text:
    Hill v. Walthour.
    Opinion delivered June 16, 1924.
    1. Municipal corporations — improvement district — boundaries. —As the action of a city council in including certain property within an improvement district is conclusive that it adjoins the locality to be affected, except when attacked for fraud or mistake, so its action in excluding certain property therefrom is conclusive unless it appears to have been left out through fraud or mistake.
    2. Municipal corporations — improvement district — boundaries. —An ordinance fixing the boundaries of an improvement district which adopted the distance of 150 feet from the improvement as the limit, though a portion of certain abutting lots was thereby excluded from the district, was not arbitrary.
    Appeal from Pulaski Chancery Court; John ■ E. Martineau, Chancellor;
    affirmed.

      Jea/n <& Jones, for appellant.

      Rogers, Barber & Henry, for appellee.
   McCulloch, C. J.

Street Improvement District No. 379 was formed by the city council of Little Bock, pursuant to the general statutes of this State, for the purpose of paving Fountain Avenue from Markham Street south 575 feet, and Thayer Avenue from Markham Street south 875 feet, and Grove Circle, a street or avenue extending through the block between Fountain Avenue and Thayer- Avenue. The boundaries of the district are described so as to include all land abutting on either of said, streets and within 150 feet of either of said streets. Block No.- 2 is circular in shape, but is not a complete •circle, and it abuts on Markham Street on the north, on Fountain Avenue on the west, on Thayer Avenue on the east and on Grove Circle on the south. • There is a circular area in the center 100 feet in diameter, and the lots are laid off so as to abut on the streets surrounding the circle. The lots are not of uniform width in front nor on the rear, as they abut on the circle in the center of the block, and, on account of the irregularity of the radii, some of the lots are of greater depth than the others. There are sixteen lots in the block, and the shortest one appears, according to the plat, to be 139.5 deep and the longest one 201.9. The north end of block 1 abuts on Grove Circle, and is of irregular shape. There is a semicircular court in the rear of the lots in block 1, abutting on Grove Circle, -and this area is reached by an alley, the same as the circular area in the center of block 2., The lots in block 1 abutting on Grove Circle are of irregular depth, some more and some less than 150 feet deep. On account of the irregular length of the lots and the fact that the boundaries of the district extend only 150 feet from the front of the lots as they abut on the streets to be paved, many of the lots are not wholly included in the boundaries of the district; but, on the other hand, the two areas in blocks 1 and 2, and also that portion of the longer lots in excess of 150 feet in depth, are excluded from the district and will not be taxed for the construction of the improvement.

Appellant is an owner of real property in the district, and he attacks the validity of the district on the ground that, by reason of the situation hereinbefore described, property which would be necessarily benefited is excluded, which results in discrimination against the property owned by appellant and other property in like situation.

Appellant relies on decisions of this court which hold that where, in the creation of a district, there is an obvious exclusion of property which would necessarily be, benefited, it renders the organization void. Heine mann v. Sweatt, 130 Ark. 70; Milwee v. Tribble, 139 Ark. 574; Jones v. Road Improvement Districts, 142 Ark. 73. Those cases are not, we think, applicable to the situation presented in the present case. It has long been the doctrine of this court that “the action of the city council in including property in an improvement district is conclusive of the fact that it is adjoining the locality to be affected, except when attacked for fraud or demonstrable mistake” (Little Rock v. Katzenstein, 52 Ark. 107), and that the city council “is invested with the same discretion in excluding real property from a district as it is in including it, and the same conclusiveness ought to and does attend its action, the reasons for the same being equally strong or stronger.” Lenon v. Brodie, 81 Ark. 208. The fact that the real property excluded from the boundaries of the district constitutes the back ends of lots which are situated wholly within the outer boundaries of the district does not avert the application of the doctrine of the cases cited above, for, even though the property is thus situated, it cannot be said to have been a demonstrable mistake to conclude that this property, .not abutting on any paved street and as much as 150 feet distant, would not receive special benefit from the improvement. The adoption of a uniform boundary line, measured by the distance from the improvement, is certainly not arbitrary, even though property is excluded which is wholly within the outer boundaries of the district. In other words, it cannot be said that the rear end of the lots which abut on the circular court in the middle of the block are necessarily benefited from the improvements of the street on which the front of the lots abut.

The chancery court decided that the attack on the validity of the district is unfounded, and dismissed the complaint for want of equity. This was correct, and the decree is affirmed.

Hart, J., dissents.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Murphy v. Murphy.
    Opinion delivered June 16, 1924.
    1. Fraudulent conveyances — validity inter partes. — A deed executed to defraud creditors is good between the parties.
    2. Fraudulent conveyance — right to cancel. — Under Crawford & Moses' Dig., § 70, providing that the executor or administrator of a fraudulent grantor may sue to set aside and cancel a fraudulent deed “for the use and benefit of the heirs at law ' of the fraudulent grantor,” grantees, not the heirs, of such fraudulent grantor are not entitled to sue for such cancellation.
    3. Appeal and error — harmless error. — A decree will not be reversed for erroneous reasoning of the trial court if the cause for other reasons should be affirmed.
    Appeals from Union Chancery Court, First Division; J. Y. Stevens, Chancellor;
    affirmed.

      :Melbourne M. Martin and JuneP. Wooten, for appellant.
    There is no evidence that appellee was a creditor of J. Warren Murphy, hence he cannot maintain a suit to set aside the deed which he alleged was fraudulently executed. 96 Ark. 531; 121 Ark. 550 ; 21 Ark. 375; 34 Ark. 291. The deed was good between J. Warren Murphy and appellant. 52 Ark. 171; 52 Ark. 389; 59 Ark. 251; 25 Ark. 181. Conceding that appellee was a creditor, his long delay in bringing suit would bar him from attacking the deed. 34 Ark. 451; 67 Ark. 325; 132 Ark. 462; 59 Ark. 614. The necessary elements to establish adverse possession are lacking. 72 Pac. 91; 33 Fla. 261, 39 A. S. E. 139; 107 Ark. 374; 22 Ark. 79. Fitful acts of ownership are not sufficient. 81 Ark. 258; 84 Ark. 587; 48 Ark. 277. The burden of proof was on appellee to establish his claim from a preponderance of the testimony. 82 Ark. 51; 76 Ark. 426; 79 Ark. 109. See also. 89 Ark. 19.

      McNalley & Kitchen, for appellee.
    This is primarily a suit to remove cloud from title and not to set aside a fraudulent conveyance, as contended by appellant. The deed to appellant never became operative for that purpose. 1 Devlin on Deeds, 3d ed. pp. 387, 397. There must he an intention of the grantor to part with title. 101 111. 429. An acceptance of the deed is essential to pass title. i80: Ark 8; 13 Cyc. p. 570. Appellee was in possession of the land under deeds and payment of taxes; appellant never asserted any claim under his purported deed, therefore the statute of limitations never did begin to run. 137 Ark. 69; 131 Ark. 22. "When relied on as a defense, the statute must be pleaded in equity as well as in law. 78 Ark. 209; 19 Ark. 16; 80 Ark. 181. Where the statute was not pleaded below, it cannot be availed of on appeal. 80 Ark. 218. Adverse possession under color of title and payment of taxes for seven years raises a strong presumption that the possession was continuous. 34 Ark. 598; 38 Ark. 181.
   McCulloch, C. J.

These are two cases which involve the same questions of law and substantially the same facts, and will therefore be disposed of in one opinion. Each case involves the title to certain tracts of land, and the parties claim from a common source. All of the lands were formerly owned by J. "Warren Murphy, who conveyed them by deed dated December 11, 1901, to L. D. Murphy, appellant in each of these cases.

Appellee T. W. Daniels claims title to 120 acres of the land — three tracts containing forty acres each — under mesne conveyances from J. Warren Murphy, who executed deeds in the year 1909, long after he had executed the first deed to appellant. O. T. Murphy, the appellee in the other case, who was a brother of J. Warren Murphy, claims title to forty acres of the land under mesne conveyances from J. Warren Murphy. Each of the appellees instituted a separate action against appellant to cancel the conveyance executed by J. Warren Murphy in the year-1901 to appellant L. D. Murphy, and alleged as grounds that the conveyance was executed for the purpose of defrauding creditors of said grantor. Each of the appellees sets up title in the respective tracts of land claimed by mesne conveyances, and each of them also alleges that he has title by adverse possession for a period of seven years prior to the commencement of the suit. .

Appellant filed1 answer in each ot the cases, denying that the conveyance of J. Warren Murphy to appellant L. D. Murphy was executed for any fraudulent purpose, and denying that appellees had title by adverse possession or otherwise.

Oil 'the trial of the cause the court found that the conveyance from- J. Warren Murphy to appellant L. D. Murphy was executed to defraud creditors, and entered a decre'e canceling that deed, and vesting title in appellees as to the tracts of land claimed by them respectively.

