author: .Humphreys, J.

text:
    Myers v. Centers.
    Opinion delivered October 18, 1926.
    Fraud — misrepresentation.—Where plaintiff voluntarily paid an • assessment on his sister’s hank stock, which she was in law bound to pay in any event, his payment was an indirect loan to her, and the. fact that plaintiff was induced to make such loan by defendant’s false representations as to the Value of the Stock did not render defendant liable to plaintiff.
    Appeal from Boone Circuit Court; J. M. Shivm, Judge;
    reversed.

      Woods é Greenhaw and E. G. Mitchell, for appellant.
    • Shouse <& Rowland, for appellee.
   .Humphreys, J.

This suit was brought in a magistrate’s court in Boone County for appellee against appellant to recover $90, which he had paid for his sister, Miss Centers, upon a 30 per cent, assessment which had been made by the Bank Commissioner of the State against $300 worth of stock owned by her in the Farmers ’ Bank at. Harrison, Arkansas, which was subsequently closed for the purpose of liquidation. The gist of the complaint was that he had paid the assessment for his sister, upon the representation of appellant, who was president of the bank, that the 30 per cent, assessment against the stockholders would put said bank on a sound financial basis and make it as good as any bank in Harrison, and that he would guarantee that said stock would be worth, in a short time, 125 per cent, on the dollar.

Appellant orally denied the material allegations in the complaint, and, upon a trial of the cause, appellee recovered a .judgment against him for $90, from which judgment he duly prosecuted an appeal to the circuit court.

On the trial de novo in the circuit court, appellee again recovered judgment in the sum of $90 against appellant, from which is this appeal.

The testimony introduced by appellee tended to establish that misrepresentations had been made to appellee by appellant as to the solvency of said bank and the value of said stock, which induced appellee to pay the 30 per cent, assessment, amounting to $90, against his sister’s stock for her, and that, a short time thereafter, the bank was liquidated at .the instance of the Bank Commissioner, which liquidation resulted in appellee’s sister losing her stock and in appellee losing the amount of the assessment he paid for her.

. The testimony introduced by appellant tended to show that he made no -such misrepresentations to appellee.

The cause was sent to the jury on the sole issue of whether such misrepresentations had been made' by appellant to appellee, over the objection and exception of appellant, and the finding of the jury upon that issue is conclusive. The weight of the evidence was a question solely for the jury; appellant contends, however, that the court erred in allowing the case to turn upon this issue, in view of the undisputed fact that appellee paid a stock assessment for his sister which the law required her to pay. Appellee testified- that his sister refused to pay the assessment, whereupon he paid it for her, being induced to do so through the misrepresentations of appellant as to the condition of the bank and the value of the stock. He also testified that, when the bank went into liquidation, his sister lost her stock, and he lost the amount of the assessment he had paid for her.

As we understand the testimony, he did not purchase his sister’s stock, but, on the contrary, advanced the money to pay an assessment which the law required her to pay. It was an indirect loan to her for the purpose of paying her assessment, and voluntary so far as she was concerned.

Appellee insists that the instant case is ruled by the case of Myers v. Martin, 168 Ark. 1028, 272 S. W. 856. So far as the issue of misrepresentations is concerned, the two cases are alike, but they are dissimilar upon the issue of liability. Martin was induced, to purchase stock and pay the assessment thereon, as a single transaction, through misrepresentations. In the instant case, appellee was induced to pay the assessment for his sister, which she was bound to pay under the law, through misrepresentations. In other words, appellee was not induced to buy anything on account of misrepresentations made to him by appellant. By voluntarily making the payment for her, he took her place. It was her duty to pay the assessment, with or without misrepresentations, and she could not have based a cause of action against appellant for paying the assessment upon his misrepresentations.

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


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Bunch v. State.
    Opinion delivered October 25, 1926.
    Intoxicating liquors — unlawful sales — evidence.—In a prosecution for selling intoxicating liquor, evidence was admissible that defendant permitted dancing parties at his house, where the ■ participants became intoxicated.
    Appeal from Pulaski 'Circuit Court, First -Division; 'John W. Wade, Judge;
    affirmed.

      Isgrig & Dillon, for appellant. '

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   McCulloch, C. J.

Appellant was indicted by tbe grand jury of Pulaski County on April 28, 1926, for tbe crime of selling intoxicating liquor, and, on the trial of the case in June, he was convicted and sentenced to the penitentiary. The ' State introduced several witnesses who testified that they purchased whiskey from appellant. Three witnesses — Dwyer, McGuire and Mays— each testified to the purchase of liquor, and another witness testified about appellant furnishing liquor to the' witness and her companions on several occasions at his home. The direct evidence of sales said-to have been made by appellant was,' of course, sufficient to sustain the verdict of conviction. • The State also introduced the testimony of witness' Adkins, the sheriff of the county, and' Evans, one of his deputies, to the effect that they had made investigations at appellant’s home on different occasions and observed drunken people about the premises, and that they had found, in and’ about'the premises, bottles and other containers indicating that whiskey had been handled there.

It appears from the testimony that appellant had been permitting dancing parties to assemble at his house, and that on such occasions the participants became intoxicated, and sometimes engaged in fights. The officers testified that, on one occasion, they found three fruit .jars with a small amount of liquor in them, and went to the barn and found a bottle with whiskey in it. Another witness, introduced by the State, testified that he had, on a number of occasions, seen men and women in an intoxicated condition at appellant’s house. It is contended that this constituted merely evidence of the commission of other crimes, which was not admissible, and also that some of the occasions were too remote in point of time to have any bearing upon the question of appellant’s guilt or innocence of the particular charge in the indictment which the direct testimony of the State’s witnesses tended to establish.

We have held that evidence of other similar offenses is admissible, if not too remote in point of time. Duval and Rice v. State, ante, p. 68, 283 S. W. 23, and cases therein cited. Counsel for appellant contend that some of the evidence admitted was too remote, and they rely upon the case just cited as supporting their contention for a. reversal. In that case several years intervened between the commission of the crime under investigation and similar offenses disclosed in the evidence, and we decided that they were too remote to have any bearing upon the case on trial. In the present case, however, the evidence, though it goes back for a period of time more than one year preceding the-commission of this particular offense, is connected up by proof of a continuous state of affairs with reference to dispensing intoxicating liquors at appellant’s house down to the time of the sale shown by the direct testimony. We are of the opinion that the evidence was competent,- as it tended to show that appellant had been engaged in dispensing liquor at his house for a long period of time, and this was proper for the consideration of the jury in settling the conflict in the testimony of the State’s witnesses and those who testified -as to direct purchases of liquor from appellant, and witnesses - who were introduced -by appellant whose testimony tended to show that there was no liquor sold at that place. The fact that the State relied upon direct testimony of sales of whiskey does not render the other testimony incompetent, for there was a conflict in the testimony, and the State had a right to complete its case, not only by introducing the direct testimony, hut also by introducing other testimony tending to show that liquor was being sold by appellant at that place.

Judgment affirmed.


text:
    Dutton & Barnes v. McIlroy.
    Opinion delivered October 25, 1926.
    1. Contracts — failure of consideration.' — Where a well driller guaranteed lasting water in a well, and it went dry during the dry season, defendant in a suit on a note given for such drilling could plead a failure of consideration.
    2. Contracts — failure of consideration — waiver.—Where a well driller guaranteed lasting water in a well, and defendant'accepted the work and gave his note and used the well until it went dry, he did not waive the defense that the consideration failed, since he could accept the well and rely upon the guaranty.
    Appeal from Randolph Circuit Court; John C. Ashley, Judge;
    affirmed.

