text:
    Missouri Pacific Railroad Company v. Montgomery.
    4-2741
    Opinion delivered November 21, 1932.

      Brundidge & Neelly, Thos. B. Pryor and E. L. Ponder, for appellant.

      Pace & Davis and R. W. Robins, for appellee.
   Mehaeey, J.

The appellee, Alex. Montgomery, on June 7,1930, was in the employ of the appellant, Missouri Pacific Bailroad Company, as a brakeman on a freight train running from Monroe, Louisiana, to El Dorado, Arkansas. While in the service of appellant as such brakeman, he was under the direction of the conductor, who was in charge of the train, getting out a switch list, sitting down at the conductor’s desk in the caboose. He had been called by the conductor and directed to do this work. While engaged in this work, he was thrown against the desk by a violent jerk of the train and injured. The appellee was at the time of the injury engaged in interstate commerce, assisting in operating a train which was carrying interstate commence, and this suit was therefore brought under the Federal Employers’ Liability Act, and a recovery for his injury sought under the provisions of that act. Appellee alleged that he was injured by the negligence of the engineer in stopping the train in an unusual and violent manner; that he was thrown against the desk and permanently injured; that the engineer, in a sudden and violent manner, checked the train without notice or warning, throwing him against the writing desk, injuring his right side, fracturing five or six ribs and otherwise injuring him, and that he is in constant pain and suffering. At the time, and since his injury, he has suffered great and excruciating pain of body and mind, and will continue to suffer throughout the remainder of his life. He further alleged that, at the time of his in.juries, he was a strong, able-bodied man, 38 years of age and was earning $200 per month; that since bis injury be has suffered great pain of body and mind and will continue to suffer, and that bis injury is permanent; that since bis injury be has not been able to perform any labor of any kind, and alleged that be was damaged in the sum of $25,000, for which he prayed judgment. The appellant answered, denying all the material allegations in the complaint as to negligence, and as to bis injuries, and interposed the defenses of contributory negligence and assumption of risk. The undisputed evidence showed that the appellant was engaged in interstate commerce at the time of the injuries, and that appellee was engaged in interstate commerce. There was a verdict and judgment for $12,500, and the case is here on appeal.

Appellant’s first contention is that the court erred in not giving instruction No. 1, requested by appellant, which directed the jury to return a verdict for the appellant. Appellant insists that this instruction should have been given because it says that the evidence is not legally sufficient to sustain the verdict; that evidence of the violent jerk of the train injuring appellee is not evidence of negligence. We have held that, under the Federal Employers ’ Liability Act, it is necessary for the injured employee to prove that the railroad company was negligent, and that its negligence was the proximate cause of the injury. The burden is on him to prove these facts, and, if he fails to prove either, he cannot recover. The negligence of the railroad company must in whole or in part cause the injury.

Appellant first calls attention to St. Louis-San Francisco Railway Co. v. Smith, 179 Ark. 1015, 19 S. W. (2d) 1102. We said in that case: “No witness was able to say just how the accident happened.” We said further: “There was no evidence which tended to prove how the accident happened. As we have stated, it might have occurred in one of several ways.” Appellant calls attention to several cases decided by courts of other States, but it is unnecessary to review them. In numerous cases decided by this court, we have announced the rule contended for by the appellant. Appellant cites the case of Patton v. T. & P. Ry. Co., 179 U. S. 658, 21 S. Ct. 275. That case was decided before the Employers’ Liability Act, but in that case the court said: “It is undoubtedly true that cases are not to be lightly taken from the jury; that jurors are the recognized triers of questions of fact, and that ordinarily negligence is so far a question of fact, as to be properly submitted to and determined by them. ’ ’ In that case the court also said: “The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence.” This is the well-established rule of this court. Appellant cites other cases to the same effect.

Attention is also called to A. T. & S. F. Ry. Co. v. Toops, 281 U. S. 351, 50 S. Ct. 281. It was held in that case that the injured employee must not only prove negligence of the company, but that the negligence proved was the cause of the injury. This suit is brought under the Federal Employers ’ Liability Act, and, since this act does not define negligence, the question of whether the acts complained of amount to negligence is to be determined according to the common law and according to the rules prevailing in the Federal courts as to what constitutes negligence under the common law. However, there is no difference between the decisions of the Federal court and of this court as to what constitutes negligence. Missouri Pacific Rd. Co v. Shipper, 174 Ark. 1083, 298 S. W. 849.

Moreover, the court gave the jury the following instruction, among others: ‘ ‘ The court instructs you that mere proof of a violent or unusual shock, jar or jerk on a freight train is not sufficient to show that it was caused by the carelessness of the engineer, and the fact that the brakeman suffered an injury caused by such operation of a freight train does not give rise to any presumption of negligence.”

The undisputed evidence shows that appellee was injured by being thrown against the desk at which he was sitting at work in the performance of his duty. The ap-pellee testified: “At the time I was injured I was getting-out a switch list, and was sitting down at a writing desk. The conductor had requested me to do this, and I was engaged at that when I was injured.” He also testified that it was the most violent “run-in” he had ever experienced. He had been engaged in railroading for about twenty years. Had fired and run an engine. He said the violent jar was caused by the improper application of the air by the engineer. He was asked on cross-examination: “In stopping a freight train of that length you would have more or less jerks in the caboose as the slack works out?” and he answered: “Not like the one when I got hurt.” Appellee further testified that the bump in the caboose was caused by the improper application of the air. If it had been applied properly, it wouldn’t have occurred. He said he was certain the brakes were released. He heard the air released through the retainer valves. The air had not gone in the usual way. Another hrakeman, Charles E. Seal, was riding in the cupola of the caboose and could see the slack running in, and he prepared himself. He saw the violent movement of the train and was protecting himself against getting hurt. In that way he avoided injury. The movement was violent.

J. W. Barnard, who had had experience in handling all kinds of trains and who had worked for appellant for thirty years, from 1899 to 1929, testified that, with a train of 97 cars going 25 miles an hour and a “run-in” of sufficient violence to injure appellee and throw another man from a standing position in the caboose to the floor, in his judgment, the violent “run-in” would be caused by improper handling of the train. If stopping is properly done, there will not be any jar in the caboose of a train that has 100 box cars on it. The train can be stopped so that there will not be any jar. While the engineer, Y. L. Brown, testified that he did not put on the brakes at all, lie also testified that lie could not tell bow there would be a jar; that it was bis business to keep it from being a jar. He also said, if be bad bandied the train in the manner be said, there would be no jar that be knew of. The conductor, a witness for appellant, testified that there was a jolt, and that he bad never seen any worse; that the brakes were applied. He knew the brakes were applied because be beard the air released. He was standing in the caboose, and was thrown down by the violent jar.

Some of appellant's witnesses testified that there was no violent jar, but all admit that, if the brakes were applied, that it was improper handling of the train. ' Not only do the witnesses testify that the air was applied improperly, but appellant’s witnesses testify that there was trouble after this ‘ ‘ run-in. ’ ’ They bad to get out and release the brakes by band. This testimony is not contradicted. There was substantial evidence of negligence, and the court did not err in refusing to give appellant’s requested instruction No. 1.

Appellee and other witnesses bad made statements which were introduced in evidence. We will not set forth this evidence. The credibility of witnesses and the weight of the evidence are questions for the jury. There was substantial evidence of negligence.

Appellant next contends that appellee assumed the risk. If the injury bad been caused by an ordinary or usual jar, appellee could not recover. The court gave to the jury the following instruction: ‘ ‘ The court instructs you that the plaintiff, by entering the service of defendant as a brakeman, assumed all the risks ordinarily incident to that employment, and, if you find from the evidence that be was injured by a cause ordinarily incident to bis employment, that is one that in the performance of bis duties it was contemplated he would meet and encounter, then be cannot recover in this action, and your verdict will be for the defendant. ’ ’ This instruction was given at the request of the appellant. When one enters the employ of another, be assumes all the risks and hazards ordinarily incident to the employment, and the master is not liable for injury resulting to the servant if the injury to the servant was caused by one of the ordinary or usual risks or hazards of the employment; but the servant does not assume the risk of the negiigence of the master for whom he works or any of its servants, unless he knew of the existence of the negligence. Miss. River Fuel Corp. v. Morris, 183 Ark 207, 35 S. W. (2d) 607; Aluminum Co. of N. America v. Ramsey, 89 Ark. 522, 117 S. W. 568; S. W. Power Co. v. Price, 180 Ark. 567, 22 S. W. (2d) 373; C., R. I. & P. Ry. Co. v. Allison, 171 Ark. 983, 287 S. W. 197; Western Coal & Mining Co. v. Burns, 168 Ark. 976, 272 S. W. 357; C., R. I. & P. Ry. Co. v. Daniel, 169 Ark. 23, 273 S. W. 15; St. L. S. W. Ry. Co. v. Martin, 165 Ark. 30, 262 S. W. 982; M. P. Rd. Co. v. Remel, 185 Ark. 598, 48 S. W. (2d) 548.

It would, of course, have been impossible for the appellee to have known of the existence of the negligence of the engineer, because he was in the caboose sitting and could not have .seen any evidence of the negligence before his injury. The brakeman riding in the cupola saw the effect of the brakes and knew the danger and prepared himself, but the appellee and conductor, who were in the caboose, could not know this.

Appellant’s next contention is that the method used to stop or slow down the train at the point of accident, is not negligence on his part. The engineer testified that he did not use the brakes at all. Several witnesses testified, not only that he did, but that he jammed the brakes so that they had to get out of the train and release them by hand. Moreover the engineer’s testimony shows that, if he used the brakes, as the witness testified, it would have been improper. The engineer testified, as we have said, that he did not use the brakes at all. Other witnesses testified that he did, and the circumstances show that the brakes were used.

Appellant contends that the court erred in refusing to give instructions requested by it. The instructions requested by appellant and refused by the court were some of them peremptory, and the others were all covered by other instructions given by the court.

