; 2 Story’s Equity Jurisprudence, secs. 1225,1228; 21 Barb., 327; 6 S: andM. 286.
   Stephenson, J.

In October, 1860, Graves sold to Bell certain lands in Ashley county, for $2000, and took his promissory notes therefor. Graves made Bell a deed to the land and put him in possession, and now files his bill to enforce his vendor’s lien.

Graves alleges in his bill that James TI. Johnson is in possession of the land under a trust deed from Bell, in favor of his (Bell’s) creditors, to secure certain debts due them prior to his sale of the land to Bell.

Johnson, answering for himself and Bell, admits all the allegations of t'he bill, but avers that he is an innocent,purchaser, -without notice of Graves’ lien; also, thjit the beneficiaries of the deed of «trust had no notice whatever that the purchase money remained unpaid. Johnson makes his answer a demurrer to the bill.

• The cause was heard on the bill and answer, and decree for plaintiff, Graves. As the record shows no judgment of the court on the demurrer, we will treat it as having been overruled, and we think properly so. -

The pleadings, viewed as evidence, show that Johnson and the beneficiaries, under .his deed of trust, stand in court as bona fide purchasers without notice of the vendor’s lien. It needs no citation of authorities to prove that the settled rule of this court is, that a bona ficle purchaser, for a valuable consideration, without notice of the vendor’s lien, takes the.lands discharged of it; but does Johnson dccupy this position? Appellee, Graves, alleges in his bill that “ all the debts secured in said deed of trust were contracted prior to said deed of trust, and also prior to the conveyance from plaintiff to defendant, Bell,” and as this is not denied in the answer, it is taken for true. Under this state of facts, Jolmsdn and the creditors of Bell, for whose use the trust was executed, occupy very different ground from one who pays his money in good faith upon the vendor’s title, ignorant of his secret equitable lien for the purchase money.

The object of the law, in all questions arising between vendor and vendee respecting the equitable lien of the former, is to give the vendor the benefit of his lien as against the vendee and those holding under him having notice of the lien, but to save him harmless' whose money has been advanced in good faith without this notice, and upon the vendor’s declaration in his deed. Let us apply this principle to the case at the bar. The. vendee, Bell, executes to Johnson Iris deed of trust,, to secure certain of his creditors, -which debts he had contracted prior to his purchase of the land from Graves. This deed, at most, gives but an equitable title to Bell’s’ creditors, and which they must proceed 'to execute before they can gain the legal title. They have, by taking this security, in no wise impaired Bell’s liability to them, but would have all the remedy, after taking this security, they had before. Nor are they in worse condition by giving the vendor, Graves, priority over them than they were when they gave Bell the credit. If they had taken the land in satisfaction of the debt, or had made advances upon the faith of the title, as it appeared of record, they would have occupied a different attitude in the case; but where creditors oí the vendee take a conveyance from him merely as a security for their antecedent debts, without advancing any new consideration, they are postponed to the rights of the vendor. 2 Wash. Real Prop., 3d ed., 89; Brown vs. Vanlier, 7 Humphrey, 249; Harris vs. Hornor, 1 Dev. & Bat., 455; Eubanks vs. Poston, 5 Monroe, 286; McGown vs. Yerks, 6 Johnson’s Ch. R., 450; Chance vs. McWhorter, 26 Ga., 315; Repp vs. Repp, 12 Gill & J., 341; Dickinson vs. Tillinghest, 4 Paige, 215,

Finding no error in the proceedings of the court below, the decree is in all things affirmed.


text:
    PENNY & CO. v. McLEOD.

      Whakb-boats — When agents of carriers. — Where goods are consigned to the owner and delivered to a wharf-boat, it is not a delivery to the owner, but the wharf-boat holds them as agent for the carrier.

      Same — Liability of to consignee. — The owners of a wharf-boat may act as agents of both'carrier and consignee and, when' they agree with the consignee to receive goods for him, they are liable to such consignee if they fail to comply with such agreement.
    APPEAL PROM PHILLIPS CIRCUIT COURT.
    IIon. M. L. Stephenson, Circuit Judge.

      Palmer & Sanders, for Appellants.
    Tlie legal principle seems to be well settled that tlie liability of tlie warehouseman or wharfinger does not commence until that of the carrier ceases. Sleadevs. Payne, 14 La. An., 453; Lean vs. Vaccaro, 2 Head, 488; Alabama, etc., P. P. Co. vs. Kidd, 35 Ala., -209. And that in order to relieve the owners of vessels from responsibility, there must he a delivery on the wharf, to some person authorized to receive the goods, or some act must he done which is equivalent to a delivery. Herman vs. Goodrich, 21 Wis., 536.
    The idea that appellants could have been agents for the boat, and for appellee also, at the same time, is preposterous. Story on Agency, secs. 210-217; Kdwards on Bailments, 300,301; Story on Bailments, sec. 453, sec. 538, et seq.; 2 Kent’s Com., 604.

      A. H. Garland, for Appellee.
    There was no error in the law as declared by tlie court. See Angelí on Carriers, sec. 66; lb., 123, 129.
    The trial being bad by the court in place of a jury, this-court will not reverse the .finding unless there is an entire absence of proof to support it. 26 Ark., 362, and cases cited on that page. • •
   Gregg, J.

The.appellee brought his complaint, at law, against appellants for damages caused by their failure to deliver to his agents certain horses by them received; as wharfingers, at the port of Helena, Arkansas.