We are of the opinion that the decree in neither of the cases -can be sustained on the ground that the deed was executed to defraud creditors. This is so because neither of the appellees were in position to complain of the fraudulent conveyance. A deed executed to defraud creditors is good between the parties. Bell v. Wilson, 52 Ark. 171. There is a statute providing that the 'executor or administrator of a fraudulent grantor may sue to set aside and cancel a deed “for the use and benefit of' the heirs at law of the fraudulent grantor, saving the rights of creditors and purchasers without notice.” Crawford & Moses’ Digest, § 70. This court has decided that the heirs of a fraudulent grantor may institute -an action under this statute, where the executor is a parW to the conveyance and refuses to sue. Moore v. Waldstein, 74 Ark. 273. Neither of the appellees bring themselves within the terms - of this statute, for neither -is executor or administrator of the deceased fraudulent grantor, and neither of them is the heir. The court was therefore in error in decreeing in favor- of appellees on this ground. But this does not call for a reversal of the decrees if, for other reasons, they were correct. We are of the opinion that both decrees are correct, for the reason that each of the appellees proved title by.adverse possession. . . «• A

' The proof in the Daniels case showed that the [tracts of land involved in that controversy were-conveyed,ito the grantor of appellees in the year 1909, and that possession was immediately taken. Appellee Daniels purchased the land in 1916 and took possession from his grantor, and occupied it up to the commencement of this action in June, 1922. There is.a slight conflict in the testimony as to the character and 'Continuity of the possession, but appellant introduced no testimony at all on this issue, and we are of the opinion that the preponderance of the evidence shows that appellee Daniels and his predecessor in title actually occupied the land more than seven'years, claiming ownership under color of title. It does not appear from the proof that all of the lands were in cultivation, but, there being color of title and actual possession of a portion, the possession extended, in law, to the full limit of the boundaries described in the deed.

In the other case the proof was even stronger in favor of appellee O. T. Murphy. The record shows that he received a deed of conveyance to the land now claimed by him on October 29, 1910, and he' testified that he entered into possession of the land immediately, and actually occupied it under this deed until the commencement of this action, a period of about twelve years. Another reason why the decree in the O. T. Murphy case should be affirmed is that J. Warren Murphy had parted with his title to the forty-acre, tract of land involved in that controversy prior to his 'Conveyance to appellant L. D. Murphy in 1901, J. Warren Murphy having conveyed the land to one Whatley in the year 1883, and appellee has a straight title under mesne conveyances from Whatley.

" Our conclusion therefore is that in each case the decree was correct, on grounds other than those stated by the court in rendering the decree. Each decree is therefore affirmed.


author: Humphreys, J.

text:
    Jones v. State.
    Opinion delivered July 14, 1924.
    1. Homicide — instruction as to self-defense. — In a prosecution for murder, an instruction that, jf deceased did first assault defendant with intent of inflicting bodily harm less than death or great bodily injury, and it so appeared to defendant, the killing- could not be justified, was abstract and prejudicial where there was no testimony calling for submission of such an issue.
    2. Criminal law — instruction—weight of evidence. — In a prosecution for murder the use of an illustration in defining malice that “circumstances may be many and varied, such as lying in wait for the intended victim to pass, and kill him as he approached,” held not to amount to instructing on the weight of the evidence.
    3. Criminal law — multiplication of instructions. — The court is not required to multiply instructions on the same questions.
    Appeal from Poinsett Circuit Court, Second Division; G. E. Keck, Judge;
    reversed.

      T. A. Turner, Aaron McMullin and E. P. Maddox, for appellant.

      J. 8. Utley, Attorney General, and John L. Garter, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted in the circuit court of Poinsett County for the crime of murder in the first degree for shooting Jesse Adair, on the first day of August, in said county. He was tried upon the charge, convicted of murder in the second degree, and adjudged to serve a term of twenty-one years in the State Penitentiary as punishment therefor. Prom the judgment of conviction an appeal has been duly prosecuted to this court.

The testimony introduced by the State tended to show that appellant shot, with fatal effect, the deceased, Jesse Adair, in the back, as he was walking away from him.

The testimony introduced -by appellant tended to show that he shot the deceased in necessary self-defense as deceased was attempting to draw his pistol with which to shoot appellant; that this attempt was made only a short time after deceased had threatened to kill appellant, and not long after he had bought a pistol for that avowed purpose.

There was no evidence introduced tending to show that the deceased assaulted or attempted to assault appellant with his hands, a stick, or something with which he could not likely inflict great bodily harm upon or kill appellant. Notwithstanding the fact that the only evidence introduced in support, of appellants plea of self-defense was that deceased attempted to assault him with a pistol at the time he fired the fatal shot, the court, over the specific objection of appellant, instructed the jury as follows:

“The defendant seeks to justify or excuse this homicide on the ground of self-defense. The plea of self-defense is founded solely on the principle of necessity. Before this plea is available in this case, it must have appeared to the defendant, not only that danger to himself at the hands of the deceased was imminent, irremediable and actual, but that it was so pressing and immediately urgent that, to save himself from death or great bodily harm at his hands, the killing of the deceased was necessary, and that he acted in good faith under that apprehension, and not in a spirit of revenge, arid that he employed all the means in his power, consistent with his safety, to avoid the danger and to avert the necessity of killing. He was not bound to retreat if the deceased first assaulted him, with an intent to murder or inflict upon him great bodily harm, but might have stood his ground, and, if necessary to save his own life or protect himself from great bodily harm, might have killed his assailant. And if the deceased did first assault the defendant, but did so with the intent of inflicting upon the defendant some bodily harm less than death or great bodily injury, and it so appeared to the defendant, acting without fault or carelessness in coming to such conclusion, then the killing could not be justified on the ground of self-defense.” : |

The specific objection, challenges the correctness of the following language used in the instruction, upon the ground that it was abstract and calculated to confuse and mislead the jury: ■

“And if the deceased did first assault the defendant, but d-id so with the intent of inflicting upon the defendant some bodily harm less than death or great • bodily injury, and it so appeared to the defendant, acting without fault or carelessness in coming to such conclusion, then the killing could not be justified on the ground of self-defense.” ...

This part of the instruction was abstract.and prejudicial, for the reason that there was no testimony in the .case .to.call for a submission of, the issue stated therein.’ Testimony .presented by the. State tended to prove that appellant shot deceased without warning and. without any provocation.whatever, that deceased made no offensive demonstration at all against appellant. Appellant testified.that, when, he fired the fatal shot, deceased was in a hostile attitude, drawing a pistol. But .there was no testimony to justify a finding that, if deceased was making an assault or hostile demonstration at all, it was to inflict only slight bodily harm, nor that it so appeared to appellant. The instruction was prejudicial, for, being entirely abstract, it may have led the jury into mere speculation as to whether or not deceased meant to inflict an injury less than death or great bodily harm.

Appellant also contends that the court committed reversible error by the use of the following illustration in instructions Nos. 1, 4, and 10, defining malice: •

“These circumstances may be many and varied, such as lying in wait for the intended victim to pass and kill him as he approached.” ' - • ;

We cannot agree with appellant that the use of this illustration amounted to an instruction upon the weight of the evidence, but it was unnecessary to incorporate it in the instructions to express the idea they intended to convey. The State can suffer no harm by the elimination of the illustration from the instructions on a new trial.of the cause.

.Appellant also contends, that the court committed reversible error in refusing to give six separate instructions which he requested, being Nos. 2, 3, 4, 5, 6, and 8. We have compared each of them with the several instructions given by the court, and find that they are all covered by the instructions given. The court was not required to multiply instructions upon the same questions.

Appellant contends for á reversal of the judgment upon other grounds than those referred to, but none; of them are likely to recur upon a new trial of the cause, so we refrain from discussing them.

On account of the error indicated the judgment is reversed, and the cause remanded for a new trial.


author: ■Smith, J.

text:
    Hardy v. Cloe.
    Opinion delivered July 14, 1924.
    1. Highways — duty of driver of automobile passing team. — In an action for damages caused by plaintiff’s team becoming frightened by defendant’s automobile, it was error to instruct the jury upon the duty of defendant to stop his automobile, under the statute (Crawford & Moses’ Dig., § 7428), which had no application where both vehicles were going in the same direction.
    2. Highways — care in passing team — jury question. — In an action for damages for injuries sustained when defendant’s automobile passing plaintiff’s team made them unmanageable, what defendant should have done in the exercise of ordinary care held for the jury.

      3. Highways — negligence—jury question. — In an action for injuries sustained when defendant’s automobile in passing plaintiff’s team made them unmanageable, whether defendant was negligent in driving at an unreasonable speed, or in passing on the wrong side, or in driving unnecessarily close to the plaintiff’s team, held for the jury, without reference to Crawford & Moses’ Dig., § 7428.
    4. Negligence — refusal of instruction on contributory negligence. — In an action for damages for injuries sustained when defendant’s automobile frightened plaintiff’s team in passing and made them unmanageable, an instruction to the effect that plaintiff was guilty of contributory negligence if he had recently been injured and had not fully recovered his strength, was properly refused, though such fact could be considered by the jury in determining whether plaintiff was negligent.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    reversed.

      Rice & Rice, for appellant.

      Vol T. Lindsey, for appellee.
   ■Smith, J.

Appellee alleged and offered testimony tending to show that he was driving a wagon loaded with hay, drawn by a team of mules, on one of the public roads of Benton County, and that appellantj who was driving an automobile at an excessive speed, going in the same direction, passed him by going to his right and so near the wagon as to frighten his team. That he lost control of the team, and some of the bales of hay were thrown from the wagon, and he fell in front of the wagon, which ran over him and broke his leg. That appellant gave no warning of his approach, and, when he discovered appellant’s presence, he attempted to drive over on the right-hand side of the road to allow appellant to pass, but, before he could do so, appellant flashed by so close to the wagon and at such speed as to frighten the mules and to cause them to become unmanageable.