There was evidence of the serious injury of appellee and of his pain and suffering, and substantial evidence that this was caused by the negligence of the appellant. We find no error, and the judgment is affirmed.


source: Caselaw Access Project

author: Butler, J.

license: Public Domain

text:
    Gravette v. Veach.
    4-2737
    Opinion delivered November 21, 1932.

      Rice & Rice, for appellant.

      W. A. Dickson and W. 0. Young, for appellees.
   Butler, J.

There are a number of interesting* facts connected with this litig’ation, hut which are not essential to its determination, and which we deem it unnecessary to set out. The pertinent facts which are virtually uncon-tradicted are as follows:

A number of the ladies of the town of Gravette, moved by an altruistic spirit, organized themselves into an unincorporated society which they called the Civic Improvement Club. After a time they conceived the idea of purchasing a park to be used by the public, which was to be a memorial to Field Kindley, a young man who had been reared in the town of Gravette by his aunt and who had lost his life in the service of his country. This club located a number of vacant lots which were owned by a nonresident of the town. Two of the ladies were appointed a committee to visit the owner and endeavor to arrange for the purchase of the property. The owner agreed to sell the property for $1,500, giving the club until a certain time to complete the purchase. The ladies immediately proceeded to solicit subscriptions, and in a short time raised $750, but, as the time limit approached they discussed the situation with Dr. Buffington, the mayor of the town, and interested him in their project, and he agreed to, and did, advance from his private funds the sum of $750, which sum, together with the money already raised, made up the purchase price of the property. This was paid to the owner, who conveyed the land by warranty deed to Dr. Buffington. Dr. Buffington stated that he did not remember just why the deed was made to him, but it was evidently done to protect him in the advances he had made. The ladies continued their activities in the matter of raising funds, and soon made up the amount that Dr. Buffington had advanced, and paid it over to him. When this was done, Dr. Buffington secured the service of a resident lawyer, who had died before this controversy arose, to prepare the necessary papers to carry into effect the intentions of the club. He drew a warranty deed conveying the property to the city, but inserted in the deed the following clause: “The abóve-de-scribed ¡property is to be used for public park purposes and is to be under tbe control of the ladies of Civic Improvement Club of Gravette.” This deed was executed in June, 1924, and the Civic Improvement Club entered into possession of- the property and proceeded to improve and beautify it. They erected a monument to the memory of Field Kindley, built a band stand, and otherwise adorned and improved the property.

In 1925 or 1926 the ladies of the Civic Improvement Club incorporated the club under the same name and with the same membership, its charter providing that each member of the unincorporated society was to become and be member of the incorporated society, and such others who might desire to join after the incorporation would be admitted to membership upon the unanimous vote of the charter members and the payment of a fee. The club remained in possession of the property and exercised control over it until shortly before this litigation arose, during which time the town of Gravette had contributed nothing to the purchase price or to the sums required to improve the property, its sole contribution being the furnishing of lights and water for the park to the amount of $36 per year.

There appears to have been no conflict as to the management of the park until August, 1930. It was the custom of the town to have a picnic annually during that month, and for some reason (¡possibly to raise funds for the city treasury) the town council made arrangements with a “carnival” to visit the town, which carnival, at the instance of the town council, came and pitched its tents and appurtenances upon the public park,- over the protest of the club. Just what was said and done by the ladies is not disclosed by the record, but the men began to write articles and to publish them in the town paper about the ladies, which reflected upon the management of the park, and intimated that the ladies were difficult to get along with. The ladies met and called to their assistance nine men of the town, evidently not among those protesting, and designated them as “trustees,” the purpose being to use the trustees as a go-between for the club and the town council with the object of establishing a modus vivendi. These gentlemen were unable to negotiate a truce and, shortly after they had approached the council, the city filed this suit, exhibiting a copy of the deed from Dr. 'Buffington, heretofore referred to, alleging title in itself, and that the ladies of the Civic Improvement Club were setting up claim of control under said deed, and praying that the title be quieted in the town, and that the Civic Improvement Club be enjoined from interfering with, or attempting to exercise control over, the property.

At the hearing before the chancellor, where the evidence above recited was detailed by the witnesses, the court denied the prayer of the complaint, finding the facts to be as stated herein, and decreeing valid the clause in the deed granting control of the property to the Civic Improvement Club, and that legal title to the park was vested in the town of G-ravette (plaintiff), but that the Civic Improvement Club should continue in the control of the property for the use named in the deed.

The appellant challenges the correctness of this decree, and invokes the well-settled rule that, where a grant is made in a deed of the title in fee, a subsequent clause limiting the absolute title, being in irreconcilable conflict with the title conveyed by the granting clause, is void. CarlLee v. Ellsberry, 82 Ark. 209, 101 S. W. 407, 12 L. R. A. (N. S.) 956, 118 Am. St. Rep. 60; Levy v. McDonnell, 92 Ark. 324, 122 S. W. 1002, 135 Am. St Rep. 183; Veasey v. Veasey, 110 Ark. 393, 162 S. W. 45. The appellant contends that the granting clause conveys to the grantee the fee simple title, and that under the rule, supra, the clause quoted is void. It must be conceded that the rule contended for is the one established by our decisions, but the rule is not one of-positive law, but rather one of construction to be applied where there is a clear repugnance between the nature of the estate granted and subsequent clauses in the deed, either in the habendum clause or elsewhere ; for, in such cases, the courts are of necessity compelled to choose between the conflicting clauses, and it is then that the arbitrary rule is invoked. In cases where the intention of the parties may be ascertained from a consideration of the entire instrument and the several clauses may be reconciled, the rule contended for must yield to that cardinal rule of construction that the intention of the parties as drawn from the entire instrument must govern.

“While the cardinal rule of construction is that the intention of the parties as drawn from the whole deed must govern, where such intention is uncertain, resort must he had to well-settled but subordinate rules of construction to he treated as such, and not as rules of positive law, the modern rule being that the intention of the parties when ascertained will prevail over all technical rules of construction; and it has been said that, since the language employed in deeds varies so materially and so much, precedents are rarely controlling in a concrete case, except as they may furnish general aiding rules. Where a deed expresses two conflicting intentions, it must he construed according to the rules of construction, although they may he denominated arbitrary. Further, a construction which will leave the way open for repeated and indecisive litigation should be avoided.” 18 C. J. 252, §197.

“A deed must be construed according to the intention of the parties, as manifested by the language of the whole instrument; and it is our duty to give all parts of the deed such construction, if possible, as that they will stand together; hut where there is a repugnancy between the granting and habendum clauses, the former will control the latter.” Dempsey v. Davis, 98 Ark. 570-573, 136 S. W. 975.

In Whetstone v. Hunt, 78 Ark. 230, 93 Ark. 979, cited in Dempsey v. Davis, supra, the following language was quoted with approval: “If,” says Mr. Washburn, “there is a clear repugnance between the nature of the estate granted and that limited in the habendum,- the latter yields to the former; but if they can be construed so as to stand together by limiting the estate without contradicting the grant, the court always gives that construction in order to give effect to both.”

An examination of the deed involved in the instant case shows no irreconcilable conflict in its several clauses, but, considered in its entirety, it clearly discloses the intention of the grantor. That intention primarily was to provide a park to beautify the town and promote the rational pleasure of its inhabitants. In carrying out this purpose the town of Gravette and the Civic Improvement Club were constituted qualified trustees, the one to hold the legal title and the other to exercise a power in trust. This trusteeship was divided, perhaps because it might have been the opinion of the scrivener, although erroneous, that the Civic Improvement Club, being only a voluntary association, was not qualified to hold the legal title; that this is true is now insisted by the appellant. It contends that at the time the deed was made the Civic Improvement Club was an entity unknown to the law, without power to hold or convey property. We do not agree with the position taken by learned counsel. It is well recognized that at common law voluntary and unincorporated associations may hold real property, either as the donees of the legal title or the beneficiaries of a trust, and that such associations when organized to promote some purpose beneficial to the general public, or of certain classes thereof, are to be deemed as charitable societies and governed by rules of law applicable thereto. 1 ‘Beach on Trusts, § 317 et seq.

It is true, the right of such organizations to take the beneficial interest in real estate or to hold as trustee for benevolent uses is denied in some jurisdictions, but in others, including our own, that right is recognized and enforced. Biscoe v. Thweatt, 74 Ark. 545, 86 S. W. 432. From a consideration of the evidence, it is unquestionable that the creation of the park had its inception in the minds of the ladies of the Civic Improvement Club, and that they, in fact, were the purchasers, contributing from their own funds (and it is immaterial how these funds were derived) to the purchase price of the property, and Dr. Buffington was merely their agent. The power therefore to administer the trust might well be implied to rest in the club and result from the nature of the transactions. It is unnecessary, however, to fix the interest of the club on that ground, for it has itself spoken through its instrument, and in the deed rests its expressed will. There is an express trust, therefore, by which the town of G-ravette is to hold the naked legal title for the use of the public, such use to be administered through the agency of the Civic Improvement Club, and the property to be under its control. Express trusts are such as are created by the deliberate or intentional act of the grantor, and, in our opinion, the deed in question creates a trust and brings it within this classification. See Bray v. Timms, 162 Ark. 247, 258 S. W. 338; Stacy v. Stacy, 175 Ark. 763, 300 S. W. 437.

Since it appears that by the charter of the Civic Improvement Club, incorporated in 1925 or 1926, all the members of the voluntary association became members of the incorporated society, this ipso facto dissolved the voluntary association and transferred its property and rights to the corporation. 5 C. J., § 18, p. 1338. It follows from the views expressed that the decree of the chancellor is correct, and it is therefore hffirmed.


text:
    Stroud v. Snow.
    4-2745
    Opinion delivered November 21, 1932.

      E. E. Hopson, for appellant.
    P. 8. Seamans, for appellee.
   Butler, J.

Gr. W. Stroud, the appellant, was the owner of a tract of land, a part of which he undertook to subdue and cultivate. In doing this he went beyond his line, cleared and inclosed a small parcel of land beyond his true boundary which he occupied under a claim of ownership for a period of approximately twenty years. At about the expiration of this period of time the appel-lee, Snow, purchased a tract of land adjoining that of the appellant on which the appellant’s fence had been built and the lands aforesaid inclosed and held.