      B. C. Waldron, for appellant.

      Pope d Bowers, for appellee;
   McCulloch, C. J.

Appellants instituted this action to recover the amount of a promissory note executed by appellees McIlroy and his co-appellees, Jackson and Decker, who were sureties on the note, which was executed to appellants for the contract price of drilling a well on Mcllroy’s land. Appellees defended on the ground of failure of consideration, in that the well did not come up to contract. The case was tried before a jury, and there was a verdict in favor of appellees. The principal contention of appellants is that the evidence is not sufficient to support the verdict.

McIlroy engaged appellants to drill a well on his • land, and agreed to pay the price of one dollar and fifty cents per foot. The contention of appellants is that there was no contract to guarantee the quantity of water to be produced in the well, but that they were merely to drill, at the price named, to a depth that satisfied Mcllroy that “he had plenty of water. ”

The testimony adduced hy appellees was to the effect that appellants were to “guarantee lasting water” — that is to say, a good supply of water during all the seasons of the year. The well was drilled during the latter part of April, 1924, to a depth of about eighty feet, and, according to the testimony, there was a fair- supply of water in the well at the time it was'finished.

Appellees executed the note, in suit on May 3, 1924, due and payable October............, 1924. The well went dry in July or August, 1924, and Mcllroy applied to appellants to drill the well- deeper so that an adequate supply of water' could be obtained. Appellants employed another driller by the name of Smith to deepen the well, and agreed to pay the cost, twenty-five dollars. Mcllroy paid Smith twenty-five dollars for his work, and appellants credited this amount on the note. Smith’s effort in drilling the well did not bring any better results, according to the testimony; in fact, Smith did not get the well any deeper. He testified that the hole was crooked and that there were several feet of casing above the surface, and that, in order to go deeper, it was necessary to drill partly through rock and also through mud and a soft, spongy sort o.f boulders.

The evidence was sufficient to establish the contention of appellees that the well did* not furnish “lasting water,” or water during all the seasons of the year, but that, on the contrary, the water failed as soon as the dry season came around, and that the effort to drill deeper was unavailing. If this was the true state of affairs, and if appellees are correct in their contention as to the substance of the contract, then the consideration for the note failed, and appellees had a right to plead that failure in defense. Dutton v. Million, 114 Ark. 330, 165 S. W. 1183. There was a sharp conflict in the' testimony on the issue, but the verdict is supported by legally sufficient evidence.

It is earnestly contended by counsel for appellants that Mcllroy waived the defect in the well by accepting the work and using the well for a considerable length of time, and that, for that reason, he should, not be permitted to assert that the consideration failed. According to the testimony of Mcllroy, there was an express warranty as to the capacity and durability of the well; hence the acceptance of the well did not constitute' a waiver, for Mcllroy had the right to accept .the well and rely upon his warranty, and prove either a total or partial failure of consideration in defense against recovery on the note. And, besides that, the testimony disclosed that Mcllroy accepted the well and executed the note on assurance from appellants that the flow of water in the well would last. When Mcllroy applied to appellants to. drill the well deeper, they agreed to do so, and it was not until after, the effort to secure more water proved unavailing that Mcllroy refused to pay the note. In fact, the.note did not become due until it was demonstrated that the well did not. afford a lasting supply of water, and then Mcllroy refused to pay. Our conclusion is that the evidence supports the verdict, and that the court correctly submitted the. issues to the jury.

Judgment affirmed.


author: Wood, J.

text:
    Burns v. Fisher.
    Opinion delivered October 25, 1926.
    1. Drains — notice of proceedings to establish district, — Under Crawford & Moses’ Dig., §§ 3607-3666, providing for “an alternative system of drainage districts,” notice of proceedings to establish a drainage district in Prairie County held sufficiently definite as to place of hearing to 'give the county court jurisdiction, notwithstanding the notice referred to the “county court of the Southern District of Prairie' County,” there being but one county court in the county, which was held in the Northern District.
    2. Drains — sufficiency of notice of proceedings. — Under Crawford & Moses’ Dig., §§ 3607-3666, notice of proceedings to establish a drainage district which, after describing the lands within the proposed district, recited that such lands embraced the following public roads, tramroads and railroads, held to describe sufficiently the rights-of-way of two railroads within the" proposed district.
    Appeal from Prairie Chancery Court, Southern District ; John E. Martineau, Chancellor;
    affirmed.

      W. A. Leach, for appellant.
    ' Bose,- Hemingway, Cantrell & Loughborough, and Joseph Morrison, for appellee.
   Wood, J.

This is a proceeding under chapter 51, §§ 3607-3666, of Crawford & Moses’ Digest, providing for “an alternative system of drainage districts,” to organize a drainage district in Prairie County, Arkansas. By act No. 133 of the Acts of 1885,' page 217, Prairie County was divided into two judicial districts, designated as the Northern District and the Southern District. All that portion of the county lying north of certain lines described in the act constituted the Northern District and all that portion lying south of those lines constituted the Southern District. Des Are was the county seat of Prairie County, and, prior to the passage of the act supra, all the courts were held there. By the above act -.the circuit; chancery and probate courts and the court of common pleas in and for the Northern District were to continue to be held at Des Arc, the county seat, and these-courts, for. the Southern District, were to be held in the town of DeYalls Bluff. The place for the holding of the sessions of -the county court for both districts was not affected by the act, but the place for the holding of the sessions of that court remained, as it had always been, at Des Arc, the county seat.

On the 17th of July, 1925, a petition was filed under the drainage act supra, in the office of the county clerk of-Prairie County at Des Arc, for the creation of the district. All- the lands described in the petition were situated within the territory constituting the Southern District of Prairie County, as divided by the act of 1885 supra. The county court entered an order directing that notice be given of the petition for the creation of the drainage district, in which notice all the lands to be embraced in the proposed district are specifically described, all situated within the Southern District of Prairie County, as designated under the act of 1885. The rights-of-way of the Chicago, Rock Island & Pacific Railroad Company and of the St. Louis Southwestern Railway Company extended over and across the lands embraced in the district, and likewise a number of public roads and highways. The lands embraced in the district are specifically described in the notice. The notice recites that there had been a preliminary survey of the proposed district of the lands in the Southern District of Prairie County, as set forth in the petition, naming the petitioners. Then it recites that the district is to embrace all of the lands which will be benefited by a ditch to run as follow's: (Here is set forth the general description of the lands through which the ditch runs, showing its direction, and this is followed by a recital, “and embracing the following lands, public roads, tram-roads and railroads).” Then a specific description of the lands to be embraced in the proposed district is set forth. The notice concludes with a recital, to wit: “All persons owning property within said proposed drainage district are hereby notified that the county court of the Southern District of Prairie County, Arkansas, has set the 18th day of September, 1925, for the hearing of the matter of establishing said proposed district, and that they may appear before said court on said date, and show cause in favor of or against the establishment of said proposed drainage district.”