The appellants admitted that the steamer Des Arc delivered the horses at their wharf-boat, but they deny that they were plaintiff’s agents, or that the horses were received for him. Issue was formed, and, by consent, the cause was submitted to the court sitting as a jury.

It appeared that appellants were the keepers of a wharf-boat and common receivers of freight for that port. That, a few days before the horses were landed there, appellee went on the boat and advised their clerk then in charge that he expected horses shipped there to him, and he desired Harris & Rayner, of the Eclipse livery stable, notified, and the horses turned over-to them, and that arrangements had been made with them to receive the horses, etc. The clerk agreed to comply with such request. The clerk testified that he had no recollection of any such request or agreement; that he did not personally know consignee; that the liorses were received by appellants as the agents of the .steamer Des Arc, and stored at another stable for a few days, and then returned to the steamer. ’ Other proof was made of the agreement with the clerk on the wharf-boat, and of the loss of one horse, the damage to others, etc.

The court found for the appellee |494 75, which finding was certainly not without evidence, and not unreasonable under the proof.

The court, in effect, declared the law to be that, where goods were consigned to the owner, and by the steamer delivered to the wharf-boat, it was not a delivery to the owner, but the wharf-boat holds them as agents for the carrier.

That the owners of a wharf-boat may act as agents of both carrier and consignee, and when they agree with consignee to receive goods for him, they are liable to such consignee if they fail to comply witlpsuch agreement.

The court refused to declare that a promise made by appellant’s clerk to receive the horses and notify Harris & Reyner,. without any consideration being paid, ivas a nudum pactum, and. defendants not bound thereby. And further, that to charge appellants, appellee was not bound to have made his pecuniary arrangements and shipped the horses to them. And lastly, that appellants were under no obligations to advance chai’ges, and, as they held the horses only as agents of the steamboat, they could not refuse to surrender them when called for by the boat. The last declaration of law was not warranted by the evidence. The second one refused was clearly not law.

A wharf-boat, doing a general receiving and forwarding business, is a public agent, and, to a large extent, occupying grounds similar to a public carrier, and has a right, as amiidway man between carrier and consignee, and as the agent of both parties,.to .hold goods until all reasonable charges are paid thereon; and, in this case, it is not necessary to decide whether or not they were bound to receive goods without pay, and hold them until charges were paid, or the goods sold for spch charges, because the clerk, who was acting for appellants, without demanding any advanced consideration, and upon being advised that Harris & Reyner would pay charges, etc., agreed to receive the horses and notify them. That agreement, in connection with the general business done by appellants, clearly made them liable if they failed to comply, as the proof- shows they did. Hence, we hold there was no error in any of the declarations of law. The judgment is affirmed.

Hon. M. L. Stephenson, being disqualified, did not sit in this case.

Hon. E. H. English, Special Judge.


author: McClure, C. J. Gregg, J.,

text:
    DANO v. M. O. and R. R. R. R. Co.

      Railroads — Laborer’s lien on, act of July 23d, 1868, construed. — The lien given a laborer, by the act approved July 23d, 1868, is personal and cannot be assigned or transferred; it must arise out of a contract either express or implied between the parties; the party, seeking to enforce a lien of this-character, must bring himself wholly and. technically within the statute-granting' the relief, and there must be such an interest, in the estate subject to the lien, as can, upon process, bo sold, transferred and conveyed to the-purchaser thereof.
    2. The first nine sections of the act have reference only to movable property and the labor performed thereon, and the word “ all,” as used in the act, is not to be construed literally, as giving to every laborer a lien for his labor..
    3. The remedy afforded, by the act, is summary and should be strictly construed, and the tenth section of the act is not to be so extended or construed as to give’ to the laborer employed in ditching, building levees or railroad lines,, a lien upon the real estate for his labor, where the labor was done under a contract from the State, but only when the contract was- with the owner of the lands upon which the work was done.

      Requisites of complaint. — In an action to enforce a laborer’s lien, the complaint should disclose the property and the nature of the estate held by the defendant, and upon which the lien is claimed.
    APPEAL FROM CHICOT CIRCUIT COURT.
    Hon. Henry B. Morse, Circuit Judge.

      Garland Nash, for Appellant.
    Tlie law giving a laborer’s lien is broad and comprehensive. It speaks of all laborers, doing any work under any kind of contract at all, having a lien on the production of their labor.. See Acts of 1868-9, ¶. 224, Sec. 1, (act of July 23,1868).
    If any person can be called a laborer he who does work on. a railroad can. The diíiículty of identifying the product of his labor is nothing in this question. If he cannot identify it then he cannot have a lien. But that is certain in law which can be made certain. Broomis’ Legal Maxims, 556.
    Such are in giving mortgages upon things not in esse — crops, not grown — lumber not sawed, etc., etc., when they are produced and identified then the lien attaches. Pennock vs-. Car,
      23, H'mo. {TI. S.) 117; McClure vs. McDecermon, 26 Ark., 66.

      Montgomery $ Warwick and T. D. W. Yonley, for Appellee.
    We submit the judgment should be affirmed :

      Fii'st. That mechanics’ and laborers’ liens are purely statutory, and he, who does not come within the strict provisions •of the statute, has no lien. Ilouck on Liens.