Appellant denied that he was driving rapidly, and testified that his car was under complete control, but that appellee was driving in the middle of the road, but nearer the right than the left side of the road, and that he blew his horn for appellee to pull over to the right to allow him to pass on the left, and, when appellee failed or refused to give him space to pass on the left, he drove by on the right, where there was more space for passing. That the team did not appear to be frightened, and that he drove by without knowing that they had become so, and that he knew nothing of appellee’s injury until he was told about it later.

The court gave, over appellant’s objection, an instruction numbered-2, reading as follows: '“The court charges the jury that § 12 of act 134, Acts of 1911, reads as follows: 'Whenever it shall appear that any horse, ridden or driven by any person upon any of said streets, roads and highways, is about to become frightened by the approach of any such motor vehicle, it shall be the duty of the person driving or conducting such motor vehicle to cause the same to come to a full stop until such horse or horses shall have passed, and, if necessary, assist in preventing accident. Any person convicted of violating this section shall be fined in any sum not to exceed two hundred dollars.’ ”

Upon objection being made to this instruction, the court added the following modification: "But, before the defendant in this case could be held to be liable under this section, it must appear to him as his reasonable belief that the team driven by the plaintiff in this case was about to become frightened by the approach of defendant’s motor vehicle, or had become frightened.”

The instruction as thus modified was also objected to, and an exception was saved to the action of the court in giving it.

The giving of this instruction was error, for the reason stated in the case of Fleming v. Oates, 122 Ark. 28, where the same instruction was given, it being copied from § 12 of act 134, of the Acts of 1911, found as § 7428, C. & M. Digest.

In that case, as in this, the automobile had passed a slower vehicle, both going in the same direction, and we there said: "The purpose of that statute was to require drivers of automobiles to come to a full stop when they observe that an approaching horse, ridden or driven by another traveler, is about to become frightened. The statute imposes an absolute duty on the driver of the automobile to stop, and liability for damages arises from a violation of that statute. We think, however, that the statute was not intended to impose the absolute duty upon the driver of an automobile to stop his machine because a team in front, going in the same direction, appears to be frightened, bnt, under those circumstances, it is left to a trial jury to say whether, under all the circumstances of the case, the driver of the automobile had been guilty of negligence. ’ ’

Again construing this statute in the case of Russ v. Strickland, 130 Ark. 406, we said1: ‘ ‘Since the enactment of this statute, the driver of a car cannot determine for himself whether it is as safe or safer to proceed than it is to stop (where he is meeting a frightened team). The law has decreed that he must stop his car, and he is under the duty to do so, although, in his opinion, some other course may be safer. His failure to stop the car under these circumstances is therefore negligence, and renders him liable for any injury of which it is the proximate cause, provided the party injured is not himself guilty of negligence contributing to his injury. ’ ’

This section of the statute does not undertake to define what action the driver of the automobile shall take when he passes an animal being driven in the same direction, and the statute therefore has no application under the facts of this case. The driver of the automobile must, of course, exercise ordinary care in doing so, but the measure of this care has not been defined by the statute, except where one meets a frightened team, so that it is a question of fact in such cases as the instant one for the jury to decide what the driver of the car should have done in the exercise of ordinary, care, and this conclusion should be reached without considering the statutory requirement applicable to a different situation.

The modification or addition to the instruction did not cure this error because, as we have said, the statute did not apply to the facts of this case.

Instruction numbered 3, given at the request of the appellee, is substantially to the same effect, and was erroneous for the same reason.

Other instructions given properly submitted to the jury the question whether appellant was driving at an unreasonable speed, and, if so, whether this was the proximate cause of the injury, and whether also, under the circumstances, it was negligence for appellant to have passed, the wagon on the right side instead of passing it on the left.

Appellant may have been negligent in driving at an unreasonable speed, or in passing on the wrong side, or in driving unnecessarily close to the team; but these were questions of fact to be passed upon by the jury, without reference to the statute copied into instruction numbered 2, and, if appellant was guilty- of negligence in any of these respects, appellee would have the right to recover, unless he was himself guilty of negligence contributing to his injury.

An instruction asked by appellant on the subject of contributory negligence was refused by the court. This instruction was based upon testimony that appellee had been previously and recently injured in an automobile accident, and had not fully recovered his strength, and the requested instruction would, if given, have told the jury that this constituted contributory negligence. This instruction was properly refused, for the reason that it constituted a charge upon the weight of testimony. It was, of course, proper for the jury, in passing upon the question of appellee’s contributory negligence, to con-, sider whether his physical condition was such that he was unable to exercise that control over his team which another traveler on the road had the right to expect; but this was a question of fact for the jury, and not one of law for the court.

Except in the particulars indicated the case appears to have been submitted under correct instructions, but, for the errors indicated', the judgment is reversed, and the cause is remanded for a new trial.


author: Hart, J.

text:
    Hale Hardware Company v. Ragland.
    Opinion delivered July 14, 1924.
    1. Master and servant — wrongful discharge — duty to seek other employment. — A salesman, wrongfully discharged, is not bound to seek or accept other employment of a different character in order to minimize his employer’s damages.
    2. ' Master and servant — right to discharge servant. — The general rule is that an employer may lawfully refuse to continue in his employ a .servant who has shown himself to he negligent, incompetent, inefficient or dishonest.
    3. Master and servant — injury to master’s business, — A servant, while engaged in the master’s service, has no right to do any act which may injure his trade or undermine his business.
    4. Master and servant — injury to master’s business — evidence. —Evidence held not to show that a discharged servant was wilfully and knowingly guilty of any acts which tended to injure the business of his employer.
    5. Master and servant — wrongful discharge — reduction of damages.— Where a wrongfully discharged servant obtained employment for a time after his discharge, he thereby reduced the amount he was entitled to recover from his employer as damages for his wrongful discharge.
    Appeal from Boone Chancery Court; Ben F. McMahan, Chancellor;
    affirmed.

      E. G. Mitchell, M. A. ■ Hathcoat, Worthington & Williams, for appellant.
    Even if the contract relied upon by appellee was made, it was fraudulent, and the appellant was not bound by it. 33 Ark. 425; 12 R. C. L. pp. 238 and 239, §§ 1 and 2; Words & Phrases, vol. 2, “Fraud,” p. 268. Though fraud was not raised by the pleadings, the court should have treated the pleading's as amended to conform to .the proof. 124 Ark. 388; 98 Ark. 312; 100' Ark. 212; 152 Ark. 203. Appellee’s demeanor to customers, and the fact that he was injuring the business of the company, were sufficient grounds for his discharge, even in the face of the contract. 58 Ark. 504; Wood, Master & Servant, pp. 167, 210, 211, '232; 26 Cyc. 987; 89 Minn. 77; 20 A. & E. Enc. Law, 2nd. ed. p. 33.

      George J. Crump, for appellee.
    Fraud will never be presumed where the act does not necessarily import fraud and may have as well occurred from a good as a bad motive. 17 Ark. 151; 9 Ark. 482; 11 Ark. 378; 22 Ark, 184; 144 Ark. 88. While appellee did make an effort to seek any kind of employment, he was not required to seek or accept employment of a different character. 158 Ark. 329; 58 Ark. 622; 9 Ark. 394; 63 Barb. 177; 2 Denio 609; Wood, Master & Servant, p. 250; 2 Sutherland on Damages, § 693.
   Hart, J.

On the 22d day of December, 1922, the Hale Hardware Company brought suit in the chancery court against E. A. Bagland to obtain judgment for $40.26 for materials used in constructing a certain building in Harrison, Arkansas, and to declare the amount of said judgment a lien on said building.-

E. A. Bagland filed an answer, in which he admitted that he owed the Hale Hardware Company the amount sued for, and, by way of cross-complaint, asked judgment against it for $725 as compensation due him for a breach of contract of employment.

The chancellor rendered a decree in favor of E. A. Bagland against the Hale Hardware Company for $559.74, and the case is here on appeal.

E. A. Bagland was the principal witness for himself. He admitted owing the Hale Hardware Company $40.26, and based his right to recover against the hardware company on the ground that he had been wrongfully discharged from its service. During the year 1921, and for several years prior thereto, the Hale Hardware Company was engaged in selling hardware at retail in the city of Harrison, Arkansas, and Bagland had been in its employment as a salesman. Prior to the year 1921 he had been employed by the month. At the first of the year 1921 John Hale, who was the manager of the business of the hardware company, employed E. A. Bagland to work for it for a period of one year at a salary of $1,500, to be paid in monthly installments. Bagland discharged his duties as salesman for the hardware company in a faithful and efficient manner. In the first part of July, 1921, he was discharged without any cause. There was another hardware firm in Harrison, and Rag-land endeavored to obtain employment from it, and failed. He also went to other towns and cities and tried to get employment, but failed to do so. During the remainder of the year he worked at some other employment and made a small amount of money.

Ragland’s testimony that he was employed for a year at a salary of $1,500 was corroborated by E.' O. Lopp, a fellow-salesman, who was present when the contract of employment was made. John Hale was discharged as manager of the Hale Hardware Company soon after he employed Ragland, and Ragland was discharged by P. M. Angel, who succeeded Hale as manager of the hardware company.