On the 18th day of September, 1925, the county court of Prairie County, pursuant to the above notice, entered its final order creating Drainage District No. 2 of Prairie County. After setting forth the general description of the lands contained in the petition and the notice, this order recites that the court found that all the preliminary requirements of the law essential to the creation of the district had been complied with, and then recites as follows: “It is therefore ordered by the court that a drainage district for the purpose of constructing a system of drains and ditches, together with necessary lateral ditches as described in said report of M. L. Buerkle, as such engineer, and embracing the following lands in said county.” The order then described specifically the lands as set forth in the petition, report of the engineer, and the notice. After this specific description, the order recites as follows: “ # * * together with all railroads and public roads and highways in said territory, be and the same is hereby created and established as a drainage district; that the same shall be. hereafter known and designated as Drainage District No. 2 of Prairie County, Arkansas, and that said district be and it is hereby authorized and empowered to do and perform all such things in the .draining of the territory embraced therein as may be necessary and as the law permits. It is further ordered by the court that John F. Fisher, William Schafer and Henry Wilkes, three owners of real property within said district, be and they are hereby appointed as the board of commissioners of said district. ”

The plaintiffs instituted this action in the Prairie Chancery Court, Southern District, against the defendants, the commissioners of Drainage District No. 2 of Prairie County, Arkansas, attacking the validity of the district, and alleging that all of the proceedings creating the Drainage District No. 2 of Prairie County were illegal and void, and praying that the defendants be enjoined'from performing any of their duties as commissioners of such district. The answer denied that the district was invalid.

The above are substantially the facts upon which the cause was heard, and the trial court entered its decree dismissing the complaint for want of equity, from which is this appeal.

Learned counsel for the appellants contends that the order of the county court, creating the district was void on the' ground that the notice was not sufficient to give the county court jurisdiction. He argues, first, that the notice was insufficient because it fails to set forth with certainty the time when, and the place where, the hearing .should he had. It will be observed, that the notice contains the following recital: “All persons owning.property within said proposed drainage district are hereby notified that the county court of the Southern District of Prairie County, Arkansas, has set the 18th. day of September, 1925, for the hearing of the matter of establishing said proposed district, and that they may appear before said court on said date and show cause in favor of or against the establishment of said drainage district.” 'The agreed statement of facts, among other things, shows the following: “That there is but one county :court in Prairie County. It convenes at Des Arc, in said county, and has convened there and nowhere else for fifty years previous to the. publication of the said notice; that the residents of Prairie County, and particularly that portion which is situated in the drainage district, know that no county court is held in DeValls Bluff in said county, or anywhere but in Des Arc.”.

The notice designated September 18, 1925, as the day set for the hearing of the petition for the creation of the district. It was therefore definite as to the time fixed for the hearing. The notice was sufficiently definite as to the place set for the hearing, because, under the law, the sessions of the county court of Prairie County could only ■be held at Des Arc, the county seat. As we have seen, the act of 1885 supra did not make any change in regard to the holding of sessions of the county court. Therefore, even in the absence of a stipulation in the record showing that the county court had convened at Des Arc, the county seat, for fifty years, and that the residents of that portion of Prairie County situated in the drainage district knew that fact, they nevertheless would have to take notice of the law, and were bound to know that the ■county court would hear the petition for the establishment of the proposed drainage district at Des Arc — that the hearing could not be had elsewhere.' The notice therefore was sufficient to give all property owners in the-proposed district notice that the place for the.hearing was at Des Arc. • - .

Counsel for appellant next contends that the notice is insufficient 'because it does'not contain a description of the rights-of-way of the two railroads located within the proposed district. The notice set forth in the complaint contained a general description of the lands, showing the route of the proposed drainage ditch, and contained a specific description of the lands embraced in the district, and recited'that these lands “embraced the public roads, tramroads, and railroads contained in-the district.” This was a sufficient description of the public highways, tramroads and railroads that were located on the lands within the district. In the description in the notice embracing the “lands, public roads, tramroads and railroads,” we find also the following: “commencing where the said right-of-way of the St. Louis Southwestern Railway intersects the south line of the northwest quarter of the southwest quarter of section 8, township 1 south, range 5 west,- running thence through section 17 and the north half of section 20, thence along the west line of the east half of sections 20 and 29; commencing where the Chicago, Rock Island & Pacific Railway intersects the north line of section 16, thence through said sections 16 and 21, respectively,, to the south line of the north half of section^ 28, all in township 1 south, range 5 west.” This is the description of the rights-of-way as contained in the notice, which is made Exhibit B to plaintiff’s -complaint -and which, the parties agreed, was a copy of the- notice, as required by law, of the hearing of the petition for the creation of the district. It is difficult to conceive how any more accurate description of the rights-of-way of the railroads embraced in the district could have been given.

It is sufficient to meet the requirements of the statute, so far as the public roads embraced in the district are concerned, that the notice recites that the district embraced “the following lands, public roads, tramroads 'and railroads,” following the same with a specific description according to Government surveys of the lands embraced in the district. This description of the lands would necessarily include the public highways running through the lands embraced in the district. The order of the county court establishing the district describes the lands embraced therein according to the description of the Government survey, and, after so describing them, recites that these, “together with all railroads and public roads and highways in said territory be, and same is, hereby created and established as 'a drainage district.” The recitals of the notice were sufficient to meet the requirements of the statute, and the recitals of the court’s order show that it was made pursuant to the notice given.

In this view of the record it is wholly immaterial whether the attack by the appellants on the validity of the district be direct or collateral. The notice meets the requirements of the law in either case. The order of the county court creating the district is valid, and the -chancery court ruled correctly in so holding and in dismissing the appellants’ complaint for want of equity. The decree is therefore affirmed.


author: Wood, J. McCulloch, C. J.,

text:
    Cowan v. State.
    Opinion delivered October 25, 1926.
    1. Larceny — theft of automobile license plates. — Automobile license plates costing $16, issued under the Harrelson law (Laws Sp. Sess. 1923, p. 11) §§ 36, 40, 41, 49, held grand larceny, the cost of the plates, rather than the cost of replacing them, being the measure of their value.
    2. Larceny- — evidence.—In a prosecution for grand larceny in stealing automobile license plates, evidence of their replacement cost held inadmissible.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      O. D. Thompson, for appellant.

      H, W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee.
   Wood, J.

Bert Cowan was indicted in the Crawford Circuit Court for the crime of grand larceny. The indictment, in apt language, charged him with the crime of ' grand larceny in the stealing of two automobile license plates, of the total value of $16, the personal property of Paul W. Sheridan.

One of the witnesses introduced- by. the State testi- ■ fied that he worked for the Paul Sheridan Motor Company, in Van Burén, Crawford County, Arkansas, and that he saw Cowan, on or about the 31st day of May, 1926, in. Crawford County, Arkansas, trying to get a license tag off of a Ford car which belonged, to Paul Sheridan. Witness went for the sheriff.

The sheriff testified that he saw the defendant take a license tag off of a Ford touring car and stick it under the -bib of his overalls, and witness arrested him. The law fixes as the regular price of license for a Ford touring car the sum of $16 from the 1st of January to the 21st of June.

The defendant offered to prove by the sheriff and other witnesses that the replacement cost of the license tags is $1. The court refused to allow the witness to so testify, to which ruling the defendant duly excepted.

The defendant was convicted and sentenced by judgment of the court to imprisonment in the State Penitentiary for a period of one year, from which judgment he. duly prosecutes this appeal.