On the trial of the case in the court below, the appel-lee and his witnesses testified that, after the purchase by appellee, he notified the appellant that his fence was over the property line, and after some discussion the appellant agreed that when the line was run by the surveyor, he would put his fence back on the true line, that the line was run by the surveyor, and the appellant was present at the time and then and there agreed to carry out his former promise. This was disputed by the appellant, who testified that he had never made any such agreement, but that the appellee entered on the land during’ the night and constructed a fence across the property, and that he thereupon ¡brought this action, which was a suit for forcible entry.

Over the objection of the appellant, the court gave instruction No. 1 as follows: “Your verdict will be for the plaintiff for the title and possession of the property in controversy, and assess his damages, if you find that he has been damaged, for such an amount as you believe from the evidence to be a fair and reasonable rent for the land during the time the defendant has had same in his possession; unless you further find from the evidence that there was a controversy between the plaintiff and the defendant as to where the line between them should properly be; and then, unless you further believe from the evidence that an agreement was entered into between them that the line as surveyed by the county surveyor should be recognized as a proper line and a fence constructed in accordance therewith, in which event your verdict should be for the defendant for the title and possession of the property in controversy.”

To the giving of this instruction, timely exceptions were saved, and it is now urged that the instruction was erroneous, and that the court should have given instructions (a) and (b) requested by appellant.

Instruction (a) was for a directed verdict in favor of the plaintiff for possession of the land and $120 damages. Instruction (b) is as follows: “You are instructed that if you find from the evidence that the plaintiff, Gf. W. Stroud held the land in question in open, notorious and adverse possession for seven consecutive years, then you will find for the plaintiff and assess his damages for such sums as you find to be fair, reasonable rent for said land during the time that the defendant has had same in possession.”

The court refused these instructions, to which ruling timely objections were made and exceptions saved. The jury found for the defendant and settled the disputed question of fact against the appellant, so that we must treat the agreement as established. This presents the single question, is the agreement sufficient to divest the title to the land in controversy acquired by lapse of time and the adverse possession of the appellant beyond the statutory period? The general rule is stated in 2 C. J., § 559, p. 256, as follows: “A title which has ripened by adverse possession cannot be divested by parol abandonment or relinquishment, but must be transferred by deed.” This rule is recognized by this court in Hudson v. Stillwell, 80 Ark. 575-578, 98 S. W. 356, where we said: “If the occupancy was adverse for the statutory period, it operated as a complete investiture of title, and a subsequent executory agreement to readjust the boundary lines or any other act done in recognition of the validity of plaintiff’s claim to the land would not remove the statute bar and reinvest the title.” To the same effect are the decisions in Parham v. Dedman, 66 Ark. 26, 48 S. W. 673; Shirey v. Whitlow, 80 Ark. 444, 97 S. W. 444; O’Neal v. Ross, 100 Ark. 560, 140 S. W. 743; Hutt v. Smith, 118 Ark. 10, 175 S. W. 399; Blackburn v. Coffee, 142 Ark. 430, 218 S. W. 836; Dermott v. Stinson, 144 Ark. 208, 222 S. W. 54, cited by the appellee.

In tbe recent case of Haskins v. Talley, decided by tbe Supreme Court of New Mexico, November 17, 1923, and reported in 29 N. M. 173, 220 Pac., at page 1007, our cases are reviewed, and tbe doctrine therein announced is approved as tbe general rule. See also Lusk v. Yankton, 40 S. D. 498, 168 N. W. 375.

Tbe agreement under consideration in Hudson v. Stilwell, 80 Ark. 575, 98 S. W. 356, was a verbal one, and the reason for tbe rule announced in that case, which we have quoted, was that tbe agreement was such a one as would affect an interest in lands and was within tbe inhibition of tbe statute of frauds. Parham v. Dedman, 66 Ark. 26, 48 S. W. 673. Tbe words in that rule, “or any other act done, etc,” refer to executory agreements.

In tbe instant case there was no testimony as to anything except an executory agreement. There was no possession of the land in dispute surrendered by appellant or taken upon that surrender by appellee. Therefore, instruction No. 1 given by the court and heretofore set out was not only contrary to the rule announced in the cases cited, but was also not in accord with the rule announced in Taylor v. Rudy, 99 Ark. 128, 137. S. W. 574, cited in Buchanan v. Roddy, 171 Ark. 855, 286 S. W. 1020, as follows: “Where there in uncertainty as to the boundary, or the owners of adjoining lands are in dis-ute as to the dividing line, the parol agreement of such owners as to the boundary establishes the line, and, when followed by possession with reference thereto, is conclusive on them”; and in Cox v. Daugherty, 75 Ark. 395, 36 S. W. 184; “Persons owning adjacent lands may, by agreement, establish the boundaries between their lands, regardless of the lines of the Government survey. ’ ’

These cases are where there were agreements which had been executed and possession acquired under them which brought them without the inhibition of the statute of frauds, and there is no. conflict in the principles announced in those cases with that announced in Hudson v. Stilwell, supra, and the other cases cited.

The judgment of the court below is reversed, “and the cause remanded for further proceedings according to law and not inconsistent with this opinion.


author: Smith, J.

text:
    State ex rel. Attorney General v. Taylor.
    4-2875
    Opinion delivered November 28, 1932.

      Hal L. Norwood, Attorney General, and John H. Caldwell, Assistant, for appellant.

      Shinn .& Henley, for appellee.

      Daily & Woods, amici curiae.

   Smith, J.

The court below made a finding of fact in which it is recited that, during the year 1930, School District No. 12 of Newton County, known also as Western Grove School District, issued various school warrants. The validity of these warrants is not questioned. Upon presentation for payment to the county treasurer, the warrants were not paid on account of lack of funds in the treasury to the credit of the district. But they were all registered as provided in §§ 8980 and 8981, Crawford & Moses’ Digest, and were so registered during the year 1930. Section 8980 required the county treasurer to-keep in his office a well-hound hook, in which he shall register, by number- and in the order of presentation, all school warrants that may he presented to him for payment. It further provided that “this registration to he made before the warrant is paid, and it shall show the date of the presentation of the warrant, by whom drawn, on what district, and in whose favor, and for what purpose drawn, the amount and date of the warrant, date of payment, and to whom paid; and said hook shall at all times he subject to the inspection of any taxpayer.” Section 8981 provides that: “The order of any hoard of directors, properly drawn after the passage of this act, shall be presented to the treasurer of the proper county within sixty days after it was drawn by the said board of directors. All such orders shall be paid in the order of their presentation. ’ ’

After the issuance and registration of the school warrants here in question, the General Assembly, at its 1931 session, passed several acts to which reference will be made. One of these is act 169 (Acts 1931, page 476), entitled, “An act to provide for the organization and administration of the public common schools.” By this act §§ 8980 and 8981, Crawford & Moses’ Digest, have been repealed. Other acts passed at the 1931 session are as follows: Act 203 (Acts 1931, page 665), entitled, “An act for the relief of the school teachers of the State.” There was passed also act 206 (Acts 1931, page 673), entitled, “An act to make an appropriation of funds for the payment of the salaries of teachers and for other purposes.” There was passed also act 207 (Acts 1931, page 674), entitled, “An act for the relief of the school teachers of the State.”

These three acts last mentioned, -read together, authorized and provided for the creation of a fund to be known as the “State Equalizing Fund,” to be loaned by the State Board of Education, as the administrators of the fund, to the school districts of the State with which to pay the salaries of teachers of such districts. Notes are executed by the districts to cover such loans, the form thereof being approved by the Attorney General. A prerequisite to any loan is the passage of á resolution by the board of directors of the school district requesting the loan. For the payment of such loans, when made, “the full faith and credit of the school'district is hereby-pledged. ’ ’

District 12 of Newton County made application for a loan, and its board of directors passed an appropriate resolution, and, pursuant thereto, executed a note on one of the forms prepared by the Attorney General. This note was dated September 7,1931, and was made payhble October 1, 1932, and recited that: ‘ ‘ This note is payable from the first moneys coming into the treasury of the Western Grove School District No. 12 from the last settlement with the county tax collector, and allotment of State funds, before the maturity of this note, and the board of directors of said school district has created a special "fund in the treasury of the school district for the prompt payment of this note at its maturity, and said fund is irrevocably pledged therefor, as is also the full faith and credit of said school district.”

When the county collector made his settlement and paid into the treasury the funds collected for the account of district' 12, there was not enough money to pay both the warrants registered for payment in 1930 and the note for the money borrowed from the board of education in 1931, as above stated.

As both the registered warrants and the note cannot be paid by the treasurer with funds now on hand, the question arose, Which should be first paid?

Upon the facts stated, the court below declared the law to be that, “* * * upon the registration of said school warrants the holder and owner had a vested right to have said warrants paid under the provisions of 8980 and 8981 of Crawford & Moses’ Digest, which was in effect at the date of the issuance and registration of said warrants. ’ ’

We concur in tins view, for two reasons. The first is that it does not appear that the Legislature of 1931 attempted, either specifically or by implication, to displace the priority of registered school warrants; and for the second reason that such an attempt would he unavailing as impairing the obligation of a contract, contrary to the provisions of both the State and Federal Constitutions.

Legislation should be so construed, if it may be done reasonably, as to render it constitutional, and, with this canon of construction in mind, we are led to the conclusion that the 1931 legislation, supra, did not intend to displace rights which had been acquired before its passage. No language in any of the acts mentioned requires that holding. The law as it existed prior to the repeal of §§ 8980 and 8981, Crawford & Moses’ Digest, supra, advised one about to contract with a school district that he might, after performing his contract and receiving a warrant in payment therefor, register this warrant, and that he would thereafter be entitled to have his warrant paid in the order of its registration. Legislation which postpones this right of payment to that extent impairs the obligation of the contract and is void.