      Second. To entitle a person to a laborer’s lien, under, the (Statute, he must show that he is a laborer within the meaning’ of the statute; the design of the statute is to protect the ordinary laborers of the country, and although a person may have performed labor, such as clerk, agent and the like, he does not come within the purview of the statute.

      Third. The lien of a laborer is personal and cannot be as■•signed. It is contrary to public policy that liens of this kind (Should be enforced against any public corporation.
   McClure, C. J.

Duane M. Dano filed a petition, in the •Chicot Circuit Court, against the appellee, praying for a laborer’s lien upon certain grading or road bed. At the April term of said court, the appellee moved to strike from said petition the names of several parties who sought to become -.co-plaintiffs in the prosecution of the suit; said motion was sustained by the court. The appellee, also, filed a general demurrer to said petition, which the court also sustained, and the plaintiff’s petition was ordered dismissed; to which said rulings, the plaintiff* excepted and appealed to this court.

The appellant assigns for error the following causes :

First. That the court erred in striking from the record the names of the parties plaintiffs, except Dano.

Second. In sustaining the demurrer to plaintiff’s petition, and in dismissing the same.

For the purposes of this decision, we deem it wholly unnecessary'to dwell upon the first assignment of error, for the .appellant can take am exceptions, as his cause was properly before the court for adjudication, and the record fully shows its action thereon.

The second assignment, however, cannot be so summarily disposed of, involving as it does, a review,, to some extent, of the law of liens, and the application of the same to a statute-of our State, not heretofore considered by this court.

No branch of the law, probably, has been so thoroughly changed by legislation as that governing liens. In most of' the States, and no doubt wisely, statutes have been passed granting special rights and privileges to certain members of society, such as mechanics, laborers and materialmen, changing the well defined rules of the common law’, evidently based upon equitable principles and commercial'necessity. Through all these statutes, however, so far as the courts have construed them, the law seems to be well established that there must, of necessity, be a contract, either express or implied, between, the parties, and that the lien is personal and cannot be assigned or transferred; that the party seeking to enforce a. lien, of this character, must bring himself wholly and technically within the statute granting the relief, and that there* must be such an interest in the estate subject to the lien, as. can, upon process, be sold, transferred and conveyed to the-, purchaser thereof.

The case, at bar, was brought under the provisions of an act giving all laborers a lien upon the production of their labor until the same is paid,” approved July 23d, 1868. The first section of the act, the one creating the lien, reads as follows :

“ That all laborers, who shall perform work and labor for any person under a written or verbal contract, if unpaid for the same, shall have an absolute lien on the production of their labor for such work and labor.”

The language of this section is broad and comprehensive,, and defines, concisely, the nature and character of the lien and establishes the right of the laborer to resort to it. It says* all laborers doing any work, under written or verbal contract,, shall be entitled to a lien on the production of their labor.

In what sense did the Legislature use the word laborers”’ is one question which presents itself to our mind. Webster says, “ a laborer is one who labors in a toilsome occupation— a man who does work that requires little skill, as distinguished from an artisan.” We will assume, - inasmuch as there was, prior to the .passage of the act of July 23d, 1868, a law protecting that class of laborers coming under the head of artisans, that the word “ laborer,” as used, in the statute now under consideration, by the Legislature, was intended to be understood according to its common acceptation, and as defined'by Webster. Viewed in this light, the next question arising is, what is the meaning of the words, “ shall have an absolute lien on the production of their labor.” In defining the word “production,” Webster says it has reference to “that which is produced or made; product; fruit of labor; as, the productions of the earth, comprehending all vegetables and fruits; the productions of intellect, or genius,, as poems and prose compositions; the productions of art, as manufactures of every kind.” »

It is clear to our minds that the first nine sections of the act, now under consideration,- have reference solely to moveable property, and the labor performed thereon ; thus, ordinary farm hands, employed in the cultivation of a crop, would have a lien on the crop produced by their labor. But it may well be doubted whether the laborer, who built fires whilst a man of geniiis wrote a poem, would have a lien either upon the rytlim or the manuscript, although he may have contributed to the comfort and convenience of the poet. This word “ all,” as it is used in this act, is not to be construed literally as giving to every laborer a lien for his labor. The clerk of a merchant or banker, in one sense of the word, is a laborer, and so are ordinary house-servants; but they do not come within the purview of this act, because they produce nothing to which a lien could attach. The appellant was a laborer on a railroad, and, as such, is not, and does not come within the class of laborers described in the law, as beijig entitled to “ a lion ¿>n the production of their labor.” If he is entitled to a lion under the law, that right must be drawn from that portion of the act not included in the first nine sections.

