author: Johnson, C. J. Johnson, C. J.,

text:
    Texarkana-Forest Park Paving, Water, Sewer and Gas District No. 1 v. State use Miller County.
    4-3517
    Opinion delivered June 11, 1934.

      L. P. Biggs, for appellants.

      Millard Alford, Will Steel and James D. Head, for appellees.

      Wm. F. Kirsch, Maurice Cathey and DuVal Purhins, amici curiae.

   Johnson, C. J.

Appellant, Texarkana-Forest Park Paving, Water, Sewer and Gas District No. 1 was organized under and by authority of act 183 of 1927, which act was amendatory of act 126 of 1923 as amended by act 645 of 1923; Subsequent to the organization of appellant district, the General Assembly passed act 63 of 1931, the effect of which was to levy a one-cent tax upon all gasoline sold in this State for the benefit of county public roads as distinguished from State roads; the act of 1931 further provided, in effect, that the State Treasurer, prior to disbursing the funds to the respective counties, as provided therein, shall deduct the amount required to pay 75 per cent, of the maturing bonds and interest of all bonds issued by road improvement districts issued since February 4, 1927. The act of 1931 expressly provides in § 6 thereof that all districts organized under act 126 of 1923 and amendments thereto shall come within its purview and application.

On October 1,1931, pursuant to the provisions of act 63 of 1931, the State Treasurer deducted from Miller County’s allotment under said act a sum sufficient to pay 75 per cent, of the maturing bonds and interest of appellant district, and subsequent thereto made similar deductions and allotments in favor of appellant district and asserted his intention of continuing said deductions and allotments. Thereupon the State, for the use and. benefit of Miller County and J. J. Sewell, as county judge of Miller County and in his own right as a citizen and taxpayer thereof, instituted this suit in the Pulaski Chancery Court against Boy V. Leonard, State Treasurer, and appellant district praying a permanent injunction against the State Treasurer restraining and enjoining him from making any deductions from Miller County’s allotment under act 63 of 1931 in aid or for the benefit of appellant district. This suit progressed to trial and decree on March 23, 1934, and the court determined therein that the prayer of appellee’s complaint should be granted, and this appeal is therefrom.

Act 183 of 1927, under' authority of which appellant district was organized, is unconstitutional and void for the following reasons: Act 126 of 1923 as amended by act 645 of 1923 by its mandatory provisions applied to and had effect only in and to Pulaski County. Section 24 provides: “This act shall be operative only in counties with a population exeeediixg seventy-five thousand inhabitants, as shown by the last Federal census.”

In virtue of the section of the act just quoted, it and the amendment thereto of 1923 applied only to Pulaski County because Pulaski County was the only county in Arkansas in 1923 which contained the requisite seventy-five thousand population. So it was from the date of the passage of act 126 of 1923 until the passage of act 183 of 1927. Section 1 of act 183 of 1927 pimvides:

“Section 24 of act No. 126 of the Acts of the General Assembly of the State of Arkansas of the year 1923 is hereby repealed.”

The effect of § 1 of the act 183 of 1927 was to repeal § 24, act 126 of 1923; thereby making act 126 of 1923 and the amendments thereto apply to all counties of the State.

Act 183 of 1927 contains eight sections only. Section 1 is heretofore quoted. Section 2 amends § 25 of act 126 of 1923, which has to do only with the application of the act to districts created adjacent to certain cities and towns. Section 3 amends § 4 of act 126 of 1923, which has reference to the purpose only for which the district may be organized. ' Section 4 provides for the formation of districts authorized under act 126 of 1923 embracing lands in two or more counties. Section 5 provides for the annexation of territory to districts theretofore organized by authority of act 126 of 1923. Section 6 authorizes the commissioners of districts, organized under authority of act 126 of 1923, to sell and convey the improvements effected by the district under certain restrictions. Section 7 expedites litigation affecting districts organized under said acts. Section 8 is the emergency clause.

It definitely and certainly appears from a mere reading of act 183 of 1927 that no valid improvement district could be organized under its authority and mandate. Without the aid of acts 126 and 645 of 1923 the provisions of act 183 of 1927 are absolutely meaningless and void of purpose. Section 23 of article 5 of the Constitution of 1874 provides:

“No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length. ’ ’

In Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384, this court decided that an act of the G-eneral Assembly which had the purpose and effect of extending to cities and towns rights and remedies which existed by law in favor of counties could not be so extended by reference to title only. We have uniformly held, following the case just cited, that when a new right is conferred or cause of action given § 23 of article 5 of the Constitution of 1874 requires the whole law governing the right and remedy to be re-enacted in order to enable the court to effect its enforcement. Farris v. Wright, 158 Ark. 519, 250 S. W. 889; Beard v. Wilson, 52 Ark. 290, 12 S. W. 567; Common School Dist. v. Oak Grove Special School Dist., 102 Ark. 411, 144 S. W. 224; State v. McKinley, 120 Ark. 165, 179 S. W. 181; Harrington v. White, 131 Ark. 291, 199 S. W. 92; Palmer v. Palmer, 132 Ark. 609, 202 S. W. 19; Hermitage Special School Dist. v. Ingalls Special School Dist., 133 Ark. 157, 202 S. W. 26; Fenolio v. Sebastian Bridge Dist., 133 Ark. 380, 200 S. W. 501; St. L.-S. F. Ry. Co. v. Southwestern Telegraph & Telephone Co., 121 Federal 276.

In Rider v. State, 132 Ark. 27, 200 S. W. 275, we had before ns, in effect, the exact question here presented. There the Legislature of 1909 passed act 310 creating a stock district in the Charleston District of Franklin County. The General Assembly of 1915, by act 145, amended the former statute by adding two other townships in Franklin County to the stock district as formed by the act of 1909. This addition was effected by amending' the act of 1909 as follows: “That wherever act No. 310 of the General Assembly of 1909 now reads ‘ Charleston District of Franklin County,’ the same shall be amended and the same is hereby amended to read: ‘Charleston District of Franklin County and Barham and Wittich townships of Franklin County’.” We there said: “The act of 1915, under which appellant was convicted, was clearly an attempt on the part of the lawmakers to extend the provisions of another statute merely by reference to title without re-enacting and publishing the new statute at length. * * * The statute now under consideration falls clearly within the first rule stated above, for the power granted under' the new statute is not declared on its face, but is given merely by reference to the title of another statute.”

The similarity of the case just cited to the one under consideration is: In the Rider case the stock district, which applied to the Charleston district only, was extended to cover two other townships in the county by amendment; in the instant case the authority to organize suburban road improvement districts, which existed only in favor of Pulaski County, was extended to the other 74 counties of the State by the simple repeal of § 24 of act 126 of 1923. There is and can be no distinguishable difference.

Act 183 of 1927 falls squarely within the condemnation and inhibition of § 23, article 5, of the Constitution of 1874 and likewise within the doctrine of the cases cited supra, therefore is unconstitutional and void.

It is insisted, however, that the allotments to appellant district from Miller County’s allotment of the funds under act 63 of 1931 is lawful and valid and should be continued because the donation by the State is a gratuity and may be bestowed regardless of the constitutionality of the act under which it was created. This is probably true if the General Assembly has manifested such intention, but such is not the case. The primary purpose of act 63 of 1931 is to make donations to counties and aid them in their efforts to improve county roads which lie without the State highway system. This is made evident by the fact that the 75 counties of the State were made the units to which the donation was granted. Subdivision F of § 1 of said act provides, in effect, that this created fund shall be divided among the several counties of the State upon the following basis: 1. One-third on population of county. 2. One-third on car license revenue received from the county. 3. One-third on area of county.

Subdivision G of § 1 provides: ‘ ‘ From the allotments made to each county as provided in paragraph -F the State Treasurer shall deduct the amount required to pay * * * maturing bonds and interest, etc.” Thus it appears from the plain language of the act that its primary purpose is to aid counties and not road improvement districts. Since it was and is the primary purpose of this act to aid counties, we are unwilling to hold that the General Assembly had the purpose and intent to take funds primarily allotted to a county and donate them to road districts which were organized under an unconstitutional act.

Moreover, the General Assembly evidently had in mind, upon the passage of act 63 of 1931, that the road improvement districts therein sought to be aided were organized and existing under valid acts and not those organized and existing’ under invalid laws. We are unwilling to hold that the act of 1931 would have been passed by the General Assembly regardless of the constitutionality of the act under which it was organized. In addition to what has just been said, the evidence presented upon trial of this cause warranted the chancellor in finding that appellant district was not, when organized, a public enterprise but, on the contrary, a private and personal venture of those effecting the organization thereof. The power to pay gratuities to individuals is denied to the Legislature generally by constitutional mandate, and usually a gift of money to an individual would be an appropriation of public funds to private uses, which cannot be justified in law. Mead v. Action, 139 Mass. 341; Citizen Sav. & Loan Ass’n v. Topeka, 20 Wall. (U. S.) 655; Parkersburg v. Brown, 106 U. S. 487, 1 S. C. 442; Cole v. La Grange, 113 U. S. 1, 5 S. Ct. 416; Cooley, Constitutional Limitations (6th ed.) 601, 602.

