author: Hart, J.

text:
    Grismore-Hyman Company v. Blythe.
    Opinion delivered November 20, 1922.
    1. Sales — place .of delivery — waiver.—Where a contract for the sale of logs required their delivery at a named place or such other places as might be agreed on, the buyers’ acceptance of part of the logs at another place did not waive their right to have the balance delivered at the place named.
    2. Logs and logging — failure of buyers to accept delivery — liability. — Where, under an agreement for the sale of logs at a place named or such other places as might be agreed upon, buyers • of logs accepted delivery of part of same at a place other than the one named in the contract, and subsequently ordered the seller to deliver the balance at the named place, and refused to receive logs cut before the place of delivery was changed, the buyers were liable in damages for failure to accept such logs.

      Appeal from Cross Circuit Court; Wm. F. Kirsch, special judge;
    reversed.
    statement op pacts.
    R. L. Blythe sued, the Grismore-Hyman Company and others to recover damages for an alleged breach of contract in the sale of logs by the former to the latter.
    The defendants filed an answer setting up a general denial of the allegations of the complaint, and also a counterclaim for damages alleged to be due them by the plaintiff for a breach of a logging contract.
    In the main case it was shown by the plaintiff that on the 24th day of August, 1920, R. L. Blythe entered into a written contract with the Grismore-Hyman Company for the sale of certain specified kinds of timber amounting to 1,000,000 feet. The contract provided that the logs were to be delivered, fion the bank of St. Francis River in secs. 15 and 22,-township 9 north,range 5 east, in Cross County, Ark., or at such other places as may be agreed upon.” Blythe entered into the performance of the contract, and went to cutting and hauling logs to the bank of Beaver Slough. Beaver Slough was the nearest point to deliver the logs, and they could be floated out of it into the St. Francis River, except during very low water. The plaintiff had begun to deaden his timber at the time he signed the contract in question, and the defendants knew of this fact. After he had deadened the timber it was necessary that it should be cut and hauled out the next fall or spring. It was agreeable to the defendants for the plaintiff to make a delivery of logs on the bank of Beaver Slough, and they accepted logs there at several different times. The logs would be scaled and accepted by their agent. Finally the defendants told the plaintiff that they would not accept any more logs on the Beaver Slough, but he would have- to deliver them on the bank of the St. Francis River, according to the terms of the written contract. This made the contract unprofitable to the plaintiff, and he declined to deliver the logs on the St. Francis River. The defendant refused to receive any more logs on Beaver Slough, and notified the plaintiff not to deliver any more there. The plaintiff told the do fendant that he had a lot of logs cut and ready for delivery there, but the defendants refused to receive these logs.
    - To maintain their counterclaim, the defendants introduced in evidence a contract in writing' which they had made with the plaintiff on the 19th day of August, 1918, in which they purchased a minimum of 250,000 feet of logs from the plaintiff for a stipulated price, to be delivered on the bank of the St. Francis River. The plaintiff delivered thirty or forty thousand feet under this contract, and said that they then sent him a letter releasing him from the contract. The defendants denied having written such a letter, and denied having released the plaintiff from the contract.
    The jury returned a verdict for the plaintiff in the sum of $1,000, and from the judgment rendered the defendants have duly prosecuted an appeal to this -court.

      Killough, Lines & Killough, for appellant.
    Partial failure to comply with the terms of a contract by one party will not entitle the other party to abandon the contract at once; the failure must be a total one. 6 R. O. L. 926; 106 Ark. 400; 75 Ark. 503; 26 Ark. 309; 30 L. R. A. (note) 47; 17 Ark. 288; 1 L. R. A. 827 (note).
    There was no consideration for the release, if any, and it is void. 2 Black on Rescission and Cancellation, 1234; 6 R. C. L. 924.
   Hart, J.

(after stating the facts.) It is insisted by counsel for the defendants that the court erred in instructing the jury that if the defendants agreed that the plaintiff might deliver all the logs under the contract on the bank of Beaver Slough, and that thereafter the defendants notified the plaintiff that all logs must be delivered on the bank of the St. Francis River, under the terms of the contract, and that no more logs would be taken up on Beaver Slough, the plaintiff had the right to treat the contract as broken, and would be entitled to recover under it.

We are of the opinion that the court erred in giving this instruction, for the reason that there was no testi: mony upon which to base it. The defendants denied having made an agreement with the plaintiff that he should deliver all the logs embraced in the contract on the bank of Beaver Slough. The testimony of the plaintiff himself is to the effect that he began to cut and deliver logs to thé defendants under the contract on Beaver Slough, and that this was agreeable to the defendants.

It is not fairly inferable from this testimony that the defendants agreed that all the logs might be delivered on Beaver Slough. The written contract provides that the logs were to be delivered on the bank of the St. Francis River, on certain sections of land, or at such other places as may be agreed upon. Under this contract the parties might agree upon another place of delivery. But such agreement is not proved in this case. The most that can be said is that the plaintiff commenced to deliver logs under the contract on the bank of Beaver Slough, and that the defendants accepted them there. The plaintiff said that his delivery there was agreeable to the defendants. But it is not shown that the defendants agreed to accept all of the logs there. The defendants might be willing to accept a part of them there and insist on the remainder being delivered at the place on the St. Francis River specified in the contract.

It follows, then, that the defendants had a right to stop the delivery of the remainder of the logs on Beaver Slough and insist upon their delivery upon the bank of the St. Francis River, as designated in the contract. , The defendants, however, having agreed that the plaintiff should deliver a part of the logs on Beaver Slough, should be compelled to receive all of the logs which had been cut by the plaintiff at the time the defendants notified him that they would not take any more logs there, or they should respond in damages for not doing so.

Therefore, for the error in giving the instruction as indicated in the opinion, the judgment must he reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: Hart, j. McCulloch, C. J.

license: Public Domain

text:
    Davis v. Cook.
    Opinion delivered November 20, 1922.
    1. Highways — appeals in cases involving validity of district.— Under Road Laws, 1919, vol. 1, p. 1219, § 22, requiring appeals in cases involving the validity of the road district created by that act or the asssessment of benefits to be taken and perfected in 30 days, an appeal from a decree dismissing a suit involving the validity of such district and of the assessment of benefits therein should have been perfected within 30 days, though the complaint attacked the constitutionality of the act.
    2. Appeal and error — trial of equity cases. — Equity cases are triable de novo in the Supreme Court.
    3. Appeal and error — appeal from part of decree. — A party in a chancery suit may, appeal from any distinct and severable part of the decree.
    4. Appeal and error — appeal from part of,decree. — In an action attacking the validity of a road district and of assessments therein and seeking damages from the commissioners, the engineers and the contractors for waste, an appeal from the decree dismissing the suit, not perfected within 30 days as required by Road Laws 1919, vol. 1, p. 1205, § 22, but within 6 months, will be dismissed in so far as the appeal involves the validity of the act or of the assessments, but not as to the cause of action for waste.
    Appeal from Little River Chancery Court; James D. Shaver, Chancellor;
    appeal dismissed in part.
    Consolidated actions by F. K. Davis and others against D. A. Cook and others.

      Evans ■& Evans and W. P. Feasel, for appellants.

      Jones é Mead, for appellees.
   ON MOTION TO DISMISS APPEAL.

Hart, j.

The two cases embraced in this appeal were consolidated for the purpose of trial in the court below and were heard together. From, a decree dismissing their complaint for want of equity, appellants have prosecuted an appeal to this court.

Appellees moved to dismiss the appeal on the ground that it was not brought within the time prescribed by the statute.

The Legislature of 1919 passed a special act' to organize Road Improvement District No. 7 of Little River County. See Road Acts of Arkansas 1919, vol. 1, p. 1205.

Appellants are owners of real property within the proposed district and were the plaintiffs in the court below. Appellees are the commissioners of the district, the assessors of the district, the engineers of the district, and the contractors who were awarded the contract to construct the proposed road.