John Hale was a witness for the Hale Hardware Company. He denied having employed Ragland for a year at a salary of $1,500, but stated that he had employed him by the month at a salary of $125. Hale denied having admitted to Ragland, in the presence of the latter’s brother-in-law, that he had employed him for a year for $1,500, to be paid at the rate of $125 per month.

Ragland’s brother-in-law testified that Hale made such an admission to him in the fall of 1921, after Rag-land had been discharged. ,

Prior to his discharge, Ragland was paid every two weeks at the rate of $125 per month. Hnder this state of the record, the chancellor found that Ragland had been wrongfully discharged,. and that the Hale Hardware Company owed him for the balance of his salary, $600 less $40.26 due by Ragland to the company, leaving a balance due Ragland of $559.74.

It cannot be said that the finding of the chancellor that the Hale Hardware Company had hired Ragland for a year for $1,500 was against the preponderance of the evidence. The company admitted that it only paid him up to the time of his discharge, during the first part of July. It was Ragland’s duty to seek and accept other like employment, but he was not required to seek or accept employment of a different characcer. Van Winkle v. Satterfield, 58 Ark. 617, and Williams v. Robinson, 158 Ark. 327.

The Hale Hardware Company claims, however, that it had grounds for discharging him. The general rule is that any person may lawfully refuse to continue in his employ a servant who has shown himself to be negligent, incompetent, inefficient, or dishonest. Eagland was impliedly bound by his contract of employment to serve the Hale Hardware Company faithfully and to refrain from doing any act knowingly and wilfully which might injuriously affect the business of his employer. This court has expressly held that a servant, while engaged in the service of his master, has no right to do any act which may injure his trade or undermine his business. McMurray v. Boyd, 58 Ark. 504.

The main grounds relied upon for discharging Eagland is that he was injuring the business of the hardware company by driving off its customers on account of his sympathy with the railroad strikers.

It appears from the record that, during the year 1921, there was a strike by the railroad employees at Harrison,. Arkansas, and other points along the line of railroad running through Harrison and that portion of the State. The positions held by the strikers had been supplied by other persons, and the feeling between the strikers -and those taking their places had become very bitter. The people along the line of the railroad took sides in the matter, because the railroad strike injured all classes of business along the railroad. The citizens were divided in the matter. Some of them sympathized with the strikers, and others became imbittered against them. F. M. Angel, the manager of the Hale Hardware Company, who discharged Eagland, said that it was his policy not to take sides, either for or against the strikers. He does not say, however, that he told Eagland that he must quit talking with the strikers in the store or refuse to allow them to congregate there. He does not even testify that he directed Ragland to avoid sympathizing with the strikers in the store. He said that it was generally understood that Ragland was in sympathy with the strikers, and that he would allow them to congregate in the store, and would talk with them.

A number of other witnesses testified that they had quit trading with the store because they understood that Ragland sympathized with the strikers and permitted them to congregate in the store. All admitted that the feeling between the two factions had become very acute.

Angel further testified that, on one occasion, Rag-land delayed about waiting on a customer. We do not think the evidence on this point was strong enough to warrant Angel in discharging Ragland for neglecting the business or injuring it. Ragland denies that he, on any occasion, neglected to wait on the customers or that he was not courteous to them. The proof does not show that he allowed the strikers to congregate in the store and act in a tumultuous or overbearing manner towards other customers of the store. The strikers were accustomed to purchasing goods from the store as they needed them. It does not appear that Ragland permitted the strikers to become boisterous or otherwise annoy the other customers. None of them heard him use any offensive language against those not in sympathy with the strikers. They said that his general attitude was one of sympathy for the strikers, and that they would see him talking with little groups of them in the store.

It is fairly inferable that the customers who quit trading at the store did so because they believed that Ragland was in sympathy with the strikers; but their conduct in this regard was the result of their own bitterness in the matter, and was not caused by the acts or conduct of Ragland. It does not appear that he did anything of an affirmative character that warranted the customers in carrying their trade to another store. If Ragland had been guilty of any affirmative conduct in the premises which caused them to quit trading with the Hale Hardware Company, this would have been grounds for Ms discharge; but his mere sympathy with the strikers and Ms act in allowing them to meet in the store in a quiet manner was not cause for his discharge. It does not appear that Angel forbade him talking with the strikers or expressing his sympathy with them. As the situation became more acute and the two factions became more bitter towards each other, it was apparent that it would be difficult for the same store to keep both factions as its customers.

After examining the evidence carefully it does not seem to us that Ragland was guilty of any overt acts or conduct wilfully and knowingly which would tend to injure the business of his employer. He might have thought Ms quiet sympathy with the strikers would hold their trade, and that he would not lose the trade of the other faction. If Angel thought otherwise, he should have advised or directed Ragland what course to pursue in the matter during business hours. In any event, the evidence does not show that he was wilfully and knowingly guilty of acts which of themselves tended to injure the business of his employer.

Upon the cross-appeal it need only be said that Rag-land obtained other employment for a time after his discharge, and thus reduced the amount he was entitled to recover. It cannot be said that the weight of the evidence is against the finding of the chancellor in any respect, and the decree will be affirmed.


author: Hart, J.,

text:
    Interstate Jobbing Company v. Velvin.
    Opinion delivered July 14, 1924.
    1. Corporations — failure to file annual report — liability.— Where the president and secretary of a business corporation failed to file the annual report required by Crawford & Moses’ Dig., § 1715, they became personally liable for the debts of the corporation contracted during the year of their default, under § 1726, Id.

    2. Corporations — failure to file annual report — liability.— Where the president and secretary of a corporation failed to file the annual report during 1921, and hence were liable for its debts incurred during- that year, their liability was not reduced by payments on account during the year which were applied by the creditor to earlier items.
    . Appeal from Hempstead Circuit Court; James II. McCollum, Judge;
    reversed.
    STATEMENT OE EACTS.
    Appellant brought this suit against appellees to enforce the statutory liability against them for failing to make their annual report as president and secretary of a corporation.
    Appellant, Interstate Jobbing Company, is a domestic corporation, doing business at Little Eock, Arkansas, for the years 1919, 1920, 1921, and since that time. During the years 1919,1920, and 1921, it sold to the Farmers’ Mercantile Company, a domestic corporation, at Washington, Arkansas, merchandise to the amount of $2,882.70. Of this amount $493.40 was furnished during the year 1921. Payments on the account were made to the amount of $2,423.25. Of this amount $350 was paid by the Farmers’ Mercantile Company during the year 1921. The Farmers’ Mercantile Company was subsequently adjudged to be a bankrupt, and the appellant received a dividend from the bankrupt court in the sum of $51.05. The appellant filed an itemized account, duly verified, and attached the same to the complaint in this case, which was also duly verified. The itemized account showed a balance due the appellant of $459.45.
    E. D. Velvin was president of the Farmers’ Mercantile Company, from January 1, 1921, until December 1, 1921. E. L. Byers was secretary of the Farmers’ Mercantile Company from the time of its organization until December 1, 1921. No report was filed by the president and secretary of the corporation for the year 1920, as required by § 1715 of Crawford & Moses’ Digest. No report, as such officers of said corporation, was filed by E. D. Velvin and E. L. Byers from January 1, 1921, to December 1, 1921. The last item, of goods purchased by the Farmers’ Mercantile Company from the Interstate Jobbing Company was on September 12,1921, and the last payment was on September 28, 1921.
    There was a verdict and judgment in favor of appellees, and the case is here on appeal.

      E. F. McFacldin, for appellant.
    Instruction No. 1 was error. In the absence of an application of payments by the debtor, the law applies the payment in liquidation of the oldest item of the account. 91 Ark. 458, and cases cited; 30 Cyc. 1227; note 12 L. B-. A. 712. The liability of the president and secretary for failure to file the report required by § 1715, C. & M. Digest, was primary and absolute. 90 Ark. 51; 68 Ark. 433; 78 Ark. 517. Instruction No. 11, which was requested by appellant and refused, states the law as set out in 124 Ark. 495. See also 68 Ark. 433; 75 Ark. 107; 90 Ark. 51; 96 Ark. 268; 92 Ark. 327; 111 Ark. 37; 123 Ark. 226.
   Hart, J.,

(after stating the facts). The first assignment of error is that the court erred in amending and giving as amended the following instructions:

“Under the laws of the State of Arkansas, it is the duty of the president and secretary of an Arkansas corporation to file in the office of the county clerk of the county in which the corporation is domiciled and carrying on business, an annual report, not later than February 15 or August 15 of each year, showing the condition of affairs of the corporation of which they are officers. And the law further provides that, should the president and secretary neglect or fail, whether intentionally or not, to file the said report, then by such failure the said president and secretary become jointly and severally liable for all debts contracted by the corporation after the date of the failure to file such annual report. And if you find in this case, from the preponderance or greater weight of the evidence, that the Farmers ’ Mercantile Company was an Arkansas corporation, domiciled and carrying on business in Hempstead County, Arkansas, and that E. D. Velvin and R. L. Byers were the president and secretary of the corporation, and failed to file the report required by law, and that, after the date of the failure to file such report, the account sued on herein was contracted, then your verdict herein should be for the plaintiff, and against the defendants and each of them, for whatever amount of accounts, if any, you find were contracted by the Farmers ’ Mercantile Company with the plaintiff herein after the failure to file the report required by law, less whatever sum', if any, you may find from a preponderance of the evidence the Farmers’ Mercantile Company paid to the plaintiff during 1921.”