It was held, by the Supreme Court of Washington, in the case of Eidemiller v. City of Tacoma, 14 Wash. 376, 44 Pac. 877 (to quote a headnote), that: “Where the law provides that a treasurer shall pay warrants in the order of their date and issuance, a statute, enacted after the warrants are issued, providing for the diversion of a fund out of which they are to be paid in such order, so that subsequent orders may be first paid, is invalid, as impairing the obligation of contracts.”

The decision in the case of McCracken v. Moody, 33 Ark. 81, involved the application of the same principal. See also Tipton v. Smythe, 78 Ark. 392, 94 S. W. 678, 7 L. R. A. (N. S.) 714, 115 Am. St. Rep. 44.

It is not contended by the Attorney General that legislation is valid which impairs the obligation of a contract The contention is that the 1931 legislation does not impair the obligation of a contract. But, if the legislation of 1931 is to be construed as diverting funds which would otherwise have been applied to the payment of registered warrants in the order of their registration, we conclude that the obligation of those contracts would be impaired if the payment of those warrants is to be postponed until other obligations of the district have been paid and which obligations were authorized and incurred after the right of prior payment had become vested under §§ 8980 and 8981, Crawford & Moses’ Digest.

The decree of the court below conforms to these views, and it is therefore affirmed.


author: Humphreys, J.

text:
    Johnson v. Beede.
    4-2747
    Opinion delivered November 28, 1932.

      J. Fred Parish and Coleman & Reeder, for appellants.

      F. M. Pickens and Jones & Wharton, for appellees.
   Humphreys, J.

The sole question presented by this appeal is whether the circuit court of Jackson County erred in dismissing appellants’ petitions to exempt Bicli-woods and Cow Lake townships from the county-wide stock law adopted by the voters of Jackson County at the general election on November 4, 1930, because said petitions for the exemption thereof were not filed before the county- court within three months after the adoption of the county-wide stock law. Under the law, as it existed when the county-wide stock law was adopted, a majority of the voters in any township in said county were privileged by petition within six months from the date of the adoption to exempt the township from the provisions of the stock law. A majority of the voters in each of said townships filed petitions for this purpose on February 23, 1931, more than three months after the adoption of the stock law by the counties; but, in the meantime, and before the petitions were filed, act 44 of the Acts of 1931 ■was passed amending § 324 of Crawford & Moses’ Digest as amended by act 206, Acts of 1925, by allowing petitioners in the several townships in said counties only three instead of six months in which to petition to exempt the townships after the adoption of the general stock law. The circuit court, on appeal from the county court, dismissed the petitions of appellants for the reason that they were not filed within the three months after the adoption of the general stock law.

Appellants contend that the court erred in dismissing the petitions for the alleged reason that the effect of the amendment changing the time from six to three months in which they might file petitions to exempt their townships from the provisions of the general stock law deprived them of vested rights. This argument would be sound if amendatory act 44 of 1931 swept away any contractual obligation or title, legal or equitable, to the enjoyment of property. The amendatory act operated upon a remedy only by changing the time from six to three months in which appellants might file petitions to exempt their townships from the provisions of the general stock law from the date of the adoption thereof. One does not have a vested right in remedies or matters of procedure. Steers v. Kinsey, 68 Ark. 360, 58 S. W. 1050; Little Rock Railway & Electric Company v. Dowell, 101 Ark. 223, 142 S. W. 165.

No error appearing, the judgment is affirmed.


author: Kibby, J.

text:
    Sugg v. Utley.
    4-2749
    Opinion delivered November 28, 1932.

      Rice >& Ric.e, for appellant.

      J. T. McGill, for appellee.
   Kibby, J.

This appeal challenges the correctness of a decree of foreclosure on certain lands as being erroneous because of an excessive amount recovered and the failure of the court to dismiss the action and render judgment for the amount of taxes paid by appellant under a void tax sale of the lands in accordance with the statute, ^ 3709, 3710, Crawford & Moses’ Digest.

The suit was filed August 22, 1931, alleging that on July 23, 1926, the note and mortgage was given to the Pittsburg Mortgage & Investment Company to secure a loan of $2,500 bearing 6 ,per cent, interest from date until maturity, interest payable semi-annually, represented by 14 interest notes to bear 10 per cent, interest after maturity, and reciting that failure to pay any. one at maturity should cause the entire indebtedness to become due and payable. The note and mortgage were made exhibits A and B to the complaint, and had been sold and assigned to the plaintiff before maturity.

It was alleged that the interest note for $75, due February 1, 1930, the one for $75 due August 1,1930, and another for $75 due February 1,1931, were past due and unpaid; and that plaintiff elects to declare the entire indebtedness due.

The principal note provides: “That the sums promised to be paid shall bear ten per cent, interest after maturity, whether the same becomes due according to the terms hereof or by reason of default of any payments of principal or interest.” The mortgage recites: “That the principal note of $2,500 shall bear six per cent, interest until due and, after maturity, eight per cent.”

The noté is made due and payable 7 years after date; and the mortgage also provides that, if default be made in the payment of the notes when due, the whole indebtedness shall, at the option of the holder, become immediately due and payable.

A general demurrer was filed but not passed on, and later an answer denying all the allegations of the complaint was filed by appellant.

The execution of the note and mortgage, the recording thereof and the assignment to the plaintiff, as alleged, is conceded, as is also the nullity of the State’s proceedings and the deed to appellant, on account of the nonpayment of the taxes. A ppellant paid the State $90 for the deed under the tax sale.

It is first insisted that the court erred in not. dismissing this suit for failure to comply with the statute, §§ 3709, 3710, Crawford & Moses’ Digest, requiring an affidavit of tender of taxes first filed, etc. This assignment of error can be disposed of simply by stating that no motion was made for dismissal of the suit or any objection made to the proceedings therein because of any such failure, and it was a matter which could be waived, and was, in fact, waived by such failure to make timely objection thereto. Spain v. Johnson, 31 Ark. 314; Trigg v. Ray, 64 Ark. 150, 41 S. W. 55. Then, too, this is only a proceeding to foreclose a mortgage on certain lands with an allegation that the tax forfeiture thereon and deed thereunder was void, as the court held them to be.

Neither was the decree rendered for an excessive amount as claimed. The note contains the following clause:

“All sums herein promised to he paid shall hear ten per cent, per annum interest after maturity, payable annually, whether the same becomes due according to the terms hereof or by reason of default of any payment of principal or interest. This clause is preceded by the following acceleration clause: “If default be made for ten days in the payment of any sum, either principal or interest, after the same becomes due and payable according to the terms thereof, then the whole amount herein promised to be paid shall, at the option of the holder hereof, at once become due and payable.”

In that part of the mortgage pertaining to the interest rate after maturity the figure 8 is printed, and, by oversight evidently, was not marked out or erased and the fignre 10 substituted therefor. The note, however, as already recited, provides: “All sums herein promised to be paid shall bear ten per cent, per annum interest after maturity, payable annually, whether the same becomes due according to the terms hereof or by reason of default of any payment of principal 'or interest.” The provisions of the note would control as against the recite in the mortgage, which is only a security and incident to the debt. 1 Jones on Mortgages (7th ed.), page 484; Farnsworth v. Hoover, 66 Ark. 367, 50 S. W. 866.

It is contended that the principal note did not bear an increased rate of interest until the date of its maturity 7 years after date, and then that such increased rate should only be calculated from August 22, 1931, the day suit was filed, to January 11,1932, the date of the decree. The interest was calculated at 10 per cent, from August 1, 1931, the date when the last interest note due became delinquent, and when the principal and other indebtedness was declared due by reason of the default. Under the terms of the contract, it was agreed that all sums promised to be paid should bear interest at 10 per cent, per annum after maturity, whether same became due according to the contract or by reason of the acceleration clause for default made in payment of principal or interest, and the payment of the interest on the principal contract at the increased rate became due upon any default made in payment of principal or interest according to the terms of the contract; and the court did not err in so holding.

Neither was appellee liable to the payment of the amount of the consideration for the void tax deed from the State attempting to convey the lands. It is conceded that the court properly held the tax forfeiture and deed void, and certainly appellee could not be required to pay such amount, not being bound in the first instance to pay the taxes on the land.

We find no error in the record, and the decree is affirmed.


author: Kirby, J.,

text:
    Moore v. Childers.
    4-2885
    Opinion delivered November 28, 1932.

      W. A. Cunningham, E. II. Tharp, W. A. Jackson and O. C. Blackford, for appellant.

      W. P. Smith, Chas. D. Frierson and Charles Frier-son, Jr., for appellee.
   Kirby, J.,

(after stating the facts). The court did not err in refusing to make the nunc pro tunc, order requested. Upon a hearing it was disclosed that appellant’s attorneys, when the demurrer was sustained, did not ask leave to amend, and the court noted on its docket that appellant elected to stand on his complaint and declined to amend, and dismissed it. The deputy clerk stated that the court read the docket entry, and none of appellant’s attorneys objected to it, and that the motion to amend was not filed until the next day, September 1, which was more than 10 days after the expiration of the time allowed by law in which to file the contest.

This court has held that, in contested election cases for nomination to any particular office, it is necessary to allege the number of candidates for the particular office and the vote received hv each, in order to disclose whether the contestant received a plurality of all the. legal votes cast, upon the proper deduction made for illegal votes. In Hill v. Williams, 165 Ark. 421, 264 S. W. 964, the court, in holding a demurrer to the complaint properly sustained, said: ‘ ‘ There should have been an allegation in the complaint showing the number of votes received by each candidate, so that it would appear,- after deducting the alleged fraudulent votes from the number accredited to appellee, that appellant would then have more votes than either one of his opponents.