The complaint in each case is similar, and is very lengthy. For the purpose of this motion, it is not necessary to set out the complaints in detail, but their substance and the object of them may be briefly stated.

The complaints allege that the act creating the proposed road district is unconstitutional and that it violates the due process clause of the State and Federal Constitutions; that it is violative of the State Constitution in other respects; that the commissioners are attempting to build a number of subordinate roads, when by the terms of the act they only have the power to build the two principal roads named therein; that the assessment of benefits amounts to a confiscation of the real property of the taxpayers, and was made upon an arbitrary and discriminatory basis; that the commissioners of the district have made certain illegal and extravagant expenditures, which are specifically set forth, and which the act does not authorize them to make; that the contract for the engineering work was let at an exorbitant and extravagant price; and that the contract to construct the road was also let at an exorbitant and extravagant price. The plaintiffs also allege other matters involving the validity of the district which we do not deem necessary to set out.

The chancery court dismissed every paragraph of the complaints of the consolidated cases fob want of equity.

Sec. 22 of the act reads as follows: “All cases involving the validity of this district, or the assessment of benefits, and all suits to foreclose the lien of taxes shall be deemed matters of public interest, and shall be advanced and disposed of at the earliest possible moment, and all appeals therefrom must be taken and perfected in thirty days.” See Road Acts of 1919, vol. 1, p. 1205.

The appeal was not perfected within thirty days, and appellees have moved to dismiss it on that account.

A majority of the court is of the opinion that so much of the appeal as involves the validity of the district, or the assessment of benefits, should be dismissed because the appeal was not taken and perfected within the thirty days required by the act creating the district. In this respect they think the case is ruled by Ferrell v. Massie, 150 Ark. 156, and Road Imp. Dists. 1, 2 and 3 v. Crary, 151 Ark. 484, and other cases of like character.

Judge Wood and I think that the appeal was taken in time as to all the paragraphs of the complaints involving the constitutionality of the act. The reason is that if the act should be held unconstitutional in any respect, &ec. 22, providing the time limit for appeals, would fall with the rest of the act. This holding of the majority eliminates from the appeal all the paragraphs of the complaints except those relating to the waste committed and suffered by the commissioners, by the engineers and by the contractors of the district.

It has been suggested that the appeal as to these matters should also be dismissed, and reliance is placed upon the principles announced in Ferrell v. Massie, 150 Ark. 156, to sustain this view.

A majority of the court is of the opinion that that-case does not control here. There the suit was brought by the commissioners against the property owners to enforce the payment of assessments against their property. The taxpayers sought.to defeat the enforcement of the assessments by a crossbill in which they attacked the validity of the district and the assessment of benefits. In that case the appeal was not taken within the thirty days prescribed by the statute, and for that reason the appeal was dismissed. The court said that the purpose of the statute was to éxpedite suits to enforce the collection of assessments, and that the character of the suit could not be changed by new matter pleaded by'way of cross-complaint. It will be noted that in that case the taxpayers were the defendants and sought to defeat the enforcement of the assessment against their property by pleading certain matters involving the validity of the district. As above stated, the majority of the court think that that case rules here with regard to all matters in the complaint involving the validity of the district, or the assessment of benefits; ■ but the. paragraphs of the complaint which seek to recover against the commissioners, the engineers and contractors for waste, constitute separate and distinct matters which are not in any wise related to the matters involving the validity of the districts or the assessment of benefits. Therefore they do not come within the terms of the statute limiting the right of appeal to thirty days, and the action in this respect is governed by the general statute of six months.

In this respect the case is more like C. R. I. & P. Ry. Co. v. Langley, 78 Ark. 207. In that case it was held that one against whom a judgment has been obtained has the right to pay, or to offer to pay, so much thereof as he concedes to be just, and to appeal from the residue of the judgment. In that case the plaintiff sued for wages due him and the statutory penalty for nonpayment thereof. The court said that the penalty for nonpayment of wages was a separate cause of action, and that, under the reformed procedure, the defendant had a right to appeal from that part of the judgment without' subjecting itself to further cost in litigating the amount of wages which it conceded to be justly due plaintiff.

As we have just seen, the suit for waste against the commissioners, the engineers, and the contractors is a separate and distinct cause of action and has no relation or interconnection with the other paragraphs of the complaint. Equity cases are triable de novo in this court, and there seems to be no good reason why a party in chancery may not appeal from a distinct and specified portion of the decree. The result of the appeal in a distinct branch of the case, if determined in favor of appellants, would be to modify the decree by correcting the part complained of, and this result could be obtained in this case as well as if the appeal had been perfected from the entire decree. As justice to both parties may be thus done on the appeal against the commissioners, the engineers, and contractors for waste, a majority of the court think that it should not be dismissed.

Suppose, for instance, that the plaintiffs in the court below should have been advised that subsequent to the filing of their complaint and the decision of the chancery court, all matters relating to the constitutionality of the act or its validity or as 'to the validity of the assessments had been settled by other cases determined by this court, then it would have been a vain and idle thing for them to have prosecuted an appeal to this court from a decision involving precisely the same questions. But they should not be cut out from appealing from so much of the decree as they believed to be wrong and which was entirely separate from the other issues decided adversely to them. “

Again, suppose the issues relating to waste had been decided by the court below against the defendants, could it be said that their right to appeal was restricted to the thirty days prescribed .by the statute because the plaintiffs had embraced in their bill matters coming under this section of the statute? We think not.

The allegations of the complaint against the commissioners, the engineers, and the contractors do not fall within the provisions of section 22 of the act creating the district, and, being severable therefrom, the appellants’ right of appeal is not governed by it bnt is governed by the general statute regulating appeals in chancery cases, which is six months.

Therefore, the motion to dismiss the appeal will be granted as to all matters, except those relating to waste by the commissioners, the engineers, the contractors and others, and as to these matters the motion will be denied.

DISSENTING OPINION.

McCulloch, C. J.

I find no escape from the Conclusion that the majority of the judges, in holding that appellants are not barred of their right of appeal from that portion of the decree which relates to waste, have disregarded the opinion of this court in the recent case of Ferrell v. Massie, 150 Ark. 156. In that case we held that the statute shortening the time for prosecuting appeals in certain cases was applicable, although other matters not covered by this statute were involved in the cause. The appellant in that case filed a cross-complaint and sought thereby to attack the validity of the statute and the proceedings thereunder, and they sought to appeal from the decree within the time prescribed by the general statutes, on the ground that they were entitled to the relief, and that that portion of the decree was not embraced within the statute governing short-time appeals. We held, however, ih effect, that the time for appeals could not be split up, and that it was controlled by the statute shortening the time for appeal.

There is no provision in our statute for an 'appeal to this court from a portion of a judgment or decree. The statute only refers to appeals in general terms, and contains no provision for appeal frofii a portion of a judgment. Crawford & Moses’ Digest, sec. 2130 et seq.

It is true that separate issues involved in a case may be abandoned, which, of course, eliminates them altogether from the cause and from the decree which determines the remaining issues. There is nothing in the present record to show an abandonment of any of the issues. An appellant may also abandon issues in this court by failing to present them. Nevertheless, the appeal brings up the whole case for review, and the issues ■cannot be brought separately nor by piecemeal.

I fail to see any analogy in this case and the decision in C. R. I. & P. Ry. Co. v. Langley, 78 Ark. 207, where the defendant, in an inferior court, paid off a separate portion of the judgment and appealed 'from the remainder of the judgment, which we held it had the right to do. Nor is there any importance in the fact that this court tries equity cases de novo. This does not, in my opinion, affect the question of right to appeal separately from a portion of a decree.

If, as suggested by the majority opinion, there had been a decree against appellees on the subject of waste and on that subject only, there could have been an appeal at any time within six months. That is true because such a decree, so far as appellees were concerned, would have eliminated every other issue in the case, and it would simply have been a question of appealing from that portion of the decree, and nothing else. In the present instance, however, there has been no abandonment of- any issue in the case and no separation of the issues, and the case still stands as one involving the validity of the districts and the assessment of benefits.

