author: Kirby, J.

text:
    Marion Machine, Foundry & Supply Company v. Foster & Murray.
    Opinion delivered October 3, 1927.
    1. Appeal án» error — amendment of pleading to conform to proof. — In an action for a balance due on settlement of accounts, though defendants interposed no answer denying the indebtedness sued on, yet where they testified that plaintiff had been paid in full, to which no objection was interposed when the case was tried below as if the issue of payment had been made, the appellate court will regard the question whether plaintiff received full payment as having been in issue.
    2. Appeal and. error — question not raised relow. — The question whether the introduction of parol evidence varied or contradicted the terms of a written contract is not presented to the appellate court where no objection was made at the trial to the introduction of the evidence.
    Appeal from Union Circuit Court, Second Division; W. A. Speer, Judge;
    affirmed.

      Goodwin & Gooclwm, for appellant.
   Kirby, J.

The appellant company brought this suit against Foster & Murray, a partnership, composed of J. C. Foster and I. C. Murray, upon a written contract of settlement of their account for materials furnished, and had garnishments issued against certain other persons claimed to be indebted to the defendant. The garnishees answered, denying any indebtedness, and no answer was filed by the defendants. The plaintiff filed a denial of the statement or answer of no indebtedness by the garnishees, and the case proceeded to trial.

The written contract of settlement was introduced, admitting an indebtedness of $1,835.10 to plaintiff, and stating’ that certain sums were due the defendants from, the Invader Oil Company, and, under a consent decree in the case of John D. Murray v. James B. Liggett et al.; that the parties were desirous of making a settlement, and agreed that the appellant company should be paid the sum of $700 from their claim against the Invader Oil Corporation; “that the claim against the other parties herein shall be equally divided between the Marion Machine, Foundry & Supply Company and Frank Myrick, after deducting a reasonable amount as attorney’s fees, until both parties are paid in full.”

The district manager of the appellant company stated that there was a balance of $611.93 due the said company, after all payments received under said contract of settlement, amounting to $1,125.04, had been duly credited.

The defendants testified, without objection, that they had been indebted to the supply company; that they made settlement of their indebtedness, agreeing to pay the balance due thereon, as stated in the written account, with an assignment of certain accounts due them from other parties, out of which it should be paid, and that the whole amount due under the contract had been realized by the plaintiff; that their debt was paid in full by the written contract and assignment of accounts aiid amounts collected thereon.

As already stated, no objection was made to any of this testimony nor to the court’s instructions to the jury. It returned a verdict in favor of defendants, from the judgment upon which this appeal is prosecuted.

It is contended that the judgment is contrary to law and not supported by any testimony. No answer was filed by appellees, denying the indebtedness to appellants under the contract sued on, but the case proceeded to trial without objection as thoug'h such denial had been made, the parties treating the matter as at issue, and neither was there any. objection to the testimony introduced conducing to show payment had been made of all indebtedness due from the defendants under the terms of the written contract, being in contradiction of and varying said contract.

The pleadings are usually regarded amended to conform to the proof made without objection, and, there being no objection to the introduction of such testimony in support of a denial of any indebtedness due to tlie plaintiff under the contract, as though such an answer had been filed, the matter will be treated here as having been at issue as it was regarded in the trial court.

No question can be raised here as to the ambiguity of the written contract or any error committed in permitting the introduction of parol testimony regarded contradicting or varying its terms, since no objection was made to the introduction of such testimony in the trial court. The instructions to the jury are not complained of.

The judgment is affirmed.


source: Caselaw Access Project

author: Kirby, J.,

license: Public Domain

text:
    Weiser National Bank v. Peters.
    Opinion delivered October 3, 1927.
    1. Bills and notes — what law GOVERNS. — A note made and payable in Idaho, where all the transactions relative thereto occurred, •must be considered a contraet’governed by the laws of that State.
    2. Bills and notes — accommodation notes. — A note given purely for the payee's accommodation and without consideration is'not enforceable by the payee or his assignee after maturity, under the laws of Idaho.
    3. Bills and notes — validity op renewal notes. — Renewal notes, executed in accordance with an express original agreement that the notes should be given purely for the payee’s accommodation-cannot be regarded as a waiver oí the defense or failure of consideration.
    Appeal from Pulaski Circuit Court, Second Division-; Richard M. Mann, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    This is an action upon a promissory note for $1,500 given to the First National Bank of-Weiser, Idaho, by Gr. A. Peters, appellee, and after five or six renewals, and after maturity, taken over by the appellant bank, which purchased the assets of the failed First National Bank. The execution and delivery of the note was admitted, but it was alleged that there was no consideration therefor, that it was given purely for the accommodation of the First National Bank and under express agreement with the officers thereof that it was not to constitute an obligation or to be paid.
    The note sued on -was dated November 21, 1921, and was executed by the appellee, Peters, to the First National Bank of Weiser, the appellant, Weiser National Bank, acquiring the note, which was the fifth or sixth renewal of the original, by assignment from the First National Bank, taking over its assets when it ceased business in 1923.
    In 1917 Peters was a director of the said First National Bank, and, during that year, it was brought to his attention that the bank held certain “slow assets” which had been disapproved by the bank examiner, -and it had been ordered by the examiner to replace the slow assets with live ones. Appellee was requested by the bank officials to execute a note for $1,500 to the bank for its accommodation, to be held by the bank merely until it could realize on the slow assets from a sale thereof. Peters stated that he complied with the request, and executed a’$1,500'note for the purpose, it being held by the bank for its accommodation, and being distinctly understood that the bank would protect him against the payment thereof, and that the note would be canceled as soon as the bank could realize upon the slow assets by a sale thereof. The note was renewed five or six times, each renewal being’ executed under the same or like conditions as to the payment, and no interest was charged thereon. Other directors of the bank executed similar notes under like conditions.
    Appellee denied liability on the ground that his note was made for accommodation only, merely representing a temporary loan or credit, and was not intended to be paid by him. The appellant bank, which took over the assets of the failed bank, received the note sued on after maturity and in the sale and assignment of the assets of the First National Bank.
    The bank contended that appellee, who was a stockholder in the First National Bank, owning $2,700 worth of stock, was informed by the other directors and other officers of the bank that the slow assets would not be approved by the bank examiner, and must be replaced with other assets, and that the directors were going to take out the slow assets, which they did, and organize a corporation for their sale, executing their notes to the bank therefor in different' amounts in proportion to the stock, to be held by the bank until said assets were disposed of, it being believed that "enough should be realized to pay the notes given the bank to be held as assets in the place thereof. It was shown that the slow assets were taken over by this corporation and that its stock was worth about 65 cents on the dollar at the time this suit was brought, and also that the notes of all the other directors of the bank put in at the time of taking out such assets had been paid.
    Appellee admitted that he executed the note, and stated that the bank grot into trouble through some loans they made prior to the time of his election as a director. * * * “Then one winter the bank examiner informed them they would have to take out this slow paper. * * * I was not told anything about the meeting with the bank examiner on my' arrival there, but I was told about it later on in the fall, when they asked me to help them out as an accommodation to the bank. They had taken out this slow paper, but they did not have enough notes to cover the amount of paper they had taken out. The bank examiner insisted on them putting* up more notes. They asked me if I would not put up my note, and they would in a short time release this note, and I would not be under any obligations to the bank, and they would not charge any interest. They felt sure this land could be sold in a short time. Conditions were very good at-that time, and it was just a matter of months and they would release the note. No méntion was made of any company being formed. No mention was made of any stock. * * * I finally did give them my note for $1,500. * * * All they wanted was something they could have lying in the bank, to show the bank examiner when he came around. So I give them the note for $1,500.”
    The court found in favor of the defendant, and from the judgment this appeal is prosecuted.

      Rogers, Barber & Henry and Raymond Jones, for appellant.

      Robinson, House & Moses, for appellee.
   Kirby, J.,

(after stating the facts). The-note sued on was made and payable in the State of Idaho, where all the transactions relative thereto occurred, and must be considered a contract governed by the laws of that State. Contracts or notes of like kind, given purely for accommodation of the payee and without consideration, are not enforceable by the payee or his assignee after maturity, under the laws of that State. Payette Nat. Bank v. Ingard, 34 Ida. 295, 200 Pac. 344; First Nat. Bank of Idaho v. Reins, 42 Ida. 720, 248 Pac. 90. See also First Nat. Bank v. Freeman, 83 W. Va. 477, 98 S. E. 558; Chicago Title & Trust Co. v. Brady, 165 Mo. 197, 65 S. W. 303; Farmers’ Rank of Westboro v. Harris, Mo. App. 250 S. W. 947; Grisim v. Live Stock State Bank, 167 Minn. 93, 208 N. W. 350.

The renewal notes were shown to have been executed in accordance with the express original agreement, as understood by. the parties at the time, and cannot therefore be regarded as a waiver of the defense of failure of consideration, as would otherwise usually be the case. Stewart v. Simon, 111 Ark. 358, 163 S. W. 1135, Ann. Cas. 1916A, 825; Haglin v. Friedmm, 118 Ark. 465, 177 S. W. 429.