For. the reason last stated, we cannot and should not presume that the Legislature would have passed act 63 of 1931 donating public funds to private uses, or to road districts organized under unconstitutional law.

Neither can we agree that the citizens of Miller County are estopped to assert their claim to the funds here in controversy. The first answer to this contention is that these funds were not created until 1929 and 1931, long after the creation of appellant district. Secondly, the citizens of Miller County had no interest in the organization of the district and could assert no objections thereto until funds belonging to Miller County were diverted to the purpose of extinguishing a debt owed primarily by appellant district. It was then and only then that the citizens of Miller County had the right to bring in question the constitutionality of the act under which appellant district was organized.

It follows from what we have said that the chancellor did not err in granting the permanent injunction against the State Treasurer, and the decree is therefore affirmed.

Smith, McHaney and Butler, JJ., dissent.

Johnson, C. J.,

(on rehearing). On motion for rehearing it has been most earnestly insisted that the original opinion is in conflict with and by implication overrules the opinion of this court in White River Lumber Company v. Drainage Districts, 141 Ark. 196, 216 S. W. 1043. The original opinion does not effect this result. The question under consideration in the White River Lumber Company case arose under the following circumstances : act 279 of 1909 was of general application throughout the State in reference to the formation and creation of drainage districts. Act 279 of 1909 was amended by act 221 of 1911 and by act 177 of 1913. Section 7 of act 221 of 1911 expressly exempted Phillips and Crittenden counties from the provisions of act 279 of 1909 as follows:

“Provided, that this act does not apply to Phillips and Crittenden counties, and this act being necessary for the immediate preservation of public peace, health and safety shall take effect and be in force from and after its passage.”

Act No. 177 of 1913 amended the Acts of 1909 and 1911, and § 20 of act 177 of 1913 expressly repeals § 7 of act 221 of 1911. In the White River Lumber Company case we said: “The act of 1911 expressly exempted Phillips and Crittenden counties from its operation, and, this exemption being found in a separate section, it left the original act of 1909 in full and unamended force as to those counties. Rennau v. State, 72 Ark. 445, 81 S. W. 605.

“The extension of the act of 1911, so as to operate in Phillips and Crittenden counties, resulted under the act of 1913, not from extension by mere reference to the title of the act of 1911, but from the express repeal of the exemption, which liad the effect of making the statute altogether general in its application.”

Thus it definitely appears from the opinion that we were dealing with a question very different from the one here under consideration. The gist of the opinion in the White River Lumber Company case was that since the Drainage Act of 1909 was general in its application and applied to Phillips and Crittenden counties; and since Phillips and Crittenden counties were expressly exempted from the provisions by a separate and severable section of the subsequent Drainage Act of 1911, this separate and severable exempting section might be repealed by a subsequent act of the Legislature and thereby leave the law as it stood under the Drainage Act of 1909. Here act 126 of 1923 as amended by act 645 of 1923 were never general in their application, but on the contrary only applicable to Pulaski County, and act 183 of 1927 by repealing § 24 of act 126 of 1923 undertook to and did extend the provisions of act 126 of 1923' to the other 74 counties of the State and thereby fell within the prohibition of the rule as announced in Rider v. State, 132 Ark. 27, 200 S. W. 1002.

Act 183 of 1927 not only had the effect of repealing § 24 of act 126 of 1923 and extending the provisions thereof to the other 74 counties of the State, but it had the direct effect of amending act 126 of 1923 by bringing 74 counties of'the State under its mandate. It is a rule of universal application that the Legislature cannot do indirectly that which it is prohibited from doing directly. Therefore, when it undertook to extend the provisions of act 126 of 1923 to the other 74 counties of the State by repealing § 24 of said act, it undertook to do indirectly that which it is prohibited doing directly by constitutional mandate — that is to say, amending act 126 of 1923 —and its endeavors in this behalf cannot and should not be sanctioned by the courts.

Had the Legislature of 1927 sought to amend the act of 1923' by adding the name of one or more counties, thereby making the act of 1923 applicable thereto, all would readily agree that such amendment would fall within the doctrine of the Rider case, supra, and would be violative of constitutional mandate. The effectuation of this identical result was accomplished by indirection and because thereof is equally obnoxious to constitutional direction.

Moreover if the White River Lumber Company case can be given the construction now asserted by appellants, it is unsound in principle and should be overruled.

The mandate of § 23 of article 5 of the Constitution of 1874 is:

“No law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only: but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length. ’ ’

Four things are expressly prohibited by this constitutional mandate, unless the law is reenacted and published at length, namely: (1) no law shall be revived-— (2) no law shall be amended — (3) no law shall be extended — and (4) no law shall be conferred. The second and third prohibitions that no provisions of law shall be amended or extended unless same is reenacted and published at length is clearly violated by the method pursued in the act of 1927. Act 126 of 1923 which was local and special in its application and effect to Pulaski County was amended and extended by act 183 of 1927 to the other 74 counties of the State without re-enacting and publishing the former at length. Any other interpretation of the Constitution would nullify its plain language and mandate, and we are unwilling to prostitute its wholesome protection by judicial interpretation.

In addition to what we have just said, in the White River Lumber Company case, we were dealing with the general act of 1909 which was subsequently amended in 1911 to exempt two counties from its provision which exemption was repealed by the Legislature in 1913. There we had a statute of general application in the first instance — here we have a statute local and special in its application in the first instance — there we had an exemption created by a subsequent, separate and severable enactment — here we have an exemption created at the birth of the act (and we must presume that this act would not have become a law without such exemption)- — there we had a law (the act of 1909) of general application which was not extended in effect or in its application by any subsequent act — here we have a law that is amended and its provisions definitely extended by mere legislative manipulation and without reenacting and publishing at length.

Not only is act 183' of 1927 unconstitutional and void for the reasons heretofore stated, but it is likewise invalid because inhibited by amendment No. 14 to our Constitution. Amendment 14 was adopted by the people in 1926 and provides: “The General Assembly shall not pass any local or special act. This amendment shall not prohibit the repeal of local or special acts.” In Johnson v. Simpson, 185 Ark. 1074, 51 S. W. (2d) 233, we said:

“After the adoption of this amendment, the Legislature could not pass a valid local act. They could not amend a local act, but they were given authority in the amendment to repeal local acts.
“Act 205 of the Acts of 1927 amended § 321 of Crawford & Moses’ Digest. This section of the Digest is § 1 of the local act of 1915, above mentioned. It provides for the per cent, of qualified electors necessary for the county court to order an election and a vote by the people.”

Again, in Benton v. Thompson, 187 Ark. 208, 58 S. W. 924, we said: “This court has held, while the Legislature may repeal a local act, or may repeal a portion of it, it can not amend a local act.” The situation is simply this: Every one must admit that act 126 of 1923 was local and special in its effect; every one must admit that act 183 of 1927 amended the act of 1923 so as to make it general in its application. The act of 1927 was an abortive attempt to amend a local law; the act sought to be amended remained a local act at all times unless it was converted into a general act by the passage and approval of act 183' of 1927. This act of 1927 shows upon its face that it was “an act to amend act 126 of the Acts of the General Assembly of the year 1923.” After the adoption of amendment No. 14 in 1926, no local or special act could be amended. Therefore the attempt of the Legislature to do so by the act of 1927 is expressly prohibited by the 14th amendment.

For the reasons stated we adhere to the original opinion.

Smith, McHaney and Butler, JJ., dissent.


source: Caselaw Access Project

author: Mehaffy, J. Butler, J.,

license: Public Domain

text:
    McMillan v. Gurdon Lumber Company.
    4-3483
    Opinion delivered June 18, 1934.

      McMillan é McMillan, Walter L. Pope, and Frauenthal é Johnson, for appellants.