I am of the opinion therefore that the right of appeal upon any issue of this case is controlled by the statute cited by the majority, and the appeal should be dismissed in tofo.


author: Humphreys, J.

text:
    Miller v. Roetzel Brothers.
    Opinion delivered November 20, 1922.
    1, Highways — .liability op contractors, — Under Acts 1917, No. 213, '§ 24, requiring highway contracts to be secured by bond to pay labor and material, and giving subcontractors and others furnishing labor or material a right of action thereon, and Crawford & Moses’ Dig., § 6913, providing that contractors shall pay all bills for material and labor, where a bond had been executed as required by the act, the general contractors became responsible for all labor used in the construction of a road, unless released by the laborers themselves.
    2. Highways — release op general contractors. — General contractors for the construction of a highway sublet part of the work and paid .enough to the subcontractors to liquidate the labor claim. A foreman for the subcontractors, who was not paid in full, not only knew when such payment to the subcontractors was made by the general contractors, but acquiesced in the payments being made to the subcontractors. Held that. the foreman had constituted the subcontractors his agents in the collection of his wages, and payment to his subcontractors, released the general contractors.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    affirmed.

      Culbert L. Pearce, for appellant.
    The general contractors are liable under the statute and their bond for the obligations incurred by the subcontractor for labor and material in the performance of their subcontract-. Oliver Construction Co. v. Williams, 152 Ark. 414; Arkansas Road Construction Co. v. Evans, 153 Ark. 142 and cases cited.

      John E. Miller and C. E. Tingling, for .appellees.
    Appellant is estopped by the record, particularly as appears by the facts agreed to in the agreed statement of facts, from asserting any claim against the appellees. 131 Ark. 77, 82; 47 So. 95; 155 Ala. 651; 2 Pomeroy, Eq. Jur. 804; 95 Ark. 260, 263; Words & Phrases, “Estoppel in Pais,” 366 et seq.; 16 Cyc. 679; 64 Ark. 627, 628; C. A. Reese é Co. v. Kirk, 152 Ark. 120, the last case named controlling this case on the facts.
   Humphreys, J.

Appellant procured a judgment for $131.25 in the White County Circuit Court against Roetzel Bros., in a su.it which he had brought against them, Waggoner & Johnson, and the commissioners of the North Arkansas Highway District of White County, Arkansas, but was denied a judgment against Waggoner & Johnson and the district. From the refusal of the court to give him a judgment against said last-named parties and the dismissal of the complaint against them, an appeal has been duly prosecuted to this court. The district aforesaid constructed a road in White County under the provisions of act 213 of the Acts of the General Assembly of 1917. Section 24 of said act is as follows : ‘ ‘ The performance of all contracts made by the commissioners in excess of one thousand dollars shall be secured by a good bond made by the contractor, which, in addition to other appropriate provisions, shall contain a provision that the contractor shall promptly pay for all labor and material used by him on the work, and any subcontractor and any one else furnishing labor or material shall have a right of action on said bond for the amount due him.” Waggoner & Johnson constructed the highway, under contract with said district, from Little Red River in White County to the Jackson 'County line, and pursuant to the section of the statute aforesaid and section 6913 of Crawford & Moses’ Digest, which provided, among other things, that they (the contractors) should “pay all bills for material and labor entered into in the construction of said work or used in the course of the performance of said work.”

The general contractors subcontracted that part of the road between stations 419 and 484 to Fred Roetzel, who worked in partnership with his brother, John Roetzel. Roetzel Bros, employed appellant as a foreman. He worked in this capacity, at different times, for them from March 23rd to July 1, 1920, during which time Roetzel Bros, paid him a part of his wages when they received payments, upon engineers’ estimates, from the general contractors. They were paid enough to liquidate all labor bills, but the subcontractors failed, for some reason, to pay him and the other laborers out of a $702.22 payment received by them on May 20, 1920. Some time between that date and June 11, 1922, the general contractors paid the subcontractors $288.11. On July 13, 1920, another payment to the subcontractors became due, and, upon the request of appellant, it was apportioned among the laborers, out of which he received $103.75 which left a balance due him of $131.25, same being the amount for which this suit was instituted. The cause was heard by the court upon an agreed statement of facts. After reciting that on April 17th the general contractors paid the subcontractors $197.22, on May 20th, $702.22, on June 11th, $288.11, and on July 13th, an amount which was prorated as stated above, the agreed statement of facts contains the following clause: “These payments were made to said Fred Roetzel with the knowledge of the plaintiff (appellant), but for some reason the plaintiff was not paid by the said Roetzel out of the money as aforesaid.”

Under the statutes mentioned above and the bond executed pursuant thereto, the general contractors, Wag-goner & Johnson, became responsible for all labor used in the construction of the road, unless released therefrom in some legal way by the laborers themselves. Oliver Construction Co. v. Williams, 152 Ark. 414; Ark. Road Construction Co. v. Evans, 153 Ark. 142; Gage v. Road Imp. Dist. No. 3, 153 Ark. 321.

We think the facts in the instant case warranted the court in drawing an inference that the appellant had constituted the subcontractors, under the doctrine of ratification, his agents to collect his wages from the general contractors. Enough was paid to the subcontractors to pay the labor claims. Appellant not only had knowledge when each payment was made, and acquiesced in the method adopted for payment until the last pro rata payment was made, but agreed, as will be seen by reference to the agreed statement of facts, that “for some reason he (appellant) was not paid by said Roetzel out of the money aforesaid.” An inference from this statement might well be drawn, when considered in connection with the way in which he had received his wages, that the agreement was for the subcontractors to act as his agent in the collection of his wages. It was ruled in the case of C. A. Reese & Co. v. Kirk, 152 Ark. 120, that a general contractor was released from liability to laborers for wages for work done on a highway which he was constructing, by payment to the subcontractor whoip they had constituted their agent to collect their wages. The instant case is ruled by the Reese case.

No error appearing, the judgment is affirmed.


author: McCullotjch, C. J.

text:
    Empire Rice Mill Company v. Stone.
    Opinion delivered November 20, 1922.
    1, Principal and agent — dealings with general agent. — Persons dealing with a general agent acting within the apparent scope of his authority without notice of limitations thereon are bound by specific instructions limiting the method of eonductng the business of the principal.
    2. Sales — unauthorized act of agent — ratification.—Where defendant sold rice to plaintiff, through the latter’s general agent, the fact that defendant accepted from the agent part of the purchase price after plaintiff had repudiated the purchase did not amount to a ratification by defendant of the agent’s act in shipping the rice on his own account.
    Appeal from Poinsett Circuit Court; J. M. Futrell, Judge;
    affirmed.

      Cooley & Adams and Rogers, Rarber ■& Henry, fob appellant.

      J. J. Mardis, for appellee.
   McCullotjch, C. J.

Appbllánt instituted this action-against appellee to recover'the sum of $1,950, due on account for the price of a.lot of rice sacks sold, and delivered by appellant to appellee.

Appellee answered, admitting Ms indebtedness to appellant in the snm named for the price of sacks purchased, but set forth a counterclaim in the sum of $2,204.57 — $254.57 in excess of appellant’s claim for the balance of purchase price of three carloads of rice alleged to have been sold by appellee to appellant through the latter’s agent, L. P. Kunz.

Appellant answered the counterclaim, denying that he had purchased the rice from appellee.

There was a trial of the issue before a jury, and a verdict in appellee’s favor for the balance set forth in the counterclaim in excess of appellant’s debt.

The principal argument here for reversal is thg>t the evidence is not sufficient to sustain the verdict.

The testimony adduced by appellee was sufficient to show that Kunz was authorized by appellant to -purchase rice in the locality where appellee was engaged in growing rice, and that he purchased, for appellant, three carloads' of 'rice from appellee at the price claimed by the latter. The contention of appellant is that Kunz was authorized merely to buy rice to be shipped to appellant at its place of business in New Orleans, with draft for the purchase price attached to the railroad bill of lading.