The law requires every person who owns and desires to operate an automobile in this State to pay a fee for the registration and licensing of such automobile, a minimum of $1-5 per annum. See § 36, subdiv. (f), act No. 5, approved October 10, 1923, commonly known as the Harrelson law. It is made the duty of the Commissioner of State Lands, Highways and Improvements, when the automobile has been duly registered and the license fee duly paid, to issue to the applicant a registration card and a set of registration plates bearing the number that has been assigned to such motor vehicle. Sections 40 and 41, act No. 5, supra. The possession of these registration cards and license plates is evidence of the fact that the owner and operator of the car has complied with the law requiring registration and payment of the license fee. It is unlawful for the owner of any automobile to display any registration plate or plates that are not furnished by the State Highway Commissioner, and the owner of any motor vehicle subject to the payment of a license fee, who fails to pay the same when due, in addition to the license fee, is subject to a penalty for the operation of the car without paying a license. See §§ 41 and 49. of the act supra.

Under the above and other provisions of act No. 5, supra, and the testimony in this case, it is obvious that the stealing of automobile license plates evidencing the right to own and operate an automobile from Jan. 1 to June 21 constituted grand larceny. The only method by which the appellant could lawfully, obtain a license .plate to operate his car in this State was by complying with the provisions of act No. 5, supra, and, in order to obtain such license plates, it would be necessary for him to pay not less than the sum of $15. Eegistration cards and license plates, under the law, are not the subject of barter and sale. They evidence the right of the owner of the particular car that has been registered, and for which license plates have been issued, to operate that car. These original license plates cannot be obtained by any one lawfully without the payment- of the license fee. Intrinsically, to be sure, the me,tal license plates were worth but little or nothing, merely the cost of the metal and the manufacture thereof into plates, but, as an evidence of the right to own and operate a car, they were worth the sum of $16. The effect of the provisions of the Harrelson ■ law is to fix the valúe of license plates at not less: than $15. The value of the license plates stolen by appellant was $16, as shown by the undisputed evidence in this case. It is not a question of what the owner.of the automobile would have to pay in order to replace them; the question Is, what was the value of the plates to the owner when he obtained them? — that is, what he had to pay for same in order to obtain them as an evidence of the right to operate .his car in this State. The value of . these particular plates should be measured by what these particular plates cost, and not by what replacement plates would oost, for appellant was not charged and was not convicted of stealing license plates which had been replaced. He was charged and convicted of stealing automobile license plates of-the value of $16.. To obtain these license plates the owner had to pay $16, and if appellant, as before stated, had lawfully obtained the same, he would have had to pay the sum of $16 therefor. When motor vehicle license plates are stolen, the thief intends not only to deprive the owner of the car of the evidence of his right to operate such car on the highways of this State, but he also intends to deprive the State of the license fee which he would have to pay as an evidence 'of his right to operate a motor vehicle. He therefore intends to steal the property of another and to convert the same permanently to his own use, of more than the value of $10. In such case the lucri causa is complete, ■ and, under the law, the offender is guilty of grand larceny. See §§ 2484 and 2489, C. & M. Digest. . .

The trial court ruled correctly in holding that the offered testimony was inadmissible, and; its judgment is therefore affirmed.

McCulloch, C. J.,

(dissenting). The offense of larceny consists of stealing, taking and carrying away the property of another, and the degree of the offense is fixed according to the value of the property stolen. Crawford & Moses’ Digest, §§.2483, 2486. The extent of the value is unimportant further than it fixes the degree of the .offense,-but the property stolen must be of some value. It is not contended in the present case that the two automobile license tags which were stolen were entirely without value, however trifling it may have been, but the contention is that it is limited to the intrinsic value of the tags themselves, and not the value of the privilege, of which the tags constitute mere evidence. I think that counsel for appellant is right in this contention, and that the offense made out is only that of petty larceny. ■ ■

At common law, things without intrinsic value, such as choses in action, were not subjects of larceny. (Rapalje's Larceny and Kindred Offenses, § 41; 2 Wharton’s Criminal Law, § 1111), but our statutes place such property on the same basis as the money value which choses in action represent, and provide in express- terms that such character of property may be the subject of larceny. Crawford & Moses’ Digest, § 2485. The stealing of a license tag does not, however, come within .the provision of that section, for it is not a “.banknote, bond, bill, note, receipt, or any instrument of writing, whatever. ’ ’

It is contended that the case comes within the terms-of the following section of the statute: .

“Section 2484. Larceny shall embrace every theft which unlawfully deprives another of his money or other personal property, or those means and muniments. by which the right and title to property, real or personal, may be' ascertained.” Crawford & Moses’ Digest.

I do not think this is true, for the theft of the tags does not deprive the owner of personal property of the value of the license evidenced by the tags, nor of “those means and muniments by which the right and title to property, real or personal, may be ascertained.” The license to use the oar on the public highway is a personal privilege, and its use is limited to the particular car named in the license. This privilege does not constitute property within the meaning of the statute, therefore the license tags do not constitute “means and muniments by which the right and title to property, real or personal, may be ascertained. ’ ’ But, even if so regarded, the value amounts to the sum of one dollar, which would be required to replace the tags, as that is the extent of the owner’s loss. . In other words, the value could- not in any event exceed the replacement cost.

My conclusion is that the judgment should be reversed, with directions to the court to sentence appellant for petty larceny.