The amendment consisted in adding the words, “less whatever sum, if any, you may find from a preponderance of the evidence the Farmers’’ Mercantile Company paid to the plaintiff during the year 1921. ’ ’

In the first place, it may be stated that this suit is based upon the liability of the president and secretary of a corporation for its contract debts, under the provisions of § 1726 of Crawford & Moses’ Digest, for failing to comply with the provisions of § 1715 of the Digest. The debt sued on was a debt by contract, and the uncontradicted evidence showed that the officers of the corporation' failed to file the annual report required of them by statute. Hence their personal liability for the debt of the corporation contracted during the period of default was established. Taylor v. Dexter, 126 Ark. 122, and Galloway v. Stallings, 154 Ark. 16.

No annual report, as required by § 1715 of the Digest, was filed by appellees as president and secretary of the corporation during the year 1921. Merchandise to the amount of $493.40 was furnished to said corporation by appellant during that year. Under the instructions of the court-the payments for the year 1921 were allowed to be credited on the items purchased during that year. This was wrong. There was no application by the debtor of these'payments to the goods purchased by the Farmers’ Mercantile Company during the year 1921, and nothing to show that the credits were intended to be applied on these items, within the rule announced in Terry v. Klein, 133 Ark. 366. Hence the appellant had the right to apply the payments made in 1921 to the earlier items of the account. Briggs v. Steele, 91 Ark. 458, and cases cited, and Snow v. Wood, 163 Ark. 280.

It follows that the court erred in amending and giving as amended the instruction set out above. For that error the judgment must be reversed, and the cause will be remanded for a new trial.


author: Wood, J.

text:
    Petroleum Producers Association v. First National Bank.
    Opinion delivered July 14, 1924.
    1. Exceptions, bill of — time for filing. — -Where time is allowed for filing a bill of exceptions beyond the term for a given number of days, the rule for computing the period allowed is to exclude the day on which the order granting time is made and to include the last day.
    2. Exceptions, bill of — signing and filing. — Where time is allowed for filing a bill of exceptions, the bill should not only be signed • but should also be filed within that time.
    3. Appeal and error — filing bill of exceptions out of time.— Where a bill of exceptions is filed out of time, it does not present the evidence upon which any issues of fact were heard in the trial court.
    4. Appeal and error — presumption from absence of bill of exceptions. — In the absence of a bill of exceptions, the Supreme Court will presume that the issues of fact were correctly determined in the trial court.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      George F. Jones, for appellant.

      E. L. Matlock', for appellee.
   Wood, J.

Actions were instituted by the First National Bank of Yan Burén in the justice court on certain promissory notes executed separately by J. L. McLeroy, J. C. Armstrong and F. L. G-reenstreet. -Some of the notes were made payable to the Rose City Petroleum Corporation (hereafter called corporation), and some were made payable to “myself,” and the name of the maker indorsed on the notes. ' The total amount of the several notes was about $400. It is alleged that the notes were given to one Carl Shibley, a.stock salesman for the corporation, and that he indorsed the name of the corporation on all of the notes, and that the bank in due course purchased the notes. The Petroleum Producers’ Association (hereafter called association), a common-law trust, through its sole trustee, Dr. Fred A. Cook, was made a party defendant. It was alleged that the corporation was the owner of certain lots in the city of Van Burén, and that it sold same to the association with the fraudulent intent to cheat, hinder and delay the creditors of the corporation. Attachments were issued and levied upon certain lots in the city of Van Burén. The-several makers of the notes filed no answer. No affidavits were filed controverting the grounds for the attachments.

The corporation defended on the ground that it knew nothing of the indorsement of its name on the notes, and alleged that Shibley had no authority to indorse its name thereon. The causes were tried in the justice court, and judgment was rendered in favor of the appellee, and the attachments were sustained, and the property directed to be sold. The causes were appealed to the circuit court, where they were consolidated for trial. In the circuit court the association, through its trustee, defended on the ground that it purchased of the corporation the attached property in good faith, for a valuable consideration, and knew nothing of the notes upon which the actions were based. The trial resulted in separate verdicts and judgments in favor of the plaintiff against each of the several defendants in the original actions, and the attachments were sustained. The association, by Dr. Fred A. Cook, trustee, through his attorney, filed a motion for a new trial, which was overruled on the 25th day of July, 1923, and the order overruling the motion recites that “the defendant excepts, and prays an appeal to the Supreme Court, which prayer is granted, and ninety days given in which to file.a bill of exceptions.” The bill of exceptions was presented to the trial judge and signed by him on the 24th of October, 1923, and was that day filed with the clerk of the circuit court of Crawford County.

“Where time is allowed by the trial judge for filing a bill of exceptions beyond the term for a given number of days, the rule for computing the period allowed is the same as that of any other statute of limitations, and it excludes the day on which the order granting the time is made and includes the last day.” Early & Co. v. Maxwell & Co., 103 Ark. 569; Peebles v. Columbian Woodmen, 111 Ark. 435. Computing the time according to the above rule, the bill of exceptions in the case at bar was filed on the ninety-first day after the order was made, and was thus out of time. According to numerous decisions of this court, where time is allowed for filing a bill of exceptions, the bill should not only be signed -within the time, but should be filed with the clerk within the time so allowed. Pekin Stave Co. v. Watts, 95 Ark. 331; Early & Co. v. Maxwell & Co., supra; Peebles v. Columbian Woodmen, supra. Where a bill of exceptions is signed and filed after the expiration of time given for preparing and filing same, it does not present the evidence upon which any issues of fact were heard in the trial court. Ingles v. Oklahoma Oil & Gas Co., 163 Ark. 270; Routh v. Thorpe, 103 Ark. 46.

The errors of which appellant here complains do not appear upon the face of the record, and, in the absence of a bill of exceptions, we must indulge the presumption that the issues of fact in the court below were correctly determined. The record presents no error .in the rulings of the trial court, and its judgment is therefore affirmed.


text:
    Scott v. Brown.
    Opinion delivered July 14, 1924.
    Parent and chilim-custody of child. — Where defendant, having secured the custody of her child by an abuse of process, was ordered by the court to restore the child to plaintiff’s custody, on a subsequent motion by plaintiff to enforce such order defendant was entitled to show that she had performed such decree by restoring the child to plaintiff’s custody as ordered, and that the child subsequently came into defendant’s custody without fraud or collusion on her part, as in such case she would have a right to trial of the issue as to the right of custody.
    Appeal from Crittenden Chancery Court; J. M. Futrell, Chancellor;
    reversed.

      Scott S Burnett, for appellants.

      George E. Neuhardt, for appellee.
   McCulloch, C. J.

This appeal involves a continuation of the controversy between the parties concerning the custody of a child, Nellie Josephine Brown by name. The facts are recited in the opinion of this court on a former appeal. 160 Ark. 490. Mrs. Brown, the appellee, is the mother of the child, and the child has heretofore been, and is now, in the custody of Mrs. Scott. Mrs. Brown resides in Tennessee, and at one time consented for Mrs. Scott to take the child, but later Mrs. Brown obtained possession of the child in Tennessee, and Mrs. Scott sued out a writ of habeas corpus in one of the courts of Shelby County to obtain the custody of the child. After securing the custody of the .child in that way, Mrs. Scott- brought the child -to Arkansas, where she resides. Mrs. Brown then instituted an action in the chancery court of 'Crittenden County against Mrs. Scott, and the decree was in her favor, from which an appeal was prosecuted.

In affirming the decree .of the chancery court we declined to consider the questions as to the best interests of the child or the rights of the parties with respect to the custody of the child, further than to determine that Mrs. Scott, having secured the custody under process of a Tennessee court, could not litigate her right to the custody of the child here until she had restored the custody to Mrs. Brown and abided by the judgment of the Tennessee court. In the opinion we said:

“The question therefore as to what the best interests of the child are, and what the rights of the parties are with respect to the child, cannot be adjudicated until there is a restoration of the custody wrongfully obtained through the writ issued by the Tennessee court. A court of this State should not lend its aid to the enjoyment of a benefit secured in that way, and, if the appellants desire to contest for the custody of the child, they must do so after having restored it to the custody of the appellee, Mrs. Brown, within the jurisdiction of the Tennessee court, where the custody was wrongfully obtained.”'

Appellee filed in the chancery court of Crittenden County the mandate of this court affirming the decree, and moved the court for an order on appellant requiring her to perform the decree by restoring to appellee the custody of the child. Appellant appeared in court and filed her petition, setting forth the fact that she had complied with the court’s decree by restoring the custody of the child to appellee in Tennessee and by dismissing her petition for habeas corpus pending in the Tennessee court. Appellant exhibited with her petition certified copies of the records of the Tennessee court showing the dismissal of her action. The prayer of the petition of appellant was that an order be entered showing that the decree of the court had been complied with before the filing of the mandate and that the decree was thereby satisfied. The court refused to entertain appellant’s petition, and entered the order, as requested by appellee, requiring appellant to immediately deliver the child to appellee, and, in the event of appellant’s failure to do so, directed the sheriff of the court to carry out the order. Appellant sav.ed exceptions, and has prosecuted an.appeal to this court.