The tenth section of the act reads as follows: “ "When any real estate is to be sold under a lien for labor, such as ditching, building levees, etc., the justice of the peace shall file a copy of the judgment rendered in the county clerk’s office immediately, and the county clerk shall place it in his judgment docket, and cause the sheriff to sell such real estate, having given thirty days’ notice of the same, in the way the same is herein provided.” This language looks like it was intended by the legislature that real estate might be sold for the payment of a laborer’s lien, given by the statute now under consideration. The language used in the section just quoted, imports that it was the intention of the legislature to give to persons employed to do ditching, or employed in the building of levees, a lien on real estate for their labor. This is a wise and• salutary provision, but must not be extended beyond the evident intention of the legislature. This language *was not certainly intended to be so extended as to allow a laborer, employed in the building of a levee, under a contract from the State, to sell the real estate, of the person on whose lands the levee was situate, to secure a payment of his wages, in the event his employer failed or refused to pay him; nor can this act be so distorted as to allow a laborer to sell the levee, although he may"have contributed towards its erection. But where the owner of the real estate made a contract for the ditching of his plantation, or for the erection of a levee, and refused to.pay for it, no doubt the lien would attach. A railroad is neither a drain or a levee, in the common acceptation of the word. There is nothing in this act which intimates that the legislature intended it to be extended to railroads, "unless it is in the abbreviation “ etc.,” which is used after the words ditching ” and “ building levees.” The abbreviation “ etc.” is sometimes used in pleadings to avoid repetitions, and when so used, usually relates to things unnecessary to be stated; but we have never before heard of it being- incorporated, in a statute, and are, therefore, at some loss to determine just exactly what the legislature intended by its use.

The remedy afforded by this act is summary in its character and, to some extent, remedial, and at the same time contrary to the course of the common law. Remedial statutes should be construedliberally; not so, however, with summary statutes. This being true, we do not feel disposed to so construe the abbreviation “ etc.” as to mean and include railroads. But whether this view be correct or not, let us see if the appellant has brought himself within the statute, even if a railroad was included within the abbreviation “ etc.,” for this is of more importance than the determination of the other question, which is not necessarily presented in this case. Section five of the act provides, in substance, that the person having a lien shall file a statement of the amount clue; the kind of service done, and for whom rendered, and a list of the land, property, crop, or other production of his labor,< charged. The allegation of the complaint is for “ work and labor, care and diligence of plaintiff, rendered said defendant in and about the construction of said road.” The petition, or complaint, as will be seen, does not set forth a description of any land or property to which the lien had or might attach; nor does it disclose whether or not the appellee had any land or property in the road or any part of it. Had the court below'’ rendered judgment in favor of the petitioner, the court would have been unable, in the absence of a description of the property, to have directed what property to sell. The action, provided by this law, partakes of a proceeding in rem, and execution vmulcl have to go against the property which the laborer was entitled to á lien upon. In attachment, the execution follow's the property attached, and so it is under the laborers’ lien law. It is also the duty of the plaintiff, in actions of this character, to disclose, not only the property against which he has a lien, but he must also disclose the nature of the estate held by the defendant. So far as the court below was concerned, it had no means of ascertaining whether the estate, on which the labor was performed, was an estate in fee, an estate in trust, a lease-hold, or an easement. The complaint shows nothing of this kind. ’Without this knowledge it would be very difficult for the court to make the proper orders in a case. Without the proper knowedge it might order a sale of the fee, where, the defendant had a lease-hold, or where the defendant had a mere easement.

The complaint of the appellant discloses the fact that a large. part of his claim is made up of items, orders and charges of other parties assigned and transferred to him.' Under the most liberal construction of the statute, the appellant is not entitled to the aid of this act to aid him in the collection of claims purchased or transferred to him by other labor-, era. The statute does not provide for it, and the whole theory of the law is against it. The remedy, provided by this Set, is j'personal, and, as we have before stated, cannot be transferred.

Finding no error in the record, the judgment of the court below is affirmed.

Gregg, J.,

dissenting, says: — -The appellant failed to de-' sci'ibe his sei’vices; to show what labor he had done; he failed to describe the property against which he was attempting to enforce a lien, and he failed to charge that the appellee was the owner of the property against which he was proceeding, etc., and the demurrer should have been sustained.

But we are not prepared to concur in all the reasoning of the court.

The first section of the law referred to: — Act of July, 23d, 1868 — declares that all laborers shall have an absolute lien on the production of their labor, etc. Section five, in which the manner of commencing suit is prescribed, directs how lands and other property shall be listed, preparatory to sale, etc. The tenth section provides for a sale when judgment is obtained, and declares that when real estate is to be sold under a lien for labor, such as ditching, building levees, etc., a copy of the judgment shall be filed in the county clerk’s office, etc. Section fifteen provides that, in selling buildings, a reasonable amount of land, not exceeding two acres, will be sold with them, etc. Section sixteen prescribes that the officer making sale shall make deed, etc., and section twenty prescribes that no real estate shall be exempt from sale under an execution on a laborer’s lien.

We think the lien upon real estate does not depend upon the language in section ten. That section in no way declares upon what kind of property the lien may attach; it prescribes the mode of sale, and alludes -to ditching and levees as illustrations of the kind of work for which a lien attaches to real estate; it says when real estate is to be sold under a lien for labor, such as ditching, etc.; and whether or not railroads come within the j>rovisions of the lien, does not depend upon the tenth section, or what is embraced in it, etc.

The act is general in its terms; it does not specifically point out either personal or real property, but attaches the lien to all property, and then prescribes how personal property and real property shall be sold; what quantity in certain cases shall be sold; that none shall be exempt from execution, etc. And we have no doubt but it was the intention of the Legislature to embrace all real estate whereon its owner may have valuable fixtures erected, and, by such labor, rendering the lands mow valuable.

We think it immaterial whether the labor was in ditching, building a stone wall, or erecting other improvements, such as an owner might wish to attach to his lands. And, under our railroad charters, the companies do-not erect their lines of road upon a mere easement — a mere right to pass over the lands of another. But they hold such title in the realty as is subject to mortgage and sale'; subject to transfer by deed, etc. And if a proper case should arise, between proper parties, I see no reason why a lien might not be enforced-against a railroad company as well as against others holding property.


author: McClure, C. J.

text:
    CITY OF LITTLE ROCK v. WILLIS.