The testimony is sufficient, in the opinion of the majority, to support the judgment, which is accordingly affirmed.


author: Mehaffy, J.

text:
    Ætna Casualty & Surety Company v. State.
    Opinion delivered October 3, 1927.
    1. Appeal and error — improper transfer from law to equity.— Where an order of the court transferring- a case from law to equity is erroneous, such order can he corrected on appeal from the final decree in the case.
    2. Appeal and error — waiver of objection. — Where a cause is transferred from the law to a chancery court without a motion to transfer it back and without objection or exception taken to the action of the chancery court trying it, the cause will be treated on appeal as an ordinary action instituted in the chancery court and tried there by consent, objections to the court’s jurisdiction being waived.
    3. Bonds — real party in interest. — Where a bond was conditioned upon the return to the court upon its order of certain machinery, title to which was a subject of litigation, and it was shown that the plaintiff suing to enforce the bond had advanced (money to aid in the purchase of the machinery, he was a real party in interest, though the bond was made to the State.
    4. Bonds — construction. — Bonds are to be construed like other contracts, and it is the duty of the court, if it can, to ascertain the intention of the parties, in doing which it is proper not only to examine the bond itself, but the order of the court authorizing and directing the 'bond to be given, and the claims of the parties and all the facts and circumstances connected with the making of the bond.
    5. Bo-nds — accrual of cause of action. — A cause of action accrues upon a bond conditioned to do a certain act as soon as there is a default in performance, whether the obligee has suffered damage or not.
    6. Bonds — forfeiture. — Where the court permitted the property to be removed from its custody upon executing a bond to return the property when ordered, a cause of action arose when the property was not returned as ordered by the court.

      Appeal from Phillips Chancery Court; A. L. Hutch-ins, Chancellor;
    affirmed.

      Wm. M. Hall and Brewer & Gracraft, for appellant.

      W. G. Binning, for appellee.
   Mehaffy, J.

This suit was brought by the appellee in the Phillips Circuit Court, the plaintiff alleging that T. D. Hunt, as principal, and the JEtna Casualty & Surety Company, as surety, executed and delivered, for a valuable consideration, its certain bond on that date to the State of Arkansas, whereby it agreed, among other things, that it would pay to the plaintiff the sum' of $10,000 for the use and benefit of the commissioners of the Little Cypress Drainage District, or other parties interested in a certain suit pending in the Phillips Chancery Court, wherein John M. Quarles was plaintiff and Little Cypress Drainage District was defendant. The condition of said bond was that, in event the principal, T. D. Hunt, should be permitted to remove from the jurisdiction of the Phillips County Chancery Court a certain dredge outfit then located in Phillips County, Arkansas, and should be permitted to use and operate said machinery during the pendency of this suit, and in the event of the failure of said T. D. Hunt to return said machine within the jurisdiction of this court, in the event an order for such return should be made after the title to said machinery had been determined by legal proceeding, then and in that event the said defendant agreed to pay the value of said machinery as of that date, or the sum of $10,000 as liquidated damages for the failure to return same. That said bond was duly executed and delivered in the registry of this court. Plaintiff further alleged that the title to said property had been adjudicated and that the court had made a proper order to return said equipment within the jurisdiction of the court, and that the limit named in the order had expired. That said Hunt had iailed and refused to return the equipment,' or any part thereof, and refused to pay the value thereof, and failed and refused to comply in any manner with the direction and order of the court, and had thereby breached the agreement, and that, by reason thereof, the .¿Etna Casualty & Surety Company was indebted to plaintiff under said contract in the sum of $10,000, for which sum he prayed judgment.

The defendant answered, denying the material allegations in the complaint. The defendant, .¿Etna Casualty & Surety Company, then filed a motion to transfer to chancery, but afterwards filed an amended answer. The defendant asked and was granted permission to withdraw its motion to transfer, and thereafter the court, on its own motion, set aside the order permitting the defendant to withdraw said motion, and, upon the court’s own motion, the cause was transferred to the chancery court.

We deem it unnecessary to set out the facts- contained in the original case, but the facts in said case may be found in the opinion in Quarles v. Little Cypress Drainage District, 168 Ark. 368, 270 S. W. 501, and the evidence in this case, as far as -deemed necessary, will be set out in the opinion.

Appellant’s first contention is that the circuit court erred in transferring the case to the chancery court, and that the chancery court erred in taking jurisdiction of the case and attempting to give relief therein, in view of the shape the record was in' at the time the transfer was made.

It appears from the record that this cause was transferred from the circuit court to the chancery court over the objections of the appellant. That order, however, was not appealed from, and the case was thereafter tried in the chancery court, there being no motion made by the appellant to transfer it from the chancery court to the circuit court.

This court said in a recent opinion:

‘‘ The record shows that, during the progress of the trial in the circuit court, over the objections of both parties, the case was transferred to equity. 'Both parties saved their exceptions to the action of the circuit court. The order’ of transfer from the circuit court to the chancery court discontinued the action in the former court, but continued it in the latter court until it was disposed of there, either by trying the ease or by transferring-it back to the circuit court. If the order of the court is erroneous, it can be corrected upon appeal from the final judgment or decree in the case. Gilbert v. Shaver, 91 Ark. 231, 120 S. W. 833; Vaughan v. Hill, 154 Ark. 528, 242 S. W. 826; and Nicholas v. Bright, 154 Ark. 1, 241 S. W. 33. When the case was transferred to the chancery court, no motion was made to transfer it 'back to the circuit court, nor were any objections or exceptions saved to the action of the chancery court in trying the case. Under these circumstances the case must be treated as an ordinary action instituted in the chancery court and tried there by consent. By not objecting to the jurisdiction of the chancery coxxrt, the objection to the forum was waived. Columbia Compress Co. v. Reid, 160 Ark. 436, 254 S. W. 825, and Ohio Galvanizing & Mfg. Co. v. Nichol, 170 Ark. 16, 279 S. W. 377.” Hemphill v. Lewis, ante p. 224.

We deem it unnecessary to call attention to other decisions on this point, because we think the recent case of Hemphill v. Lewis settles the question.

The parties tried the ease in chancery court without making any motion to transfer it back to the circuit court, and thereby consented to the trial in the chancery court.

It is next contended that Quarles had no right to sue upon the bond; that it was payable to the State of Arkansas for the use and benefit of the commissioners of the Little Cypress Drainage District of Phillips County, Arkansas. It will be remembered that the bond was given in a suit in the Phillips Chancery Court, wherein John M. Quarles and T. D. Hunt were plaintiffs and the Little Cypress Drainage District was defendant. Hunt and Quarles were both parties to that suit. In that suit T. D. Hunt filed an application and -motion for an order authorizing him to remove the drainage machine or dredge, located in the district, and it was alleged in that application that each of the plaintiffs, that is Quarles and Hunt, and the defendant district were claiming title to said machine, and that it had been idle during the pendency of the suit, was depreciating in value, and should be put in use. And the court thereupon sustained the motion and made the following order:

“It is therefore adjudged and decreed by the court that, upon the execution of a bond with surety to be approved by the clerk of this court, in the sum of ten thousand dollars, to return said machine, with fair compensation for its use, or pay into court its value at this time, hereafter to be fixed, when the rights of the claimants are respectively adjudged, he, the said T. D. Hunt, will be authorized to remove said machine or dredge; the question of the title to the machine to be hereafter decided.”

Hunt and Quarles and the drainage district were all parties and all present when the order was made, or rather, they all agreed to the order. Hunt then filed the bond, and the bond, among other things, contained this provision:

“Whereas J. M. Quarles has instituted a suit in the chancery court of Phillips County, Arkansas, against the commissioners of said drainage district, seeking to recover certain sums of money claimed by him to be due from said district, said cause being No. 4818; and, whereas the above bounden T. D. Hunt has also instituted an action of a similar nature against said drainage district, which suit has been consolidated with the suit of said J. M. Quarles; and, whereas, the said J. M. Quarles, T. D. Hunt and the commissioners of Little Cypress Drainage District claim title to an interest in a certain dredgeboat now located within the confines of said drainage district, amd with which a portion of the work of excavation has been done; and, whereas, since the institution of said suit said boat has remained idle, and, as a result, has depreciated and is depreciating in value, and on the part of T. D. Hunt an order of said chancery court has been made authorizing him to remove said dredge or boat, with all of the appurtenances thereto belonging, upon the execution of a bond in the sum of $10,000, with good and sufficient surety for the return of said boat, or the payment of its value whenever the question of the title to the same and the right of the parties, to-said suits with reference to said boat are adjudicated, by the court. Now therefore, if the said T. D. Hunt, shall pay or cause to be paid into the clerk of the chancery court of Phillips County, Arkansas, the value of said boat at the present time, or return said- boat to said court for purposes of disposition, in accordance with the orders, judgment and decrees of said chancery court thereto pertaining, then and in these events this bond shall be void, otherwise to be and remain in full force and effect.”'

It is not disputed that the bond was given and that the order of court to return it was made, and that order not appealed from, and the bond expressly provides for a return of the boat to the court for the purpose of disposition, in accordance with the decree, orders and judgment of said chancery court. The title to the .property has been adjudged to be in Hunt, but that does not mean that Quarles did not have any interest. The purpose of the bond was to have the boat in the jurisdiction of the court so that whoever had an interest in it might be able to protect that interest, and this could be done if the property was within the jurisdiction of the court, and otherwise it could not be done.

No one, before the court decided, seemed to know where the legal title was, but we think it wholly immaterial. If the legal title had been adjudged to be in Quarles, he would thereby have gotten paid for the money which he advanced, because it is undisputed that he did advance the money, or a sum greater than that which he now sues for, to purchase the boat. Arid this court found in the case in 168 Ark. that the district was due Hunt $4,456.87,' and, although he had no contract with the drainage district, he did have a contract with Quarles, and all of them were parties to the suit. - And that, since Hunt did have a contract with Quarles, and Hunt and Quarles were both parties to the suit, Hunt was allowed, in order to prevent circuitous actions, to recover directly from the district the amount he was entitled to under the contract, and for which the district is liable under its contract with Quarles. And the court also held that there was a balance due Quarles of $10,743.77. It also held that both parties were entitled to interest, and it will be observed that one thing Quarles was charged with was $17,641.31, which amount was advanced to him for equipment, after deducting the amount charged to Hunt. It therefore appears that Quarles had paid the district the money that it had advanced to him to pay for this equipment. The money was used by Quarles and Hunt to buy the equipment, and the testimony of Quarles shows he paid the money and that it has never been paid back to him, and that there is now more due him than the amount of the bond.