There is sufficient evidence to show that appellant had frequently permitted Kunz to purchase rice by other methods; that is to say, by giving draft directly on appellant without attaching, the draft to the bill of lading. Moreover, the facts of the case fall within the rule that persons dealing in good faith with a general agent acting' within the apparent scope of his authority, are not, without notice, bound by specific instructions limiting the method of conducting the business, of the principal. Three States Lumber Co. v. Moore, 132 Ark. 371.

There was a conflict in the testimony of appellee and Kunz as to whether the sale of the rice was made to Kunz for himself or fof appellant. Appellee testified that he sold the rice to appellant, Kunz acting as the latter’s agent, but Kunz testified that he did not buy the rice for appellant, but entered into an agreement with appellee that they would ship the rice together and have it milled and sold. He testified, in other words, that the agreement between him and appellee was that the rice should be shipped to New Orleans and “toll-milled” and sold and the profits divided between them.

The evidence was sufficient to justify a finding in favor of appellee, and the issue was properly submitted to the jury upon an instruction which permitted.appellee to recover only upon proof of the sale of the rice to appellant through its authorized agent.

It is next contended that appellee ratified the act of Kunz in shipping the rice to his own account by accepting part payment from Kunz, after discovering that Kunz had handled the rice as his own. This contention is based upon a letter written by appellee to appellant after appellee discovered that Kunz had shipped the rice to be “toll-milled” instead of delivering it to appellant in consummation of the sale, in which said letter appellee stated that he had received certain payments from Kunz in money and merchandise, and demanded payment from appellant for the balance.

It appears from the testimony that, at the time of the sale of the rice by appellee, Kunz drew two drafts in favor of appellee on appellant, one for $3,600 and the other for $3,100. These two draft's were given for the price of the rice after deducting an amount which appellee owed for seed rice purchased from Kunz. Appellant paid the larger one of the drafts, but refused to pay the other one, and it is still in the hands of appellee. Subsequently, Kunz gave another draft to appellee on appellant for $1,000, and appellant refused to pay that draft also. Kunz paid appellee $900 in two drafts, one for $600 and one for $300.

We do not think that appellee’s acceptance of a portion of the price from Kunz after appellant repudiated the purchase constituted a ratification of the act of Kunz in shipping the rice on his own account. Appellee was bound to accept any payments which, were offered, and this did not imply a. ratification of the act of Kunz in taking the rice for himself instead of delivering it to his principal on the latter’s own account. Appellant being bound for the price of the rice under the contract of sale made by appellee with Kunz, any and all payments made by Kunz inured to appellant’s benefit. Appellant was put in no worse attitude by partial payments having been accepted by appellee, and is in no attitude to claim that a mere acceptance of partial payments by appellee from Kunz would constitute ratification.

Finally, it is contended that the verdict is excessive as to amount, and that, in any view of the testimony, appellant is entitled to recover of appellee $645.43 instead of appellee being entitled to recover $254.57. Counsel for appellant are mistaken in the statement that there is undisputed evidence in accordance with their contention as to the condition of the accounts between the parties. The verdict of the jury was based upon the testimony of appellee, which was to the effect that, after allowing credits mentioned and deducting appellant’s account against him for the price of the rice sacks, there was a balance due him of $254.57.

Judgment affirmed. .


author: Hart, J.,

text:
    Bartlett v. Yochum.
    Opinion delivered November 20, 1922.
    1. Principal and agent — apparent authority. — A person is bound, not only by all acts of his agent within the scope of actual authority, but also by those within the apparent scope of his authority, though beyond his actual authority.
    2. Principal and agent — apparent authority. — Evidence that an agent who had been employed by defendant for a number of years with authority to purchase timber by written contracts only made a verbal contract for logs with plaintiff, and that defendant, knowing that the agent had made a contract for logs with plaintiff, advanced money for certain logs and wrote plaintiff that the agent would be in the vicinity soon, and he trusted that the agent could make a satisfactory arrangement about the timber, held to justify a finding that the agent’s acts were within the apparent scope of his authority.
    3. Appeal and error — harmless error — instruction.—Where, in an action for breach of a contract for the sale of logs, the jury awarded damages only for the logs which were actually scaled and accepted by defendant’s agent, the submission of the question of damages as to logs not delivered and accepted was not prejudicial.
    Appeal from Mississippi Circuit Court, Osceola District ; W. W. Bcmdy, Judge;
    reversed.
    STATEMENT OE EACTS.
    J. It. Yochum sued O. L. Bartlett in the circuit court to recover damages for an alleged breach of contract for the sale of logs by the former to the latter.
    It appears from the record that 0. L. Bartlett of Mound City, 111., made a written contract with W. D. Moore, of Rosey, Ark., for the latter to get out certain elm logs for the former. The contract provided for one barge or more of elm timber to be put out at O’Donnell’s Bend, on the Mississippi River, in Mississippi County, Ark., in reach of a derrick boat. The contract was signed by W. D. Moore for himself and by Charley Dumm for 0. L. Bartlett. Dumm had been purchasing timber for Bartlett for ten years, and, according to their testimony, Dumm had only authority to make written contracts for the purchase of timber for Bartlett. Dumm had purchased timber generally for Bartlett for ten years, and had bought timber whenever he wished. A barge of timber consists of 100,000 feet. The contract in question was executed on the 24th day of July, 1920. Dumm returned in August to see how the work was progressing, and Moore told him that he did not think that he could get out enough timber for one barge, because his timber was not turning out like he thought it would. Dumm asked him if he could 'not buy timber from any one else around there. Moore replied that he could get some from Yoclium and another person. J. R. Yochum was the son-in-law of W. D. Moore. Dumm agreed that Moore might fill out his barge with Yochum’s timber. On August 31,1920, Yochum got J. M. Landrum, a bank cashier, to write the following letter to Bartlett:
    “Dear Sir: I want to put out on "W. D. Moore’s contract with you, from 25 or 40 thousand feet of elm (he will be a little short on barge load) and, if agreeable to you, would like to have an advance of $500 on same. If you can do this, please send check care Lucora Banking Co., and very much oblige.
    “Yours truly.”
    Bartlett advanced Yochum $400 while he was getting out the timber, and also made an advance of money to W. D. Moore. On the 3rd of September, 1920, Bartlett wrote to Yochum that he had already advanced $1,000 on the barge that Moore was getting out, and that he did not feel like he could advance any more on any one barge. He stated in the letter that his log man, Charley Dumm, would be in Yochum’s vicinity soon, and that he hoped, that he could make satisfactory arrangements with Yochum and Moore. On the 2nd day of October, 1920, Bartlett sent Moore a check for $800 and told him that he eould not take any more logs from him after the barge he was then loading had been filled. Sometime about the middle of October Dumm came down and accepted the logs which Moore had got out, and this amount was sufficient to fill one barge containing something over 100,000 feet. At the same time Dumm inspected, scaled and accepted the logs which had been put out by the plaintiff Yochum, to the amount of 59,000 feet, and at the time he accepted them he knew that Yochum had got out the logs under the contract with Moore. Dumm at the time told Moore and Yochum that he was going to take the barge containing Moore’s timber up the river and come back and get Yochum’s timber on another barge. W. D. Moore did not call Yochum’s attention to the letter which he had' received from Bartlett dated October 2, 1920, telling him that he would take but one barge of logs from him. The contract price of the logs was $35 per 1,000 feet. According to the testimony of Diimm, he did not know how many feet of timber Yochnm had got out at the time he made the inspection of the timber and accepted it. He thought all of the timber was going in on the one barge of Moore.
    Other facts will be stated or referred to in the opinion.
    The jury returned a verdict in favor of the plaintiff in the sum of $1,665. From the judgment rendered the defendant has duly prosecuted an appeal to this court.