      Corporations — Actions against for torts. — A right of action against municipal corporations docs not exist at common law, and their liability to a private action, for torts, must be determined by the statute which, creates them.
    Same — The sections of the general incorporation act, conferring upon cities the “power to lay off, open, widen, straighten and establish, keep in order and repair all streets, alleys and public grounds, etc., and to open and construct andTeep in repair sewers and drains,” are not mandatory, and for the exercise of a lawful power, which, by law, is vested in the judgment and discretion of a municipal corporation or public body, for the good of the whole, no injury for which an action will lie can be committed; but for the imperfect, negligent, unskillful execution of a thing ordained to be done, an action will lie, in the absence of an express statute.
    APPEAL EROM PULASKI CIRCUIT COURT.
    Hon. John Wiiytock, Circuit Judge.

      Fay Hempstead, for Appellant.
    The construction of a public work by a.corporation is necessary before a recovery can be had for damages resulting from it. 1 Black. 39; Conrad vs. Ithaca, 158; Mayer vs. Furze, 3 Hill,Q12; Montgomery vs. Gilmer, 33 Ala., 116; Shearman § Redfield on Negligence, p. 631, sec. 579 ; Rochester White Lead Co. vs. Rochester, 3 Comstock, 463. The fact of occasionally making repairs on a public work will not make a city liable for damages resulting therefrom, as a voluntary assumption of the duty of* maintaining it. Munn vs. Pittsburg‘ 40 Penn., 364.
    Wherever it is left to the discretion of a corporation, whether a particular act shall be done or not, no liability attaches for a failure to use this discretion. Cole vs. Medina, 27, Barb., 218; Commissioners vs. Duckett, 20 Maryland; Carr vs. Northern Liberties, 35, Penn. St., 324'; Peck vs. Batavia, 32 Barb., 634; Mayor vs. Cardiff, 2 N. Y.

    That a city is not liable for damages which are the result of the establishment of street grades. See note. 1 to p. 147 of

      S. &; R. on Negligence, and the following cases there cited: Kavanaughvs. Brooklyn, 38 Barb.,. 232; Matter of Furman street, 17 Wendell, 667; O’Conner vs. Pittsburg, 18 Penn. St., 187; Taylor vs. City of St. Louis, 14 Mo., 20'; Round vs. Munford, 2 R. L., 154; Lebanon vs. Alcott. 1 N. H., 339 ; Bennett vs. New Orleans, 14 La. An., 120 ; State vs. Craves, 19 Md., 351; Cole ^s. Muscatine, .14 Iowa, 326; Callander vs. Marsh, 1 Pick., 418.

      Farr Fletcher and T. D. W. Yonley, for Appellee.
    The rule of law applicable to this case is thus laid down in the case of Rochester White Lead Company vs. City of Rochester, 5 Comst., (3 N. Y.) : “Where a municipal corporation has power by its charter to cause common sewers, drains, etc., to be made in any part of the city, although passing an ordinance for the construction of such a work is a judicial act for ■ which they are not liable, yet the doing of the work in carrying it out is ministerial, and it is their duty to see that it is skillfully and carefully done. If by the want of care or skill in its agents, a culvert be constructed of insufficient capacity to cany off the water in a freshet, the city will be liable to individuals for damages thereby occasioned.” See, also Lloyd vs. Mayor of City of N. Y., 5 N. Y., 369; Delmonico vs. same, 1 Sand., 222; West vs. Trustees, of Rockport, 16 N. Y., 161;

      Morey vs. Town of Newfane, 8 Barb., 645; Bastón vs. City of Syracuse, 37 Barb., 292, 3 Hill, 612; Barroio vs. Mayor and. City of Baltimore, A. M. Jar., 203; Rhoade vs. City of Cleveland, 10 Ohio, 459. See, also, 16 Ohio, 475, and 7 Ohio State, 407. • ■ .
    It is a well settled rule of law in this State, that the court will not look to the testimony for the purpose of disturbing the verdict of the jury, unless the verdict is so clearly against the testimony as to shock our sense of justice and right upon the first blush. Lenox vs. Pike, 2 Ark., 14; Hoioell vs. Webb, 2 Ark., 360; Sanderer vs. Wilson, 5 Ark., 407; Hazen vs. Henry, 6 Ark., 86 ; Drennon vs. Brown, 10 Ark., 139.
   McClure, C. J.

It appears from the record, in this case, that Willis was living in a house neai’ a drain, at the corner of Third and Louisiana streets, in the city of Little Rock, which said drain is usually known as the “town branch.” After an unusually copious rain, the drain alluded to, so the appellee alleges, overflowed its banks, and damaged him in the sum of one thousand dollars. At the hearing, in the Circuit Court below, the appellee obtained judgment in the sum of two hundred and fifty dollars. Motion for a new trial was made and overruled, and the cause is brought to this court by appeal.

On the ti’ial of this cause, exception was taken to the ruling of the coui’t, in refusing to give the second and eighth instruction offered by the appellant, and to the second aixd third instruction given by the court at the instance of the appellee. •

The instruction which the court refused to give, at the instance of the appellant, is as follows:..