The surety company, of course, was bound to know all these facts, because the bond was given in the suit, and recites that it was given in the suit. The statute provides: “Every action must be prosecuted in the name of the real party in interest, except as provided in §§ 1091, 1092 and 1094.”

Unquestionably Quarles was the party in interest. He had advanced the money to Hunt to purchase the equipment, and, although the district had originally advanced it to him, in his settlement with the district he was charged with the amount advanced to him, and it was deducted from the amount the district owed him.

It appears therefore, from the evidence in the case, that Quarles had advanced considerably more than the $10,000 in payment of the dredge, that he was a party to this suit, and the suit was therefore brought in the name of the real party in interest. Files v. Reynolds, 66 Ark. 314, 50 S. W. 509.

A bond is to be construed like any other contract. It is the duty of the court, if it eán, to ascertain the intention of the parties, and, in order to find out what the intention of the parties was at the time the bond was made, it is proper, not only to examine the bond itself, but the order of the court authorizing and directing the bond to be given, together with the interest and claims of the parties and all the facts and circumstances connected with the making of the bond. And when these things are all considered with the bond, we are of the opinion that one of the purposes of the bond was to protect Quarles, who, at the time, claimed an interest in the property.

Application for an order permitting Hunt to remove the property and 'to give a bond was filed in court, and the order states: “And, it appearing that each of the plaintiffs and defendant district are claiming title to said machine.” The plaintiffs were Quarles and Hunt, each of them claiming an interest in the machine. This language is in the order permitting Hunt to give the bond. The appellant, of course, was bound to know of this order, because the bond refers to the order.

The order further provided that the bond should be given to return the machine, with fair compensation for its use, or pay into court its value. And on these conditions, and upon giving the bond, Hunt was permitted to remove the property. The bond itself recites that Quarles has instituted a suit against- the district, and that Hunt has instituted a suit against the district, and that these two suits have been consolidated. It further recites that Quarles, Hunt and the commissioners are all claiming title to the dredgeboat. The bond was conditioned that Hunt would return the boat or pay its value whenever the question of title' was determined. And it was wholly immaterial what the determination of the court was as to the legal title, because, if he advanced the money, as he testified he did, he would certainly have an interest in having the boat returned.

It has been said:

“The one purpose of all construction and interpretation is to ascertain the intent actuating the parties to the agreement, if that end can be accomplished consistently with the rules of evidence. It may often appear (and does quite readily appear in the instant case) that to' ascertain the real scope and effect of the bond necessitates reference to the facts and circumstances of the entire transaction of which it was a part. As said by this court in Jacobs v. Jacobs, 42 Iowa 605: ‘The whole contract must be considered in determining the meaning of any of its parts. The first point is to ascertain what the parties meant, and then to pnt snch construction upon their contract as will bring it as near to their actual meaning as the words they saw fit to employ, when properly construed, * * * will permit. In arriving at this meaning the subject-matter of the contract, the situation of the parties and of the property, and the purpose of the parties in making the contract, must be considered. * * * The objects which the parties had in view in inducing the contract are also to be considered in its construction. As the actions of men are usually the index of their intentions, it is obvious that their acts may be proved, in connection with their contracts, in order to arrive at their true intention in regard to the obligations they assume and accept from others.’ U. S. Fidelity & Guaranty Co. v. Iowa Tel. Co., 174 Ia. 476, 156 N. W. 727.

It must be kept in mind that the order of the court required the return of the property to the jurisdiction of the court, and the bond was given to secure its return.

“A cause of action accrues upon a bond conditioned to do a certain act as' soon as there is a default in the performance, whether the obligee has suffered damage or not.” Northern Assurance Co. of Eng. v. Borgelt, 67 Neb. 282, 93 N. W. 226.

There is no dispute about the order of court being-made, nor about what it is, and there is no contention that the order to return the boat has been complied with. Since the order of the court permitted Hunt to remove the property upon execution of the bond, and recited that Quarles claimed an interest in it, and since the court further ordered a return of the property, and the property was not returned, there was a breach of the condition of the bond which justified the bringing of the suit. Testimony was introduced tending to show, not only the value of the property, hut the damage suffered by Quarles, and the chancellor’s finding is not against the preponderance of the testimony.

' The decree of the chancery court will be affirmed, and it is so ordered.


author: Mehahft, J.

text:
    Short v. Lawson.
    Opinion delivered October 3, 1927.
    Abatement and Revival — former suit pending. — Where defendant in a suit in a justice court attempted to file as a defense a claim against plaintiff, and was denied leave to do so by the justice, who advised that he would have to bring a separate suit, and where plaintiff on the same day instituted suit on its claim, held his right to maintain such suit would not be denied because of the pendency of the other action.
    Appeal from Fulton Circuit Court; John C. Ashley, Judge;
    affirmed.

      Goodwin & Humphries, for appellant.

      Shelby G. Ferguson, for appellee.
   Mehahft, J.

J. D. Lawson filed suit upon an account in the justice of the peace court in Fulton County against M. L. Short for $26.25. ■ Judgment was entered in favor, of the plaintiff, and defendant appealed to the circuit court. In the circuit court the defendant filed the following plea:

“Comes the defendant, M. L. Short, and moves the court to dismiss plaintiff’s cause of action, and for reason states: That there was pending before John P. Smith, Esquire, an action by the defendant, M'. L. Short, against the plaintiff, Jewell Lawson, on the.day of .192., in which the plaintiff in that action, M. L. Short, was seeking to recover from the plaintiff herein an amount which the said M. L. Short claimed was due him by the said Jewell Lawson; and that in said action the said Jewell Lawson presented the claim herein sued on, and the same was by the court disallowed, and the defendant in this action pleads res judicata to the cause of action sued on in this case, and therefore asks that this court dismiss the plaintiff’s cause of action in this case, and that he have judgment for cost, and all other relief. ’ ’

The following testimony was then introduced :•

John P. Smith testified that he is a justice of the peace and was at the time of the trial of the case of Short v. Lawson, referred to in the motion now before the court. Had been a justice of the peace for eight or ten years. That M. L. Short filed suit against Lawson, suing out an attachment claiming a landlord’s lien. The record shows that he sued on a note, and they paid it off after judgment. The witness here read the judgment, which showed the filing of the suit and the issuing summons, and the appearance of the parties and satisfaction of the judgment. Lawson appeared in court, and had an account of $26.25 that he wanted to file, and, when handed the paper in court; he said he thought that was the paper. Witness further testified that he did not allow him to file it. He waited until the case was called, and witness could not find any law to let him file it, and he just did not let him file it. ' He would not allow it, and defendant confessed the note and that he owed it, and witness wrote up the judgment for the amount of the note. He .never did file the paper. “He presented it to me and asked me to allow it, and after that he filed a suit on this claim against Mr. Short. The trial was on the 30th day of January, and on the 29th day he filed this suit before me for his cause of action for $'26.25. ” The suit was filed on the same day as the trial. Witness refused to let him file it in the suit brought by Short, and he filed the same paper that is in litigation now. Witness told Lawson that he could not find any law to allow it, and told him he thought he would just have to sue on it.

The defendants in the suit broug’ht by Short were J. D, Lawson, J. P. Lawson and W. P. Lawson, and were all served. Lawson filed a suit in witness’ court on the same day the other case was tried.

The court, after the above testimony, reserved its rulings after hearing the case, and then the following testimony was introduced:

J. D. Lawson testified, in substance, that he rented land from Short, and that he had an account against Short for $26.25. That he rented land from Short, but did not remember the exact date. Witness told Short he would rent the land if he would clear it' up or pay witness to clear it up, and he rented it, and Short started in to clearing it up, but did not do much, and witness cleared it up himself. The amount-charged for the work was reasonable.- Witness paid the rent, or left it in the field for. Short. • The amount defendant now owes witness is '$26.25.

There was other testimony introduced by the plaintiff, but it is unnecessary to set it out, because the only question here is whether appellee had a right to maintain this suit, not having filed it as a set-off or counterclaim to the suit brought by Short..

Short himself testified that he never promised to pay Lawson anything. That Lawson was to clean up the land and Short was to let his boy burn it off. That Short was not to pay him anything for cleaning up the land. Witness stated that this land had been lying out five and six or seven and eight years.

Joe Short, the son of M. L. Short, also testified, corroborating the statements of his father, and there were some other witnesses testifying with reference to the work claimed to have been done by Lawson.

We deem it unnecessary to set out any more testimony, because, as we have said, the only question in the case, as argued by appellant, is whether oFnot Lawson can maintain this suit when there was a suit pending before the justice of the peace court by Short against Lawson. It is true that a defendant should interpose all the defenses, legal or equitable, which he has. And this is not only true under the statute but it should be done anyhow, so that all controversies between the parties that could be settled in one suit might be so settled. But in this case the suit was pending before a justice of the peace, and his idea of the law was that Lawson could not file this claim in that suit and prohibited him from filing it as a defense. Lawson did everything he could do. He offered to file the account. Was claiming that Short owed him this amount, and actually brought suit on the same day, upon the advice of the justice of the peace that he would have to bring an independent suit.