      8. L. Gladish and George E. Martin, for appellee.
    An agent has no power to delegate his authority to another. 88 Ark. 557; 1 Ark. 552; 10 Ark. 18; 28 Ark. 95. One dealing with an agent is at once put upon notice of his .authority. 105 Ark. 110; 23 Ark. 411; 62 Ark. 33; 122 Ark. 179. When a cheek is sent to another it must be applied -as directed. 54 Ark. 444; 91 Ark. 458. Incompetent evidence is cause for reversal if it was an element upon which the verdict was founded. 23 Ark. 730; 51 Ark. 513; 69 Ark. 648. A meeting of the minds of parties- is necessary to constitute a binding contract. 90 Ark. 131; 95 Ark. 155; 95 Ark. 421; 78 Ark. 586. The evidence was insufficient to sustain the verdict. 70 Ark. 385; 34 Ark. 632; 10 Ark. 492; 114 Ark. 122.

      J. T. Coston, for appellee.
    A principal is bound by all the acts of his agent when acting in .the apparent scope of his authority. 132 S. W. 221. There was no error in permitting the plaintiff to introduce the contract in evidence. 161 S. W. 726; 206 S. W. 145; 177 S. W. 894; 57 Ark. 153; 59 Ark. 1; 101 Ark. 120; 66 Ark. 646; 27 Ark. 506; 114 Ark. 415; 170 S. W. 483; 117 Ark. 198; 119 Ark. 629; 121 Ark. 266'; 123 Ark. 619; 126 Ark. 469; 102 Ark. 531; 103 Ark. 356; 103 Ark. 307; 104 Ark. 375; 105 Ark. 353; 191 S. W. 873. The court did not err in refusing to direct a verdict for appellant. The question of negligence was for the jury. 96 S. W. 1062.
   Hart, J.,

(after stating the facts). It is earnestly insisted by counsel for the defendant that the court should have directed a verdict in his favor. They point out that Dumm only had authority to enter into written contracts for the purchase of timber for the defendant, and that no contract in writing was ever made by him with Yochum. They insist that the only contract made with Yochum for getting out logs was the answer of Bartlett to the letter written by Landrum for Yochum of the date of August 31, 1920.

It is true that the letter only refers to the shortage on Moore’s barge and asked permission to supply enough logs to fill out that barge; but this letter and the answer accepting does not restrict the plaintiff’s right of recovery to that barge. "While Dumm had authority from Bartlett only to make written contracts for the purchase of timber, yet his apparent authority in the matter covered a much wider field. Dumm had been the general purchasing agent for Bartlett for a number of years, and had purchased all of his timber in that part of the country. Bartlett himself wrote to Yochum that Dumm would be down in his vicinity soon, and that he trusted that he could make satisfactory arrangements with Moore and Yochum about their timber. He knew that Yochum was getting out logs for him under the contract which Dumm had made with Moore for him. It was inferable, from these facts and circumstances, that Dumm had at least apparent authority to make an oral contract with Yochum for the purchase of the logs got out by him. A person is bound, not only by all acts of his agent within the scope of actual authority, but also by those within the apparent scope of his authority, though beyond his actual authority. Crossett Lumber Co. v. Fowler, 137 Ark. 418, and Arkadelphia Milling Co. v. Green, 142 Ark. 565.

It will be seen that Bartlett knew that Yochum was getting out timber under Moore’s contract, and Bartlett also gave Dumm express directions to adjust any differences with regard to the matter.

According to the testimony of Yochum, he got out 59.000 feet of timber by the first of October, 1920. It will be noted that this was done before Bartlett wrote his letter of October 2, 1920, to Moore, restricting his right to getting ont but one barge of logs.

It also appears from the testimony of Yochum and Moore that Dumm came down about the middle of October, 1920, and scaled and accepted a barge of logs from Moore. At that time he also inspected, scaled, and accepted 59,000 feet of logs got out by Yochum. He told Moore and Yochum that he would first take Moore’s barge of logs up the river and then come back and get another barge of logs, including those got out by Yochum. According to the testimony of Yochum, Dumm was told about the letter that Bartlett had written to Moore on October 2, 1920, telling, him that he would not accept but one barge of logs. Dumm. said that this did not make any difference, that he would take two barges of logs, and this included the 59,000 feet of logs got out by Yochum.

These facts warranted the jury in returning a verdict for Yochum after Bartlett refused to accept the 59.000 feet of logs got out by Yochum. The respective theories of the parties to this lawsuit were submitted to the jury under proper instructions. The jury returned a verdict for Yochum in the sum of $1,665. The undisputed evidence shows that Yochum got out 59,000 feet of timber and placed it on the river bank for Bartlett. Yochum testified in positive terms that he got out this amount by the first of October, 1920. His testimony is corroborated by other facts and circumstances. He was to receive $35 per 1,000 feet for all logs gotten out by him. This would amount to $2,065. 'Bartlett had already made an advancement of $400. This would leave a balance of $1,665, which was the amount of the verdict. This shows that the jury only allowed Yochum for the timber ydiich was scaled and accepted by Dumm on the riyer bank.

The verdict therefore eliminated an error which the court made in submitting the question of damages suffered by Yochum for a breach of contract in respect to logs which had not been scaled and accepted by Dumm. The reason is that, if the jury only allowed Yochum damages for the logs which were actually scaled and accepted by Dumm, no prejudice could have resulted to the defendant from submitting the question of damages, as to logs not delivered and accepted by Dumm, to the jury. St. L. S. W. Ry. Co. v. Grayson, 89 Ark. 154, and Hill v. Gibson, 107 Ark. 130.

It follows’ that the judgment will be affirmed.


author: Smith, J.

text:
    St. Louis-San Francisco Railway Company v. Kirkpatrick.
    Opinion delivered November 20, 1922.
    1. Railroads — contributory negligence op person injured by train. — Where a drayman, on noticing an engine hacking towards the car which he was loading, jumped off his dray and ran to a place of safety to flag the engineer, and, when his signal was not obeyed, attempted to rescue his team and was injured, the question whether he was guilty of contributory negligence in rushing back into a place of danger was for the jury.
    2. Negligence — comparative negligence. — Instructions allowing recovery against a railroad company for personal injuries caused by the running of a train, notwithstanding the injured party’s contributory negligence, unless his negligence was greater than the trainmen’s negligence, was erroneous, as, under Crawford & M-oses’ Dig., § 8575, his contributory negligence defeats recovery unless it is less than that of the negligent trainman, in which case the'amount of recovery is to be “diminished in proportion to such contributory negligence.”
    3. Appeal and error — general objection, to instruction.: — Where instructions are inherently wrong, a general objection is sufficient to raise the question of their correctness.
    Appeal from Mississippi Circuit Court, Osceola ■District; W. W. Bandy, Judge;
    reversed.

      W. F. Evans and W. J. Orr, for appellant; Gladish, Taylor & Rhodes, of counsel.

      1. If the plaintiff’s conduct in leaving a place of safety and rushing hack into the place of danger was the sole cause of his injuries, the defendant’s negligence could not have been the cause; and, such being the case, plaintiff was not entitled to recover. 240 U. S. 406; 241 II. S. 333.
    2. If plaintiff’s contributory negligence was a question for the jury, that question was not submitted under proper instructions. The instructions on that subject were inherently erroneous. Acts 1919, p. 143; 235 S. W. 407; 109 Ark. 10.

      J. T, Goston, for appellee.
    1. If plaintiff was guilty of any negligence at all, it was so slight in comparison with the negligence of the railroad that reasonable minds could differ about it; the question of comparative negligence ought not, therefore, to have been submitted to the jury. 240 U. S. 448. Here it is admitted that the defendant was guilty of negligence in failing to keep a lookout on the rear of the train. Had it been kept, the collision and resultant injury could and would have been prevented. Davis v. Scott, 151 Ark. 34, is squarely against appellant’s contention.
    2. The difference between equal and greater negli- ' gence is so inconsequential that the use of the word “greater” instead of the words “equal to” in the instructions should have been met a specific objection, and was not reached by a general objection. 38 Ark. 539; 142 S. W. 535; 109 Atl. 844; 222 S. W. 727; 112 S. W. 887; 194 S. W. 713; 148 S. W. 649; 141 S. W. 761; 235 S. W. 388-389; 176 S. W. 72; 178 S. W. 21-22; 170 S. W. 811; 103 S. W. 876-877.
    When an instruction involves more than one legal proposition, a specific objection is necessary to point out a defect in only one of them. 160 S. W. 8634364; 70 Pae. 684; 85 N. W.'201; 32 App. D. C. 90; 95 Pa. 1003-4; 59 S. E. 112; 49 Iowa 236-237; 68 N. W. 71.
   Smith, J.