“The demurrer to the complaint was properly sustained, as the general allegations therein of irregularities and fraud were mere conclusions, and the specific allegation failed to show that appellant received a plurality of all the legal votes cast for sheriff and collector at said election. ’ ’

The complaint could not have been amended when the motion to remedy the defect was made on the 1st of September, since the amendment was not offered within 10 days after the certification of the nomination complained of, the provision of the statute requiring the contest to be filed within 10 days thereafter being mandatory and jurisdictional, and the failure to institute the contest properly within this time was fatal to the contestant. Hill v. Williams, supra; Gower v. Johnson, 173 Ark. 120, 292 S. W. 382; Bland v. Benton, 171 Ark. 805, 286 S. W. 976; and Storey v. Looney, 165 Ark. 455, 265 S. W. 51.

It is only amendments, in "such contested election cases, to make the complaint and allegations thereof more definite and certain that may be allowed after the 10-day period for bringing the contest has expired, and such amendments alleging new and additional grounds of contest are not permissible. Bland v. Benton, supra; Wilson v. Cardwell, ante p. 261.

We find no prejudicial error in the record, and t,b« judgment must be affirmed. It is so ordered.


author: Mehaeey, J.

text:
    Koser v. Oliver.
    4-2751
    Opinion delivered November 28, 1932.

      8. V. Neely and R. V. Wheeler, for appellant.

      Cooper & Gathings, for appellee.
   Mehaeey, J.

The appellants and appellees were candidates for members of the Crittenden County Board of Education. The appellees were declared elected, and the appellants began this suit to contest the election of appel-lees before the Crittenden County Board of Education on March 25,1932. The county board of education met on April 21, 1932, to hear the contest. The appellees filed a motion to dismiss on two grounds: 1. That the county board of education had no jurisdiction, and that such jurisdiction was in the county court. 2. That the contest had been prematurely instituted as no certification of the result bad been filed with the county court clerk at the time of the institution of the contest, March 25,1932. The motion of contestees was granted by the county board of education and the action dismissed. An appeal was prosecuted to the circuit court of Crittenden County, and the contestees filed motion to dismiss in the circuit court upon the same grounds as were stated in the motion filed with the county board of education. The circuit court held that the jurisdiction was vested in the county board of education, but that the contest had been prematurely instituted, and granted the motion and dismissed the complaint. The returns as made to the county board of education showed that M. L. Aldridge had received 464 votes; W. A. Koser, 483 votes; R. L. McElroy, 489 votes, and A. C. Oliver, 493 votes, and the county board of education adopted a motion to certify the election of A. C. Oliver and R. L. McElroy as members of the board. The contestants alleged fraud, and depositions had been taken tending to show that Koser and Aldridge had received many more votes than the contestees. This evidence was not considered, however, because the court held that the action must be dismissed because it had been prematurely brought. Section 30, act 169 of the Acts of 1931, among other things, provides: “Any contest of any results of any election in any school district shall be brought within 15 days after such election, if the results thereof shall have been certified to the county clerk 5 days previously, or within 5 days after such results have been certified and not thereafter.”

It was manifestly the intention of the Legislature to limit the time in which a contest might be brought and not to prevent the contest from being brought sooner than that time, if the contestant desired to bring it sooner. It was evidently the intention of the Legislature that a contest might be brought any time after the election, not later than fifteen days after the election, unless the result was certified to the county court 5 days previous to the time of beginning the contest. In other words, it was the intention of the Legislature to give persons desiring to contest the election 15 days after the election in which to bring his snit, or 5 days after the result had been certified to the county court. This is not a contest of the certification of the nominee or election of a candidate, but it is a contest of the result of the election. The result of that election, as shown by the face of the returns, was known and certified on March 24. The certificate of the board of education shows that a meeting was held on March '24, and the result of the election declared by the board, and certification made, but it is contended by the appellee that, because the certification of the result had not been filed with the county clerk, the suit could not be maintained. The record shows that the board of education met on March 11 and adjourned until March 24, at which time it declared the result. The board, however, did not file the certification with the county clerk until April 12.

The primary rule in the construction of statutes is to ascertain and give effect to the intention of the Legislature, and the true meaning of the Legislature must be ascertained from a consideration of the whole act, and, when the intention is thus manifested, the court will not permit punctuation to control, but will disregard punctuation or will repunctuate, if necessary, to give effect to what otherwise appears to be the purpose and true meaning of the statute. 25 R. C. L., p. 960 and p. 965; 59 C. J., p. 948 and p. 989; Berry v. Cousart Bayou Drainage District, 181 Ark. 974, 28 S. W. (2d) 1060.

We said in a recent case: “Such a construction ought to be put upon the statute as may best answer the intention which the lawmakers have in view, and this intention is sometimes to be collected from the cause or necessity of making the statute, and sometimes from other considerations; and, whenever such intention can be discovered, it ought to be followed with reason and discretion in the construction of the statute, although such construction seems contradictory to the letter of the statute. And such construction ought to be put upon it as will not suffer it to be eluded.” Gill v. Sanders, 182 Ark. 453, 31 S. W. (2d) 748; Turner v. Edrington, 170 Ark. 1155, 282 S. W. 1000; Casey v. Smith, 185 Ark. 149, 46 S. W. (2d) 38; Manley v. Moon, 177 Ark. 260, 6 S. W. (2d) 281; Indian Bayou Drainage District v. Dickie, 177 Ark. 728, 7 S. W. (2d) 794.

We recently quoted with approval the following: “But, while the courts cannot add to, take from or change the language of a statute to give effect to any supposed intention of the Legislature, words and phrases may he altered and supplied, when that is necessary to obviate repugnancy and inconsistency and to give effect to the manifest intention of the Legislature.” Hazelrigg v. Board of Penitentiary Com., 184 Ark. 156, 40 S. W. (2d) 998.

Act 169, which provides for the contest, also provides that the persons elected members of the county board .of education shall qualify within 30 days. The county board of education in this case did not file the certification with the county clerk until more than 30 days after the election, so that the persons certified by them were already serving before this certification was filed.

It should be kept in mind that this is a contest of a result of the election, and not a contest of the certification of a candidate or officer. There appears to be no reason why one might not begin a contest immediately after the election, and there is nothing in the act that either prohibits this or indicates that one'must wait until after the certification is filed with the clerk. The purpose of the statute is to require the contest to be filed within a certain number of days, and to prohibit its filing thereafter. It is similar to a suit of any other character where there is a statute of limitations. One is prohibited from bringing a suit on an open account after three years, on a written instrument after five years, but that does not mean that the action cannot be begun immediately after the cause of action accrues. So here, the Legislature has fixed a time within which a contest must be begun, and it cannot be begun thereafter, hut it may be begun at any time after the election within the time limited by the statute.

Appellant insists that the case should be tried here on the evidence introduced, but this evidence was not passed on by the circuit court, and since the circuit court dismissed the complaint, holding that the action had been prematurely brought, the judgment is reversed, and the cause remanded with directions to overrule the motion and proceed with the trial of the cause.

Smith, J., disqualified and not participating.


author: McHaNEY, J.

text:
    W. T. Rawleigh Company v. Moore.
    4-2753
    Opinion delivered November 30, 1932.

      A. D. Whitehead, for appellant.

      W. O. Dinning, for appellee.
   McHaNEY, J.

Appellant sued appellee on a bond executed by him and U. G-. Fletcher as sureties for one Grinn, which guaranteed the payment of any balance that might be due and owing to it by Grinn, for goods sold and delivered by it to the latter. The bond contained the following provision: “It is agreed that there are no conditions or limitations to this undertaking except those written or printed hereon at the date the same was signed by us, and that no alterations, changes or modifications hereto shall be binding or effective upon the W. T. Raw-leigh Company, unless executed in writing and signed by ourselves and the said the W. T. Rawleigh company, and the corporate seal of the said company thereto affixed. Provided, however, that the liability of the sureties shall not exceed one hundred dollars.” Liability was limited to $100 by typewritten addition to the bond. Appellee defended on the ground that, although he signed the bond at the solicitation of G-inn and one Jackson, agent of appellant, he did so on the express condition that one E. B. Fletcher would sign the bond with him and agree to share whatever liability there might be on said bond up to $100. Appellee was permitted to testify, over appellant’s objections, that Jackson solicited him to sign the bond, and that he told Jackson he would do so if he would get E. B. Fletcher to sign also, and that he would not agree to be bound unless this was done.

The trial court submitted the question to the jury on an instruction that told the jury to find for appellant unless they found that at the time appellee signed it he notified the agent of appellant that he would not be liable thereon until Mr. E. B. Fletcher signed it. And further: “If you find from a preponderance of the evidence that Mr. Moore told the agent of the company he wouldn’t be liable on the bond until Mr. E. B. Fletcher signed it, then the agent should not have sent the bond to the company without getting his signature on it, and, if he did, then the company would be bound by the acts of its agent, and it would not make Mr. Moore liable.” The jury returned a verdict for appellee, on which judgment was rendered, and this appeal followed.

The court correctly permitted the testimony, and instructed the jury, and this question is ruled by the following cases: Halliburton v. Cannon, 160 Ark. 428, 254 S. W. 687; Taylor v. Deese, 179 Ark. 39, 14 S. W. (2d) 255; Taylor v. Viner, 185 Ark. 285, 47 S. W. (2d) 6. Many other cases might be cited. The undisputed testimony is that appellee told appellant’s agent that he would not be bound unless E. B. Fletcher also signed. Instead of ■ getting E. B. Fletcher to sign, U. G. Fletcher was induced to do so. Judgment was rendered against him and Ginn, as they did not defend or appeal. Notice was therefore given to appellant’s agent, and notice to the agent is notice to it.

The judgment is therefore affirmed.


text:
    Fort Smith Gas Company v. Gean.
    4-2748
    Opinion delivered November 28, 1932.

      Hill, Fitshugh & Brissolara, for appellant.

      George W. Dodd, for appellee.
   Butler, J.