author: Hart, J.,

text:
    Henry v. Union Sawmill Company.
    Opinion delivered October 25, 1926.
    1. Signatures — use of mark. — The mark of one who cannot write is not a prima -facie signature, unless the person who writes the name writes his own name as a witness to it, but it may be proved as genuine by other testimony, though there be no attesting witness to it'.
    2. Mortgages — evidence as to consideration. — As between the parties, parol evidence is admissible to show the true character and consideration of the mortgage.
    3. Mortgages — parol evidence as to consideration. — As between the parties to a mortgage, although it is for a definite sum and secures the payment of notes for definite amounts, it _may be shown that it is simply one for future advances.
    4. Mortgages — foreclosure under power of sale — notice.—In a foreclosure sale under a power in a deed of trust, where notice of the sale was given by publication, it was unnecessary to serve a statement of the account on the grantors.
    5. Bills and notes — bona fide holder. — One taking negotiable paper before maturity as security for a debt without notice of any defect therein or defense thereto is a bona fide holder in due course of business for value within the státute.
    6. Mortgages — fraud in foreclosure. — In a suit to cancel a trustee’s deed for fraud, testimony of the grantors that the secured indebtedness had been discharged held insufficient to show fraud where .plaintiffs, attorned to the purchaser at foreclosure sale for three or four years before suing. •
    Appeal from Union Chancery Court, Second Division; George M. LeOroy, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    Tom Henry and Kansas. Henry, his wife, brought suit in equity against J. S. Alphin to cancel a deed of trust from them to J. R. Plair to eighty acres of land in Union County, Arkansas, and a trustee’s deed to the-same land from the trustee to J. S. A-lphin at a foreclosure sale under the power contained in the deed of trust. Subsequently, the Union Sawmill Company instituted an action of ejectment against Tom Henry, in the circuit court, to recover said land. On motion of Tom Henry, the action in the circuit court was transferred to equity and consolidated with the suit in the chancery court.
    The record shows that, on October 3, 1914, Tom Henry and Kansas Henry, his wife, executed a deed of trust to J. R. Plair to eighty acres of land in Union County, Arkansas, to secure an indebtedness of $500, evidenced by the note of Tom Henry and Kansas Henry, payable to the order of J. R. Plair on October 1, 1916, with interest at ten per cent, per annum from date until paid.
    J. D. Nelson was named as trustee in the deed of trust, and it contained the usual power of sale. It provided that, if Tom Henry and Kansas Henry should pay the note when due and all other indebtedness due Plair, the deed of trust should be void. In the event of their failure to pay the note or any other indebtedness due Plair, it was provided that the trustee should sell said land for the purpose of paying the indebtedness in the manner and under the terms prescribed in the deed of trust.
    Kansas Henry joined with her husband-in the execution of the deed of trust. The deed of trust and the $500 note were transferred by J. R. Plair to J. S. Alphin on October 4, 1914. The deed of trust and the note purport to have been signed by Tom Henry and Kansas Henry by their marks. The deed of trust was acknowledged by them before J. C. Wallace on the date of its execution, and has been duly filed of record.
    On the 10th day of January, 1907, Tom Henry and Kansas Henry, his wife, conveyed the timber on said land to the Union Sawmill Company, and it was given ten years within which to cut and remove the timber.
    On the 1st day of March, 1921, J. S. Alphin conveyed the land to the Union Sawmill Company, reserving a one-eighth interest in the oil, gas and other minerals in said land for a period of fifteen years.
    Tom Henry and Kansas Henry made default in the payment of the indebtedness secured by the deed of trust as above set forth, and, on account of the illness of J. D. Nelson, J. K. Mahony was appointed substitute trustee for the purpose of foreclosing the deed of trust under the power of sale. The sale was 'made in the manner and under the terms prescribed in the deed of trust, aqd J. S. Alphin became the purchaser thereof for the sum of $635. The deed of trust recites that this was the highest bid for the land, and was more than two-thirds of its appraiséd value. It also recites that notice of the time, term's and place of sale had been made in a newspaper of bona fide circulation in Union County, Arkansas.
    The above facts are undisputed. Other facts bearing-on the issues involved in the' appeal will be stated under appropriate headings in the opinion.
    The chancellor found the issues in favor of J. S. Alphin and the Union Sawmill- Company, and a decree was entered of record in accordance with his findings.
    To reverse that .decree, Tom Henry and- Kansas Henry have duly prosecuted aii appeal to this court..

      John Bruce Cox,. Stewart é Oliver, E. W. McGough, and J. R. Wilson, for appellant.

      Mahony, Yocum & Saye and Gaughan & Sifford, for appellee.
   Hart, J.,

(after stating the facts). The evidence introduced by appellee tends to show that J. D. Nelson, the trustee named in the trust deed, became sick, and J. S. Alphin, to whom the deed of trust had been transferred by J. it. Plair, named J. K. Mahony as a substitute trustee. Mahony gave notice of the time, terms and place of sale, and caused said notice to be duly published in a weekly newspaper of bona fide• circulation -in Union County, Arkansas. Mahony also caused the land to be appraised, and sold it for more than two-thirds of its appraised value, as required by statute. J. S. Alphin bid the sum of $635, and, this being the highest bid, the land was struck off to him, and Mahony, as trustee, executed a deed to him in accordance with the provisions of the deed of trust. Alphin then took possession of the land, and subsequently sold it to the Union Sawmill Company.

Counsel for appellants now contend that the deed of trust executed by Tom. Henry and Kansas Henry, his wife, to J. R. Plair, is invalid because it appears that their signatures were made by mark, and that there is no attesting witness thereto. J. C. Wallace was a witness for appellees. According to his- testimony, he was the officer before whom the deed of trust was acknowledged by Tom' Henry and Kansas Henry on October 3,1914. Hé read over the deed of trust to them and explained its provisions. He also read the note for $500 to them, and they executed their signatures to it by mark. He did not write his name as an attesting witness thereto, because he. forgot to do so. Wallace certified that the grantors, Tom Henry and Kansas Henry, his wife, had signed the deed of trust in his presence, and regarded this as sufficient. The certificate of acknowledgment to the deed of trust shows that Tom Henry and Kansas Henry, his wife, signed the deed of trust and acknowledged its execution before J. C. Wallace.

In the absence of an affirmative showing that the note and deed of trust were not executed as they purport to have been, they were just as effective as if signed by appellants’ written signatures. A signature to a paper by mark, made by a person for the purpose of identifying himself as a party ’ thereto, was good at common law without any attestation thereof by a subscribing witness: The mark of one who cannot write is not a primd facie signature, unless the person who writes the name writes his own name as a-witness to it; but it may be proved as genuine by other testimony, though there be no attesting witness to it. Ex parte Miller, 49 Ark. 18, 3 S. W. 883; Ward v. Stark, 91 Ark. 268, 121 S. W. 382; and Nail v. Kirby, 162 Ark. 140, 257 S. W. 735.

It is next contended by counsel for appellants that the deed of trust is void for' usury. On this point the testimony of appellants is to the effect that Tom Henry only owed Plair $143, and that a note was executed for $500, for the purpose of enabling Henry to secure future advances, if needed, to make a crop, and that no such future advances were made. If this testimony be true, it does not help the case of appellants any. As between the parties, parol evidence is admissible to show the true character of a mortgage and for. what consideration it was given. Although it is for a definite sum and secures the payment of notes for definite amounts, it may be shown that it is simply one for future advances. Jones on Mortgages, 7th ed., § 384; Curtis & Lane v. Flinn, 46 Ark. 70; and Blackburn v. Thompson, 127 Ark. 438, 193 S. W. 74. Hence, under appellants ’ own testimony, there is no taint of usury.

It is next insisted that 'no statement of the account was served upon appellants by Alphin at the time of foreclosure. Notice of sale was given by publication, and it was not necessary to serve a statement of the account. Wilkinson v. Hudspeth, 134 Ark. 132, 203 S. W. 263; and Straughan v. Bennett, 153 Ark. 254, 266 S. W. 76.

It is also contended that appellants had paid off the deed of trust and that the foreclosure and sale under it were fraudulent. In the first place, the record shows that the mortgage was given by Tom Henry and Kansas Henry, his wife, to Plair for $500, evidenced by note for that amount. The note and mortgage were transferred by Plair to J. S. Alphin before they became due. J. S. Alphin was a bona fide purchaser for value. . Plair was indebted at the time to Alphin, and transferred the note and deed of trust in question to Alphin in part payment of the indebtedness. Alphin had no notice of any defect or defense to the note. One who takes negotiable paper before maturity, as security for a debt, without notice of any defect therein or defense thereto, is a bona-fide holder in due course of business for value, within the statute. Newell Contracting Co. v. McConnell, 156 Ark. 558, 246 S. W. 854; and State National Bank of Texarkana v. Birmingham, 166 Ark. 446.

Moreover, we do not think that appellants have sustained their contention that there was fraud in the foreclosure of the deed of trust. They testified • that they only owed $143 to Plair and that they had paid him this amount. They claim that the reason for the execution of a note for $500 was for future advances. They testified that the future advances were not made. Their testimony upon this branch of the case is not consistent with the attendant circumstances. They afterwards paid rent to Alphin, and thereby recognized him as the purchaser of the land at the foreclosure sale. Plair had been dead for three or four years before the instigation of the present suit, and appellants knew this.- It is hardly.probable that they would have waited so long to assert their claim if it had been a bona fide one. The natural thing for them to have done, when Alphin claimed to be owner of the land as purchaser at the foreclosure sale, would have been to have gone to Plair and reminded him that the indebtedness secured by the deed of trust had been paid in full. Instead of doing this, they waited until after Plair’s death before asserting their claim to the land, and, in the meantime, they had been recognizing Alphin as the owner of the land.