Under the circumstances it would be unjust to hold that he was barred, and the law certainly does not require any holding in this case that would deprive the appellee of Ms right to have this claim passed on, when he did all that conld be done at the time to interpose it as a defense or counterclaim in the same suit, but was not permitted by the justice of the peace to do it, but, on the contrary, was advised that he would have to bring a separate suit. It is certainly not the intention of the statute or any other law to deprive one of his rights under thé circumstances existing in this case. The case was submitted to a jury under proper instructions, and the jury returned a verdict for the plaintiff, and the judgment of the circuit court will therefore be affirmed.


author: Mehaeey, J.

text:
    Kelly v. DeQueen & Eastern Railroad Company.
    Opinion delivered October 3, 1927.
    1. Railroads — duty to keep lookout. — Under the lookout statute (Crawford. & Moses’ Dig., § 8568), making one operating a train liable for damages resulting from negligence in failing to keep a lookout, notwithstanding the contributory negligence of the injured person, the burden is on the railroad to show that a lookout was kept.
    2. Railroads — efficiency op lookout.. — The lookout statute (Crawford & Moses’ Dig., § 8568) requires the railroad company to keep an efficient lookout, and if the person on the train keeping the lookout is so situated that it is impossible for him to ascertain whether persons are in danger of being hit by moving cars, it would then be the duty of the railroad company to keep such a lookout as would discover persons that might be hit by the moving of the train.'
    3. Railroads — burden of proof as to lookout. — In an action against a railroad company for the death of a trespasser, defendant is entitled to a directed verdict, notwithstanding its failure to show that a lookout was kept, where plaintiff failed to show that, if a lookout had been kept, the injury could have been avoided by the exercise of reasonable care.
    4. Appeal and error — review, of order directing verdict. — Where a verdict was directed for the defendant, the proof on appeal will he regarded in the light most favorable to the plaintiff.

      Appeal from Howard Circuit Court; B. E. Isbell, Judge;

    affirmed.

      Arnold & Friedell, for appellant.

      Abe Collins and Lake, Lake & Carlton, for appellee.
   Mehaeey, J.

The plaintiff, Wiley Kelly, administrator of the estate of Earl Brewer, deceased, brings suit against the DeQueen & Eastern Railroad Company, alleging that said railway company, on the 18th day of May, 19'26, negligently backed or switched its train against two box-cars and that said box-cars were struck with such force that they ran over Earl Brewer and killed him. That said Earl Brewer was either sitting or standing on the track.

There is only one witness who testifies about the accident or who was where he could see the said Earl Brewer when he was struck, and that is witness K. Bledsoe. This witness testifies that Earl Brewer was on the track, with his back to the planer. That, when witness saw him, he was coming, and that this was about ten minutes after eleven, and that he was killed about ten minutes before twrelve. Witness was asked this question: “How Long did he remain there?” And he answered that he remained there until he was killed at something like ten minutes to twelve.

It is difficult to know just what the witness means, because he first says that he was coming, evidently meaning that Brewer was moving towards him, and then he says he remained there until he was killed. Whatever he means, this is. the 'only evidence from any witness, except witnesses who saw the body after the accident. Whether he was standing on the track or endeavoring to walk across -it, or lying down or sitting down, no one who testified knows. At any rate, he was a trespasser at the time he was killed, and the suit is brought under what is known as the lookout statute. The lookout statute, -which is § 8568 of Crawford & Moses’ .Digest, makes a person operating a train liable for damages resulting from neglecting to keep a lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept, the employee or employees in charge of such, train of such company could have discovered the peril of the person injured in time to prevent the injury by the exercise of reasonable care after the discovery of such .peril. And the burden is upon the railroad to show that the lookout was kept. In this case there was a brakeman on top of the train, but, operating the train as the employees were at the time, it was impossible for him to see the deceased where he was when struck, because of the two cars between them.

We think the law requires the railroad company to keep an efficient lookout, and if the person on the train is so situated that it is impossible to keep ia lookout to ascertain whether persons are in danger of being hit by moving the cars, it would then be the duty of the railroad company to keep such a lookout as would discover persons that might be hit by the moving of the train.

This court has said:

“This statute is an amendment to § 6607 of Kirby’s Digest, our first statute requiring a lookout to be kept by the operatives of a railroad train, which was enacted to avoid the effect of certain of the court’s decisions relative to the liability of railroad companies for the injuries caused by the operation of their trains. The court construing it held that it did not affect the defense of contributory negligence in the case of a trespasser, and-that it was not its purpose to abolish the rule of contributory negligence in such cases.” St. L. I. M. & S. Ry. Co. v. Gibson, 107 Ark. 431, 155 S. W. 510.

But in the same case the court also said:

“But now the company is liable if, by proper care and watchfulness, it could have discovered and avoided the danger. * * * It was the evident purpose of this act to provide a different rule of liability against a railroad company causing an injury by the operation of its trains, in case of failure to keep a lookout for persons on its track, than was prescribed by the old act, which required the same lookout to be kept, and placed the burden of proof upon the railroad company in case of an injury, to establish the -fact that the duty to keep ia lookout had been .performed. It was not intended, however, that, upon proof of the killing .of a trespasser by the operation of a train, the presumption should arise that the killing was negligent and the plaintiff entitled to recover damages without showing anything further,' and casting the burden of proof upon the company to show that it was not guilty of any negligence, causing the death, as declared in said instruction numbered 1. ’ ’

In the case of Central Ry. Co. v. Lindley, 105 Ark. 294, 151 S. W. 246, this court said:

i£In other words, the statute makes it the duty of the railroad company to keep a lookout for property upon its tracks, and it makes it liable for all injuries that occur by reason of its failure to perform this duty.. Under the lookout statute, when the plaintiff has proved facts and circumstances from which the jury might infer that his property had been injured on account of the operation of the train and that the danger might have been discovered and the injury avoided if a lookout had been kept, then he has made out a prima facie case, and the burden is on the defendant to show that a lookout was kept as required by the statute.”

But has the plaintiff proved in this case, by facts and circumstances, from which the jury might infer that Brewer was killed on account of the operation of the train, and that the danger might have been discovered and the injury avoided if the lookout had been kept? We do not think the plaintiff met this requirement of the law. The burden was upon the railroad company to show that it kept a lookout, and it failed to do this. But the plaintiff must show by facts and circumstances that, if the lookout had been kept, the injury could have been avoided by the exercise of reasonable care.

As we have said, the only proof about the accident is that Bledsoe saw him coming on the track and about forty minutes later the train struck him. Whether he stayed on the track the whole time or what his position wias when he was struck is not disclosed by the evidence of this witness or any other. Evidently, if he had seen him at" the time, he would have known and testified about his position. It is true he says, when asked how long lie remained there, “until he was killed,” hut remained there might mean in that immediate vicinity, because, as we have said, he was moving at the time witness first saw him, and he does not tell when he stopped or where he stopped, and he does not tell whether he crossed the track, or what he did. We think the' plaintiff would have been required to show these facts before he was entitled to recover. We think it cannot be assumed that witness meant that he remained at the same place until he was struck, when he testifies positively that, when he first saw him, he was coming, although on the track. Rut, about his movements, or whether he stopped, or what he did from that time until the time he was killed, there is not a word of testimony. It is true he might have stayed right there and been killed, but it is also equally true that, if he was moving, he may have moved across the track or may have stayed on it. But certainly this witness, if he was where he could see him during that forty minutes, and did see him, must have known. We do not think the railroad company is liable for hitting a trespasser on the track, unless the plaintiff shows that the injury might have been avoided if a proper lookout had ‘been kept, and we do not think the plaintiff has shown that in this case.

The case of St. L. I. M. & So. Ry. Co. v. Gibson, above quoted from, was again before this court, and the court said:

“The effect of our holding in the former opinion is that, where proof has been introduced by the plaintiff of an injury to a person by the operation of a train under such circumstances as to raise a reasonable inference that the dangér might have been discovered and the injury avoided if a lookout had been kept, then the burden is shifted to the railway company to show that such lookout was kept.” St. L. I. M. & So. Ry. Co. v. Gibson, 113 Ark. 418, 168 S. W. 1129.

It will be seen that the court held that the plaintiff must introduce proof of the injury under such circumstances as to raise a reasonable inference that the danger might have been discovered and the injury avoided if a lookout bad been kept. And tbis must be done by the plaintiff. The burden is on him, and, since there is no accounting for the deceased during the forty minutes after be was seen walking on the track, it occurs to us that it is just as reasonable to suppose that be stepped on the track immediately in front of the cars as it is that be was lying down or sitting down or standing on the track in front of the cars.

It is true that the proof must be viewed in the most favorable light to the plaintiff. But, when tbis is done, the evidence appears to be legally insufficient to support a verdict. As to whether the injury to deceased could have been avoided if an efficient lookout bad been kept, is entirely conjectural. The evidence not being legally sufficient to support a verdict, the circuit court did not err in directing a verdict for the defendant, and the judgment is affirmed.


text:
    Wildman v. Enfield.
    Opinion delivered October 3, 1927.
    1. Taxation — limitation to actions to set aside tax sale. — Craw-, ford & Moses’ Dig., § 10119, requiring actions to test the validity of taxes or proceedings to avoid tax sales to be brought within two years from the date of the sale, does not apply as to jurisdictional matters or vital defects in proceedings relating to the tax sale, but only to irregularities.
    2. Taxation — failuRE to attach warrant to taxbook. — An action to set aside a tax sale for failure of the clerk to attach a warrant authorizing- the collection of taxes, as required by Crawford & Moses' Dig., § 10016, is not within § 10119, prescribing a two-year statute of limitation; the defect complained of being more than a mere irregularity.
    3. Taxation — failure to attach warrant. — Failure of the county clerk to attach to the taxbook a warrant authorizing the collector to collect taxes assessed, as required by Crawford & Moses’ Dig., § 10016, held to invalidate the tax sale.

      4.' Evidence — presumption op performance of duty. — While ordinarily officers are presumed to' perform' their duty, such presumption will not prevail where it would operate to take one’s property away from him, where the proceedings of the officer are ex parte, and where the statute expressly provides that certain duties shall be performed, which are jurisdictional.
    . Appeal from Cleburne Chancery Court; Lyman F. Reeder, Chancellor;
    affirmed.