      D. II. Cratoford and McRae & Tompkins, for appellees.
   Mehaffy, J.

Charles S. Thornton and Justus Chancellor owned a large tract of timber land in Clark County, Arkansas, and on June 24, 1924, entered into a contract with the Sparkman Hardwood Lumber Company to give the Sparkman Hardwood Lumber Company and its assigns the exclusive right for a period of ten years.to go upon said land and cut and remove therefrom such timber as the said Sparkman Hardwood Lumber Company or its assigns might desire, and which it or its assigns within the terms of the agreement, actually -cut and removed. The price agreed upon, and which was paid, was $70,000. The contract provided that the title to the timber when cut should immediately vest in the lumber company or its assigns. The sellers agreed not to cut or remove or permit any one else by their consent to cut or remove any of the timber from said land until it was surrendered as provided for in the contract. The contract also provided for the purchasers to pay the taxes. Another provision in the contract was that, when all the timber desired by the lumber company should be cut and removed from any sections of the land described, the purchaser should immediately designate such section in writing to the sellers and should not thereafter be permitted to cut or remove any timber from the section or sections so surrendered and not thereafter be required to pay taxes except on those tracts of land over and through which it might he operating its logging railroad or tramway, hut that it should continue to pay taxes on such lands as long as it is operating a line of railroad over and through same. The contract provided for free ingress and egress for the purpose of cutting and removing timber, and was given the right to construct, maintain and operate logging railroads and skidways, logging camps and mills, but that such use and privilege was not to interfere with the cultivation of said lands or other use to which the sellers may desire to put the same. It was provided in the contract that no representation or warranty was made with reference to the amount of timber, but that the estimates were made merely for the purpose of arriving at a basis for making deferred payments. The contract described the land and the amount of timber on each section as estimated was set out. It was also provided that the purchaser was not required to cut any part of the timber or remove any of it, but the right conferred was an exclusive privilege given to the purchaser or its assigns to remove as much of said timber as it might desire within the life of the contract.

Thereafter there was a suit in partition by Thornton against Chancellor, and the land was divided. After the division, Dougald McMillan in 1931 became the owner of that part of the land awarded to Chancellor in the partition suit, and in 1933 the appellee, Ghirdon Lumber Company, obtained an assignment of the rig’ht of the Sparkman Hardwood Lumber Company for the same lands. This suit was then brought by appellant, alleging that the Gfurdon Lumber Company had been for many weeks cutting and destroying much timber besides that which they had a right to or were entitled to cut because it was less than 12 inches in diameter, and the complaint alleged that the appellee was still cutting and intended to continue to cut all trees 6 inches and over if not restrained ; that cutting the young timber was a waste and the product an inferior quality in grade, but, if the trees were permitted to stand, they would grow and become valuable. It was further alleged that appellee’s cutting deprived appellant of the nse of his land for the purpose for which it was best suited, that of growing timber, and that this was an irreparable injury to the appellant. It was also charged that appellee was wilfully destroying appellant’s timber by causing the fallen trees to strike and break the small trees and that this caused irreparable injury; that appellee was piling and permitting piles of trees and tops to rest against young trees, thereby injuring them; that appellee had placed several mills on the land and was permitting sawdust to accumulate, which would destroy the value of the land. The complaint stated that the appellee had the right to cut all timber 18 inches and over in diameter, but that they were asserting a right to cut all trees on the land; that appellant notified appellee as soon as it obtained the assignment from the Spark-man Hardwood Lumber Company, and the appellee, instead of respecting appellant’s claim, increased its force and continued to cut timber which it had no right to cut. There was a prayer for injunction and permanent restraining order and for damages. The appellees filed answer, denying all the material allegations in the complaint. After taking the evidence, the court entered a decree dismissing appellant’s complaint for want of equity, and the case is here on appeal.

It is first contended by appellant that there is an entire absence of language in the contract which shows an intent on the part of the lumber company to claim any growth on its land. In other words, it is the contention of appellant that the lumber company could only take the timber which was of certain dimensions at the'time the contract was made, and the first case cited and relied on is Griffin v. Anderson-Tully Co., 91 Ark. 292, 121 S. W. 297. The court said in that case: ‘ ‘ The language of the contract describing the trees sold is as follows: ‘ All the cottonwood trees 20 inches in diameter and up at the stump now standing or located on the following described lands’ (here follows description of land). Thus it will be seen that the title passed according to the plain and express terms of the contract only to those trees which measured the required size at that date and not at the date of their severance. The identification of the trees by specifying their size tends to show that the intention of the parties was to include such only as at the time the contract was made answered the description. Their diameter at that time was capable of definite ascertainment.” It will be observed that the court said the identification of the trees by specifying’ their size tends to show that the intention of the parties was to include such only as at the time the contract was made answered the description. There is no such identification in the present contract. It does not mention the size of the timber and expressly states that the estimate which does contain the size of the timber is made solely for the purpose of the deferred payments.

The next case referred to is Neal Lumber & Mfg. Co. v. O’Neal, 166 S. E. 647. This is a case in which a lease and timber deed were construed, and the deed stated: “does hereby grant, bargain, sell and convey unto the said W. T. O’Neal, trustee, his successors and assigns, all of the trees and timber of every kind and description growing or being on the land.” The instrument gave to the purchaser a license and privilege at any and all times to, during the life of the contract, out and remove all trees and timber growing or being on said lands. The contract in that case was somewhat different from the contract in the present case. “'Growing and being on said lands” was held by the court to mean such timber as of the dimensions described as growing on the land at the date of the contract, but the court in the O’Neal .case said: “We are aware that our construction of the lease in question may not be in accord with the views expressed by some other courts in like cases, but it is in harmony with adjudications by this court and with the weight of authority,” and in the same case the court also, with regard to the meaning of the word “trees,” held that a plant may be called a tree before it has attained such a growth as to be useful as timber, and the court also said: “A word may have one meaning in a dictionary and an entirely different meaning in a contract.” In a case decided by the Federal court where the court was construing a lease giving the right to cut all timber on the lands suitable for sawmill purposes during the 20 years covered by the lease, “the lessees are entitled to cut, not only the timber suitable at the date of the lease, but all that becomes suitable during the life of the lease.” Nelson v. Americus Mfg. Co., 186 Fed. 489.

The authorities are not in harmony, and the language and terms of the contracts construed differ. The contract involved in the instant case does not mention the dimensions of the timber sold and does not in express terms provide that the timber sold is that now standing on the land, but the contract gives the purchaser the right to cut any timber it may desire, and we think, when the entire contract is considered, that it was the intention of the parties that the purchaser should have all the timber it desired on the land at any time during the life of the contract. It is claimed, however, by the appellants, that the contract meant timber which would measure twelve inches, eighteen inches above the ground, although there is nothing in the contract to indicate that this is true. Appellants state, however, that the conduct of the Spark-man Hardwood Lumber Company after the contract was consummated shows what it considered it had purchased. Without setting out the evidence, which we think is unnecessary, because we believe the contract is unambiguous, some of the witnesses testified that the Sparkman Hardwood Lumber Company cut timber 8 inches in diameter, and it does not appear that any complaint was ever made about this. Some of the testimony shows that the Gurdon Lumber Company cut timber only six inches in diameter. The appellants say that timber has a well-defined meaning, and that it does not include saplings, undergrowth and shrubs. We agree that this is true under the terms of the usual contract, but that in this instance the purchaser could cut whatever timber it desired.

Appellants cite many authorities to sustain their contention, one of which is 17 R. C. L. 1094. The text relied on states: ‘ ‘ Generally speaking, a deed to all the timber on a tract of land without reservation conveys all the timber on such tract. Contracts or deeds for the sale of standing timber frequently specify tbe size of tbe timber sold, but sometimes the term ‘timber’ is used without definition as to trees included within its scope, and,, where this is the' case, resort must be had to the definition of the term as well as to the intention of the parties as manifested by the agreement. Where there is nothing to indicate that the contract was made with reference to construction of the word ‘timber’ peculiar to the locality, and the parties appear to have used the term in its customary meaning, it is generally held that fire wood is not included. ’ ’

Appellants also call attention to 38 C. J., p. 143. It is there said: “The word ‘timber’ has an enlarged or restricted sense according to the connection in which it is employed. It may refer to standing trees, to stems or trunks of trees cut and shaped for use in the erection of buildings or other structures, and not manufactured into lumber within the ordinary meaning of the word ‘lumber, ’ or to that sort of wood which is proper for buildings, or for tools, utensils, furniture, carriages, fences, ships and the like. It has generally been held that the word ‘timber’ does not include fruit trees, saplings or undergrowth, or trees suitable only for fire wood.”

It may be, as contended by appellants, that the appellees in 1933 cut smaller trees than the Sparkman Hardwood Lumber Company cut, but there is no evidence showing that they cut any timber for any other purpose than the market, and this, under the contract in the instant case, they had a right to do. As we construe the contract, the purchaser had a right to cut any timber it desired to cut, and, in addition to this, the Sparkman Hardwood Lumber Company is admitted to have cut timber below twelve inches in diameter. On these questions of fact as to what the parties did under the contract, the lower court had a right to pass on them and determine the facts, and we cannot say that his finding is against the preponderance of the evidence. The contract in this case is quite different from the usual contract. It is not a sale of the timber, but it is a license and privilege to cut all the timber which the purchaser desired. It nowhere mentions the dimensions, nor does it state the time at which it shall be cut, except that it must be done within ,ten years.

The decree of the chancellor is affirmed.