Appellee recovered judgment for damages to compensate an injury sustained by himself personally, and also an injury to his team of mules. The cause of action arose as follows: Three box-cars were “spotted” on appellant railway company’s sidetrack in the city of Osceola for the purpose of receiving freight, and appellee, who is a drayman, was loading a heavy piece of machinery into the middle car. South of the three box-cars there was a string of twenty-two cars, and between the three cars and the twenty-two cars there was a space of two or three car lengths. An engine coupled to the south end of the string of twenty-two cars and began to back towards the three cars where appellee was at work. He heard some one say, “Look out, they are going to back into you,” and he jumped down to the ground and ran out into the street about twenty-five feet, and began to flag the engineer and fireman. A man was sitting in the engine looking towards appellee, and a signal to stop was given by appellee, but when he saw the signal would not be obeyed anpellee rushed back to his team and commenced cutting the lines to get his mules out of danger, but before he succeeded the moving train backed into the car that was being loaded. At the time this collision occurred the machine was only partly loaded, and the collision turned the3machine over and upset the wagon, damaging it, and injuring the mules and appellee also.

The railway company concedes its liability for the damage done the wagon and the team, but contends that its admitted negligence was not the proximate cause of the injury to appellee himself. The basis of this contention is the testimony of appellee, that when he saw the train was about to back into the partiallv loaded car he ran into the street to sismal the train to stop, thereby reaching a place of safety for himself, and when he saw the train would not stop he rushed back to the rescue of the team. It is the insistence of the railway company that, under the undisputed evidence, the court should have directed a verdict in its favor so far as the suit for personal injuries is concerned, because the proximate cause of the injury was appellee’s act in rushing back into a place of danger after having reached a place of safety. On the other hand, it is the insistence of appellee that his negligence, if he was negligent at all, was so slight as to be inconsequential, and that the only error committed by the court was that of submitting to the jury the question of his contributory negligence.

We do not agree with either contention, nor did the trial court below. We do not think it can be said, as a matter of law, that appellee’s negligence, if he was negligent, was the proximate cause of the injury. His attempt to rescue his team was a natural and humane •thing to do, and his conclusion to do so was no doubt the result of his hurried and humane impulse. He did not go upon the track, where injury was certain, and we are unwilling to say, as a matter of law, that he should have known his effort to save the team would be unavailing and would result in injury to himself. Upon the other hand, we think the testimony recited makes a question for the jury whether appellee was guilty of contributory negligence or not.

The court below evidently entertained the view we have just expressed, and we would therefore affirm the judgment- in appellee’s favor as being supported by legally sufficient evidence, but for the fact that error was committed in the instructions. The court gave a number of instructions, to all of which exceptions were saved, and later modified three of them, and exceptions were saved to the giving of the instructions as modified. Two of the instructions, numbered 1 and 2, as modified are given below, the modifications consisting in the addition of the phrases included in parentheses:

“1. You are instructed that it was the duty of the defendant to keep some one constantly upon a lookout for persons and property on or near the track, and in a position where he could signal the engineer or fireman, and a failure to do so, if there was such failure, was negligence; and if such negligence caused or contributed to the injury of the plaintiff, your verdict will be for the plaintiff (if you find that by keeping such lookout the peril of the plaintiff could have been discovered in the exercise of reasonable care in time to have prevented the injury), unless you further find that plaintiff himself was guilty of a greater degree of negligence contributing to his injury than the negligence of the defendant. ’ ’

“2. If you find that .the injury would not have occurred (or could have been prevented), if the defendant had kept a constant lookout on the train in a position where he could have signaled the engineer to stop (or slow down) the train; and if you further find that such lookout was not kept, your verdict will be for the plaintiff (if you find that by keeping such lookout the peril of the plaintiff could have been discovered by defendant, in the exercise of reasonable care, in time to have prevented the injury), unless you find that the negligence, if any, of the plaintiff was greater than the negligence of the employees in charge of the train. ’ ’

The modification of the third instruction calls for no discussion.

It is conceded the instructions set out above are not correct; but appellee insists the error is one calling for specific objection. The error is that the instructions permit a recovery notwithstanding appellee’s contributory negligence, unless his negligence was greater than the 'negligence of the employees in charge of the train. This is not a correct application of § 8575, C. & M. Digest, the section of the statute under which the instructions were framed. This section of the Digest is § 1 of act 156 of the Acts of 1919 (General Acts 1919, p. 143), entitled: “An act permitting recovery of damages in suits against railroads, caused by the running of trains, notwithstanding contributory negligence, where the negligence of the person killed or injured is of less degree than the negligence of the railroad causing the damage; recovery to be diminished in proportion to such negligence,” and this section 1 reads as follows: “In all suits against railroads, for personal injury or death, caused by the running of trains in this State, contributory negligence shall not prevent a recovery where the negligence of the person so injured or killed is of less degree than the negligence of the officers, agents or employees of the railroad causing the damage complained of; provided, that where such contributory negligence is shown on the part of the person injured or killed, the amount of recovery shall be diminished in proportion to such contributory negligence.”

This section permits a recovery in suits for damage caused by the running of trains, notwithstanding the contributory negligence of the party injured, where the negligence of the person killed or injured is of a less degree than the negligence of the employees of the railroad causing the injury complained of. If the injured party’s negligence is equal to or greater than that of the negligent employees of the railroad, the defense of contributory negligence may still be interposed by the railroad, and is a bar to any recovery. But if the contributory negligence of the party injured is of less degree than the negligence of the employees causing the injury complained of, then the contributory negligence is not a defense, but operates only to reduce the damages recovered, the amount of the recovery to “be diminished in proportion to such contributory negligence.” Davis v. Scott, 151 Ark. 34.

The instructions quoted do not thus declare the law, for under the instructions the right to recover is not defeated unless appellee’s negligence was greater than the negligence of the employees in charge of the train; whereas contributory negligence does defeat a recovery unless the negligence of appellee was less than that of the negligent employees in charge of the train.

Appellee’s insistence that a specific objection was necessary to call attention to the error indicated is based upon the argument that a small amount of negligence might tip the scale and turn the balance against one or the other of the parties whose negligence was being considered and weighed. But even so, the instructions do not declare the law as the Legislature has enacted, and, as the instructions are inherently wrong, a general objection was sufficient to raise the question of their correctness.

An exception was also saved to instruction numbered 8, which reads as follows:

“8. If you find that the plaintiff was guilty of contributory negligence, you will, if you find for the plaintiff, diminish the amount of the verdict in proportion to such contributory negligence.”

This instruction will not be incorrect when other instructions are given conforming to the views herein expressed. It will not then, as counsel for appellant insist, permit a recovery, even though the contributory negligence of appellee is greater than that of the negligent employees of the railroad, for, when conformed to tha views here expressed, the instruction will not permit a recovery unless appellee’s contributory negligence is,of a less degree than the negligence of the railroad employees, in which event it will be proper, as the instruction directs, to “diminish the amount of the verdict in proportion to such contributory negligence.”

For the error indicated the judgment is reversed, and the cause will be remanded for a new trial.


text:
    Sercer v. Hamilton.
    Opinion delivered November 20, 1922.
    Appeal and error — bringing testimony into record. — Testimony of witnesses heard orally before the chancery court and taken down in shorthand and ordered transcribed and filed as depositions in the case was improperly incorporated in the transcript, where it was not filed with the clerk during term time nor brought into the record by bill of exceptions or by being incorporated in the decree.
    Appeal from Bradley Chancery Court; E. G. Hammock, Chancellor;
    affirmed.