      M. E. Vmson, for appellant.

      Mortimer Frauenthal and George W. Reed, for appellee.
   Mehaffy, J.

This suit was begun in the Cleburne Chancery Court to set aside a tax sale made by the collector of said county June 12, 1922, and especially the sale of the northeast quarter of the southwest quarter and the southeast quarter of the southwest quarter of section 14, township 9 north, range 10 west, and to cancel whatever right or claim defendant acquired from the State by virtue of such sale.

The plaintiff alleged that the tax assessor failed to indorse the special oath upon the assessment list for the year 1921, as provided for by § 9874, C. & M. Digest. Second, that the county- clerk of said county failed and neglected to attach to the taxbook a warrant authorizing the collector to collect the taxes assessed against the lands described in. said taxbook for the year 1921, as required 'by § 10016, C. & M. Digest.

Defendant answered, denying the material allegations of plaintiff’s complaint, and set up a claim under a donation certificate, and alleged that the value of the use of the lands was no more than the expense incurred by defendant. The defendant, appellant here, also urges that plaintiff is barred by the statute of limitations contained in § 10119 of C. ■& M. Digest.

The circuit clerk testified that he was the clerk and custodian of the records of Cleburne County. He examined the assessment record for 1921, and testified that he found-no affidavit of assessor of that time, as provided by § 9874,. C. & M; Digest. He also testified that he had examined the real estate taxbook for 1921 and found that it did not contain warrant of county clerk authorizing the sheriff to collect taxes of 1921, attached thereto. He found on the book the lands described in plaintiff’s complaint, and found that said lands were advertised as shown by the record and sold to the State for taxes June 12, 1922, for* taxes of 1921. He also testified that he had examined the real estate taxbook for the year 1922 and found that the clerk’s warrant was not attached thereto authorizing- the sheriff to collect the taxes. The warrant authorizing the sheriff to collect was not attached to the taxbook for said county for the years 1923 and 1924, and does not appear on either record. '

On cross-examination witness said he had not examined the personal as well as the real property taxbooks for 1921, and subsequent years. That he had examined these records, and found that the clerk’s warrant authorizing sheriff to collect said taxes is not attached to either record. That he did not know whether or not any such warrant was attached to any records mentioned at time same were placed in hands of collector, except the year 1925, but knows that no such warrant was attached. That his attention had been called to warrants for some years typewritten on sheets of legal paper and attached to the taxbook by pasting in the'book or sticking them in the book with mucilage.' That that had been done sometimes in that county. That the books he had examined were permanent records in his office and used by the collector in collecting taxes on' real property in the county.

Robert Wildman testified that he was in possession of the land' described in plaintiff’s complaint, holding-under a certificate of donation issued to him by the Commissioner of State Lands the 21st day of June, 192’4.

The court found that the tax sale was' void, and decreed a' cancellation of such sale and quieted title to said lands in appellee, who was plaintiff in the court below. An' appeal was prayed and granted. •

It is unnecessary to set out more of the testimony, beoaiise the only questions for this court to determine are whether the suit was brought iu time, and whether there was a failure of the clerk to attach the warrant authorizing the collector to collect taxes, and, if said warrant was not attached, whether this made the sale void.

Section 10119 provides: “All actions to test the validity of any proceeding in the appraisement, assessment or levying of taxes upon any land or lot, or part thereof, and all proceedings whereby is sought to be shown any irregularity of any officer, or defect or neglect thereof, having any duty to perform, under the provisions of this chapter, in the assessment, appraisement, levying of taxes, or in the sale of lands or lots delinquent for taxes,'or proceeding's whereby it is sought to avoid any sale under the' provisions of this chapter, or irregularity or' negléct of any kind by any officer having ally.- duty or 'thing' to perform under the provisions of this chapter, shall'be commenced within two years from the daté of sale, and not afterward.”

• It-is'- contended by the appellant that" this statute is a bar 16 plaintiff’s cause of action, because it was'not begun within thé twó'years/ We do not think that appellant is'correct in this contention. This court has decided several times that the two-year statute of limitations, reli'ed on by appellant in this case, has no application as to 'jurisdictional matters or vital defects in the proceedings relating to a tax sale, but only to irregularities.

: The failure of the clerk to attach his warrant authorizing the-collector to collect taxes, as provided in § 10016, is not a mere irregularity but is such a defect that it is not cured by the two-gear statute of limitations, relied on by appellant. Hewitt v. Ozark White Lime Co., 120 Ark. 528, 180 S. W. 199.

Appellant insists that,' when the ' assessment of taxes is shown, the burden is on the party assailing to prove they are illegal, and relies on Memphis L. & T. Co. v. St. Francis Levee Dist., 64 Ark. 258, 42 S. W. 763. The Question decided in that case was a wholly different question - from the one presented here, and the rule announced in that' case has no application. In that casé some parts of the record were read in evidence, but they did not purport to be a complete record, and there was no evidence of the contents of the record not read and no proof of what they did or did not contain. But in this case the law requires the warrant of the clerk to be attached, and we think the-proof sufficiently shows that no warrant was attached. At least the chancellor evidently found from-the proof that no warrant was ■attached, and we cannot say that his finding is against the preponderance of the evidence.

While it is true ordinarily that officers are presumed to perform their duty, we do not think that this presumption is sufficient to take one’s property away from him. It has been said: ■ ■ ■ ,

.“I have no' doubt whatever that it is essential, in order to give the surrogate jurisdiction of the persons of the heirs, that this provision of the statute should be strictly complied with. It is the only process to bring them into court, and without it they are- without their day in court. And I think that notice for the full time required by the statute is equally indispensable; that short notice would be as no notice. And I think it was a fact which the defendant in this case was bound affirmatively to establish.” Sheldon v. Wright, 7 Barb. (N. Y.) 39.

The Missouri court, in deciding a similar question, said:

“I will now pay some attention to the general doctrine invoked by the plaintiff’s counsel. I hold it is true that, in ex parte and summary proceedings, the law must be strictly pursued. In the case of McClung v. Ross (5 Wheat. 116, 5 L. ed. 46) it was decided by the Supreme Court of the United States that, under the laws of Tennessee, where lands are sold by a summary proceeding for the .payment of taxes, it is essential to the validity of the sale and of the deeds made thereon that every fact necessary to give the court jurisdiction should appear upon the records.” Morton v. Reeds, 6 Mo. 64.

This court said, in one of the cases referred to: “The statutory presumption in favor of a conveyance of lands forfeited for taxes, executed by the Commissioner of State Lands, has been overcome in this case by proof that the land was not assessed by a sufficient description to identify the land.” Cotton v. White, 131 Ark. 273, 199 S. W. 116.

The presumption that an officer has done his duty is not sufficient to justify depriving one of his property, where the proceedings of the officer are ex parte and where the statute expressly required that certain duties shall be performed which are jurisdictional. However,, in this case, as we have already said, the court was justified in finding that the warrant of the clerk was not attached.

Since we hold that the attaching of the warrant by the clerk was jurisdictional, and that the court’s finding that.this warrant was' not attached is not against the preponderance of the testimony, it follows that the case must be affirmed, and it is so ordered.


author: McHaNey, J.

text:
    Gibson v. Greene.
    Opinion delivered October 3, 1927.
    1. Brokers — specific performance of agent’s contract. — One who contracted to buy land through the vendor’s broker, held not entitled to specific performance where the mortgagee of the seller refused to release his mortgage as to him, so that a clear title could be conveyed, and where the agent’s authority to sell had been revoked.
    2. Brokers — verbal revocation of authority. — That a vendor appointed an agent to sell the land by written contract of agency did not preclude verbal revocation of authority to sell, though the contract provided for exclusive authority for three months ■ and thereafter until revoked in writing, as the law does not compel one to continue an agency which he desires to terminate, but it does provide a remedy for an agent whose agency has been wrongfully terminated.
    Appeal from Lawrence Chancery Court, Eastern DistrictLyman F. Reeder, Chancellor;

    affirmed.

      Q. M. Gibson> for appellant.

      Cunningham & Cimningham and H. L. Ponder, for .' appellee.
   McHaNey, J.

On the 20th clay of March, 1926, appel-lee, Rheamona Surridge Greene, entered into a contract of agency with one F. M. Messer for the sale of certain' real estate located in the city of Walnut Ridge, which is as follows, to-wit:

“I have this day placed with F. M. Messer for sale the property described on the reverse side of this card, of which I am the owner. The said Messer shall have the exclusive agency for the sale of the property for a term of three months from date hereof, and thereafter until notified by me in writing of the .withdrawal from sale, and I authorize the said Messer to sell and convey and contract with the purchaser for the sale and conveyance by warranty deed of said property, according to the price and terms herein specified, or any price or terms I may hereafter authorize the said Messer, in writing or verbally, to accept. In case of sale, abstract of title to be furnished by me,".and warranty deed with proper relinquishment of dower, properly acknowledged, to be delivered on receipt.of purchase price. Price $5,500 net, $....gross. If the property be. sold or in any manner disposed of during .period above stated, no matter by whom or in what mamier, or after the above period, on information obtained through the said Mes-ser, I ag'ree to pay a commission of 3 per cent.
‘ ‘ Hoxie, Ark., 20th day of March, 1926. Signature: Rheamona Surridge Greene. Client’s address, Walnut Ridge, Ark. ”

On the reverse side appears the following:

“Section.......township 17-1-E., range 8, lots btwn. Pine and Vine Streets,- block.., between E. Front and E. Second Str. Addition, town of Walnut Ridge. Possession immediately.:..'Date.”