Second. Where a city constructs a sewer, which is not in itself a nuisance, but insufficient to carry off the water, the city is not responsible for damages occasioned by overflowing.”

There is no ei-ror in refusing to give this instruction. The liability of cities and towns, under our statutes, is not measured by an answer to whether or not the thing complained of is a nuisance. ••

The instruction numbered eight, which the court refused to give, at the instance of the appellant, is as follows: “If the jury find, from the evidence,- that the house occupied by plaintiff was ten or twelve inches below the grade of the street in front thereof, which crosses the town branch,’ and that by reason of the house being below the grade, the plaintiff suffered the injury complained of, or if that fact largely contributed thereto, then the plaintiff cannot recover.”

As the second instruction, asked by the appellee, was objected to by the appellant, and as it is ixi conflict with the one asked by the appellant, it will be here stated and the two discussed together. It is as follows :

Second. If the jury find, from the evidence, that the city of Little Rock raised the grade of Louisiana street, in the said city of Little Rock, so as to cause water, in ordinary storms, which hitherto flowed off by another avenue, to flow into the ‘town branch,’ without making said ‘town branch ’ of sufficient capacity to carry off such increased volume of water, whereby said close, of said plaintiff, was overflowed and his property destroyed, they will find for the plaintiff.”

The third instruction asked by the plaintiff’, and given by the court, is covered in the concluding portion of the second, just quoted, and raises no other question than those already presented.

Judge Wilshire testified, at the trial, that he had known the “town branch” for some time, and that he never knew of it overflowing at the point in front of the plaintiff’s house, until Louisiana street was graded; that, before Louisiana street was graded, the water passed off on the low land, in front of plaintiff’s house, and that the grading of Louisiana street had the effect of backing up the water on the premises; that after the street was graded, the house which the plaintiff occupied was about eighteen inches below the grade. ,

Willis, the appellee, testified that the street was graded in 1869, and that there was not sufficient room in the ditch, after that, for the water to get through — there is a pipe leading into the “ town branch,” and it got filled up with brush. On cross examination he said: “ I claim the damage was caused by the grade of the street being raised higher than the house;” that he was not damaged by the overflow before the grade of the street was raised;. that the “town branch” carries off the ordinary rain falls and does now, and overflows after unusual rains only.

It is no easy matter to lay down a precise rule embracing the torts for which a private action will lie against a municipal corporation ; but it may be generally stated, that the liability of a body created by statute, must be determined by the statute which creates it, for it is clear that a right of action against a municipal corporation does not exist at common law.

That a municipal corporation may be made liable for damage, in a case like that presented by the record of this case, there is no doubt; but that is not the question; the question is, does the statute, creating the city of Little Rock, give to the appellee a right of action for the wrong complained of? This question must be determined,, not by what ought to be, but by the plain letter of the statute; Our duty is to declare what the law is, and not what it ought to be.

If the appellee is entitled to aright of action for the grievances of which he complains, that right exists only by reason of some statute, and in the ascertainment of this fact, the statute itself must speak. The tenth section of the act, creating municipal corporations, declares that the cities and towns shall be “ capable to sue and be sued;” but this language is not sufficient to fix the liability of the city in any cause. The seventh section of the act declares “ the city council shall have the care, supervision and control of all the public highways, bridges, streets, alleys and commons within the city, and cause the same to be kept open and in repair, and free from nuisances.”

The eighteenth section provides, the City Council shall have power to lay off, open, widen, straighten and establish, keep in order and ’repair, all streets, alleys and public grounds, etc., and to open and construct, and keep in repair sewers and drains.

These are the sections granting power to the city of Little Rock, upon the subject of streets, drains and sewers, and, as will be observed, none of them are mandatory. Sections eighty-five and eiglity-six fix the liability of cities' and towns, in case injury is done the .property of individuals by reason of grading the streets, and prescribes the mode of ascertaining the same, but this fact, of-itself, is no argument to prove that the city would not be liable for damages sustallied by an individual, growing out of a neglect on the part of the city to keep its sewers in repair.

Whether or not a city is liable to a suit for damages, in a case presenting facts like the one at bar, depends upon circumstances. For the construction of a sewer which'has not the capacity to carry off the ordinary or extraordinary rain falls, the city cannot be made responsible, and the reason for this is, that a city cannot be held to answer for an error of judgment, committed by a body, created by law, and clothed with discretion to determine the width and depth of. drains and sewers; to hold a city responsible, under such circumstances, would be to vest the power of judging of the proper grade of streets and the width and depth of sewers in the judiciary, instead of the City Council, where the Legislature placed it. Where a city prescribes the grade of a street; - or the capacity of a drain, and it is not constructed as directed, or in such an unskillful manner as to damage persons adjacent thereto, in that event, the city is liable. The law is, that for the exercise of a lawful power, which.by law is vested in the judgment and discretion' of a public body for the good of the whole, that no injury, for which an action will lie, can be committed — solus populi supremo est lex — but that for an imperfect, negligent, unskillful execution of the thing ordained to be done, an action will lie in the absence of an express statute. The acts of municipal corporations are divided into two classes; first, those requiring Legislative, or what is sometimes called judicial action, and second, those acts which are wholly ministerial. For the former, an action will not lie; but- for the latter, it will.

One question presented by the record is: was the city bound to construct a sewer or drain of sufficient capacity to carry off all the water which might flow into the “ town branch,” or was it only bound to keep the drain in repair ? .