      J. C. Clary, D. A. Bradham and Wilson & Martin, for appellant.

      Williamson & Williamson, for appellees.
   Humphreys, J.

Appellees instituted suit in the circuit court of Bradley County against appellant to recover $10,000 on two promissory notes in the sum of $5,000 each, executed by appellant to them in part payment for timber on a certain 520-acre tract of land in said county, and caused an attachment to be issued and levied upon a lot of staves belonging to appellant.

Appellant filed an answer seeking to cancel the notes upon the ground that he was induced to execute them through fraud and misrepresentation of appellees as to the character and location of the timber sold him. The right to attach 'the staves was controverted, and damages sought on account of the levy of the writ. Upon motion the cause was transferred to the chancery court of said county, where it was heard upon the pleadings, documentary evidence, and testimony of witnesses taken ore tenus at the bar of the court which resulted in a decree denying judgment on the notes because the suit was prematurely brought; denying the cancellation thereof as being fraudulently procured; dissolving the attachment and refusing damages on account of the levy thereof.

From that part of the decree refusing to cancel the notes and award appellant damages an appeal has been prosecuted to this court.

Appellees have moved to affirm the decree because the oral and documentary testimony taken in open court was not preserved and incorporated in the record in the manner provided by law. The decree recites that the testimony of certain witnesses, naming them, was “taken ore tenus at the bar of the court, taken in shorthand and ordered transcribed and filed as depositions in the ease.” What purports to be the testimony of these witnesses is incorporated in the transcript, but they were not filed with the clerk during the term of the court the decree was rendered. It does not appear that the documentary evidence or testimony of said witnesses was brought into the record by a bill of exceptions, nor written out and embraced in the decree. It was furnished to the' clerk by a stenographer after the adjournment of court, as shown by a response to a writ of certiorari, and incorporated in the transcript by the clerk. It does not appear, however, that the court made any order before the evidence was taken for the court stenographer, or one specially appointed by him for the purpose, to take the testimony in shorthand, transcribe, and file it during the term at which the case was tried. The testimony was not brought into the record in the manner required by law (see McGraw v. Berry, 152 Ark. 452), and no error appearing on the face of the record, there is nothing before us upon which to predicate a reversal of the decree.

Decree affirmed.


text:
    Crook v. Rider.
    Opinion delivered November 20, 1922.
    1. Deeds — effect of surrender of deed.' — Where a deed executed to two grantees was surrendered by one of them without the other grantee’s consent, the execution of a new deed to one of the grantees did not deprive the other grantee of his interest, since the destruction or surrender of the first deed did not revest title in the grantor.
    2. Vendor and purchaser — innocent purchaser — burden of proof. — In an action to quiet title against a defendant, where the undisputed evidence showed that defendant paid value for the land, the plaintiff had the burden of showing that the defendant purchased the land with notice of plaintiff’s claim.
    S. Vendor and purchaser — purchase with notice. — In an action to quiet title, evidence held to sustain finding that defendant purchased the land with notice of plaintiff’s claim.
    Appeal from Yell Chancery Court, Dardanelle District; W. E. Atkinson, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    J. L. Rider brought this suit in equity against F. M. Crook to quiet his title to an undivided one-half interest in two lots in the town of Ola, Yell County, Ark.‘ The defendant denied that the plaintiff had any interest whatever in the lots, and asserted title in himself.
    It appears from the record that the lots were originally owned by T. M. Morris, and that he exchanged them with C. R. Sudberry for a tract of land in Yell County, Ark. T. M. Morris executed a deed to the lots in controversy to O. R. Sudberry and J..L. Rider. Several months later Sudberry returned the deed from Morris to himself and Rider and received a deed from Morris to himself to said lots. Subsequently Sudberry conveyed said Lots to defendant, Crook, for the sum of $600. Crook received possession of the lots from Sudberry.
    J. L. Rider was a witness for liimself. According to his testimony, he met Charles R. Sudberry, who owned 240 acres of land about 26 miles from Ola, in Yell County, Ark. Sudberry listed this land with R. D. McMullen for sale. Subsequently Sudberry interested Rider in the place, and offered to give him a one-half interest in all money or property he should receive for it. The fields were growing up, and the fences and houses had become badly out of repair. Rider cleared up some of the land and fixed the fences and houses in good repair. He also made a crop of corn and cotton on the place in 1917, and, after he had laid by his crops, estimated that he would make two and a half bales of cotton and 200 bushels of corn. In the fall of 1917, corn was worth $1.50 a bushel and cotton was worth twenty cents per pound. The land was exchanged by Sudberry with Morris for the town property in Ola, in September, 1917. R. D. McMullen prepared the deed from Morris to the town property, and Sudberry and Rider were both named as grantees in the deed. Rider informed Crook of his interest in the town lots before the latter purchased them from Sudberry. In this respect the testimony of Rider is corroborated.
    On the other hand, F. M. Crook testified that he purchased the property from C. R. Sudberry and paid him $600 for it, which was it full value. He denied that he knew that J. L. Rider claimed any interest in the property at the time he purchased it, or that he ever told any one that he had been informed tliat Rider had an interest in the property. His testimony in this respect is also corroborated. The evidence on the question of notice will be stated more in detail in the opinion.
    The chancellor found the facts in favor of the plaintiff, and a decree was entered accordingly in his favor.

      To reverse that decree the defendant has duly prosecuted an appeal to this court.

      M. L. Davis, J. T. Bulloch and A. S. Hays, for appellant.
    Purchasers of land are required to spread upon the record evidence of their ownership; and if others, suffer from their neglect the law will not recognize such ownership. C. & M. Dig., sec. 855; 70 Ark. 256; 1 Warv. Vendors, 542; Webb, Eecord of Title," § 168; 2 Sugden, Vendors, 978; 46 Mo. 239; 38 Fed. Eep. 455. Where one purchases land in good faith and for a valuable consideration, and enters into possession, he acquires a good title as against an unrecorded title of a prior purchaser. 56 Ark. 39. Proof of notice of an unrecorded deed must be established like any other fact. 23 E. C. L. 264; 20 E. C. L. 340; 3 Am. Eep. 249 ; 64 Am. Dec. 234.

      Wilson & Chambers and R. F. Sandlin, for appellee.
    Where one has an opportunity of reading a deed before signing same, ignorance of its contents cannot he pleaded in an action to set it aside. 196 S. W. 1065; 71 Ark. 185. Where one executes and delivers a deed for the conveyance of land, the title vests in the grantee, and he cannot divest himself of it by merely canceling the deed or surrendering it to the grantor. 52 Ark 483. Destruction of a deed after delivery does not affect its title. IOiS Ark. 491; 220 S. W. 904. A grantor is not reinvested with title by surrender of the deed by the grantor. 224 S. W. 467; 220 S. W. 469. The appellant had actual notice. 135 Ark. 205; 20 E. C. L. 340; 71 Ark. 31; 77 Ark. 309; 94 Ark. 503; 125 Ark. 441; 137 Ark. 18; 238 S. W. 19.
   Hart, J.,

But it is claimed by the defendant that he is a bona fide purchaser for value of the lots in controversy. The undisputed evidence shows that the defendant paid value for the lots, and the burden of showing that he purchased the lots with notice of the claim of Rider was upon the latter. Shenoy v. Phipps, 145 Ark. 121. The chancellor found this issue in favor of the plaintiff, and it cannot be said that his finding is against the weight of the evidence.

On the question of notice as to Rider’s claim to a one-half interest in the property, the testimony of the parties to the lawsuit is in direct and irreconcilable conflict. On the one hand, the plaintiff, in most positive terms, states that he told the defendant that he had a one-half interest in the property. The defendant is equally positive that no such conversation ever took place between them, and states that he did not know until after he had purchased the property that the plaintiff claimed any interest in it.