Butler, J.,

(dissenting). The construction of the contract between Thornton & Chancellor and Sparkman Hardwood Lumber Company is the question presented in this case. That contract gave the lumber company and its assigns “the exclusive right for the period of ten years next ensuing to go upon said land and cut and remove therefrom such timber as the said second party or its assigns may desire.”

The majority of this court has construed this clause of the contract as giving the appellee the growth of the timber from the date of the contract and the right to cut any of the growth without respect to size or character. — in other words, it is permitted, if it sees fit, to entirely denude the land of all vegetation which might in the future develop into merchantable timber. The majority opinion cites no authority for the conclusion reached, learned counsel favor us with none, nor has my research discovered any. All the decisions which I have been able to find use the word “timber” in the sense defined by the lexicographers — i. e., trees which are suitable for being converted into lumber used in building and carp entry.

In the case of Broad River Lumber Co. v. Middleby, 194 Fed. 817, the Circuit Court of Appeals held as follows (quoting syllabus No. 1): “Generally, the word ‘timber’ as used in a contract selling standing timber, unless modified or controlled by other expressions in the. contract, means such trees as are fit to be used in buildings or similar constructi on; that is, trees of a size fit to be used in the construction of dwellings or ships; trees too small to be used for these purposes, not, strictly speaking, being considered as timber, although their products are utilizable for the construction of interior work in dwellings, or for the manufacture of tools and other appliances.”

It might be argued that the definition of “timber” has been broadened because trees are now used for the manufacture of useful articles other than lumber, such as paper and chemicals distilled from the wood fiber. It is a matter of common knowledge, however, that at the time of the execution of the contract in this case there were no plants for the manufacture of chemicals out of wood, or for the manufacture of small timber into paper, within this State. The contract, therefore, must be construed with reference to the uses to which trees were put at the time of the execution of such contract, .which was only for the purpose of the manufacture of trees into lumber.

The recent case of Nettles v. Lichtman, decided by the Supreme Court of Alabama in January of this year and reported in 91 A. L. R., p. 1455, discusses a contract similar to the one involved in the case at bar and concludes, as does the g*reat weight of authority, that a deed purporting to grant “trees and timber” is to be construed as conveying only such trees as are suitable for the manufacture of lumber to the exclusion of smaller trees usable only for making wood pulp.

The appellant has cited a great many cases to support his contention that the word “timber” as used in the contract must be construed as meaning trees suitable for manufacture into lumber. Among these is the Broad River Lumber Company case, cited supra; Neal Lbr. & Mfg. Co. v. O’Neal, 166 S. E. 647; Anderson v. Palladine, 257 Pac. 761; Roberts v. Gress, 67 S. E. 802; McRae v. Smith, 137 S. E. 390; Balderson v. Seeley, 160 Mich. 186, 19 Ann. Cas. 1049. The definition approved in these cases is that generally accepted by the text writers. 17 R. C. L., 1065-1094; 38 C. J., 143.

The generally accepted rule, and the one adopted by this court, is that only such trees as are timber at the date of the contract are included in the contract and intended to pass to the grantee, unless there are prospective words indicating a contrary intention. Griffin v. Anderson-Tully Co., 91 Ark. 292, 121 S. W. 297.

The great preponderance of the evidence in this case is that trees were considered merchantable timber fit to be sawed into lumber which were, on the date of the contract, twelve inches in diameter, eighteen inches above the ground. There is some evidence to the effect that some trees smaller than that were cut by the- Sparkman Hardwood Lumber Company, but it is evident, when the testimony is considered in its entirety, that these trees were cut by mistake and most of them were left in the woods. It is also true that a quantity of mulberry posts were cut and some cross-ties, but it is a matter of common knowledge that mulberry is a timber of scattered growth unfit for any use except for making fence posts and is never considered when estimating the value of land for its timber, and the cross-ties were evidently cut from small worthless trees to be used to lay the temporary lines of log roads across the tract of land.

The conclusion is inescapable, when all the evidence is considered, that the grantee construed the contract to mean that it was only entitled to cut the timber suitable for sawing into lumber at the date of the contract. As a basis for fixing the purchase price, it was estimated that the tract contained 13% million feet of lumber. The grantee cut and removed 25 million feet sawed from, trees which with but rare exception were twelve inches in diameter at the stump, and then ceased its operations. If the contract were ambiguous, this conduct on the part of the grantee is amply sufficient to support the construction placed on the contract by the appellant. Robbins v. Kimball, 55 Ark. 414, 18 S. W. 457; Kahn v. Metz, 88 Ark. 363, 114 S. W. 911; Lasater v. Western, etc., 177 Ark. 997, 8 S. W. (2d) 502; Natl. Eq. Life Ins. Co. v. Bourland, 179 Ark. 398, 16 S. W. (2d) 6.

It is clear therefore that the appellees had no right to cut any trees which were not at least eight inches in diameter on the 24th day of June, 1924, the date of the contract, and the appellants are entitled to the relief prayed.

For the reasons stated, I respectfully dissent and am authorized to say that Mr. Justice Humphreys approves what has been hereinbefore stated, and joins with me in the dissent.


author: Johnson, C. J.

text:
    Fulbright v. State.
    Crim. 3886
    Opinion delivered September 24, 1934.

      Cooper B. Land and William G. Bouic, for appellant.

      Hal L. Norwood, Attorney General, and John H. Caldwell, Assistant, for appellee.
   Johnson, C. J.

The grand jury of Jackson County indicted appellant for the crime of murder in the first degree for the killing of one W. P. Ford. Upon trial to a jury she was convicted of second degree murder and was sentenced to a term of five years in the State penitentiary, and this appeal is therefrom.

The only serious contention advanced by appellant for reversal is that the trial court erred in permitting witnesses to detail certain statements made by deceased immediately prior to his death because, as it is urged, not made by deceased while in the belief that death was imminent and impending. To understand the contention made, it is necessary to detail in brief the facts.

The deceased Ford and Will Parish met in the court house at Batesville in Independence County about 10 a. m. on September 7, 1933, and after some conversation went to inspect a small place purchased by deceased, which was located about one mile from Batesville. They returned to Batesville about 1 o’clock p. m. the same day and went to the home of a Mrs. Mainard for refreshments. There appellant first appeared upon the scene. After imbibing freely of whiskey at Mrs. Mainard’s home, deceased, Ford, appellant, Will Parish, Roy Hicks, Geneva Hicks, the wife of Roy Hicks, and Otis Crosser about 2 p. m. secured an automobile and went to a wooded section known in that community as Lover’s Lane where the party again engaged in drinking. After all the whiskey was exhausted, the party concluded to go to Newport in Jackson County, and upon their way there additional whiskey was obtained and the party arrived at Newport about sundown the same day, all in a more or less intoxicated condition. At this point the evidence of witnesses is in irreconcilable conflict, but that upon behalf of the State tended to establish that at the bridge at Newport three other people joined the party and after riding over Newport for some little time the party as augmented went to a secluded spot adjacent to Newport where deceased was slugged and robbed of $58. This occurred about 8 o’clock p. m., September 7, 1933'. A witness on behalf of the. State, a Mr. Ward, testified that about 5:30 or 6 o’clock a. m., September 8, 1933, his attention was attracted by the cries of deceased Ford; that deceased requested witness to assist him, and he did so by calling Mr. William and Mr. Albright; that deceased was in a bad condition — his head was caved in on the right side. Deceased told witness that “he did not aim to be here much longer,” and showed witness a rock upon which deceased had carved his name for identification. Deceased told witness that he “had done give up,” and for that reason had carved his name upon the rock. Deceased died in about thirty minutes after this conversation. Deceased told witness that he, a Mr. Parish, and another fellow, Essie Fulbright, and another woman named Mabel were out drinking together; that Parish started to the car and deceased attempted to follow Parish at which time he was struck on the head. Deceased mentioned no other person being present at the scene. This occurred in Jackson County.

Sheriff: Albright testified that he examined deceased before he died and found a large hole in the right side of deceased’s head; that deceased told witness he didn’t know who struck and robbed him, but that Will Parish, Essie and Mabel were with him when he was struck and robbed. Deceased told witness: “I have been laying here all night, and it looked like I wasn’t going to get any help, and I was afraid of what might happen to me, and I wrote this on the rock to identify myself. ’ ’

After appellant, Hicks and wife, and Crosser left deceased at the place where he was found, the following morning they returned to Batesville arriving .there about 10 p. m., and immediately thereafter left Batesville for points in Missouri and Oklahoma. They were apprehended near Springfield, Missouri, some three days after Ford’s death, and all made conflicting statements in reference to their locations, whereabouts and travels not only after Ford’s injury but prior thereto.

From the facts and circumstances here detailed, it was certainly a question of fact for the jury’s determination whether or not deceased believed that death was impending at the time he made the declarations to witnesses Ward and Albright.