Thereafter, .on April 20,1926, Messer secured a purchaser in the person of appellant, John K. Gibson, for this property for a consideration of $5,000, of which $2,000 was to be cash, $1,000 due the next fall, with eight per cent, interest, and the assumption of a $2,000 note to Barnett Brothers of Batesville, and a contract was prepared by Gibson’s attorney, on memoranda furnished by H. L. Ponder, attorney for Mrs. Greene, in his own handwriting, and in this contract Josephine R. Gibson, the wife of appellant, was named as the purchaser.

It is admitted by all of the parties that Prank Pace of Little Rock held a mortgage on this and other property of the appellee, Mrs. Greene, to secure a large sum of money due him on a promissory note, and that, before Mrs. Greene could convey a good title to the property, it would be necessary for Mr. Pace to release this property from his mortgage. Appellant contends that he was advised by both Messer and Ponder that Pace would release this property from his mortgage to any one who would purchase it, and appellee contends that the matter would have to be taken up with Pace in order to get a release of this property from the mortgage. The contract so prepared was presented to Ponder and Mrs. Greene, and both Mrs. Greene and Ponder came to Little Rock, presented the contract to'Pace, and he declined to release this property from the mortgage in Gibson’s favor, but agreed, if it were sold to appellee, Z. M. McCarroll, he would release. Mrs. Greene returned from Little Rock on the evening of April 22, and, when she got off the train, she saw Messer and talked to him about the matter of the sale, and, she says, told him that she could not make the contract, for the reason that Pace would not release the mortgage, and told him to do nothing further about the matter; that he should make no further arrangements regarding the sale of the property. This was denied by Messer. Ponder went from Little Rock to Fayette-ville, and returned to Walnut Ridge the following Sunday, which was April 25, and Messer talked to him over the telephone, making an engagement to see him at his office the next morning, April 26, and, according to Ponder, Messer came to see him the next morning, and he told Messer that it was not satisfactory with Pace for Mrs. Greene to make the sale to Gibson, and that he would not release Ms mortgage, and told Mm to let the matter drop where it wias, consider the matter ont of his hands, and not to do anything further with it; that, so far as Messer was concerned, the matter was closed; that they would pay him his commission for making the sale, but that he needn’t do anything* further about it. Messer denies having these conversations with Ponder, and thereafter, on the same day, April 26, he, assuming to act under authority of the written contract between him and Mrs. Greene, entered into a contract with appellant, which undertook to bind Mrs. Greene to convey the property to appellant, on the same terms and conditions as the proposed contract of April 20 between her and Mrs. Josephine R. Gibson, and without taking into consideration the necessity of the release of the mortgage thereon held by Pace. A copy of the written contract between Messer, as agent, and appellant was, on the same date, mailed to Mrs. Greene by registered letter, which was delivered on April 27, and this contract was also duly filed and recorded in the recorder’s office. On the night of the 27th of April Mrs. Greene executed and delivered a deed to appellee, McCarroll, for the same consideration and upon the same terms as the proposed contract with appellant, with the exception that Pace had agreed to release this property from Ms mortgage in favor of McCarroll.

Under this state of facts, and others not necessary to discuss, in view of the point hereinafter decided, on which the case hinges, appellant brought suit for specific performance of his contract, on which issue was joined, which resulted in the court’s finding1 that there was no equity in appellant’s complaint on which to base a decree of specific performance, dismissed his complaint for want of equity, and canceled the contract entered into between him and Messer on the 26th day of April, from which comes this appeal.

We think the decree of the court is sustained by a fair preponderance of the evidence, both as to the fact that there was a mortgage on this property in favor of Pace, which■ would have to be released before Mrs.Greene could make a good deed conveying a clear title thereto, and as to the fact that Messer’s authority to act as her agent before the contract of salé to appellant was entered into between Messer and appellant was revoked. Not only wias Pace’s mortgage of record, which was constructive notice to appellant that she could not convey a good title to the -property with that mortgage covering it, but they both had actual knowledge of the existence of such mortgage, as they both claimed that they were assured by both Ponder and appellee, Mrs. .Greene, that Pace would release. Nor do we think that the fact that the release of this mortgage was not made a condition of sale in the contract between Messer and Mrs. Greene, and the fact that the memor-anda made by Ponder on the 20th of April, on which the contract between Mrs. Greene and Josephine R. Gibson was drawn, omitted the condition relative to Pace’s mortgage, are' of sufficient weight to overcome their positive testimony that this was, at all times, one of the conditions of . sale, that is, that Pace would have to release his mortgage before any sale could be made. The contract between Messer and Mrs. Greene contemplated that the price might have to be reduced. It did not undertake to fix any terms upon which Messer might sell. Necessarily any subsequent changes in the contract would have to be submitted to and approved by her, including price, terms and conditions of sale.

The fact that Pace’s mortgage was outstanding, of which all parties were fully cognizant, and would- have to- be released before she could convey a valid title free from such lien, is a strong circumstance corroborative of Mrs. Greene and Ponder and their statements to the effect that it was understood that Pace’s consent to release would have to be obtained. And we'do not think that the failure of Ponder to put that condition in the written memoranda on which the Josephine R. Gibson contract was drawn should be of controlling influence or very persuasive that it was not a condition precedent.

As to the other point, that Messer’s agency was terminated by Mrs. Greene on the 22d day of April, and reaffirmed by Mr. Ponder on the 26th day of April, prior to the contract between Messer and appellant, we think the decided preponderance of the evidence sustains that contention. Mrs. Greene testifies positively that she told Messer, on the 22d of April, to take no further steps in the matter of the sale of this property, and in this she is corroborated by Morris Less. Ponder testifies positively that he saw Messer in his office early in the morning on the 26th day of April, and advised him that Pace would not release to Gibson, that the whole deal had “blown up,” and for him not to take any further action in the matter. In this he is corroborated by George Ponder. Messer alone denies these conversations.

The mere fact that Mrs. Greene had appointed Mes-ser her agent to sell this particular piece of real estate, which contract of agency was in writing, did not preclude her from verbally revoking his authority to sell at any time, even though the contract itself provided that he should have the exclusive authority to sell for three months, and thereafter until revoked in writing. The only interest Messer had in the sale of this real estate was the collection of his commission. The law does not compel one to continue an agency which he desires to terminate, but it does provide a remedy for the agent whose agency has been wrongfully terminated. This court, in the case of Novakovich v. Union Trust Co., 89 Ark. 412-415, 117 S. W. 246, said:

“Appellants contend that the contract sued upon conferred on appellee a naked power to sell, uncoupled with an interest in the property, and that it was revocable at any time they might choose to revoke it, and that, when they revoked it before the sale, the Union Trust Company could not recover the agreed commission. It is true that the power vested in the trust company by the contract was not coupled with any interest, as the commission to be earned was not an interest rendering the power irrevocable. But Mechem on Agency, § 209, says: ‘Where, then, the authority is not coupled’with an interest, the principal has the power to revoke it at his will at any time. Bnt this power to revoke is not to be confounded with the right to revoke. Much uncertainty has crept into the textbooks and decisions from the failure to discriminate clearly between them. Except in those cases where the authority is coupled with an interest, the law compels no man to employ another against his will. As it has been seen, the relation of an agent to his principal is founded in a greater or less degree in trust and confidence. It is essentially a personal relation. If, then, for any reason, the principal determines that he no longer desires or is able to trust and confide in the agent, it is contrary to the policy of the law to undertake to compel him to do so. * * * This, then, is what is meant when it is said that the principal may revoke the authority at any time. But it by no means follows that, though possessing the power, the principal has a right to exercise i.t without liability, regardless of'his contracts in the matter. It is entirely consistent with the existence of the power that the principal may agree that, for a definite period, he will not exercise it, and for the violation of such an agreement the principal is as much liable as for a breach of any other contract. It is in this view, therefore, that the question of the right to revoke the authority arises.”

Whether the fact of the revocation of Messer’s agency was brought home to Gibson or not is unimportant here. Let it be remembered that this agency is a special and limited one, limited to the sale of one particular piece of property, and under a contract which contemplated that the owner or some other person might sell the-property during.the period covered by this contract, and, if exercised, that necessarily'would be a revocation of the ag'ency. The last clause in the contract provides: “If the property.be sold or in any manner disposed of during period above stated, no matter bv whom or in what manner.'or after the above period, * * * I agree to pay a commission of 3 tier cent.” So, while the contract in the first sentence nrovides that Messer shall have the “exclusive agency,” it later provides that the “exclusive agency” stall not be exclusive, in so far as the sale of the property is concerned, except as to his commission of 3 per cent. Therefore appellant was bound to take notice of Messer’s authority as set out in the written contract, which provided, in effect, that Mrs. G-reene or others might sell this property during the time stipulated, which would be a revocation of his agency, and the liability for the revocation fixed.

The decree of the chancery court is in all things correct, and it is accordingly affirmed.


author: McHaney, J.

text:
    Parker v. Fielding.
    Opinion delivered October 3, 1927.
    Schools and school distRicts — authority to dissolve common school district. — Under Crawford & Moses’ Dig., §§ 8869, 8949, relating to dissolution of school districts and annexing contiguous territory to single school districts, the common school district can be dissolved and its territory annexed to a special school district only when both the majority of the electors residing within the common school district and of the board of directors of the special school district jointly petition the county board therefor.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Rice & Rice, for appellant.

      Blansett &'Combs, for appellee.
   McHaney, J.

Appellants are residents and electors of Common School District No'. 40, of Benton County, Arkansas, and constitute a majority of the electors residing in said district. They filed a petition with the county board of education of Benton County, praying that said district be dissolved, and that all of the territory in said district be annexed to the Rogers Special School District, which adjoins District No. 40. A remonstrance was filed with the county board of education, objecting to its jurisdiction, on certain grounds, but same was overruled and an order made and entered dissolving District No. 40, effective April 24, 1926, and attaching all of the territory therein to Rogers Special School District. An appeal was taken to the circuit court, where, on a trial before the court, the petition to dissolve and annex was denied, which amounted to a quashing, or a reversal, of the order of the county board of education, on the ground that the board of directors of Rogers Special School District had not joined in the petition to dissolve and annex, as provided by law. From this judgment petitioners have appealed to this court.