Appellant filed a petition in this court for a- certi orari, which was denied on the ground that any review of the action of the chancery court must be by appeal. The petition alleges the facts to be that appellant complied with the former decree of the chancery court by twice delivering the custody of the child to appellee in the State of Tennessee, but that the child subsequently voluntarily left the State of Tennessee and returned to appellant’s home in Crittenden County, Arkansas. We are not at liberty to consider the allegations of the petition filed here, for it was not a part of the record in the court below. But the record does show that, at the time this motion was made by appellee to require appellant to comply with the former decree, the child was then in the custody of appellant, and that appellant offered to show that she had, prior to that time, and prior to the filing of the mandate of this court, fully complied with the decree. We are of the opinion that the court erred in summarily entering an order directing appellant to deliver the child to appellee, and in refusing to hear appellant on her petition alleging that she had theretofore fully complied with the original decree. The judgment of this court was merely one affirming the decree of the chancellor, but, in stating the reasons for affirmance, we said that appellant was not in an attitude to litigate for the possession of the child and could not do so until she had restored the custody to appellee. She had the right therefore to show that she had fully complied with those requirements and had delivered the child to the custody of appellee in Tennessee. According to appellant’s contention, she is now in an attitude to contest with appellee her right to obtain the custody of the child. If she restored the child in good faith, and if the child subsequently came into the custody of appellant without any fraud or collusion on the part of the latter, she had the right to a trial of the issues which we decided could not be tried in the other ease.

The decree is therefore reversed, and the cause-remanded for further proceedings, with directions to hear such proof as may be offered on the question whether or not appellant has complied with the former decree of the court by in good faith restoring the custody of the child to appellee. It is so ordered.


text:
    Mosaic Templars of America v. Woolfolk.
    Opinion delivered June 16, 1924.
    Insurance — compromise of claim — evidence.— Where plaintiff’s father, having no authority to compromise plaintiff’s claim on an insurance policy for $300, signed a receipt for plaintiff, acknowledging receipt of $150, but failed to sign a receipt on another page of the instrument reciting payment in full, a finding that plaintiff did not release his claim for the full amount of the policy will be sustained.
    Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.
    STATEMENT OE PACTS.
    James Woolf oik sued the Mosaic Templars of America to recover $150 alleged to he due him on a policy of insurance issued hy that company. The defendant denied liability.
    It appears from the record that the Mosaic Templars of America, a fraternal benefit association, issued a policy of life insurance to Gertrude 'Blount in the sum of $300. Bhe afterwards married James Woolf oik. The policy, by its terms, was made payable to the husband, mother, father, sister, brother, or relative by blood to the fourth degree of the insured, in the order named. Gertrude Blount Woolf oik died on August 24, 1920, and, according to the evidence for the plaintiff, had paid all dues and assessments to the defendant at the time of her death. The proof of death of the insured was made in accordance with the terms of the policy.
    The defendant issued what it termed its voucher check, a part of which we copy as follows:
    “Endowment Department.
    “July 20, 1921. No. 21788.
    “Upon the payee executing in ink the receipt on back of this voucher check, on demand pay to the order of James E. Woolf oik $150, one hundred fifty dollars.
    “ (Signed) C. E. Bush,
    “National Grand Scribe and Treasurer M. T. A.
    “To England National Bank 81-15, Little Rock, Arkansas. ’ ’

      The “voucher check” then recites the death of the insured, the date thereof, and the handing of the check to an officer of the defendant company. Then comes the following:
    “Voucher Check.
    “No. 21788. $150.00
    “Payable to James E. Woolfolk.
    “(Signed) James E. Woolfolk.
    “S.L. Woolfolk.”
    After this the “voucher check” contains, among other things, the following’:
    “Received the amount stated in this voucher check in full payment of the within account.
    “............................................................Payee.”
    According to the testimony of the plaintiff, James Woolfolk, his father, S. L. Woolfolk, did not have the authority to accept the voucher in full payment of his claim, and, according to the testimony of S. L. Wool-folk, he did not accept the voucher in settlement of the claim of his son against the defendant company.
    According to the evidence adduced by the defendant, the assured was in default for nonpayment of dues at the time of her death, and had forfeited her rights under the policy, and the “voucher check” in question was delivered to S. L. Woolfolk for James E. Woolfolk as a compromise of the amount claimed by the face of the policy, and was intended to be in full settlement of all claims of James E. Woolfolk against the company under the policy sued on.
    The jury returned a verdict in favor of the plaintiff in the sum of $150, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      Scipio A.. Jones and Thomas J. Price, for appellant.
    The check issued by appellant and accepted and cashed by appellee constituted an accord and satisfaction. The amount of the claim was in dispute; the check stated that it was in full of the amount due, and by cashing same appellee agreed to the condition. See. 216 Mass. 204; 94 Ark. 158; 49 Col. 275; 32 App. Cas. (D. C.) 392; 83 Ohio St. 169; 98 Ark. 271. Appellee is estopped from, further collection on the claim. 100 Ark. 251; 1 C. J. par. 81.

      Sherrill é Mallory, for appellee.
    Acceptance of tender or remittance from debtor on a disputed claim does not constitute accord and satisfaction, unless clearly indicated by the facts and circumstances to be in full payment. 148 Ark. 655. Appellee refused to sign the release agreement on the back of the cheek, and the appellant waived this omission.
   Hart, J.,

(after stating the facts). The court instructed the jury that, if it believed from the evidence that all dues of Gertrude Blount Woolfolk were paid to the defendant company in accordance with the terms of the policy, then the plaintiff was entitled to judgment for the amount sued for, unless it should further find that the plaintiff accepted the money previously paid as full settlement of the amount due under the policy.

It fis contended by the defendant that it was entitled to a directed verdict. Counsel for the defendant claim that the undisputed evidence' shows that the plaintiff accepted the $150 paid him in full settlement of the amount due him under the policy sued on.

■ We cannot agree with counsel in this contention. It appears from the record that what is called the “voucher check” was folded through the middle, making four pages of it. On one page of the “voucher check” appears the signature “James E. Woolfolk,'by S. L. Woolfolk. ” On a subsequent page, which is the last page of the voucher, is the following: “Beceived the amount 'stated in this voucher check in full payment of the within account.

“............................................................Payee.”

It will be noted that this receipt is not signed by any name, and is on the last page of the “voucher check.” The signature of James E. Woolfolk by S. L. Woolfolk is contained on a previous page of the “voucher check.” James E. Woolfolk testified that S. L. Woolfolk did not have authority to accept the “voucher check” iu full settlement of the amount claimed by him, and the latter testified that he did not accept the voucher in full settlement of the claim of his son against the defendant company.

Under these circumstances we do not think it can be said that the undisputed evidence shows a settlement in full or a release by the plaintiff of his claim of $300 against the defendant, in consideration of the latter paying him the sum of $150.

No other error is assigned for a reversal of the judgment, and it follows that the judgment must be affirmed.


text:
    Walker v. Whitmore.
    Opinion delivered June 16, 1924.
    1. Mortgages — other indebtedness of mortgagor. — A mortgage which stipulated that it shall he “security for any other indebtedness of whatever kind or character that may be owing by the grantor” to the mortgagee up to the time of foreclosure is not security for any other indebtedness of the mortgagor’s transferee, who assumed the mortgage debt.
    2. Costs — sufficiency of tender. — Where a mortgagor’s transferee who assumed the mortgage debt tendered the amount of such indebtedness to the mortgagee bank’s vice president and. to its attorney, both of whom refused to accept it, the tender was sufficient to stop all subsequent costs if kept good by payment into court.
    Appeal from Pulaski Chancery Court; John E. Martmecm, Chancellor;
    modified.
    STATEMENT OF FACTS.
    Appellants brought this suit in equity against appellees to recover judgment against the adult appellees for the amount sued for, and to have the same declared a lien upon the interest of the minor appellees upon the lots described in the complaint.
    It appears from the record that on the 8th day of August,.1918, H. A. Mashburn, for a valuable consideration, executed to J. F. Walker, as trustee for the American Trust Company, as agent, his promissory note, due one year after date, bearing interest at the rate of 7 per centum per annum. On the same day, to secure said note, Mashburn and his wife executed and delivered to said J. F. Walker, as trustee, a deed of trust to certain lots in Little Rock, Pulaski County, Arkansas. The deed of trust was duly filed for record. H. A. Mashburn and his wife then conveyed said property to Mary P. Lough-bridge, and, as part of the consideration, as recited in the deed of conveyance, the latter assumed the note executed by Mashburn to J. F. Walker, as trustee aforesaid. On April 6, 1920, Mary P. Loughbridge conveyed by deed the said property to Y. E. Whitmore, and, as part of the consideration for the deed, the latter assumed the payment of the note executed by H. A. Mashburn to J. F. Walker, as trustee aforesaid. Subsequently the American Trust Company changed its name to that of the American Bank of Commerce & Trust Company. On September 9, 1921, Y. E. Whitmore indorsed a note of certain persons to the American Bank of Commerce & Trust Company for $3,600. Since that time the makers of the notes have been adjudged bankrupts.
    Y. E. Whitmore also executed certain other notes, which were transferred by the payees thereof to th'e American Bank of Commerce & Trust Company. All of said notes so due by Y. E. Whitmore to said American Bank of Commerce & Trust Company are now due and unpaid. On December 2,1921, the defendant, Y. E. Whit-more, was duly adjudicated a bankrupt. Among the provisions contained in the deed of trust from H. A. Mashburn to J. F. Walker, referred to above, is the following :
    “This deed of trust shall be security for any other indebtedness of whatever kind or character that may be owing by the grantor to said American Trust Company, up to the time of the foreclosure of this deed of trust, whether then matured or not, but the lien therefor shall be subordinate to the lien for the indebtedness herein specifically described.”
    Y. E. Whitmore obtained a decree of divorce from his wife, Eva Whitmore, some time in 1919. By consent, a decree for alimony was entered of record in favor of the wife against the husband, and, by consent also, a specific lien was decreed upon the property in controversy to secure the payment of said alimony. The minor appellees, who were defendants in the court below, are the children of said Y. E. Whitmore and Eva Whitmore.
    The chancellor found the issues in favor of appellees, and a decree was entered of record accordingly, except that the costs of the suit were taxed against Y. E. Whitmore, and the facts on that branch will be stated in the opinion. Other facts appear in the record, but the above statement of facts is all that is essential to the issue raised by the appeal.
    From a decree against them in favor of appellees appellants have duly prosecuted an appeal to this court.