It is also contended that the description of the land in the deed of trust is void on account of being indefinite. The description as contained in the deed - of trust, is as follows: “SW!4 SEi/4 and SE% SW14 section 21, township 17 south, range 12 west, 80 acres, the same now being in possession of parties of the first part, and all cotton and corn which the said party of the first part, shall make or cause to be made this year, in the county of Union and State of Arkansas, aforesaid.”

This description under- the Government surveys shows that the land is situated in Union County, Arkansas. Besides, it recites that the land is iii possession of the grantors in the deed of trust and that they have mortgaged all the cotton and corn which they shall make in Union County, Arkansas, in that year. This shows inferentially that the land is situated in Union County, Arkansas. Tyson v. Mayweather, 170 Ark. 660, 281 S. W. 1.

The result of our views is that the decree of the chancery court is correct, and it will therefore be affirmed.


text:
    Whittaker v. Kirchman.
    Opinion delivered October 25, 1926.
    1. Negligence — failure to put alcohol in radiator of car. — The failure of a garage keeper to put alcohol in the radiator of an automobile after having agreed to do so constitutes negligence, rendering him liable for the resulting damages.
    2. Trial — submission of appellant’s theory. — It was not error to refuse to submit appellant’s theory of the case in a certain instruction where such theory was embodied in other instructions.
    3. Evidence — itemized account of repairs to car. — In an action against a garage keeper for damages to an automobile, it was not prejudicial error to admit in evidence an itemized account of the repairs where a mechanic testified that he examined the car minutely and saw what parts were needed, and was satisfied, •after looking at the account, that the repairs mentioned therein were necessary to restore the ear to its former condition.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    William Kirchman sued L. A. Whittaker to recover $136.30, which he claims to be due him on account of. the negligence of the defendant in failing to put alcohol in the radiator of his new Dodge touring Car, as he had agreed to do.
    According to the testimony adduced in favor of the plaintiff, he lives in Yan Burén, Crawford County, Arkansas, and, on the 11th day of December, 1924, he drove his new Dodge touring car, with -frood wheels, to the garage of L. A. Whittaker, and asked him to put alcohol in its radiator for the purpose of preventing it from freezing. The defendant had been accustomed to perform this service for the plaintiff. The plaintiff relied upon the performance of the service by the defendant, and drove his car home, thinking it had been supplied with alcohol to prevent freezing, as requested. On the 19th day of December, 1924, the plaintiff attempted to drive his car, and found that it had frozen, which caused a break in the radiator. The . repairs necessary to restore the ear to its former condition cost the plaintiff $136.30, which was the usual price for such repairs.
    On cro-ss-examination, -the plaintiff admitted owning a Dodge car of an older model, which had disc wheels, but denied that this was the car which defendant agreed to put alcohol in, in order to prevent the radiator from freezing.
    According to the testimony of Gr. H. Wright, a witness for the plaintiff, he was foreman of the mechanical department of the Martin-floss Motor Company, and was called in December, 1924, to get the Dodge touring car in Van-Buren, Arkansas, for the purpose of examining it and making the necessary repairs on it. Upon examination of the' car, he found that the whole top- and back radiator was frozen up and that the block was frozen solid. The witness was familiar with the effect of alcohol as an anti-freeze mixture, and had worked on Dodge cars for four years. He could tell by examination that no alcohol had been put in the radiator of the car. The water was frozen solid, and he could tell that no alcohol had been placed in it. He was overseer of the repair Work on the car. After examining the car, he wrote an order stating the work to be done, and turned it over to the mechanics who did the work. The witness supervised the repair work on the car, and placed his initial “W” on the work to be done. .
    According to the evidence for the defendant, he did not agree to put a]pohol in the new Dodge touring car of the plaintiff to keep the radiator from freezing, but did agree to put alcohol in an old Dodge car with disc wheels, belonging to the plaintiff, to keep the radiator in it from freezing, and performed this service for the plaintiff, according to agreement.
    The jury returned a verdict for the plaintiff in the sum of $136.30, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      Roy Gecm, for appellant.

      George Stochard, for appellee,
   Hart, J.,

(after stating the facts). It is earnestly, insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. We cannqt agree with counsel in this contention. In Bussy v. Hatch, 95 N. J. L. 56, 111 Atl. 516, it was held that a garage keeper, to -whom an automobile was delivered for storage under a simple contract of bailment, is liable for damages resulting from the freezing of water in the car while it was in storage, especially where an express agreement to maintain sufficient heat in the garage to prevent freezing was made. The failure of the garage keeper, in the respect mentioned, was considered negligence on his part.

The same rule holds here. According to the evidence for the plaintiff, he carried his car to the garage of the defendant and asked him to put alcohol in its radiator to prevent it from freezing. The defendant had been accustomed to perform this service for the plaintiff. About one week after this time the radiator of the plaintiff’s car froze, and it cost him $136.30 to repair the same.

This made out a prima facie case of liability against the defendant. It is true that the defendant denied that he had agreed to fill the radiator of the car of the plaintiff with alcohol, but this disputed question of fact was submitted to the jury under proper instructions, and, under our settled rules of practice, this court must uphold the verdict of the jury.

It is next insisted by counsel for the defendant that, the court erred in refusing to submit his theory of the case in instruction No. 2, given to the jury over his objection, at the request of the plaintiff.

According to the evidence for the defendant, the alcohol would boil away if the car was used a great deal, and it would be necessary to replace the alcohol at intervals, in order to prevent freezing. In the instruction complained of the court told the jury that, even if it should find that the defendant did put alcohol in the radiator of the car, if the quantity was insufficient to prevent freezing, the plaintiff would be entitled to recover, unless precluded by other instructions given to the jury. No specific objection was made to this instruction. It is a matter of common knowledge that the court cannot at all times submit the theories of both parties on the facts of the case in on'e instruction.

In the case at bar, when the instructions are read and considered as a whole, it will be seen that this theory of the defendant was submitted .to the jury in other instructions given by the court. The verdict of the jury was in favor.of the plaintiff for the full amount sued for, and it is evident that the jury rejected the theory of the defendant that he had attempted in any wise to comply with the request of the plaintiff to fill the radiator of the new Dodge touring car in order to prevent freezing.

It was next insisted that the court erred in the admission of evidence before the jury. Gr. H. Wright was a witness for the plaintiff. According to his testimony, he was foreman of the garage company which repaired the Dodge car in question after its radiator had frozen. According to his testimony, he examined the car minutely and saw what parts were needed to repair it. He gave the order to the mechanics in the shop for the necessary repairs, and placed his initial “W” on the written order. He oversaw the labor of repairing it. The itemized account of the repairs and the cost of making them was introduced in evidence. Under the circumstances of the case, there was no error in this. The witness was satisfied from his own personal knowledge, after looking at the account, that the repairs mentioned were necessary to restore the car to its former condition. It is not claimed that the price charged was exorbitant.