Appellants rely for a reversal of this case on § 8869, C. & M. Digest, which is as follows:

“The county boards of education shall have power to dissolve any school district now established or which may hereafter be established in its county, and attach the territory thereof, in whole or in part, to an adjoining district or districts, whenever a majority of the electors residing in such district shall petition the court so to do. ’ ’

This is § 1 of the :act of April 1, 1895. Construing this section in the case of Hughes v. Robuck, 119 Ark. 592, 179 S. W. 163, this court held that county boards of education have the authority to dissolve special as well as common school districts, with the limitation that such action shall not impair the obligation of contracts. And it was further held in that case that it was not necessary for the petitioners to designate the district to which the dissolved territory should be attached.

'But there is another section, § 8949, of the Digest relating to this' subject, the last sentence of which reads as follows: “The county board shall annex contiguous territory to single school districts, under the provisions of this act, when a majority of the legal voters of said territory 'and the board of directors of said single district shall ask, by petition, that the same shall be done.”

These two sections are not in conflict. The first confers the authority upon the county board, and the next provides the procedure by which the authority conferred upon the county board may be exercised when territory of a common school district is proposed to be annexed to a single or special school district. In McCray v. Cox, 105 Ark. 47, 150 S. W. 152, this court held that the county court is authorized to annex contiguous territory to a single school district when a majority of the legal voters of said territory and the board of directors of a single school district request it so to do. School Districts 14 and 58 v. Henderson, 146 Art. 338, 226 S. W. 517.

This court has never held that territory of common school districts may be annexed to a single or special school district without the consent of the board of directors of the special school district.

It is therefore the opinion of this court that a common school district can only be dissolved and its territory annexed to a special school district when both a majority of the electors residing in the common school district and the board of directors of the special school district shall jointly petition the county board so to do. The judgment of the circuit court is therefore correct, and it is accordingly affirmed.


text:
    Kansas City Southern Railway Company v. Phillips.
    Opinion delivered October 3, 1927.
    1. Carriers — failure to notify passenger to change trains. — • Where the alleged negligence of. a railway company in failing to notify a passenger when to change trains, and in putting her off the train, and the alleged injury resulting from these acts, occurred in Oklahoma, the law of that State determines the right to recover and the measure of damages.
    2. Negligence — contributory negligence of passenger. — Under the Oklahoma law, where a mother in full charge of her child failed to ascertain the necessity of changing trains, and both she and the child were put off some distance from the station, and it was alleged that the child became ill as a result of walking to the station, held that the railroad company was not liable for such injury, since it was the mother’s duty to inform herself of the necessity of changing trains.
    Appeal from Little Biver Circuit Court,* B. E. Isbell, Judge;
    reversed.

      James B. McDonough, for appellant.

      A. D. Dulaney, A. P. Steel and U. A. Gentry, for appellee.
   McHaney, J.

Two separate suits were brought by appellee, I. M. Phillips, against appellant, one in his own right and one as father and next friend of Lorena Phillips, to recover damages alleged to have been received by Lorena as a result of the negligence of appellant, which occurred as follows: Lorena, a child just a few days more than five years of age, and her mother were passengers on one of appellant’s trains from Ash-down to Fayetteville, via Spiro, Oklahoma, and Fort Smith, Arkansas, on July 16, 1925. The mother held !a ticket issued by appellant providing for a change of cars at Spiro to another train of appellant to Fort Smith, and from thence over the Frisco to Fayetteville. No ticket was procured for- Lorena, although she was more than five years old. After boarding the train the ticket was- taken up by the auditor and a proper hat-check was placed in the seat occupied by them, showing that Spiro was their destination on that train. They thereafter changed seats to the other side of the car, to get on the shady side, without changing the hat-check. When the train approached Spiro, the brakéman called the sta.tion of Spiro, and, as he says, announced the change of cars for Braden, Peno a,nd Fort Smith. Mrs. Phillips says the station was called, but she did not hear the change announced. The train stopped at Spiro a sufficient length of time for Lorena and her mother to have got off, but they did not do so, and were taken on the same train to Sallisaw, where it was discovered that they should have changed at Spiro, and they were put off the train, as Lorena’s mother says, about a half mile from the depot, in the night time, and compelled to walk such distance to the station at Sallisaw; that, in walking this distance, Lorena became very warm, from which she later contracted a severe cold, which resulted in an abscessed condition in her .ears, involving one of the mastoid processes, necessitating a serious operation, and that she was damaged as a result thereof. A trial of these eases, which were consolidated, resulted in a verdict and judgment in favor of appellee. I. M. Phillips, in the sum of $500, and in favor of Lorena Phillips in the sum of $950, from -which comes this, appeal.

Appellant has assigned and urged many errors of the court for a reversal of these cases, among them being his request in each case for ;a directed verdict.

After a careful consideration of the matter, this court has reached the conclusion that the liability, if any, in this case is governed by the law of Oklahoma, where the negligence of appellant, if any, occurred, and not by the law of the State of Arkansas.

Conceding, for the purposes of this case, that Mrs. Phillips had no notice of the necessity to chang-e cars at Spiro, and conceding, which we do not decide, that the injury to Lorena occurred in the manner claimed, and that the negligence of appellant was the proximate cause of the injury, still we are of the opinion that, under the law of Oklahoma, as announced in the .case of Hill v. New, 88 Okla. 208, 212 Pac. 422, there is no liability in this case, and the lower court erred in refusing to direct a verdict for appellant. This case was decided in 1923, and seems to be the first case on the subject in that court. No other subsequent eases in that court have been cited by counsel, and our search has not disclosed any additional cases thereon. The facts in that case and' the holding of the court, quoting- from the opinion in that case, are as follows:

“ The facts upon which plaintiff relies for a recovery, briefly stated, are that, on the 29th day of November, 1916, he purchased a railroad ticket of defendants’ agent at Hitchita, a station on defendants’ railroad, which ticket entitled him to transportation from Hitchita to Oklahoma City; that, at about 10:30 p. m. of said day, he boarded one of defendants’ trains and entered a passenger coach thereof; that, when the conductor in charge of said train took plaintiff’s ticket, plaintiff made a request of said conductor for a berth in the Pullman car, that he might sleep on the way to Oklahoma City. The conductor informed him that he could not obtain a berth then, but could obtain one at' Henryetta. Thereupon plaintiff stated to the conductor that he could sleep in the chair car, and the conductor replied that it was a good place to sleep; so plaintiff seated himself in a chair car and was soon asleep. The plaintiff had made frequent trips from Hitchita to Oklahoma City, but had always ridden in a Pullman direct to Oklahoma .City, and did not know’ that it was necessary for passengers in the day coach to change trains between Hitchita and Oklahoma City. As a matter of fact, it was necessary to change from the railroad of the defendants to the Port Smith & Western Railroad at Dustin. At the conclusion of plaintiff’s evidence, the defendants interposed a demurrer thereto, which was sustained by the court, and judgment rendered for the defendants. Prom this judgment the plaintiff has appealed, and contends that, because he was ignorant of any change of trains being necessary before arriving at his destination, and'because he’ told the conductor that he could sleep in the chair car, and the conductor seeing and hearing all this, and having taken up plaintiff’s ticket, which showed his destination, it was the duty of the conductor to awaken him at Dustin, and inform him that a change of cars was necessary, and that a failure on the part of the conductor so to do constituted negligence upon the part of the defendants. According to the plaintiff’s own evidence, he made no attempt to inform himself ¡as to whether or not a change of trains was necessary, or whether the train he was on went to or stopped .at his destination. He purchased a ticket from the defendants, which he says he did not notice at the time, but admitted, on cross-examination; that this ticket entitled him to passage on the Missouri, Oklahoma & Gulf Railway at Dustin, and from theré over the Port Smith & Western Railway to Oklahoma City. He did not make any inquiry either of the agent who sold him the ticket or of the conductor, whether or not defendants’ line afforded him a direct route to Oklahoma City, or whether a change would be necessary, and neither the agent who sold him the ticket, the conductor in charge of the train, nor any other employee of defendants told him that defendants had a direct route to Oklahoma City. The train stopped at Dustin a sufficient length of time for the plaintiff and all other passengers to transfer from said train to the train of the Port Smith & Western Eailway Company, and the conductor did in fact awaken the plaintiff, but not in time for him to change to the Port Smith &* Western Eailway.
“It was the duty of the plaintiff to inform himself as to whether or not a change of trains would be necessary, and whether the train he was on went to and stopped at his destination, and, if he made a mistake, not induced by the defendants, against which ordinary care would have protected him, he has no remedy against the defendants for the consequences (citing cases).
“The plaintiff did nothing whatever -to ascertain whether a change of trains was necessary, and paid no attention to his ticket. This ticket was notice to him that the train of defendants did not go to Oklahoma City, and that a change at Dustin was necessary. It is well settled that it is the duty of a railroad company, in order to afford a passenger an opportunity to leave the train at the station of his destination, or where a change of trains is necessary, to have the name of such station announced upon the arrival of the train, and to stop the train for a sufficient length of time for him to -alight with safety, but there is no duty upon the part •of the railroad company to awaken a passenger who has fallen asleep in a chair oar, in order to advise him that his destination has been reached, and to enable him to alight there” (citing cases).