On the 12th day of July, 1916, John Emrich and Katie E. Emrich conveyed to the appellant’s predecessor in title a right-of-way across 240 acres of land to be used for the laying and maintenance of pipe lines for the transportation of oil and gas, and the privilege of erecting and maintaining telegraph and telephone lines, if necessary. Reservation was made by the grantors for the use of the premises, except for the purposes specified in the grant, that they might recover damages arising to the crops and fences if the same were injured by the grantees in the exercise of the easement. The consideration named in the deed for the grant of the right-of-way was tlie sum of $1 “and tlie further consideration of all gas used by grantors for domestic use free of charge, to be paid when such grant shall be used or occupied. ’ ’

After the execution of the conveyance the way for a pipe line was located and laid across the property of the grantors, some two or three hundred feet distant from a residence then occupied by Mr. and Mrs. Emrich. Em-rich made connection with the pipe line, and laid a pipe from it to his home, and he and Mrs. Emrich nsed the gas for domestic purposes until they died some years later. After they died the residence was in charge of a caretaker for a time, who only used the basement. The lands were devised to a granddaughter, who, in August, 1931, conveyed five acres out of the tract, and on which the Emrich residence was located, to the appellees, no part of which was on the rig’ht-of-way. Shortly after this, a gas meter was installed by the appellants and a charge made for the use of the gas as was made to other customers in the city of Fort Smith. This resulted in the bringing of this action by the appellees to restrain the appellants from discontinuing the furnishing of natural gas for domestic purposes to the appellees in the Emrich dwelling, and for a mandatory injunction requiring them to furnish said gas free of charge.

The chancellor heard the case on the pleadings and testimony and found that the right to the use of gas free of charge was a covenant running with the land and became annexed and appurtenant' to the dwelling house on the tract of land purchased by the appellees, and therefore they were entitled under their deed to the use of gas free of charge. The appellants seek a reversal of the decree on three grounds: first, that there was no covenant in the conveyance by Emrich of the right-of-way running with the land; second, that there could be no specific performance of the contract; and, third, that the contract is void as against public policy. We need consider only the first contention as our view of that is determinative of this litigation.

It is our opinion that the stipulation in the conveyance quoted, supra, was personal to the‘grantors and not a covenant real as is insisted hy the appellees. We have examined with care all of the authorities cited in the splendid brief of counsel for the appellees which he contends support the view that the use of gas for domestic purposes mentioned in the conveyance of the right-of-way was a covenant running with the land and appurtenant to the Emrich residence. To sustain the view that a covenant to furnish gas is one to run with the land, counsel cite Indiana Natural Gas Co. v. Harper, 50 Ind. App. 555, 98 N. E. 743; Harper v. Hope Natural Gas Co., 76 W. Va. 207, 84 S. E. 770, L. R. A. 1915E 570; Indiana Natural Gas Co. v. Hinton, 159 Ind. 398, 64 N. E. 224; and Thornton on Oil & Gas, (2d ed.) §§ 92 and 93 (now § 99, vol. 1, 4th ed.). An examination of these cases shows that all of them arose out of contract for lease of land for the exploration or production of oil and gas, and the furnishing of gas free of charge was a part of the rent issuing out of the demised premises.

The cases of Johnson v. American Gas Co., 8 Ohio App. 124, and Anderson v. Empire Natural Gas Co., 116 Kan. 501, 227 Pac. 347, 41 A. L. R. 253, cited by appellees, appear to he more nearly in point, but in the Johnson case the contract under consideration was one where the gas company was granted an easement over a certain farm in consideration of the sum of $1 and the furnishing of free gas in the residence of the grantor. The court in discussing the consideration, said: “Beyond question, the real consideration was the gas to he furnished * * * and this ‘in the residence of John McLandsborough,’ not to or for John McLandsborough, hut in the residence; therefore, the name ‘John McLandsborough’ is descriptive of the residence in which the gas was to be furnished.”

In the Alderson case, supra, the grant was the right of laying a gas pipe across the real estate of the grantor, and as part of the consideration therefor the grantee agreed to furnish gas “for use on the premises” at a certain rate. Construing the language of the contract, the court said: ’“The only reasonable construction of the contract is that gas was to be furnished on the premises leased for use in the buildings thereon by whoever might be the owner thereof at any time in the future, so long as the land is occupied by the pipe lines of the defendant.”

Murphy v. Kerr, 5 Fed. (2d) 908, 41 A. L. R. 1359, cited by the appellees, was a case where a stipulation in a deed to furnish water on the tract of land conveyed was held to be a covenant running with the land, but the tract conveyed was without water and without means of obtaining it save in the mode existing at the time of the conveyance as mentioned in the deed. At the time the land was conveyed to the g’rantee, water was being conveyed into a reservoir then established on the land through pipes already laid connecting the reservoir with water on another parcel of land owned by the grantor. Here the easement was in esse at the time of the grant, and was not only beneficial, but essential to the use of the land conveyed. So, in the case of Hess v. Kennedy, a New Jersey case, 69 N. J. Eq. 138, 61 Atl. 464, where a deed conveyed a certain lot on which there was a residence with water fixtures and a drain pipe crossing another parcel of land belonging to the grantor and emptying into a public sewer, and where the deed contained no specific mention of the drain but the usual clause conveying “ways, waters, privileges, with the appurtenances, etc,” it was held that the drain then existing was an easement appurtenant to the lot conveyed and passed to the grantee and those holding under him because it was in being at the time of the grant and necessary for the enjoyment of 'the land conveyed.

In Southern Pac. Ry. Co. v. Spring Valley Water Co., 173 Cal. 291, 159 Pac. 865, L. R. A. 1917E 680, relied on by appellee, the question involved was whether the language of the instrument constituted an agreement by the water company to furnish water to the railroad company, and, if so, whether an enforcement of it would be opposed to public policy. The grant of the easement was “in consideration of the construction and maintenance of a highway at Newark Station and the free nse of water therefrom for fire and station and all other railroad purposes.” The court merely held that the stipulation contained such an agreement, and that the same was not contrary to public policy.

The facts in Toothe v. Bryce, 50 N. J. Eq. 589, 25 Atl. 182, and the principle involved are similar to the cases of Murphy v. Kerr and Hess v. Kennedy, supra. In none of these cases is the covenant like that in the case at bar. The two cases most nearly approaching this, as has been said, are Johnson v. American Gas Co. and Alderson v. Empire Gas Co., supra, but it is to be noted that in both of these cases, as has been said, the reference is made to “the premises” or “the residence” where the gas is to be used. It is the general rule that those covenants which are held to run with the land and to inure to the benefit of those succeeding in title to the grantee are such as generally affect the land itself and confer a benefit on the grantor, but where the covenant imposes a burden on real estate for the benefit of the grantor personally it does not follow the land into the possession of an assignee.

It is the contention of the appellants that the agreement to furnish the gas free of charge in consideration of the conveyance of the right-of-way was a personal right to the grantor, and to this view we assent. The consideration named in the conveyance was “all gas used by grantors for domestic use.” It does not limit the use of gas to the grantor in his residence, or at any other place, but makes it personal to him to be used where and when it may be convenient, so long as its use is applied for domestic purposes. We are of the opinion, with the appellants, that the case of Field v. Morris, 88 Ark. 148, 114 S. W. 206, controls the case at bar, and the principle announced in Washburn on Easements, page 17, § 1, there quoted with approval by the court, applies here: “ A right in gross (a personal right), whether an easement or a profit in the land, is clearly not assignable or inheritable if it is created by a grant in which the right is given to the grantee, without any mention of heirs or assigns or successors, etc., or other words which show an intent to extend the right beyond the person of the grantee. Such a grant conveys only a personal right to the grantee, and when he dies the right is extinguished, and no attempt which he may make in his lifetime to assign or transfer the right will be successful.” In the Field case the grantor inserted in the deed the following words: “Reserving to ourselves the use of one and one-half acres free of rent, where the mill and gin stands in southwest corner of said tract, with the privilege of removing buildings and machinery therefrom, * * * and we are to have the use of one and one-half acres free of rent as long as we or others holding under us may want to use same for running machinery at said point.” And, in commenting upon this, the court said: “The last quotation from the deed shows only how long Darter and wife were to have the use of the land free of rent. ‘ Others holding under us refers to persons holding like tenants. No mention of heirs, assigns, or successor, or words of the same import, is made in the reservation. It is exclusively to Darter and his wife, was personal, and died with Darter; his wife having had only the right of dower in the land and joined with him in executing the deed for purpose of relinquishing dower.”

It is argued that words of inheritance in connection with the covenant are not a prerequisite to a covenant running with the land, and that, by the terms of § 1498 of the Digest, such words are not necessary to convey an estate in fee simple; all this may be, but here the covenant is not real but personal, and there was no attempt by any one to convey Mr. and Mrs. Emrich an estate in fee, and the statute can have no application.

Reliance is placed by appellee on several cases of this court to sustain his contention that the covenant in the conveyance from Emrich is one which will inure to his successors in title, to-wit, Railway Co. v. O’Baugh, 49 Ark. 418, 5 S. W. 711; St. L., I. M. & S. R. Co. v. San ders, 91 Ark. 133, 121 S. W. 337; Rugg v. Lemley, 78 Ark. 65, 93 S. W. 570; Bank of Hoxie v. Meriwether, 166 Ark. 39, 265 S. W. 642; Holtoff v. Joyce, 174 Ark. 248, 294 S. W. 1006. But in none of these cases was the covenant like or similar to that in the Emrich conveyance; the first two involved the interpretation of agreements relating to the erection and mode of payment of “party walls”; the second two related to agreements under which dams and levies were built on the grantor’s lands, and the last case (174 Ark. 248) was a covenant for an easement in an alley to be carved out of lands of the grantor adjoining as a way of ingress and egress to the parcel conveyed. In all of these cases the benefit was to the land, and the provisions in the several deeds were real covenants, as defined in Bank of Hoxie v. Meriwether, supra, as those which relate to the realty and having for its main object some benefit inuring to it.

In the instant case, as in Field v. Morris, supra, no mention is made in the deed of heirs, assigns or successors, or words of similar import used. The language used in the grant under consideration interprets itself. No premises or places are mentioned where the gas was to be used, nor are any words used indicating that it was for the benefit of any one but the grantors alone. Therefore, it was personal to the Emrichs and died with them. It makes little difference what the value of the right-of-way really was, or whether Emrich received more or less than its value in his lifetime, and the evidence on this issue we deem immaterial and unnecessary to set out, as we think that the language of the instrument itself must govern.