It will be noted that the witness placed his initial “W” on the repairs necessary to be made. It was not necessary that the writing should have been made by the witness himself, and, while the better practice would be to have permitted the witness merely to use the writing for the purpose of refreshing his memory, as held in Bowden v. Spellman, 59 Ark. 251, 27 S. W. 602, still no prejudice, in this case, could have resulted to the defendant from the introduction of the account itself. As we have already seen, the witness had written down the repairs which were necessary to be made, and had placed his initial “W” on the writing. No claim whatever is made that the price of the repairs is unreasonable.

It follows that the judgment must be affirmed..


author: Smith, J.

text:
    United Order of Good Samaritans v. Anderson.
    Opinion delivered October 25, 1926.
    1. Insurance — benefit insurance — suspension of delinquent.— Where the constitution and by-laws of a fraternal benefit society provide that a member neglecting to pay dues for two months shall be notified thereof by the secretary, and suspended in open meeting, and record thereof made on the minutes, mere delinquency in payment of dues did not automatically suspend the delinquent member.
    2. Insurance — forfeiture.—Where mere nonpayments of assessment dues does not of itself forfeit insurance, a clear intention to declare a forfeiture must be shown, and, if notice is required, it must be given.
    3. Insurance — reinstatement—evidence of good health. — Evidence held to sustain a finding that a member of a fraternal benefit association was in good health when she applied for reinstatement.
    4. Appeal and error — question not raised. — A question not raised in appellant’s • motion for new trial will not be considered on appeal.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      Booker & Booker, for appellant.

      Isgrig & Billon, for appellee.
   Smith, J.

Appellees are the beneficiaries named in an insurance policy issued by appellant, a fraternal benefit society, to one Fannie Johnson, and, upon the death of the insured, appellees brought this suit to recover the amount of the insurance. There was a trial before a jury, and from a verdict and judgment in appellee^’ favor is this appeal,

> Liability was denied npon the ground that, by failing to pay the monthly asséssment levied against all members, the policy of Fannie Johnson had lapsed. It is also insisted that, while an attempt was made to reinstate the insured, the attempt was unsuccessful, for the reason, chiefly, that the insured was in bad health at the time of the reinstatement; a by-law of the order providing that reinstatement would be granted only to members who were in good health at the- time of their application to be reinstated.

The instructions submitted two questions to the jury, the first whether the policy had lapsed, the second whether, if the policy had lapsed, the insured was in good health at the time she was reinstated.

"We- think the testimony warranted the submission of both these questions, and that the jury might have found for appellees on either or -both of these issues.

- A section of the constitution and by-laws .of the society reads as follows: “Any brother (sister) neglecting to pay all arrears to the funds of the colony for two months shall be notified by the secretary, and shall be suspended by the colonial chancellor in open -meeting, a record of such suspension shall be entered on the minutes of the colony, and, during such suspension, he (she) shall forfeit all claims to the privileges of the colony, and should he (she) desire to return, he (she) shall pay up all indebtedness and contributions that may have been assessed on each member in the interval between his (her) suspension and time of return, - and shall stand over one month before he (she) shall be entitled to any benefits.”

It thus appears that mere delinquency in payment of -dues does not automatically suspend a delinquent member, but, before the member is suspended, there must be notice of delinquency and suspension in open meeting, of Which action a record is to be made on the minutes' of the colony, which we .understand to be the local lodge of which the delinquent was a member.

The testimony fully supports the contention of appellees that no notice was given or action taken, and the verdict of the jury might therefore be affirmed on this account.

Appellant insists that this case should be reversed and dismissed upon the authority of the case of Sovereign Camp Woodmen of the World v. Anderson, 133 Ark. 411, 202 S. W. 698. In that case.it was held that, where a certificate of insurance in a fraternal order made the constitution and by-laws of the order a part thereof, and the constitution and by-laws provided that, when the certificate lapsed for failure to pay dues, it could be reinstated only upon a statement by the insured that he was in good health, the insured is held to have knowledge of these regulations, and could not be reinstated by the mere payment of 'dues when the insured was in bad health at the time of his application for reinstatement.

It appears, however, from the opinion in that case that the constitution and by-laws provided that the insured should stand suspended upon the nonpayment of dues, and no notice of delinquency or order of suspension was necessary to make the suspension effective. Here, however, as we have said, the constitution and by-laws require notice and an order of suspension.

“Where the mere nonpayment of an assessment does not of itself forfeit the insurance, a clear intention on the part of the. insurer to declare a forfeiture must be shown, or it will be held not to have taken place (Columbus Mut. Life Assn. v. Hanrahan, 98 Ill. App. 22). If the insurer is, by contract or law, required to give insured notice of a forfeiture or suspension for nonpayment of assessments or dues, notice must be given.” 3 Cooley’s Briefs on the Law of Insurance, page 2382.

It is an undisputed fact that Fannie Johnson became delinquent in the payment of her dues, and it is also undisputed that one of the beneficiaries paid the delinquent assessments. These delinquent dues were forwarded to the head office of the society by the local officer of the colony to whom the payment was made. It was the duty of the proper officer at the home office to make a record showing the reinstatement of any delinquent member who had complied with the by-laws of the society. This notation on the records of the society was not made in the case of Fannie Johnson, for the reason that she had not furnished a certificate. showing that she was in good health, and it is insisted that the undisputed testimony shows that the insured was not in good health.

In one of the instructions given, the jury were told to find for the defendant (appellant) if they found the insured was not in good health at the time of her application to be reinstated, so that the jury must have found the fact to be that she was in good health, and we are unable to say this finding is contrary to the undisputed evidence or is unsupported by substantial evidence. One of the appellees, a daughter of the insured, testified that her mother was employed as a nurse for a child, and was so engaged until a few days before her death, when she suffered a “stroke,” from which she died.

The verdict returned was for the sum of $300, and it is insisted that, because of the age of the insured, she was entitled, under the by-laws of the society, to recover only one-half that amount. In answer to this insistence it suffices to say that no such question was raised in the motion for a new trial.

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


text:
    Dunford v. Dardanelle & Russellville Railroad Company.
    Opinion delivered October 25, 1926.
    1. Vendor and purchaser — possession as notice of rights. — Possession by a railroad of a portion of its right-of-way was notice of its claim thereto, and, though the contract upon which such claim was based was not recorded, the purchaser was put upon inquiry as to the extent of such right-of-way.
    2. Railroads —agreement for right-of-way — definiteness.— Though an agreement conveying a right-of-way did not describe the lots and blocks through which the railway was to run, this did not render the instrument void for indefiniteness, where it expressed the purpose to enable the railroad to reach a certain river, and. the construction of the road made its location definite and certain.
    3. Railroads — nonuser of part of right-of-way. — Though a railroad did not use all of its 100 feet of right-of-way; this did not constitute an abandonment, so as to permit another to erect a building on the unused portion.
    4. Evidence — map of right-of-way. — In determining the location of a railroad’s right-of-way, it was not error to" permit the recorder to offer in evidence a certain map showing the location of the right-of-way and its width on the ground, though it was not marked filed, if it was in fact filed with the recorder.
    5. Trial — direction of verdict. — Where both parties request a directed verdict, and neither asks any other instruction nor offers to introduce further testimony, they thereby submit the ease to the decision of the court, and the court’s finding will have the same effect as the verdict of a jury.
    Appeal from Pope Circuit Court; J. T. Bulloch, Judge;
    affirmed.

      Robert Bailey, for appellant.