      Sam T. & Tom- Poe and Louis Tarlowski, for appellants.
    The sole question presented by this appeal is whether the provisions in the deed of trust that it shall be security for any other indebtedness, etc., can be construed as affecting or incorporating advancements made by the mortgagee to persons other than the original mortgagor. Is it effective and binding against an assignee of the original mortgagor, who purchased the land described in the mortgage and assumed payment of the note and mortgage? Appellants insist that the indorsing of the note of the Paige Compány of Arkansas and Frank L. Reed by the defendant Whitmore over to the plaintiff, the holder of the deed of the original deed of trust, and the fact that the defendant was legally charged with notice of the contents of the deed of trust, is an advance sufficient to bring it within the scope of the orginal deed of trust. 1 Jones on Mortgages, § 373; Pomeroy, Equity Jur., 2nd ed., § 1199. A mortgage securing future advances is valid, if bona fide and sufficiently definite. 32 Ark. 598; 33 Ark. 72-75; 66 Ark. 393; 141 S. W. 742; 111 Ark. 362; 128 Pac. 211; 211 S. W. 765; 194 S. W. 867; 6 Mumf. 439; 75 N. W. 458; 9 Atl. 598; 98 Atl. 1002; 73 N. W. 527, 529; 163 S. W. 614; 214 S. W. 500, and cases cited.
    ■ John F. Clifford, for appellees.
    1. It is useless to discuss the authorities cited by appellant to uphold the rule as to future advances. None were made to Mashburn, and he and his wife were the only grantors. Whitmore assumed nothing, even if advances had been made to Mashburn. The word ‘ ‘ grantor,” in the deed of trust provision cited by appellant, is not ambiguous, and could not possibly include Whitmore, a second grantee of Mashburn. It means the one executing the instrument, granting or transferring an interest in the property to the American Trust Company for the sole purpose of securing the note for $2,000. 4 Ark. 175; 5 Ark. 106; 105 Ark. 518; Id. 213. A general agreement to secure future advances must be confined to such as are in the contemplation of the parties at the time the agreement is made. Mortgages of real property to secure future advances are so far stricti juris that they cannot be extended by implication to secure any other obligation than that expressly mentioned. 19 R. C. L. 393; 46 Ark. 129; Id. 70; 111 Ark. 362; 122 Ark. 460.
    2. The court erred in taxing costs against Whit-more. 134 Ark. 84. A tender is not Required where it is evident that it will not be accepted. 93 Ark. 497; 76 Ark. 326.
   Hart, J.,

(after stating the facts). Counsel for appellants concede that the sole question is whether the deed of trust from H. A. Mashburn to J. F. Walker, as trustee, includes advancements made by the mortgagee to T. E. Whitmore, who was the grantee of H. A. Mash-burn, the original mortgagor.

The clause which is claimed to have that effect is copied in our statement of facts, and need not be repeated here. It recites that the deed of trust «hall be security for any other indebtedness that may be owing by the grantor to said American Trust Company np to the time of the foreclosure of the deed of trust.

Counsel for appellants claim that this language is sufficiently comprehensive to include subsequent advancements made by the mortgagee to Y. E. Whitmore. We do not think so. The word “grantor,” as used in the clause in question, both in its legal meaning and in its common acceptation, refers to the persons executing the deed of trust, of which the- clause in question is a part. It would be a stretch of the meaning of the word “grantor,” far beyond this, to make it refer to Y. E. Whitmore, who was not a party to the original deed of trust, and who simply acquired the property by mesne conveyances from H. A. Mashburn. If the bank had made any other advancements prior to the time of the foreclosure of the mortgage, the clause in question could cover them, because Mashburn is the grantor named and referred to in the instrument. Whitmore could in no sense be said to come within the meaning of the word “grantor,” as used in the original deed of trust. Therefore the chancellor properly held that the original deed of trust from Mashburn to the bank could not be foreclosed for subsequent advances made by the bank to Whitmore.

We think, however, the court erred in taxing the costs of the suit against Whitmore. The chancellor properly held that Y. E. Whitmore was liable for the amount due under the deed of trust from H. A. Mashburn to the bank; but the evidence shows clearly that Whitmore borrowed from a friend sufficient money to pay off this mortgage indebtedness, including the interest, and tendered the amount thereof to J. F. Walker, the vice president of the bank, who was handling the transaction. Walker refused the tender.

It appears from the record that, when the amount of said indebtedness was tendered to J. F. Walker, he stated that Mr. Poe was handling the matter, and refused the money. Poe was the attorney for the bank, and Y. E. Whitmore and the assistant cashier -of another bank went to Mr. Poe’s office. They tendered the money to Tom Poe, and he said that he had no authority to accept it. He is the son of Sam Poe, and a member of the firm handling the matter for the bank. Tom Poe said that he had no authority to accept the tender. He knew that Mr. Walker would not accept it, and knew that his father, Sam Poe, would not accept it unless the whole debt was paid.

As above stated, Tom Poe was a member of the firm instituting the foreclosure suit for the bank against Y. E. Whitmore and his codefendants. Whitmore, on cross-examination, stated that he was keeping the tender good, and offered to pay the first mortgage at. that time. The attorney and agent of the bank refused the tender unless Whitmore would pay the subsequent advances which the bank had made to him. The law never requires a vain or useless thing to be done. The action of the agents of the bank was, in effect, a refusal of the tender. Dickinson v. Atkins, 132 Ark. 84; Read’s Drug Store v. Hessig-Ellis Drug Co., 93 Ark. 487; and Thompson v. Baxter, 76 Ark. 326.

It is evident that the tender was not accepted because Whitmore failed to include in it the amount owed by him to the bank, which, as we have already seen, was not covered by the mortgage.

Therefore the decree of the court below will be modified so as to require appellants to pay all costs accruing after the tender was made, provided the tender is kept good and the money paid into the court within ten days, and, as modified, the decree will be affirmed.


text:
    Reed v. Webb.
    Opinion delivered June 23, 1924.
    1. Sales — waiver of retained title. — A vendor of personal property who reserves the title therein until paid for has a right to treat the sale as absolute and sue for the purchase money, and in aid thereof to procure a specific attachment under Crawford & Moses’ Dig., §§ 8729, 8730.
    2. Justice of the peace — jurisdiction.—In an action on a note for the purchase of goods, which were seized under specific attachment, a justice of the peace had jurisdiction to render a personal judgment by default against the defendant, as the action was one for debt, and not for recovery of property.
    Appeal from Chicot Circuit Court; Turner Butler, Judge;
    affirmed.

      John Baxter, for appellant.
    The judgment of the justice of the peace was void because not responsive to the order of delivery. Of the two remedies available to him, i. e., to treat the sale as canceled and bring suit in replevin for the property, or to treat it as absolute and sue for the unpaid purchase money, plaintiff elected to take the first course. C. & M1, Dig., §§ 8729, 8730; 156 Ark. 319; 78 Ark. 369; 100 Ark. 403; 117 Ark. 496. Having sued for the return of the property, he must abide by that election. 23 R. C. L. 924. And it is established law that judgments must conform to the pleadings, otherwise they are void. • 104 Ark. 130.

      Golden <& Golden, for appellee.
   Humphreys, J.

This is a proceeding by appellant against appellee in the circuit court of Chicot County, under a writ of certiorari asking to quash a personal judgment and garnishment proceedings thereon rendered against him on the 22d day of December, 1921, in the court of K. Dillender, a justice of the peace of Bowie Township, in said county. The alleged ground of attack on the judgment and garnishment proceedings was that the original suit before the justice of the peace was a suit in replevin, and not for the purchase money of the furniture.

Appellee filed a motion to quash the writ of certiorari, which was heard and sustained by the court. An appeal-has been duly prosecuted to this court from the judgment quashing the writ.

The original judgment sought to be canceled is as follows:

“S. B. & J. H. We'bib, plaintiffs, v. Rufus Reed, defendant.

“On the 8th day of December, 1921, the plaintiffs filed before me their cause of action against the defendant for $240, as follows, to-wit: Unpaid note, with lien retained.

“Thereupon, a writ of summons and order of delivery was issued against the defendant, returnable on the 22d day of December, 1921, at 10 o ’clock a. m., and delivered to the constable of Bowie Township.

“On this date this cause coming on for hearing, court being opened and defendant called three times, and failed to answer.