The fact that deceased had carved his name upon a stone for identification purposes was patent evidence that he believed the end was near; the fact that the right side of his head was crushed must have demonstrated to him the seriousness of his condition; the fact that deceased told witness Ward that “he had done give up” was tantamount to saying that death was inevitable. At any rate the facts and circumstances were amply sufficient to warrant the trial court in submitting the matter to the jury.

True, it is the settled law in this State that declarations of a deceased person made when hope of recovery was not relinquished are not admissible as dying declarations, but, when all the facts and circumstances surrounding such declarations unerringly indicate that hope of recovery is relinquished, then such declarations are admissible as dying declarations. Underhill on Criminal Evidence, § 172. Greenleaf on Evidence, (16 ed.) § 158; Sanderlin v. State, 176 Ark. 217, 2 S. W. (2d) 11; Alford v. State, 161 Ark. 256, 255 S. W. 884; Evans v. State, 58 Ark. 47, 22 S. W. 1026; Scroggins v. State, 109 Ark. 510, 159 S. W. 211.

Weakley v. State, 168 Ark. 1087, 273 S. W. 374, in no wise conflicts with the views here expressed. There the wound was in the leg, and no fact or circumstance was offered in evidence showing or tending to show that deceased Garrison had relinquished hope of recovery at the time the declarations were made.

Other cases are cited in brief, but the discussion heretofore set out fully disposes of the contentions urged.

We have explored the transcript to ascertain the correctness of the instructions requested, granted and refused, and have concluded that no prejudicial error was committed in this regard.

No prejudicial, error appearing, the judgment is affirmed.


author: Mehaffy, J.

text:
    Firemen’s Insurance Company v. Little.
    4-3478
    Opinion delivered September 24, 1934.

      Verne McMillen, for appellants. .

      O. H. Sumpter, for appellee.
   Mehaffy, J.

The appellee, Annie E. Little, was the owner of a frame hotel or rooming house located at 201 Prospect Avenue in the city of Hot Springs, Arkansas, and was the owner at the. time the policies hereinafter mentioned were issued, and at the time of the fire. Policies were issued covering said property as follows:

Firemen’s Insurance Company......................................................$1,000
National Fire Insurance Company............................................. 1,000
City of New York Insurance Company................................. 2,000
Georgia Fire Underwriters (two policies)........................ 3,500
North British & Mercantile Insurance Company...... 2,500

The appellee executed her promissory note in the sum of $25,000 payable to appellee, Ed B. Mooney, due nine months after date, and to secure the payment of said note, executed a deed of trust conveying the property on which the insured building was located to Claude E. Marsh, trustee. Mooney borrowed $20,000 from the National Realty Company, and pledged the $25,000 note mentioned as security for the payment of his note. A mortgage clause was attached to each of the policies, providing the loss, if any, should be payable to Ed B. Mooney, mortgagee, as his interests might appear.

Separate suits were filed by appellee, Annie É. Little, against each of the above-named insurance companies, and the National Realty Company and Ed B. Mooney were also made defendants. It was alleged in each complaint that the building was totally destroyed by fire, and appellee prayed judgment for the full amount mentioned in each policy. She. also alleged that the defendants, National Realty Company and Ed B. Mooney, falsely and without right claimed a mortgage lien on the property, and also claimed the debt due under the policies.

The National Realty Company and Ed B. Mooney filed answers and cross-complaints, asking that the causes be transferred to equity, and the mortgage be foreclosed. The appellee, Annie E. Little, filed answer to the cross-complaints, and alleged that the loan made by Ed B. Mooney to her was usurious and void, and prayed that the cross-complaints be dismissed.

The insurance companies answered, admitting that the. policies of fire insurance were in force, but denying that the building was totally destroyed by fire. They admitted the property was damaged by fire, but alleged that the policies provided that the insurance company should not be liable for more than it would cost the insured to repair or replace the same with material of like kind and quality at the time of the loss, and that it would have cost the insured not exceeding $5,000 to make, the repairs. Each of the appellants offered to confess judgment for its proportion of the damage upon the basis of $5,000 total damage. The cases were transferred to equity and consolidated for the purpose of trial. By agreement the consolidated cases were tried as to the liability of the insurance companies, and the question of the liability of appellee, Annie E. Little, under her note and mortgage to Ed B. Mooney, was reserved for determination of the court. The only question before this court is the amount of liability of the insurance companies under their policies.

The chancery court found that there was a total ]oss, and that the value of any salvage was less than the cost of removing same, and entered a decree against each of the insurance companies for the full amount of the policies, together with attorney’s fee of 15- per cent, and a penalty of 12 per cent. The case is here on appeal by the insurance companies. .-C

J. C. Copeman, a witness for the appellee, testified that he was a construction superintendent, and had just completed the Army & Navy Hospital; that he was called upon to make an examination of the property at 201 Prospect Avenue, owned by Mrs. Little, and made a report of his investigation to Mr. Little. Witness testified that, upon a thorough inspection of the property and what there was still remaining of the building, in his opinion there was nothing left that could be used in the reconstruction of any building at all; that, if any one would take the property over now, it would cost them between $400 and $500 to take the debris off in order to get ready to put up a new building on the site; that it was his opinion that the building, as a building, was a total loss. He did not make an estimate to rebuild the building. He made the examination on September 1, 1933. He examined the foundation, and the foundation was bad and crumbly through the heat that had been in the building. He did not believe it could be used; it would have to be torn out if any structure of any kind was built.

Henry P. O’Hagan, a witness for appellee, testified in substance that his profession was supervising engineer for the War Department, and he had been connected with the work in Hot Springs in the construction of the new Army & Navy Hospital, the nurses quarters, known as the annex, and two sets of double NCO quarters. The last two were built by himself without a contractor ; he did the purchasing and hiring. He made an inspection of the property known as 201 Prospect Avenue for Mrs. Little; that the building as it now stands is, in his opinion, of no value; the owner might salvage some firewood, but doubted if any contractor would offer any money for the material now in the building; did not think that any possible salvage would be worth what it would cost to take it down and remove it; believed that the owner would have to pay to have the property cleaned up. In Ms opinion the property is a total loss. He made the examination of the property about September 1,1933.

G. Solberg, a witness for appellee, testified in substance as follows: that his business was general 'superintendent, building supervisor, and he had been, recently engaged in construction work in Hot Springs; that he is supervisor of the new nurses’ quarters, Army & Navy Hospital; that he inspected the property at 201 Prospect Avenue and found, in his estimation, the whole thing a complete loss; there would not be any way to get anything out of the salvage on any of the material. It would not even pay to strip the thing and take it down for the salvage of the material. It is a complete loss in his estimation. He made the examination about four weeks ago.

Captain E. M. George, a witness for appellee, testified in substance that he was captain of the Quartermaster Corps, U. S. Army, and that Solberg is now employed as general superintendent for the H. B. Ryan Company of Chicago, Illinois, and in that capacity is looking after the building of the $160,000 nurses’ quarters, under witness’ supervision. He considers Solberg a competent judge of construction material, and of materials that go into building. H. P. O’Hagan is superintendent of construction and civil engineer, and has been in the employ of the War Department for thirty years under the direct supervision of witness for the last six years. Witness considers him a competent man in his business, and a judge of construction material and buildings. J. C. Copeman is construction superintendent and has been for the past eighteen years. In all witness’ experience he is the best building superintendent witness has ever had. Mr. O’Hagan is employed by the War Department and Mr. Solberg and Mr. Copeman are employed by general contractors. They have to do with government buildings and commercial buildings. Witness is construction quartermaster. He inspected the building at 201 Prospect Avenue and considers the building a total loss and a menace. The inspection was made about a month ago.

O. M. Harrison, a witness for appellant, testified in substance that lie was a building contractor, bad been in that business for eighteen or twenty years, and had built numbers of buildings in Hot Springs, one right across the street on Prospect Avenue, for Captain Rix; made an estimate of the damage to the building at 201 Prospect, August 26,1932. The building was not destroyed by fire, but was damaged. Witness went over the building carefully, and his' estimate of the cost of repairing the building and replacing all the damaged parts at that time was $6,164.40. He was at that time ready and willing to take a contract to make the repairs with the exception of the heating plant. The foundation of the building was not damaged in any way by the fire. His estimate included every part of the building that was damaged in any way, with the exception of the furnace. Several rooms in the building were not damaged by the fire, the canvas and paper still on them. If witness owned the building and wanted to build one like the building was before the fire, he would use the part remaining as a basis for restoring the building.