It follows from the views expressed that the trial court erred, and its decree must be reversed, and the cause remanded with directions to dismiss the complaint of the appellees for want of equity. It is so ordered.


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    Taylor v. Harris.
    4-2750
    Opinion delivered December 5, 1932.

      Rhyne S Shaw and Hays & Smallwood, for appellant.

      Hill, Fitzhugh & Brizsolara, for appellee.
   Smith, J.

This case involves an attack, both direct and collateral, on the decree of the Logan Chancery Court for the Northern District, which was affirmed by this court in the case styled American Bank & Trust Co. v. First National Bank of Paris, 184 Ark. 689, 43 S. W. (2d) 248.

The First National Bank brought suit to foreclose a mortgage executed by T. B. Harris and wife to it. The complaint alleged that the American Bank & Trust Company claimed an interest in the property covered by the mortgage, and asked that the last-named hank he made a party to the action and required to assert its interest, if any such it had. The American Bank & Trust Company filed an answer to the complaint of the First National Bank and a cross-complaint against Harris and wife, in which it was alleged that Harris and wife had executed to it a mortgage upon the same lands described in the mortgage to the plaintiff bank, and it was prayed that the foreclosure of this mortgage be decreed as prior and superior to that of the plaintiff bank.

Harris and wife did not answer either the complaint of the First National Bank or the cross-complaint of the American Bank & Trust Company, but the First National Bank did file an answer to this cross-complaint and insisted that the indebtedness of Harris and wife to the American Bank & Trust Company which was secured by the mortgage to the latter had been paid, and that therefore the mortgage held by the plaintiff bank was superior.

The trial court held that so much of the debt due by Harris and wife to the American Bank & Trust Company as was secured by the mortgage to that bank had been paid, and that therefore the mortgage of the First National Bank was not only a first lien, but was the only lien on the lands which were described in both mortgages. It was decreed, however, that Harris and wife were indebted to the American Bank & Trust Company, and a personal judgment was rendered for this debt, and the foreclosure of the mortgage to the First National Bank was decreed as the only lien upon the land. This was the decree affirmed by this court on the appeal, supra.

Harris died February 12, 1931, and at the time of his death had valid life insurance, which the insurer offers to pay. In the meantime, the American Bank & Trust Company had been taken over by the 'State Bank Commissioner as being insolvent, and its assets are being liquidated by that officer. Upon the death of Harris, the Bank Commissioner caused a writ of garnishment to issue upon the decree for debt rendered by the Logan Chancery Court against Harris, above referred to, in favor of the American Bank & Trust Company. Mrs. Harris had qualified as administratrix of the estate of her deceased husband, and, as such, she filed, on March 19, 1931, amotion to quash the garnishment, upon the ground that the judgment against her husband and herself was void, as having been rendered without service. On March 23,1931, Mrs. Harris filed a suit, in her own name and on behalf of the estate of her husband, in which she prayed that the' original decree of the Logan Chancery Court against herself and her husband be vacated and set aside, as having been rendered without service upon herself or her husband. This motion and the complaint appear to have been treated as a single pleading, and were heard and disposed of together.

The original complaint of the First National Bank was filed January 26, 1929, and the answer and cross-complaint of the American Bank & Trust Company against Harris and wife were filed March 7, 1929. According to the testimony of the clerk of the chancery court, no record in that office shows the issuance of service of any process on the cross-complaint, and Mrs. Harris testified that there was no service, and that she never knew that she and her husband had been made parties to the cross-complaint filed by the American Bank & Trust Company, and did not know until after the issuance of the writ of garnishment that any judgment had been rendered against her or her husband on this cross-complaint.

The original decree of the chancery court contained the following recital as to the service of process in the case: “This suit was brought by the plaintiff against the defendants on the 26th day of January, 1929, and summons were duly served upon all of the defendants in the month of January, 1929. The defendants, Thomas B. Harris and Sue Harris, although duly summoned, have wholly failed to answer, demur or to otherwise plead, and have wholly made default.”

In the complaint filed by Mrs. Harris, for herself and for the benefit of the estate of her husband, to vacate the judgment for debt in favor of the American Bank & Trust Company, it is alleged that the decree was rendered without service or knowledge of the existence of the suit, and that neither Mrs. Harris nor her husband were in fact indebted to the American Bank & Trust Company, and the plaintiff prays that she be permitted to make that showing. The court below granted the prayer of her complaint and vacated the decree, and this appeal is from that order.

For the affirmance of the decree here appealed from, it is insisted that the court was without jurisdiction to render the personal judgment against Harris and wife, for the reason that, under § 1204, Crawford & Moses’ Digest, and the general equity practice, a cross-complaint in favor of one defendant against another is only permitted where it affects the subject-matter in the original complaint, and it is insisted that the rendition of a personal judgment against Harris and wife in favor of the American Bank & Trust Company has no relation to a suit to foreclose a mortgage executed by Harris and wife to the plaintiff bank — the First National. So much of § 1204, Crawford & Moses’ Digest, which defines the practice in regard to filing cross-complaints, as is relevant here, reads as follows: “Section 1204. A defendant may file a cross-complaint against persons other than the plaintiff, and have proceedings thereon as follows: First. When a defendant has a cause of action against a co-defendant, or a person not a party to the action, and affecting the subject-matter of the action, he may make his answer a cross-complaint against the co-defendant or other person.” The second paragraph of this § 1204 provides for service of process upon cross-defendants.

We think this statute conferred authority for the cross-complaint filed by the American Bank & Trust Company against Harris and wife. This bank alleged that it had a mortgage lien upon the lands embraced in the mortgage to the First National Bank, and that its mortgage was superior thereto. The American Bank & Trust Company was therefore interested in the subject-matter of the original cause of action, and had the right to foreclose its mortgage by cross-complaint. Connelly v. Hoffman, 184 Ark. 497, 42 S. W. (2d) 985.

Having jurisdiction for the purpose of foreclosing these mortgages, after determining their priority, and having assumed that .jurisdiction, the chancery court determined the question of the priority of the mortgages, and, in the determination of that question, reached the conclusion that the debt remaining unpaid and due to the American Bank & Trust Company was not in fact secured by the mortgage, but, having also ascertained that some debt was due from Harris and wife, judgment was rendered for the amount thereof. This practice was entirely proper and conforms to the uniform holding that, where chancery takes jurisdiction in a case for one purpose, it'will retain the case and administer complete relief. Home Life Insurance Co. of N. Y. v. Masterson, 180 Ark. 170, 21 S. W. (2d) 414.

For the reversal of the decree of the court below, appellants cite cases holding that, in a collateral attack upon the judgment of a court of superior jurisdiction, every presumption must be indulged in favor of the jurisdiction of the court, unless it affirmatively appears from the record itself that the facts essential to the jurisdiction of the court do not exist. A late case to that effect, citing a number of earlier cases to the same effect, is that of Road Imp. Dist. No. 4 v. Ball, 170 Ark. 522, 281 S. W. 5.

The record in the instant case is not silent as to the service of summonses and the time thereof. The decree contains the affirmative recital that ‘ ‘ summons were duly served upon all of the defendants in the month of January, 1929,” whereas the cross-complaint was not filed until March 7, 1929, thereafter. So that we have the affirmative recital in the decree itself that the defendants, Harris and wife, were summoned before the cross-complaint against them was filed, and the presumption does not therefore arise which would he indulged in the absence of this recital that the court had, before rendering judgment for the debt, ascertained that it had acquired the jurisdiction so to do.

Under the facts stated, appellees contend that the decree in favor of the American Bank & Trust Company was properly vacated against both Mrs. Harris and the estate of her husband. But this relief cannot be granted, so far as the estate of Mr. Harris is concerned, for the reason that, whether served with process or not, he was apprised of the pendency of the cross-complaint before the decree was pronounced thereon. Weeds v. Quarles, 178 Ark. 1158, 13 S. W. (2d) 617. In our opinion, Mr. Harris must necessarily have been aware of the pen-dency of this cross-complaint and of the nature of the relief therein prayed for. There was never any question about the debt due the First National Bank, and that debt has not been questioned even yet. The question of fact in the case was, to what extent was Harris indebted to the American Bank & Trust Company, and how much, if any, of that debt was secured by the mortgage from Harris and wife to the American Bank & Trust Company? Harris was called as a witness on several different occasions, and was examined at great length upon this subject, and must necessarily have known the purpose of this testimony. It is not certain, however, that Mrs. Harris was also advised of this cross-complaint against herself and her husband. The testimony shows that during this time Mr. Harris was in failing health, and, while it is not contended that he was non compos, it does appear that he was unable to give his business affairs the required attention. It appears that Harris ’ debt to the American Bank & Trust Company was for money borrowed with which to pay for an interest in a business of Harris’ father-in-law, and on account of his failing health he resold the same interest to his father-in-law, and one of the principal questions of fact in the original case was whether the father-in-law had paid the bank this debt and the application to be made of the payments received by the bank from Harris and his father-in-law. Mrs. Harris testified unequivocally that she knew nothing about the cross-complaint, although she was advised of the original complaint; that she and her husband filed no answer to the original complaint because they had no defense, but that she would have made defense against the cross-complaint, had she known that there was a suit of this character pending against her.

Without further recital of the testimony, we announce our conclusion to be that Mrs. Harris was not in fact aware of this cross-complaint, and also that she was not served with any process which had issued thereon.

It follows therefore that the decree in favor of the estate of Mr. Harris is reversed, and the cause remanded with directions to enter a decree in accordance with this opinion. So much of the decree as affects Mrs. Harris personally is affirmed.


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    Fernanzo v. Tedford.
    4-2757
    Opinion delivered December 5, 1932.

      Troy W. Lems, for appellant.

      John D. Shakelford, for appellee.
   Humphreys, J.