“After hearing the evidence offered by the plaintiff, it is by this court found, adjudged and ordered that plaintiff recover of defendant, Rufus Reed, the sum of $240, with 10 per cent, interest from September 1, 1921, until paid, and cost of this action, and it is ordered that the articles named in the note, or so much as necessary, be sold to pay this judgment, interest and cost, after being advertised for ten days. K. Dillender.”

The unpaid note with lien retained, referred to in the judgment, was an installment contract for the purchase of certain furniture at specific prices, in which the title to the furniture was retained in appellee until appellant should pay the purchase money.

The order of delivery mentioned in the judgment was executed by the constable of the township by delivering a copy thereof to the wife of appellant at his home, and by leaving the furniture in their possession.

Appellant then insured the furniture for his benefit, and it was subsequently destroyed by fire. The loss was adjusted, and, before the amount was paid to appellant by the insurance company, appellee procured a writ of garnishment on the original judgment, and obtained an order against the insurance company to pay the amount it owed on the policy to appellee on his judgment for the purchase money of the furniture.

Appellant contends for a reversal of the judgment quashing the writ of certiorari on the alleged ground that the justice of the peace exceeded his jurisdiction in rendering a personal judgment by default against him. It is contended that the suit was one for the recovery of property, and not for the recovery of money. Appellant is mistaken in this contention, because the first recital -in the judgment is that appellee filed his cause of action against appellant for $240 upon the unpaid1 note with lien retained. Appellee had a right.to treat the sale of furniture as absolute and sue for the unpaid purchase money, and, in aid thereof, to attach the furniture, under §§ 8729 and 8730 of Crawford & Moses’ Digest. Bowser Furniture Co. v. Johnson, 117 Ark. 496; Olson v. Moody, Knight & Lewis, Inc., 156 Ark. 319. The order issued in the case was not inconsistent with the proceeding to impound the property for the payment of the purchase money. In fact, this is what was done. The furniture was levied upon and left in possession of appellant, and a lien was subsequently declared thereon by the court for the payment of the purchase money. It was within the jurisdiction of the justice of the peace to render a personal judgment against appellant by default, as the suit was an action for debt.

No error appearing, the judgment is affirmed.


author: Smith, J.

text:
    Kindle v. State.
    Opinion delivered June 30, 1924
    1. Rape — sufficiency of evidence. — Evidence held to sustain a conviction of assault with intent to rape.
    2. Rape — instruction as to presumption of consent. — In a prosecution for rape it was not error to refuse to instruct that if the jury found that defendant had carnal knowledge of the prosecutrix the law would presume that she consented thereto.

      3. Rape — instruction as to resistance by prosecutrix. — An instruction that a rape was not committed unless the prosecutrix used every means within her power to prevent defendant from having sexual intercourse with her was erroneous as eliminating the element of fear.
    4. Criminal law — improper argument — prejudice.—While it was improper in a rape case for the prosecuting attorney to suggest to the jury that “you don’t know that he will rape the same color next time,” the prejudice was removed where -the argument was withdrawn as soon as made, at the suggestion of the court.
    5. Criminal law — necessity of objection to argument.. — Objection to an improper argument must be made at the time, and cannot be raised for the first time in the motion for new trial.
    Appeal from Conway Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Eades é Eddy, for appellant.

      J. 8. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.

Appellant, a colored man, was indicted for having raped Etta Tresvant, a colored woman, and, upon his trial, was convicted of an assault with intent to commit rape, and given a sentence of five years in the penitentiary, and has appealed.

For the reversal of the judgment the following errors-are assigned: (1) that the evidence is insufficient to support the verdict; (2) that the court erred in giving-instruction numbered 8 over the objection of appellant, and in refusing- instruction numbered 1 requested by him; (3) that the prosecuting attorney committed prejudicial error in his closing argument.

■The testimony of the prosecutrix was to the effect that appellant had frequently sought to visit her, -but she had declined to permit him to do so. That one Sunday night appellant met her on her way to church, and insisted on escorting her, but she refused to allow him to accompany her. After leaving- the church she saw appellant, who had1 been waiting for her, and he told her he was going home with her. She went to a restaurant to find some one to accompany her home, but, finding no one, she started home alone. Appellant seized her by the arm as she left for her home, and said, he “would go home with her or else- — •” She tried to avoid him, and struggled to release his hold on her, when he opened his knife and said he would kill her if she made an outcry. She was a small woman, weighing only 115 pounds. 'She continued her struggle, when appellant cut her slightly in the side with his knife and said he would cut her damned head off if she did not go along. ¡When she reached her home, which was in the yard of her employer, she pretended1 to have lost her key, but appellant compelled her to produce it. After unlocking the door appellant took possession of. the key and locked the door, and she did not know what he did with the key until he unlocked the door about four o’clock the next morning. Appellant compelled her to go to bed with him and to have sexual intercourse with him. He took his open knife with him to the bed, and he renewed his threat to cut her head off if she made an outcry or if she refused to submit to him. She had heard that appellant had served a term in the penitentiary for shooting a woman who had refused to submit to him, and she believed he would kill her if she did not yield or if she made an outcry. She was asked why she did not call for help when she passed through her employer’s yard, and answered that her employer was away from home, and would not have heard her had he been at home, as the family slept upstairs. She also testified that appellant was carrying his knife in his hand, and she was afraid he would execute his threat. She further testified that she was crying, and begged appellant to leave her, and that she pushed and scratched at him, but was afraid to carry her resistance beyond that point. That she did not sleep that night while appellant was in her room, and did not think he could have slept on account of her crying. When appellant left at four o’clock she fell asleep for a short time, but was awake before her employer had got up, and she told him-what had happened as soon as he came down from his room, which was about 7:30 in the morning. She was asked by appellant’s counsel why she did not let appellant kill her before she ceased to resist, and she answered1 that she wanted to live to tell what had happened.

A twelve-year-old colored boy testified that he saw appellant scuffling’ with Etta on the way to her home; that appellant had a knife in his hand, and that at one time he was almost carrying her on his hip.

Appellant testified that he spent the night with Etta at her invitation, and certain witnesses testified that they saw appellant and Etta going towards her home in a manner which attracted no attention, and there was certain other testimony which tended to corroborate appellant’s story, the truth of which was, of course, a question for the jury. ■

We think this testimony was legally sufficient to support the conviction.

The court told the jury that force was an essential element of the crime, and that the force might be exercised by putting the woman in fear, and that if she did not, in good faith, resist appellant’s attempt, appellant was not guilty of any crime, and that, if there was no such force or putting in fear as compelled the woman to yield against her will, appellant was not guilty of any crime. This idea was enlarged upon in a number of instructions, which made it perfectly plain that it ivas essential that the woman’s will was overcome by force or by such putting-in fear as caused her to cease to resist for her own safety.

Appellant asked an instruction numbered 1, reading as follows: ‘ ‘ The court instructs the jury that, if you find from the evidence that the defendant had carnal knowledge of the woman Etta Tresvant, then consent on her part of such carnal knowledge would be presumed until the State proved beyond a reasonable doubt that the prosecutrix used every means within her power to prevent such intercourse, and something more must be shown than a mere want of consent on the part of Etta Tresvant to the intercourse, if any, with defendant, but it must appear from the evidence beyond all reasonable doubt that the said Etta Tresvant made and used every exertion and means within her power, under the circumstances, to prevent intercourse, if any, with defendant, and, if the evidence in this case upon this subject is such as to raisQ reasonable doubt as to whether said woman did use every such exertion within her power, you will give defendant the benefit of such doubt, and acquit him. ’ ’

Other instructions were also asked by him which elaborated the same propositions.

No error was committed in refusing to give this instruction. It would have been a charge upon the weight of the testimony to have told the jury that there was a presumption of 'consent. There was, of course, a presumption of innocence which attended appellant until his guilt was established beyond a reasonable doubt, but the instructions given fully covered this phase of the case. The instruction was also erroneous in telling the jury that rape was not committed unless the prosecutrix had used every means within her power to prevent appellant from having sexual intercourse with her. Under this instruction the prosecutrix would have been compelled to continue her resistance as long as she was conscious or had strength to offer any resistance, without regard to the effect of this resistance on her safety. If, for instance, appellant’s conduct had induced1 the fear that an outcry would cost her her life, she was not required to thus imperil her life or safety.

In the case of Zinn and Cheney v. State, 135 Ark. 342, we said: “The law does not require of the woman who seeks to protect her chastity that she shall resist as long as either strength endures or consciousness continues. It is essential that she shall not at any time consent, but none of the cases on the subject hold that she had consented because, through fear for her life or bodily safety, she had ceased to resist or failed to make an outcry.”

No error was committed1 in refusing to charge the jury as requested by appellant.

In his closing argument the prosecuting attorney said: “Gentlemen, you don’t know that he will rape the same color the next time.” This argument was, of course, highly improper, but.it was withdrawn as soon as it was made, at the suggestion of the court. Moreover, it does not appear that any objection was made or exception saved at the time, and, while this argument is assigned as error in the motion for a new trial, this was not sufficient to save an exception, as it is not the province of the motion for a new trial to raise objection for the first time. Hall v. State, 113 Ark. 455; Wolfe v. State, 107 Ark. 29.

The testimony was sufficient, according to the prosecutrix, to sustain the conviction, and appellant is in no position to complain that he was only convicted of an assault with the intent to commit the crime of rape.

No error appearing, the judgment is affirmed.