W. W. Brown, a witness for appellant, testified that he lived in Little Rock and was a building contractor; had been actively engaged in that business for thirty years; made an estimate on the building at 201 Prospect Avenue on November 20, 1932, and estimated that to repair all the damage caused by the fire the cost would be $5,525.87. Witness proposed to make the repairs for that amount. His estimate consisted of removing the debris, hauling it from the premises, a little brick work, topping one flue, sufficient lumber to replace that which was damaged or destroyed, and mill work,. which consists of doors and windows, replacing all that were damaged, a composition roof, repairs to plumbing, and gas fittings. The fire was confined practically to the first and second floors and the roof; no damage to timbers below the first floor; it was necessary to replace a good part of the mill work on the first floor. A part of the outside walls on the left side toward the rear would have to come down from the second and third stories; the studs were- damaged there, and a portion of that wall; the larger part of the building remained intact. If witness desired to replace the building in the condition it was before the fire, he would use that part remaining. Any reasonable man would. There was 65 per cent, of the building with the materials in place that were sound values. Witness had been engaged in building residences and apartments for the better class of residents in Little Rock. Witness made estimates for both insurance companies and insured. The damage by the fire was about 35 per cent. Witness introduced photographs of the building. Witness ’ idea of total loss of a building is when it has lost its identity as a building, and this building has not lost its identity.

George H. Burden and J. D. Johnson testified as to their experiences, and that the building was damaged about 35 per cent. Their testimony was substantially the same as that of Brown.

F. J. W. Hart testified for appellee in rebuttal that he was an architect; had been engaged in that profession about 48 years, and testified as to property that he had built. There was no damage by fire below the first floor. The damage there was caused by water, and caused a settlement of the. piers and old flues and chimneys. In his opinion the flood of the water caused damage to the piers. Three days afterward there was one of the piers kicked out entirely caused by flooding of the water.

The policy of the North British & Mercantile Insurance Company was introduced in evidence, and it was agreed that all of the other policies sued on were the same, with the exception of dates and amounts, and that the concurrent amount of insurance permitted was $10,000. Each of the policies contained the following: “This company shall not be liable beyond the actual cash value of the property at the time any loss or damag’e occurred and the. loss or damage shall be ascertained or estimated according to such actual cash value with proper deduction for depreciation however caused and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality.”

‘‘This company shall not be liable, beyond the actual value destroyed by fire for loss occasioned by ordinance or law regulating construction or repair of building. ’ ’

It is the contention of the appellants that there was no competent evidence tending to support the finding of the chancellor that the building was 'a total loss. We have set out the appellee’s testimony substantially as contained in appellant’s abstract and brief. From this evidence it appears that J. C. Copeman, Henry P. O’Hagan, G. Solberg and Capt. E. M. George, were all men of experience in the construction and value of buildings. Each of them had had considerable experience. Each of them had inspected the property, made a careful examination of it, and testified that the building was a total loss. Some of these witnesses stated that there would not be any way to get anything out of the salvage on any of the material; it would not even pay to strip the thing and take it down for the salvage of the material. Another one testified that after careful inspection of the property he was of the opinion that there was nothing left that could be used in the construction of any building at all. Another one said that he did not think any possible salvage would be worth in value what it would cost to be taken down and removed. These were facts testified to by these witnesses after a careful examination and inspection of the property. There was no effort to show that these witnesses were not skilled.

“A skilled witness is one possessing, in regard to a particular subject or department of human activity, knowledge and experience which are not acquired by ordinary persons. Where he testifies as to facts, he must be shown to have adequate knowledge of the matters of which he' speaks, and where he states an inference he must have the ability, skill, and experience, not only to observe accurately, but to draw the correct conclusion from what he observes. Such a witness may be qualified by professional, scientific, or technical training, or by practical experience in some field of activity conferring on him special knowledge not shared by mankind in general, the rule in this respect being that one who had been engaged for a reasonable time in a particular profession, trade, or calling, will be assumed to have the ordinary knowledge common to persons so engaged.” 22 C. J., 519-520; 11 R. C. L., 571, 642.

These witnesses were competent to express the opinion that the building was a total loss. Ringlehaupt v. Young, 55 Ark. 128, 17 S. W. 710 ; Transportation Line v. Hope, 95 U. S. 297; Bedell v. Long Island Rd. Co., 44 N. Y. 367; Fort v. State, 52 Ark. 180, 11 S. W. 959; Miller v. State, 94 Ark. 538, 128 S. W. 353.

The witnesses of appellee had made a personal inspection. They were therefore more competent to testify, and their testimony would be more satisfactory than if they had answered hypothetical questions, or had testified from having heard the facts from other witnesses. There could be no better method of acquiring-knowledge as to the condition of the building as to whether it was a total loss than for competent witnesses to make an examination and inspection of it.

‘‘Whether or not the qualification of a witness with respect to knowledge or special experience is sufficiently established is a matter resting-largely in the discretion of the trial court, whose determination is usually final, and will not be disturbed by an appellate court, except in extreme cases where it is manifest that the trial court has fallen into error or has abused its discretion, and that prejudice to the complaining party has resulted, even though the appellate court might have decided differently if the question had been presented to it in the first instance.” 22 C. J., 526-527.

After the inspection by these witnesses and their testimony was given on direct examination, the appellants had an opportunity to cross-examine them to find out what the extent of their examination was, what portion of the building was left standing, if any, and whether or not it could be used in the construction of another building.

The evidence of the appellee was contradicted by appellant’s witnesses, W. W. Brown, J. D. Johnson, George II. Burden and O. M. Harrison. These were competent witnesses who had examined the building and testified that the building- was not a total loss. One of appellee’s witnesses testified that the foundation could not be used; that one pier had already kicked out, and that it was so damaged by water that it could not be used in building another building. Appellants’ witnesses testified that it could be used, although'none of them contradicted the witness about the pier, and none of appellants’ witnesses testified about the damage by water, and so far as the record shows, the damage by water was caused by the fire, that is, in an effort to extinguish the fire. At any rate, there is no evidence of water causing damage in any other way. The witnesses of appellants testified however, that the foundation could be used, and that it was not damaged by fire.

These were all questions of fact, and we have many times held that a chancellor’s finding of fact will not be disturbed on appeal unless clearly against the preponderance of the evidence, and we can not say that the finding of the chancellor is clearly against the preponderance of the evidence in this case.

• Appellants cite and rely on the case of Springfield Fire & Marine Ins. Co. v. Ramey, 245 Ky. 367, 53 S. W. (2d) 562. In this case there is no showing that the witnesses had made any inspection or examination, and neither of the witnesses testified to any facts at all, but each simply stated that in his opinion there was a total loss. The court, however, did not hold that this testimony was incompetent, but the court said: “The appellants succumbed to the inviting temptation, which often presents itself to opposing counsel, to cross-examine the other party’s witnesses, and thus aided in the development of the facts. When the evidence appearing as it is in the record, and thus brought in, it cannot be claimed that no competent evidence was presented authorizing the submission of the issues to the jury.”

The court held that it should have been submitted to the jury. The court also held: “The only evidence offered by the appellee other than that developed by the appellants on cross-examination of her witnesses was mere opinions of the. witnesses, expressed in response to improper questions. It is a wise and salutary rule that a witness must testify to facts within his knowledge and not a mere conclusion, except experts in response to hypothetical questions which must embrace the facts. To this general rule there is another exception which permits the admission of opinion evidence, not conclusions, when, from the very nature of the subject-matter under investigation, no better evidence can be obtained.”

The court held that in cases of the kind before it, that a witness could not be allowed to give his opinion without requiring him to state the facts upon which it is premised. The court then held that the instruction offered by appellant defining “total loss” was erroneous.

In the instant case the best qualification that witnesses could have had was the inspection and examination of the building. The main question in this case is whether there was a total loss, and, as we have said on this question, there was a conflict in the evidence. We said in a recent case: “If a building is destroyed as a building, so that the walls, although remaining, are in such a condition that they will have to be torn down, there is a total loss.” St. Paul F. & M. Ins. Co. v. Green, 181 Ark. 296, 29 S. W. (2d 304; Williams v. Hartford Ins. Co., 54 Cal. 442, 35 Am. Rep. 77; Oshkosh Packing & Provision Co. v. Mercantile Ins. Co., 31 Fed. 200; Penn. Fire Ins. Co. v. Drackett, 63 Ohio St. 41, 57 N. E. 962, 81 Am. St. Rep. 608; Teter v. Franklin Fire Ins. Co., 74 W. Va. 344, 82 S. E. 40; German Ins. Co. v. Eddy, 36 Neb. 461, 54 N. W. 856, 19 L. R. A. 707; Seyk v. Miller’s Nat. Ins. Co., 74 Wis. 67, 41 N. W. 772, 3 L. R. A. 523; Lowry v. Fidelity-Phoenix Fire Ins. Co., 210 Mo. App. 121, 272 S. W. 79; Fire Ass’n v. Strayhorn, Tex. Civ. App. 211 S. W. 447; Ins. Co. v. Heckman, 64 Kan. 388, 67 Pac. 879.

Under the authorities above cited, the chancery court was justified in finding that there was a total loss. The trial court held that the ordinance, of the city of Hot Springs was inadmissible, and therefore did not consider it. It is unnecessary to discuss it here because the appellants not only did not complain about it, but urged that the trial court decided it correctly. Whether it was correctly decided or not is immaterial here.