This is an appeal from a refusal of the chancery court of Pulaski County to render a personal judgment for $75 in favor of the estate of M. D. Fernanzo, deceased, and for $125 in favor of Alice Fernanzo, and costs against appellee, in a proceeding in said court to cancel the tax deed from the State of Arkansas to appel-lee and all deeds thereunder to lot 11, block 4, of Industrial Park addition to the city of Little Rock, Arkansas, in which proceeding, judgments were sought in the amounts set out above.

The facts are that, in the spring of 1926, M. D. Fer-nanzo and Alice Fernanzo purchased said property in entirety from W. E. Lenon, on the installment plan, for $264 with the understanding that the grantor would pay the taxes thereon during the period for the payment of installments if the purchasers kept up the payments. This they did. After purchasing the property, they built a house upon the lot and moved into and occupied same as their homestead. During their occupancy thereof, the lot was forfeited under a void tax proceeding for the taxes of 1925 and sold to the State in 1926. The property remained on the books in the State Land Office until after the passage of act 129 of the Acts of 1929, which provided for the sale of tax lands to applicants after personal service of a notice upon the owners.thereof, unless such owners were nonresidents or unknown. W. W. Shepard and W. L. Tedford purchased said lot from the Commissioner of State Lands under said act without serving personal notice upon appellant and her husband, although they were residing thereon at the time. At the time of the purchase they did not inform the Commissioner of State Lands of this fact. On June 24,1929, W. W. Shepard and his wife conveyed same by quitclaim deed to appellee. The weight of the evidence reflects that, after appellee obtained a quitclaim deed, he informed appellant and her husband, through his agents, that he had obtained a good title to the lot from the State, which was paramount to their title, and they must pay bim rent or buy the property or move out. The weight of the evidence also shows that, under this misrepresentation and threat, appellee obtained a purchase contract for said lot from appellant’s husband, and that, after the payment to him of $75 by ber bnsband and $125 by her, he executed a quitclaim deed to her husband. The payment of $125 by her was made at the urgent request and insistence of her husband, who feared he would have to. move out of the property, and without any admission on her part that appellee was entitled thereto.

The rule is, as between vendor and vendee, in a conveyance by quitclaim deed, although the vendor makes no covenants which cover a defect in the title, the purchase money can be recovered by the vendee in case the vendor practiced fraud or its legal equivalent upon the vendee. Tune v. Rector, 21 Ark. 283; Diggs v. Kirby, 40 Ark. 420.

The refusal of the chancellor to render a personal .judgment against appellee for $75 in favor of the administrator of the estate of M. D. Pernanzo, deceased, and for $125 in favor of Alice Pernanzo is reversed, and judgments for said amounts in favor of the respective appellants are rendered here, less a remittitur by appellants of $2.23.


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    Sisk v. Poinsett Lumber & Manufacturing Company.
    4-2763
    Opinion delivered December 5, 1932.

      C. T. Carpenter, for appellant.

      Lamb <& Adams, for appellee.
   Humphreys, J.

Appellant brought suit in the circuit court of Poinsett County against appellees to recover damages for the benefit of her son’s estate, for whom she was appointed administratrix, on the alleged ground that he was killed through the negligent operation of its link-belt used to load saw logs, which were piled or stacked on the right-of-way, on to cars. The allegation of negligence was as follows:

“The operator of the link-belt carelessly and negligently, and without any regard for the safety of deceased, put into operation the link-belt and lifted the log from its position, causing the logs on the pile to roll down on him and fatally injure him.”

Appellees filed an answer, denying the allegation of negligence.

The cause was submitted on the 22d day of December, 1931, upon the pleadings and testimony adduced by the respective parties, at the conclusion of which appel-lees requested the court to instruct a verdict for them, which the court announced he would do unless appellant decided to take a nonsuit; whereupon appellant elected to take a nonsuit. The December, 1931, term of court was adjourned until February, 1932, at which time appellant filed a motion to vacate the judgment of nonsuit and continue the cause. The court vacated the judgment of nonsuit, reinstated the action, and dismissed same, to which dismissal appellant objected and excepted, and prayed and obtained an appeal to this court.

Appellant contends for a reversal of the judgment because the trial court, dismissed the cause instead of granting her a continuance. No ground for a continuance appears in the record. We cannot therefore say that the court abused its discretion in refusing to continue the cause.

After sustaining the motion to vacate the judgment of nonsuit and reinstate the cause, the court proceeded to, and did, enter the judgment he would have entered had appellant not taken the nonsuit. As no ground for continuance was shown, this was the only thing left for the court to do, if the undisputed testimony theretofore introduced tended to show no liability on the part of appellees.

Appellant relied upon the testimony of Delbert Turner to show that the operator of the link-belt applied power and raised the log in which appellant’s deceased son had fastened the hooks before he had time to move out of the way, thereby causing a log to roll down from the top of the pile and fatally injure him. Delbert Turner testified that he did not see the log in which the hooks had been fastened by deceased either moved or raised. The most he said when pressed on the point was that he saw the operator apply power. Under the allegation of negligence, it was necessary to show that the operator applied power and raised or moved the log so as to cause a log from the top of the pile to roll down and injure appellant’s deceased.

On account of the want of testimony tending to show liability, the trial court properly dismissed the cause of action.

The judgment is therefore affirmed.


author: Kirby, J.

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    Indemnity Insurance Company of North America v. Harrison.
    4-2764
    Opinion delivered December 5, 1932.

      Duty & Duty and Ollie Collins, for appellant.

      W. B. Foster, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment against appellant company as surety on a bond guaranteeing the construction and installation of a gas system for furnishing gas to the people of the city of Harrison within 12 months from the date of the ordinance granting the franchise therefor.

The city of Harrison, by its council, passed an ordinance granting C. W. Murchison, trustee, a franchise to construct, maintain and operate a gas system in the city of Harrison to supply the inhabitants of said city natural gas, and fixing the rates to be charged for same.

The ordinance provided that it should not become effective until a bond in the sum of $2,500 had been posted, conditioned that the system would be completed within 12 months from the date of the passage of the ordinance. Such bond was executed in said sum by C. W. Murchison and appellant company, as surety, and filed with the city council. Default was made in the construction of the gas distributing system; in fact no attempt was made to construct it, and the city brought suit on the bond. Service was not had on Murchison, and judgment was not rendered against him.

Appellant denied any liability on the bond, that the ordinance granting the franchise had been duly passed, published or accepted by the grantee, and any liability under the bond, which it claimed was a penalty, except for damages, if any at all, none of which had been shown.

Upon the evidence adduced by the plaintiff, the issues were submitted under instructions not complained of to the jury, which returned a verdict for the city against the appellant company in the sum of the face of the bond. Judgment in that sum was entered, bearing six per cent, interest from date, against the Indemnity Insurance Company of North America, which now seeks by this appeal to reverse said judgment.

Appellant insists that the bond only provided a penalty, and that it was not liable thereunder for more than actual damages, none of which was shown to have been suffered hy the city. This case is ruled by the decision in Cherokee Public Service Co. v. Helena, 184 Ark. 38, 41 S. W. (2d) 773, where a provision in a contract obligating a utility company to pay $5,000 for breach of its undertaking to supply gas to a city in a specified time was held a provision for liquidated damages.

'Section 14 of the ordinance granting the franchise provided it should take effect after its approval and publication upon the posting of a $2,500 surety bond approved by the city council, conditioned that the gas system be completed within 12 months from the date of the passage of the ordinance. The bond was conditioned as the ordinance required:

“Now, therefore, the condition of this obligation is such that, if the said C. W. Murchison, trustee, his successors, lessees and assigns, shall lay, construct, and equip a system of gas mains, pipes, conduits and feeders for the purpose of supplying and distributing natural gas for light, fuel, power and heat, and for any other purpose, to the residents and inhabitants of the city of Harrison, as provided in said franchise, within twelve months from the date of the passage of the ordinance granting said franchise, then this obligation shall be null and void; otherwise, it shall remain in full force and effect.”

The terms of the ordinance and the provisions of the bond are of such a nature that the damage caused by its breach would be uncertain and difficult of proof, and the sum named by the parties was properly held to be liquidated damages; the form and language of the instrument not being unfavorable to such construction and the magnitude of that sum nor forbidding it. The parties must have known that it was impracticable to measure the damages of any actual loss, if any was contemplated, for a breach of the contract, since the city, in its corporate capacity, could not have suffered any injury by such breach of contract, and it was only reasonable to suppose it was intended to fix in the terms of the contract the precise sum recoverable for its breach. See also 8 R. C. L., pages 575-576; Sun Printing & Publishing Ass’n v. Moore, 183 U. S. 642, 22 S. Ct. 240.

Appellant insists that the conrt erred in allowing’ parol testimony introduced to prove the ordinance granting the franchise, which it says could only he done by the production of a certified copy thereof. The city recorder testified that he was the custodian of the records of the city, was present when the ordinance granting the franchise was passed by the council, and made a copy thereof, and recorded it; that it had been attested ¡by the signatures of the mayor and the recorder, and duly published. This testimony was admitted over objection, and later a printed copy of the ordinance was introduced with a certificate of publication. No error was committed in the proof of the ordinance in such manner without the production of a certified copy thereof made by the clerk or recorder. Sections 7497 and 7499’, Crawford & Moses’ Digest; Heno v. Fayetteville, 90 Ark. 292, 119 S. W. 287.

It is also claimed that the surety company was not bound to the payment of the bond, since it was not proved that the signature of the principal, Murchison, was genuine ; but the city recorder stated he had written to Murchison at Dallas, Texas, after the passage of the ordinance calling for the posting of the bond in accordance with its terms, and that the bond sued on, signed by Murchison, as principal, was returned to the city with the signature of appellant as surety thereon, and by it accepted, in accordance with the terms of the contract. There was no statutory denial of the execution of the bond, and no claim whatever by appellant company that it had not executed the same regularly as surety.

We find no error in the record, and the judgment is affirmed.