The testimony of Williams is, that the drain, commonly called the “ town branch,” was a natural water-course, and that the .route was changed as far back as 1844. The evidence of the appellee, himself, and the two others who were examined as witnesses, is that the “town branch” did not overflow so as to damage the property where the appellee resided until the streets were graded in his front. "Williams further’ testifies that, prior to the war (1861), the “town branch,” as changed, was sufficient to carry off all water finding its way thereto, .without overflowing the property in question, and during the war, that the timber adjacent to the •city was cut down and canned away, and that the natural objects, which retarded the sui'face water from finding its way to the river, had been removed, and that since then the “town branch ” had occasionally overflowed on account of the removal of the obstacles which, at one time, retarded the rapid flow of water into the “ town branch.”

In the case of Mills el al. vs. City of Brooklyn, 32 N. Y., 489, the plaintiff’s lot, at the intersection of the avenues mentioned, was on low ground; that, before the paving of the streets, the water flowing thereon was absorbed by the earth, instead of remaining on the surface; that the grade of the streets was higher than his lot; that a heavy rain fell, inundated his premises, causing the wall of his house to settle and crack, for which, to recover damages, he brought suit. It also appeared that the city had put down- a sewer which was insufficient to carry off all the surface-water which fell during a violent storm. In speaking of the insufficiency of the sewer, Judge Denio said: “ After reviewing the cases of Cole vs. The Trustees of Medina, 27 Barb., 218 ; Cavanaugh vs. The City of Brooklyn, 38 Barb, 232; Rochester White Lead Company vs. City of Rochester; Hudson vs. Mayor of New York, 5 Selden, 153, it may, therefore, be laid down as- a very clear proposition, * * * that an action would not lie against the corporation, though the jury should find a sewer was necessary, and that the defendants were guilty of a dereliction of duty in not having constructed one.”

The facts, as to the location of the property, in the case of Mills vs. City of Brooklyn, 32 N. Y., 489, are not dissimilar to the facts in this case — the testimony in both cases going to show that no damage ensued until the streets were raised to a higher grade, in front of the property, than .the lots on which the buildings were situate.

There is no testimony in this case showing that the “town branch” -was out of repair, or that the injury, of which the appellee complains, grew out of any negligence on the part of the City Council, or the other officers of the city. It is true, there is some testimony tending to prove that the sharp angle made at the corner of Third and Main streets, might have a tendency to back the water and retard its escape ; but this.angle was in the drain prior to 1861, and Williams testifies that, at that time, it was sufficient to carry off' the water. The appellee, himself, testifies that a pipe, leading into the'“town branch,” got filled up with brash, and that the damage which he sustained arose from, not the defective construction, or the neglect to keep the “ town branch” in repair, but because of the grade of the street “being raised higher than his house.”

The court instructed the jury, that if they found, “from the evidence, that the city of Little Rock raised the grade of Louisiana street, so as to cause Avater, which hitherto floAved' off by another avenue, to Aoav into the ‘ tpivn branch/ with-* out making said ‘ town branch ’ of sufficient capacity to carry off. such increased volume of Avater, whereby said close of said plaintiff was overflowed and his property destroyed, they Avill find for the plaintiff.”

This instruction is erroneous, as the City Council and the corporation which they represent, were only bound to keep the sewer in repair; nor is it true that the city was, or is, bound to build sewers to carry off" the surface-water, which, by reason of the grading of streets, at one time flowed by another and different route. This very point, was presented in the case of Carr vs. The Northern Liberties, 35 Pa. St., 324; and it was there held that if a drain ceased to be of sufficient capacity, AAffiich it at one time possessed,- in consequence of ■flip increase of population and the greater extent of tenitory graded and built upon, a corporation having municipal powers was not responsible or liable for damage arising from ail overflow.

We are of opinion that appellant’s instruction, numbered two, should not have been given ; that her instruction, numbered eight, should have been given, and that instructions, numbered two and three, of the appellee, to which objection' was made, should not have been given.

For the errors aforesaid the judgment is reversed, and-the cause remanded.


text:
    LYMAN et al. v. CORWIN.

      Answer — Defenses should be paragraphed. — "Where different defenses are attempted to be set up in an answer, the court, on motion, may properly cause each defense to be stated in a separate paragraph. i

      Practice — Misjoinder of cause of action, etc. — The court, on motion of defendant, at any time before defense, should strike out any cause or causes of action misjoined.
    Same. — A party, who has a defense by way of recoupment, will not be permitted to seek affirmative relief by making another person, in interest, a party defendant, by way of subrogation.
    APPEAL FROM JEFFERSON CIRCUIT COURT.
    IIon. Henry U. Morse, Circuit Judge.

      Ball 8; Carlton, for Appellants.

      A. II. Garland, for Appellee.
   Gregg, J.

The appellee, as assignee of IT. A. Pierce, brought suit against Lyman, Stanford, Kenyon, Murphy and John M. Clayton,' for $1000, alleged to he due from them upon a writing obligatory. At the return term, the appellants filed the petition of B. O. Hubbard to be made a party, and moved the court to consolidate this suit with two others alleged to be brought by Pierce for debts incurred as a part of the same consideration, and that the whole cause be heard in equity, and Hubbard’s claim to an interest in the property, for which the notes had been given, be, ivith the other matters in controversy, determined.