It is finally insisted that the clause of the policy above set out limits the liability of appellants, and that they are not liable for any loss beyond the actual cash value of the property, and in no event shall the recovery exceed what it would then cost the insured to repair or replace the same., etc. It is insisted that the appellees are bound by the contract, and cannot recover anything in excess of what it would cost to repair the building. That is not true in cases where there is a total loss.

Section 6147 of Crawford & Moses’ Digest provides that in case of total loss the insurance company is liable for the full amount stated in the policy. American Central Ins. Co. v. Noe, 75 Ark. 406, 88 S. W. 572; Farmers’ Home Mutual Fire Ass’n v. McAlister, 171 Ark. 574, 285 S. W. 5; Nat. Union Fire Ins. Co. v. Kent, 163 Ark. 7, 259 S. W. 370.

We find no error, and the decree is affirmed.


text:
    American Historical Society, Inc. v. Vestal.
    4-3534
    Opinion delivered October 1, 1934.

      Henry J. Burney, for appellant.

      Sam T. & Tom Poe and Raymond Jones, for appellee.
   Johnson, C. J.

This action was instituted by appellant against appellee in the municipal court of North Little Rock where a judgment was entered in favor of appellee. Upon appeal to the circuit court of Pulaski County, the result was likewise adverse to appellant, and this appeal must result in affirmance.

The suit was predicated upon the following written subscription contract:

“Number 92, May 15,1929, de luxe edition. Arkansas and its people. In four volumes. Please enter my name as a subscriber in the above named publication, issued in three-quarters leather, for which I agree to pay to the order of the American Historical Society, Inc., the sum of sixty-five dollars ($65), upon delivery of same at my residence or place of business. Occupation: Florist. Name: Charles H. Vestal. Residence address: 509 W. 5, No. L. R.”

On October 2, 1931, appellant notified appellee that delivery of the books called for in the subscription contract would be made during October and November, 1931, whereupon appellee advised appellant that he would not accept the books. The books were afterwards delivered but not accepted.

The trial court construed the contract as one to be performed within a reasonable time — same not providing any definite time for performance — and this is the first contention urged for reversal.

We are committed to the doctrine that where time of performance of a contract is not specified in the written instrument the law reads into it, “performance within a reasonable time,” therefore, no error appears from this assignment. Dunn v. Forrester, 181 Ark. 696, 27 S. W. (2d) 1005.

Next it is urged that error was committed in permitting appellee to testify that the sales agent who solicited the subscription contract told him that delivery of the books would be made about October, 1929. Certainly this testimony was at least a circumstance indicating what was considered a reasonable time by the parties for performance of the contract at the time, of its execution. This statement does not alter, vary, contra-diet or otherwise affect the contract, and was admissible and competent for the purpose indicated.

The question as to whether the contract was offered to be performed by appellant within a reasonable time after its execution was submitted to the jury under correct instructions, and the testimony is amply sufficient to sustain the jury’s verdict; therefore the judgment must be affirmed.


author: Humphreys, J.

text:
    Udes v. Nyegaard.
    4-3541
    Opinion delivered October 1, 1934.

      Reinberger & Reinberger and Arnold Fink, for appellants.

      Rotvell <& Rowell and Jay W. Dickey, for appellees.
   Humphreys, J.

This foreclosure proceeding was commenced in the chancery court of Jefferson County by appellants against appellees on June 29, 1933, upon a note and mortgage executed by appellees to A. Udes on June 24, 1927, due three years thereafter and which, at first maturity, had been extended three years. At the time of the "institution of the suit, the debt was. due, and appellees were in default on interest and taxes, which they were required to pay under the terms of the mortgage.

Appellees interposed the defense that on the 21st day of June, 1933, they entered into an oral agreement with A. Udes that, in satisfaction of the debt and mortgage, they would convey said property to him, and pay the then due improvement taxes and the county and State general taxes for 1932,- and accrued interest of $25 due at that time; that, pursuant to the agreement, they tendered him a, deed describing the property and $25 interest, and exhibited to him a receipt for improvement taxes, and offered to pay the county and State general taxes for 1932; that he refused to accept the deed and carry out the agreement. They prayed, by way of cross-complaint, that appellants be required to perform the oral contract.

The court heard the cause upon the pleadings, exhibits, and testimony adduced and adjudged that the note and mortgage be canceled, and that A. Udes be required to accept the deed, from which is this appeal.

John W. Nyegaard testified unequivocally that an oral agreement was entered into between A. Udes and himself to the' effect that A. Udes would accept a deed to the property, and cancel the note and mortgage if he would pay the interest then due of $25, and pay the district improvement taxes and the county and State general taxes, all of which he offered to do, but that A. Udes refused to accept the deed and carry out the agreement.

A. Udes testified just as positively that no such agreement was ever made between them.

This court is committed to the doctrine that a mortgage may be released by either a written or parol agreement, but, in order to effect such a release by parol, the agreement must be established by clear and convincing evidence. This court said in the case of Riley v. Atherton, 185 Ark. 425, 47 S. W. (2d) 568, that: “We have reached the conclusion that, as to mortgages of real estate, the correct rule is that the proof relating to the discharge or release thereof must be clear, satisfactory and convincing. Title to real property, and the validity and continued existence of mortgages thereon, would be insecure by any less stringent rule. ’ ’

The most that can be said in the instant case relative to the evidence is that it is in equipoise. Both parties stand in the record unimpeached, and their evidence presents an irrevocable conflict, creating a doubt rather than a certainty that such an oral agreement was ever made.

The payment of taxes does not corroborate the testimony of John W. Nyegaard, because it was his duty under the terms of the mortgage to pay them.

The tender of a deed and $25 interest does not sufficiently corroborate his testimony to make it certain and convincing that Udes had agreed to accept the deed and satisfy the mortgage.

It would be an unwise and dangerous rule to say that a mortgage on real estate might be satisfied in paro’1 by a mere preponderance of the evidence. The parol agreement must :be established by clear and convincing evidence in order to effect a satisfaction of a mortgage.

On account of the error indicated, the judgment is reversed, and the cause is remanded with directions to enter a decree of foreclosure in favor of appellants.


text:
    The Corning Bank & Trust Company v. Foster.
    4-3523
    Opinion delivered October 1, 1934.

      Oliver & Oliver, for appellant.

      F. G. Taylor and Jeff Bratton, for appellee.
   Mehaffy, J.

In 1923 Arthur D. Foster, the appellee, took out a policy on his life for the sum of $5,000. The policy carried a disability clause, and was made payable on the death of appellee to his executors, administrators or assigns.

The appellee became indebted to Dr. S. P. Black-wood, and on June 1, 1926, and also on July 10, 1926, executed unconditional assignments. On August 2,1926, Blackwood assigned the policy to the First National Bank of Corning to secure an indebtedness of approximately $4,500' and any other indebtedness which he might owe.

Foster became disabled within the terms of the policy, and the company made payments, some of which were paid to the bank and credited to Blackwood’s indebtedness.

In April, 1929, the First National Bank of Corning secured a loan from the Corning Bank & Trust Conn pany, and among the assets offered the Corning Bank & Trust Company was the indebtedness of Blackwood. In 1930 the Corning Bank & Trust Company became insolvent, and The Corning Bank & Trust Company purchased the assets, among which was the indebtedness of Black-wood secured by assignment of the policy above mentioned.

This suit was filed by appellee, alleging’ that his assignments to Dr. Blackwood were intended only to secure payment of a debt he owed Blackwood at the time, and that the debt had since been paid in full. It is appellee’s contention that appellant has no greater title than Blackwood had. He prayed for a reformation of his assignment and for possession of the policy.

Appellant admitted that it had possession of the policy, but denied appellee’s right to reform, and alleged that it was the unconditional owner by reason of the transaction above set forth. It further alleged that it, and its assignor, Corning Bank & Trust Company, without knowledge or notice of appellee’s contention, had relied upon the assignments executed by appellee to their prejudice, mid that appellee is estopped to claim ownership.

There was a trial and a decree in favor of appellee, and the case is here on appeal.

Both Foster and Blackwood testified that, while the assignment was unconditional, it was made for the purpose of securing appellee’s indebtedness to Black-wood, which was at that time $1,580. They further testified that, when Blackwood made the assignment to the bank, appellee only owed Blackwood $905, and they talked to Mr. Lindsey, of the bank, and told him that the assignment to Blackwood was made for the sole purpose of securing Foster’s indebtedness to Blackwood, and that it had all been paid except $905; that the bank knew that the assignment was made to Blackwood for the purpose of securing the debt, and knew the amount of the indebtedness. They testified that they told the bank that the assignment was not intended to be an absolute assignment, but the intention was that, when the debt was paid, the policy was to be returned to appellee. There was other evidence corroborating the statements of the payments to Blackwood, reducing the indebtedness to $905. The evidence of Foster and Blackwood was not contradicted.