      Hays, Priddy $ Rorex, for appellee.
   Smith, J.

The Dardanelle & Russellville Railroad Company, hereinafter referred to as the railroad, brought suit against appellant, in which, after alleging' its corporate capacity, it further alleged that it owned a right-of-way for railroad purposes across lots 11 and 12, block 56, in J. L. Shinn’s addition to the city of Russellville, and that appellant claimed to own a portion of this right-of-way, and was erecting a building thereon, and there was a prayer for judgment for possession of the disputed right-of-way. There was an alternative prayer that, if it be found that the right-of-way of the railroad did not include a strip of land across said lots extending a distance of fifty feet from the center of the track, a right-of-way of that width be condemned.

The answer in the case denied that the railroad company owned a right-of-way of greater width than that occupied by its roadbed, and alleged that defendant was the owner of the remainder of said lots, under a deed from the heir-at-law of J. L. Shinn, deceased. -

The complaint in the case alleged that'the right-of-way had been acquired by a contract- between the railroad and J. L. Shinn, so that Shinn is the common source of. title,

The railroad offered in evidence a certain'contract between itself and Shinn, which contemplated the operation of a ferry-boat across the Arkansas River near Dardanelle, and, among other considerations for this agreement, was the right granted to the railroad to run the line of the railroad across “all such lands as the party of the- first part (Shinn) now owns in the said county of Pope, provided that no more than fifty feet of the right-of-way so granted is to be used until such' time as it may become absolutely necessary for the keeping up and maintaining of said road, the necessity of which is to be determined by the board of directors (of the railroad), except in places where the one hundred feet are necessary. ’

Objection was made to the introduction of this instrument, upon the ground that it had never been placed of record, and that defendant had bought without knowledge of its existence, and also upon the ground that it was void for indefiniteness, in that it contained.no description of the right-of-way granted except that it was over any lands owned by Shinn in Pope County, the county in which the lots were situated.

The railroad then offered in evidence a map showing a survey of the right-of-way over the lands in question, and, according to this survey, the right-of-way was 100 feet wide.

The map showing this survey was produced by the clerk and recorder, and objection was made to its introduction upon the ground that it had never been recorded, and had not even been marked filed for record. The clerk testified, however, that the plat of the survey had been in the custody of himself and his predecessors in office for many years, and had been kept in the place where-similar maps and plats were kept.

As we have said, both parties claim under Shinn, and the testimony did not show that the railroad had ever made use of the portions of the lots conveyed to defendant by the heir at law of Shinn, which is included in the railroad right-of-way. In other words, the railroad had not used all its right-of-way through the lots.

The railroad was in the actual possession of a portion of the right-of-way and used it constantly in connection with the operation of its trains. This possession was notice that the railroad had or claimed a right-of-way, and the fact that the Agreement or contract upon which this claim was based was not of record did not relieve defendant of the duty, before purchasing, of inquiring what was the extent of the right-of-way which the company owned. This point was settled in the case of Campbell v. Southwestern Telegraph & Telephone Co., 108 Ark. 569, 158 S. W. 1085, where the same question was raised. It was there said: ‘ ‘ The right-of-way deed was not placed of record until after J. M. Jones conveyed the quarter .section of land to the plaintiff; but the railroad had been constructed, and the company’s oceupaücy of the roadbed was sufficient to put all persons on inquiry as to the extent of its right-of-way. Plaintiff, when she purchased the land, was chargeable with notice of the extent of the railroad company’s rights.”

We think the agreement, which was, in effect, a conveyance of the right-of-way, was not void for indefiniteness. It did not describe the lots and blocks through which the railroad was to run, but a reading of the agreement shows its purpose to have been to enable the railroad to reach the river, so that freight might be transferred to and from the river and be ferried across the river, and, pursuant to this agreement, the raiload was constructed across the lots in question. The construction of the railroad made its location definite and certain, and necessarily the railroad’s claim of the right-of-way granted would have been confined to the road constructed, and was not to exceed 100 feet. Shinn owned the lots across which he had granted the right-of-way, and the railroad had been in. operation for many years when defendant purchased from the heir-at-law of Shinn. No question is made that the directors of the company had not determined that a right-of-way of a hundred feet was required for railroad purposes.

It is true the railroad had not actually occupied the portions of the lots upon which defendant was erecting a building, but a portion of the ground upon-which he proposed to do so was embraced within the right-of-way granted to the railroad by Shinn, and this right-of-way was not lost or abandoned because the whole of it was not' used. This point is controlled by the opinion in the case of Ritter v. Thompson, 102 Ark. 442, 144 S. W. 910, where it was said: “The deed (to the right-of-way), in our opinion, conveyed to the railroad company the entire strip of land mentioned therein; and, so long as any part of the same was being used for railroad purposes, appellant (the grantor) could not enter and take possession of any part that might not be used for the easement or right-of-way.”

We think no error was committed in permitting the clerk and recorder to produce and offer in evidence the map showing the location of the right-of-way and its width. This map had evidently been filed, and with the proper officer, although the fact of filing had not been indorsed upon the map, as should have been done. In the case of Hogue v. Hogue, 137 Ark. 485, 208 S. W. 579, we said: “While the certificate of the clerk entered upon the demurrer at the time of its receipt is the best evidence of such filing, it is not conclusive evidence to that effect, and it was competent to show by parol evidence what was intended. The reason is that, while it is proper for the clerk, when he receives papers, to indorse thereon the date of the filing, such indorsement is not the filing, but is simply an evidence of such filing. A paper is said to be filed when it is delivered to the proper officer and by him received to be kept on file. Bettison v. Budd, 21 Ark. 578; Eureka Stone Co. v. Knight, 82 Ark. 164 [100 S. W. 878]. See also Peterson v. Taylor, 15 Ga. 483; Powers v. State, 87 Ind. 144; and Grubbs v. Corres, 57 Mo. 83.”

Moreover, the testimony set out above, without this map, shows the location of the railroad and the width of the right-of-way.

It is finally insisted that the court erred in refusing to hear and consider testimony which defendant would have offered. The judgment, however, recites that the company, “having introduced its evidence,- the jury, under the direction of the court, retired, and the defendant, Tom Dunford, by his attorney, moves the court for a peremptory instruction for the defendant. ’ ’ The plaintiff also moved for a peremptory instruction for plaintiff. “Whereupon the court instructed the jury to return a verdict for the plaintiff railroad company, which was accordingly done.”

We understand this recital to mean that, upon the conclusion of the introduction of the testimony for the plaintiff railway company, each party asked a peremptory instruction in its own favor, and neither asked any other instruction, nor did the defendant ask permission to introduce further testimony.

It is the settled practice in this State, where both parties ask a directed verdict, and neither asks any other instruction nor offers to introduce further testimony, to treat the case as having been withdrawn from the jury and submitted to the court for decision, and, upon a review of the decision, we give the same effect to it as would be given to the verdict of a jury, and affirm the decision if the testimony tending to support it is legally sufficient for that purpose. St. L. Sw. Ry. Co. v. Mulkey, 100 Ark. 71, 139 S. W. 643; Webber v. Rodgers, 128 Ark. 28, 193 S. W. 87.

The testimony is legally sufficient to support a finding that the railroad company is the owner of the land in controversy as right-of-way, upon which the defendant had entered, and the judgment of the court awarding the possession to the railroad company is therefore affirmed.