On motion of appellee, the petition to consolidate and transfer was stricken out. Whereupon, the appellants filed their answer, and appellee moved that they be required to paragraph their answer, which the court ordered done.

The appellants filed an amended answer, in which they avered that the appellant, Lyman, had purchased from the assignor, Pierce, a one undivided half interest in the Jefferson Bepublican printing office, fixtures, furniture, etc., for the consideration of $2750, to be paid said Pierce in cash, and the assumption of the payment of one half of certain claims against the office for a like amount, in the aggregate $4125; that of the amount to be paid Pierce, $1250 were j>aid down, ■and the notes, in the three suits named, were executed for the remainder of the $2750 to be j>aid said Pierce. They .aver that Pierce owned but one half of said printing office, presses,-etc., and, without the knowledge of said appellants, before that time he had sold, and by written bill of sale conveyed to G-. W. Davis one fifth of the whole of said office, presses, etc., and that he, at the date of the sale to appellant, Lyman, actually owned but three-fiftlis of one half of said office, presses, etc., and that he concealed that fact and fraudulently sold to him one half of said entire office, presses, etc., by then falsely representing that he was the owner to that ■extent; and that, by the conveyance to the said Lyman of one full half interest in said office, presses, etc., he could not. and did not take but three-fifths of one half interest in the same, that being’the only interest said Pierce had or could convey, though he sold and pretended to convey such half interest, and.therefore the consideration to that extent had failed; and they offered to pay any further sum that might, be found due, arid prayed judgment, etc. * ,

The aijpellant’s second amended paragraph sets up, substantially, the same defense as the first. In their third, they allege that Hubbard, as the assignee of Davis, was interested in the result of the suit, and prayed that he be made a. defendant, and that his rights, with the others, be determined.

The appellee moved the court to strike out appellant’s third paragraph, which motion the court sustained and ordered it struck out, to which appellants excepted. Appellee then filed a demurrer to the first and second paragraphs-of appellant’s amended answer. The court sustained the-demurrer, and the appellants declined to plead over, whereupon the court rendered judgment against them for $100(> and costs. They moved for a new trial; their motion was-overruled; they excepted and appealed to this court.

It is. here urged that the court below erred in compelling-appellants to paragraph their answer ; that it erred in striking out their third paragraph, aiid also, in sustaining the-, demurrer to the first and second paragraphs of the answer.

When a party attempts to set up different defenses in a. general answer, without designating his respective defenses,, the court, upon motion, may properly compel such respondent to state separately his alleged defenses to the action, by properly setting out each cause of defense in a separate paragraph of his answer. Civil Code, sec. 116; Newman’s Plead., and Pract., 538, 539; Lewis vs. Carter, 9 O. St.; 1 Duval, 84. The third paragraph of the answer attempted to bring Hubbard before the court as a defendant, and in the attitude of' seeking affirmative relief, by asking to have his claim of one-fifth interest in the printing office, presses, etc., adjudicated,, in which claim he prays to be subrogated to Pierce’s right to recover of Lyman et ah, two-fifths of the sum Lyman agreed to. pay him. He had no right to thus recover of the appellees, and he was not a necessary party to the suit, and the? court did not err in refusing to allow him to be made a party and in striking out this paragraph. Sec. 104 Civil Code; Hancock vs. Johnson, 1 Met., 242; 8 O. St., 293.

The only question remaining is the ruling upon the demurrer. If, as averred in the answer, Pierce did fraudulently represent that he owned one-half of the printing office, presses, etc., and sold that amount to Lyman for the sum alleged, when, in fact, he only owned three-tenths thereof, as averred, and did not and could not conv.ey more than that, he was practicing a fraud upon Lyman, and to that extent there was a failure of consideration. If such facts did not exist, appellee should have taken issue upon the answer. Under the modern practice, Lyman ivas not bound to pay the full amount of the obligation given by him and others to Pierce, and then resort to a cross action for the damages sustained by such fraudulent representations, but he might recoup or withhold that amount from collection. Wheat vs. Dotson, 12 Ark., 699; Civil Code, secs. 116, 117; Stone vs. Slone, 2 Met., 339.

The court below erred in sustaining the demurrer to the first and second paragraphs of appellant’s amended answer, and for that error the judgment is reversed, and the cause remanded, to be proceeded in to final judgment.


text:
    LYMAN et al. v. PIERCE.
    APPEAL FROM JEFFERSON CIRCUIT COURT.
    IIon. Henry B. Morse, Circuit Judge.

      Bell Carlton, for Appellants.

      A. IL Garland, for Appellee.
   Gregg, J.

This cause has been submitted to' the court upon the same briefs and for a decision of the same questions involved in the case of Charles L. Corwin, as assignee, vs. Fred. K. Lyman, et al.

The judgment is reversed, and the cause remanded.


text:
    LYMAN v. PIERCE.
    APPEAL FROM JEFFERSON CIRCUIT COURT.
    IIon. Henry B. Morse, Circuit Judge.

      Bell §• Carlton, for Appellant.

      A. II. Garland, for Appellee.
   Gregg, J.

This cause was submitted upon the same briefs and for a decision of the same questions involved in the case of Fred. K. Lyman et al. vs. Charles L. Corwin, and Fred. K. Lyman et al. vs. H. A. Fierce, and, for the errors mentioned in the former, the judgment herein is reversed, and the cause remanded, to be proceeded in according to law.