We have a somewhat different rule in this State, and, we think, a better rule, ¡as was held in Davis v. Wells, 159 Ark. 156, 251 S. W. 371, where, in the course of the opinion, the court used this language: ‘ ‘ Plaintiff was not entitled to personal notice, and the instruction does- not so declare the law, but she was entitled to notice, and the instruction did not leave out of consideration the fact that she might have had this notice from the form of her ticket, because the third instruction so declared the law.” St. L., I. M. & S. R. Co. v. Needham, 122 Ark. 584, 184 S. W. 47, Ann. Cas. 1917D, 486.

But, as heretofore ' stated, the law of Oklahoma, where the injury, and negligence occurred, is the . test of the right to recover and the measure of damages. In the case of American Ry. Express Co. v. Davis, 152 Ark. 259, 238 S. W. 52, this court said: “The injury having occurred in the State of Oklahoma, the right to recover and measure of recoverable damages, must he tested by the laws of that State. ’ ’

Therefore, applying the law of Oklahoma to the facts in this case, it was the duty of Mrs. Phillips to inform herself regarding the change of trains, and, if she “made a mistake, not induced by the defendants, against which ordinary care would have protected” her, appellee, I. M. Phillips, and Lorena cannot recover, as she was in charge of this child, having the entire care and custody of it. It would be idle to say that Lorena would have to inform herself of these matters, because she was a child of such tender years that she could not' be held to account for her own acts, but her mother acted for her. Mrs. Phillips did nothing whatever to ascertain whether a change of trains was necessary, paid no attention to the hat-check placed in her seat, moved away to another seat without taking the hat-check, heard the station of Spiro called, and made no inquiry as to whether she was to change :at that point.

It follows from what we have said that the judgment of the court must be reversed and the cause of action dismissed. It is so ordered.


author: Smith, J.

text:
    Hinton v. Brown.
    Opinion delivered June 27, 1927.
    1. USURY — MISTAKE IN CALCULATING interest. — Where a mistake was made in the calculation of interest in making renewal notes, so that unintentionally a greater rate than 10 per cent, was embraced in the renewal notes, held that the notes were not usurious.
    2. Depositions — incompetent evidence. — A deposition taken by agreement was properly stricken from the files where the questions and answers disclosed no competent and material testimony.
    3. Evidence — offer of compromise. — In an action on promissory notes, testimony of the offer to pay them on condition, amounting to an offer of compromise, was incompetent, and its admission over the defendant’s objection was error.
    4. Trial — when error not waived. — After incompetent evidence was admitted over appellant’s objection, the error was not waived by appellant’s cross-examination concerning it, since he had the right to attempt to remove the prejudicial effect of such testimony.
    5. Partnership — sufficiency of warning order after notice of dissolution. — A warning order published in a newspaper in which the name of the firm of which defendant was a member was stated so as to show defendant’s withdrawal, held not notice of partnership dissolution relieving defendant from liability on partnership notes, especially where it was published long after the execution of the original notes.
    6. Partnership — notice of withdrawal of member. — -Where the payee of promissory notes took them from a firm in which defendant had been a former partner, without actual or constructive notice that defendant had withdrawn, defendant was held liable.
    7. Partnership — notice of dissolution. — Where the payee of notes had no knowledge that defendant was no longer a member of the firm when he accepted the original notes, his possible knowledge that defendant had withdrawn from the firm at the time when renewal notes were made held immaterial.
    Appeal from Hempstead Circuit Court ;• James H. McCollum, Judge;
    reversed.

      E. F. McFaclclin, for appellant.

      O. A. Graves and W. 8. Atkins, for appellee.
   Smith, J.

This suit was brought by appellee, Brown, against appellant, Hinton, to recover on notes signed “Hinton Garage, L. T. Hinton,” dated July 24, 1923, it being alleged that “Hinton Garage’’ -was a copart-nership of whicli appellant Hinton was a member. Tlie notes sued on were renewals of prior notes, which had been executed by “Hinton Garage” to appellee’s order.

An answer was filed, in which it was denied that appellant was a partner at the time of the execution of the original notes or the renewal notes, and it was alleged that the notes sued on were usurious and void.

On the question of usury the following testimony was offered: In April, 1920, appellee loaned the Hinton Garage $3,400 in cash to pay for a carload of automobiles. This indebtedness was evidenced by two notes for $1,100 each and one for $1,200. There were certain credits on these notes, and one of them was paid in full by the sale of one of the automobiles. Appellee left the notes at the bank to be renewed by the execution of two new notes. It appears that the bookkeeper in the bank, in calculating the interest, compounded it, with periods of annual rest, and in this way interest at a greater rate than ten per cent, per annum was embraced in the renewal notes. It was shown, however, by the undisputed evidence, that appellee had not ordered this done and was not aware that it had been done, until it was shown by calculation at the trial that such was the case. Appellee disclaimed any intention of charging more than ten per cent., and appellant did not testify that there was any agreement to that effect. It appears therefore that the execution of the renewal notes in a sum which exceeded ten per cent, per annum was a mere mistake.

The court below was correct therefore in refusing to submit the question of usury to the jury, as the testimony shows only a mistake in the calculation, of which neither party was apparently aware when the renewal notes were executed, and the law is well settled that a mistake in the calculation of interest does not constitute usury.

In the case of Garvin v. Linton, 62 Ark. 370, 35 S. W. 430, 37 S. "W. 569, Mr. Justice Battle said:

“If the lender, by mistake of fact, by error in calculation, or by inadvertence in the insertion of a date, contracts to receive an illegal rate of interest, such mistake, error or inadvertence will not stamp the taint of usnry on such engagement, nor cause to be visited upon him who did not knowingly and intentionally disregard the law in this behalf the highly penal consequences of an usurious offense.”

The deposition of one Riley had been taken on interrogatories, by consent of parties, and at the trial this deposition was stricken from the files on motion of appel-lee, and that action is assigned as error. Inasmuch as the deposition was taken by agreement, either party had the right to offer it in evidence, and it would be error therefore for the court to refuse either party the right, but careful examination of the question and answers there contained discloses no competent and material testimony, and there was therefore no error in striking the deposition from the files.

Appellee testified that, while appellant denied owing the notes sued on, he offered to pay them if appellee would purchase appellant’s residence at the price of $10,000. This testimony was incompetent, as it appears to be an offer of compromise, and, as it was admitted over appellant’s objection, the judgment must be reversed on that account.

After the admission of this testimony over appellant’s objection, appellee was cross-examined concerning it, but this did not waive the error, as appellant had the right, after objecting and saving an exception, to attempt to remove the prejudicial effect of the incompetent testimony by cross-examining the witness who gave it. Pine. Bluff Co. v. Bobbit, 168 Ark. 1019, 273 S. W. 1.

Appellant admitted that-he had been in partnership with his son, L. T. Hinton, under the firm name of ITinton Garage, but he testified that he retired from the partnership in November, 1919, and it is admitted that the indebtedness to appellee evidenced by the original notes was not contracted until April, 1920. Appellant therefore insists that he is not liable, as the indebtedness was contracted after the date he ceased to be a member of the copartnership.

Appellee testified that he had had previous transactions with the firm, and that he made the loan upon the faith of appellant’s credit as a member of the partnership, and that he had no notice to the contrary at the time of the execution of either the original or the renewal notes.

Appellant admitted that no notice of a dissolution was published, but he offered in evidence a newspaper containing a warning order in which the name of the plaintiff was stated as “L. T. Hinton, under the firm name of Hinton Garage. ” This warning- order was published March 19,1923.

It will be observed that the date of this warning-order was long after the execution of the original notes, and what was said of a somewhat similar notice in the case of Anglin v. Marr Canning Co., 152 Ark. 1, 237 S. W. 440, is applicable here. In that case a partnership had been dissolved, and a local newspaper made editorial comment upon that fact. It was there said:

“There is no testimony tending to prove that they had published in a newspaper any notice of the dissolution of the partnership and their retirement from the firm. The editorials appearing in the paper were not such notice, and besides, there is no testimony to prove that these editorials were brought home to the appellant. Ho testified that he had not seen them.”

The cause was submitted under an instruction in which the jury-was told that, if appellee made the loan “on the faith of his belief that defendant was such a partner, then and in that event the defendant would be liable for the amount due on the notes sued on and interest, unless he gave actual notice to the plaintiff of (he dissolution of the firm, or gave notice generally of such dissolution by advertisement in some newspaper or otherwise, before said indebtedness was incurred, that, defendant had retired from said partnership.”

This instruction conforms to the law as announced in the case of Anglin v. Marr Canning Co., supra.

It is objected that tlie instruction made no distinction between the knowledge of appellee on the date of the original notes and the knowledge possessed by him on the date of the renewals. In other words, appellant insists that, if appellee had notice of the withdrawal of appellant at the time the notes were renewed, he cannot recover, although he did not have that notice when the original indebtedness was incurred.

We do not agree with counsel in this contention. If appellant was liable for the original notes, he is also liable for the renewal notes, because both sets of notes evidenced the same indebtedness. In the case of Dodd v. Axle-Nut Sign Co., 126 Ark. 14, 189 S. W. 668, it was said that “the time "when the debt was contracted was not when the renewal note was executed, but when the original debt was made and the original note given. ’ ’

In Gilmore on Partnership, page 267, it is said that: “Notwithstanding a dissolution, each partner has the implied power to do all acts necessary to settle demands against the firm and to complete transactions uncompleted at the time of the dissolution.”

We think the court was correct therefore in refusing to make the test of appellee’s right to recover the knowledge possessed by him at the time of the execution of the renewal notes, although appellee testified that he did not have this knowledge at that time. If appellant was liable on the original notes, the renewal thereof to cover the same indebtedness did not discharge the liability. N

For the error in admitting the incompetent evidence, proving an offer of compromise, the judgment of the court belowr must be reversed, and it is so ordered.