The witnesses for appellant testified that they read the assignment, and relied on. Mr. Arnold’s statement that it had an assignment of a life insurance policy as security for Blackwood’s note. F. B. Sprague, J. Gr. Black and J. F. Arnold, all testified to substantially the same facts: that they took the assignment, and understood that they were getting the policy because the assignment was unconditional.

• There was considerable testimony introduced, but it is immaterial in the determination of the issues in this ease, and for that reason we do not set it out.

The appellant makes two contentions: first, that the court erred in its finding that appellee was entitled to a reformation of his assignments to Dr. Blackwood; second, that the court erred in its finding of law to the effeet that Corning Bank & Trust Company could not rely upon the written acknowledged assignments from appellee to Br. Blackwood, and that appellee is not estopped to deny they conveyed absolute title.

As to the first proposition, it is urged that appellee was not entitled to reformation of his assignments unless the evidence was clear and convincing, and appellant cites and relies on two cases: Purvis v. Horn, 185 Ark. 323, 27 S. W. (2d) 48, and Fullerton v. Storthz, 182 Ark. 751, 33 S. W. (2d) 714. In the case in 185 Arkansas, there was an assignment, and the court said: “If the second assignment set out above had been the only assignment, it would, of course, have been proper to tell the jury that it could not be treated as a mere pledge unless the testimony to that effect was clear, satisfactory and convincing. ’ ’

In the instant case, there was the positive testimony of both Blackwood and Poster that the assignments were intended only for the purpose of securing the indebtedness to Blackwood, and that this was known to the bank. The representative of the bank, who received the assignment and contracted with Blackwood, was not a witness, and therefore the testimony of Blackwood and Poster was undisputed.

The evidence shows that S. P. Lindsey was the vice president of the First National Bank, and had positive knowledge that the assignment to Blackwood was for the purpose of securing a debt which at that time amounted to $905. • The fact that both Blackwood and Poster testify to this, and that Lindsey does not testify, malee the evidence on this, we think, clear and convincing.

It is contended by the appellant that the fact that appellee had Lindsey subpoenaed, and did not put him on the stand raises the presumption that, if he had been examined, his testimony would have been unfavorable. We do not agree to this contention. He was an officer of the bank; both appellee’s witnesses testified to the transaction with him; he was present, and the appellant could have put him on the stand, and would doubtless have done so if he would have contradicted the testimony of Poster and Blackwood.

In the case in 182 Arkansas, the court said that a contract would not. he reformed for mistake unless it be clearly shown that the mistake was common to both parties, and that the contract as executed does not express the contract as understood by either of them.

We think the finding of the chancellor on this question was correct. Moreover, the insurance contract, while assignable, was not negotiable, and any defense which could have been made to a suit by Blackwood, could also have been made against his assignee. General Motors Acceptance Corp. v. Sanders, 184 Ark. 957, 43 S. W. (2d) 1087.

Again this court said: "The fifth requisite of a negotiable instrument under that section is that.it must be payable to order or bearer. The instruments sued upon are lacking in that essential, and are not negotiable instruments. Since the instruments were not negotiable, but assignable only, appellant took them subject to all defects or infirmities available to the maker as a defense against the payee therein.” General Motors Acceptance Corporation v. Salter, 172 Ark. 691, 290 S. W. 584.

It is next contended that the court erred in holding that the bank could not rely on the written assignments, and erred in holding that appellee is not estopped. Appellant calls attention to 37 C. J. 438. The paragraph relied on in C. J. reads as follows: "An assignor may be estopped to question the validity of an assignment of a policy, where the elements of an estoppel are present; otherwise not.”

That same paragraph also contains the following: "It has been held, however, that the assignor is not es-topped to set up title as against one to whom the assignee assigned the policy.”

There could be no estoppel in this case for several reasons; first, the court found that the bank knew that the original assignment was for the purpose of securing a debt; second, the court found that there is still a balance of the debt due Blackwood. Appellee would have no right to maintain a suit for the policy until the debt secured by the assignment was paid. The policy, being assignable but not negotiable, put the bank upon inquiry to discover what interest Blackwood had in the policy, and especially is this true since the assignment by Black-wood was of his interest only.

There is no claim and no evidence that the appellee did anything that would estop him, and he did nothing that would prejudice the rights of the appellant, and the only thing that appellant claims would operate as estoppel is making the unconditional assignment. As we have already said, the instrument, being assignable but not negotiable, appellant was put on notice, and it was its duty to make inquiry and ascertain for what purpose the assignment was made. In addition to this, Blackwood’s assignment was an assignment of his interest only, and this put the appellant on notice.

“As to estoppel and laches, the onus is on the party setting* them up to make out the facts on which they rest.” Locke v. Bowman, 168 Mo. App. 121, 151 S. W. 468.

“Nobody ought to be estopped from averring* the truth, or ascertaining a just demand, unless, by his acts or words or neglect, his now averring the truth or ascertaining the demand would work some wrong to some other person who has been induced to do something, or to abstain from doing something by reason of what he had said or done or omitted to say or do.” Herman on Estoppel, vol. 1, p. 6.

“Equitable estoppels only arise when the conduct of the party estopped is fraudulent in its purpose or unjust in its results, and this forms the distinction between the common-law estoppel, and that which has grown up in equity in modern times.” Herman on Estoppels, vol. 2, p. 862.

Appellant next calls attention to Cooley’s Briefs on Insurance, vol. 2, p. 1115. There is nothing in this authority that supports the contention of the appellant.

Appellant cites and relies on the case of Tower v. Stanley, 220 Mass. 429, 107 N. E. 1010. The court there said, among other things: “The first notes being* valid for their original tenor, the plaintiff concedes that he must pay the amounts, and it would follow that upon payment lie -would be entitled to a cancellation of the assignment and a return of the policy.”

Appellant next calls attention to Fidelity National Bank & Trust Co. v. McNeal, 67 Fed. (2d) 516. "We find nothing in this case that supports the contention of the appellant. The certificates transferred in that case bore the blank indorsement of the paving company, the original owner, and the appellant indorsed nothing on them to indicate its ownership or interest in them. It thereby clothed the Municipal Securities Corporation with every indicia of ownership. The court held: “Having clothed that company with every indicia of ownership, the appellee having acquired the securities in good faith, for value, and without notice of appellant’s interest, it is estopped to assert that interest to defeat appellee.”

The facts in this case clearly show that the original assignment by Foster was to secure the payment of his indebtedness to Blackwood, and that the bank took Black-wood’s assignment of his interest with full knowledge of the facts. There is. considerable conflict in the authorities as to the assignment of insurance policies. Many courts hold that a life insurance policy cannot be assigned to any person having no insurable interest, except as security for a debt. Those courts hold that an assignment to a person who has no insurable interest except for the purpose of securing a debt, is void, and that when made for the purpose of securing a debt, they are valid only for that purpose. This court, however, has held otherwise.

“But it is said that Mrs. Bledsoe had no insurable interest in the life of Henry, and that the assignment was void for that reason. The law does not allow one having no interest in the life of another to speculate upon that life by taking out a policy of insurance upon it; and, if Mrs. Bledsoe had taken out this policy on the life of Henry in her own name, there might be some question as to whether she had such an interest in his life as would support the policy. But every person has an insurable interest in his own life; and, as Henry had the right to take out a policy on his own life, payable to his administrator or assigns, it is not disputed that this policy was valid. The policy being valid and belonging to Henry, he had, on the approach of death, the same right to give and transfer this property to any one in whose welfare he felt an interest as he had to dispose of any other property that he owned.” Matlock v. Bledsoe, 77 Ark. 60, 90 S. W. 848. This case was followed in Page v. Metropolitan Life Insurance Co., 98 Ark. 340, 135 S. W. 911; National Life & Accident Ins. Co. v. Jackson, 179 Ark. 412, 16 S. W. (2d) 469; Home Life Ins. Co. of N. Y. v. Masterson, 180 Ark. 170, 21 S. W. (2d) 414.

In the last case the court said: “Again, in Page v. Metropolitan Life Ins. Co., 98 Ark. 340, 135 S. W. 911, it was held that the assignment of a life insurance policy to one not having an insurable interest in the life of the insured is not objectionable as being by way of cover for a wager policy, unless, at the time the policy was taken out, the insured intended to make such assignment.

‘ ‘ This court has adhered steadily to this ruling, and it has been uniformly held that a wagering contract of insurance is contrary to public policy, and void.”

The assignment therefore is not void, although there may be no insurable interest, but since the policy is assignable but not negotiable, the assignee of Blackwood had no greater right than Blackwood had. Besides, the evidence shows that the bank knew that the original assignment to Blackwood was for the purpose of securing a debt.

We find no error, and the decree is affirmed.