The plaintiff attempts to corroborate his testimony by an admission of the defendant to the effect that his landlady might have told him before he purchased the property that Rider was claiming an interest in it. The defendant, in explanation, said that he did not think his landlady told him this, 'and that, if she did, it was only a casual statement to which he paid no attention, because she talked so much.

Again, the plaintiff claims that he is corroborated by the testimony of W. M. Hope to the effect that defendant had told him that he knew that Rider claimed to have an interest in the property when he bought it, but that he did not think Rider had any interest in it. Several witnesses were introduced by the defendant to testify that Hope’s reputation for truth was bad. Therefore, the defendant insists that his testimony does not corroborate that of the plaintiff.’

The testimony of the plaintiff, however, is corroborated by that of R. F. Sandlin. It is true that Sandlin is one of the attorneys for the plaintiff, but it is not shown that he is otherwise interested in the controversy. Rider and Sudberry were about to have a lawsuit in Avhich this and other property was involved. Rider employed Sandlin as his attorney. Sandlin heard that Crook was about to purchase the property in controversy, and, meeting Crook at the depot in Ola, asked him about it. Crook said that he had not bought the property, but that Sud-berry was trying to sell it to him, and that he was figuring on buying it. Sandlin told Crook that Rider claimed an interest in the property,- and that he would buy a lawsuit if he purchased the property. It is true that Crook denied having had this conversation with Sandlin, but his interest in the matter is greater than that of Sandlin, and, Avlien avo consider the testimony as a whole, we do not think it can be said that the decision of the chancellor should be overturned.

It folloAvs that the decree will be affirmed.


text:
    Rudolph v. Laser.
    Opinion delivered November 20, 1922.
    1. Contracts — mutuality.—A contract for the sale and purchase of automobiles, which was partially executed by a shipment within the time and in the manner specified, before any controversy arose concerning- a breach, held not void, as respects such.’ shipment, for la,ck of mutuality.

      2. Principal and agent — exclusive sales contract — breach.—A contract for the exclusive right to sell a particular automobile within certain territory was broken where the seller had previously given the exclusive right to another dealer to sell the same car in a part of the same territory.
    3. ■ Sales — purchaser’s refusal to accept shipment — damages.— Where a buyer refused to accept and pay for a shipment of automobiles, the measure of the seller’s damages, if there is no market at destination, is the difference between the contract price and the price for which the seller is compelled to sell them, plus freight and demurrage, except demurrage for unreasonable delay in removing the cars, with interest from the date of payment; but, if there is a market at destination, the damages would be the difference between the contract price and the retail market value.
    Appeal from Pulaski Circuit Court, Second Division, Guy Fulk, Judge;
    reversed.

      McMillan é McMillan, for appellants.

      Owens & Ehrman, for appellee.
   Humphreys, J.

Appellee, a distributor at. Little Rock of Crow-Elkhart automobiles, instituted this suit in the Second Division of the Pulaski Circuit Court against appellants, automobile dealers in Arkadelphia, to recover damages in the sum of $1,306.84 growing out of an alleged breach of the contract entered into between said parties on May 27,1918,' for the sale and purchase of Crow-Elkhart automobiles. The alleged breach of contract consisted in the refusal of appellants to accept and pay for a shipment of five automobiles invoiced to appellants on July 22, and which reached Arkadelphia on August 5, 1918.

Appellants filed an answer denying the material allegations of the complaint, and interposing a number of additional defenses thereto. It will be necessary to mention only two of the additional defenses in order to discuss and determine the vital questions presented by this appeal. It was alleged that the contract lacked mutuality, and for that reason was void; and also alleged that, during the life of the contract, appellants were given the exclusive right to sell said automobiles in Dallas, Clark'and Hot Spring counties, Arkansas, and that, in violation of the contract, appellee had theretofore entered into a contract with Lee Hill, giving him the exclusive right to sell the same kind of automobiles in a part of said territory during said period, without the knowledge or consent of appellants.

The cause was submitted to a jury upon the pleadings, evidence, and instructions of the court, which resulted in a verdict and judgment in favor of appellees for the full amount of damages claimed. From the verdict and judgment an appeal has been duly prosecuted to this court.

Appellant contends that the contract is void on account of the lack of mutuality. We deem it unnecessary to set the contract out or discuss its provisions, as the shipment had gone forward before any controversy arose between the parties concerning a breach of the contract on the part of appellee. The shipment of the automobiles within the time and in the manner specified in the contract was a partial execution of the contract on the part of appellee. In the case of Weil v. Pneumatic Tool Corporation, 138 Ark. 534, cited by appellants in support of their contention as to the invalidity of the contract, the court held that it was void only in so far as unexecuted.

Again, appellant contends that the court erred in sending the case to the jury upon the theory that the execution of a contract between appellee and a third person for the sale of the same kind of automobiles, covering a portion of the same territory and period covered by the contract between appellee and appellants, without the knowledge of appellants, would not constitute a breach of the latter contract unless there were actual sales of automobiles under the former contract. Under the rule announced in the case of Keith v. Herschberg Optical Co., 48 Ark. 138, appellants’ contention must be upheld. In that case the company, through its agent, sold the same kind of goods to three merchants, upon condition that each should have the exclusive sale of such goods in the town of Booneville. When Keith discovered the existence of the other contracts, he treated them as a breach of his contract, and refused to accept and pay for the goods sold him. In a suit against him for the purchase price of the goods the court said: ‘ ‘ The plaintiff (Herschberg Optical Company) cannot recover the price of the goods without performing the condition upon which the sale, was made.” The court’s meaning, of course, was that if the company had given the others the right to sell the same kind of goods in Booneville it had thereby breached the condition upon which it had sold the goods to Keith, and for that reason could not recover the purchase price thereof. In the instant ease there is a conflict in the evidence as to whether appellants were apprised of the existence of appellee’s contract with Hill, giving him the exclusive right to sell the same kind of automobiles in a part of the territory covered by their contract, and whether they agreed»that his sales should be reported through them. In case they did know of and approve the Hill contract, they .would be estopped from pleading its existence as a breach of their contract.

'Appellants also contend that the court incorrectly instructed the jury on the measure of damages. The court, in substance, told the jury that the measure of damages, if they found for appellee- would be the difference between the contract price and the price at which appellee was compelled to sell the automobiles, with freight and demurrage added. This was correct if there was no market for the lot of automobiles at Arkadelphia. Appellee was not required to go ta the expense of retailing the cars nor required to sell them to his individual customers. He was in the automobile business and had automobiles to supply his own trade. Appellants were in error in attempting to establish the market value by the price at which appellee sold cars of the same kind to his trade. Appellants contend that the true measure of damages in the case of a breach would be the difference between the contract price and the retail market value of the cars at Arkadelphia, with freight hut no demurrage. This would be true only in case there was a market value and a market for the job lot of cars at Arkadelphia. If there was no general market at or near Arkadelphia for the job lot .of cars, then the instruction given by the court was correct (24 R. C. L. p. 121), except that demurrage paid on account of unnecessary delay in removing the cars would not be a proper item of damages. It goes without saying that interest should be calculated on freight and demurrage paid by appellee from the date of payment only.

For the error indicated the judgment is reversed, and the cause remanded for a new trial.


text:
    Cole v. State.
    Opinion delivered November 20, 1922.
    1. Prostitution — sufficiency of indictment. — An indictment which charges defendant with receiving money, without consideration, “from the earnings of Dollie Cross as a prostitute, and who was then and there engaged in prostitution,” held a sufficient designation of Dollie Cross as a woman engaged in prostitution.
    2. Criminal law- — accomplice—instruction.—In a prosecution under Acts 1913, p. 407, for receiving, without consideration, money from a woman engaged in prostitution, it was not error to refuse to charge that the woman prostitute was an accomplice.
    3. Prostitution — reputation of hotel. — In a prosecution of a hotel keeper for receiving earnings of a prostitute rooming at the hotel, testimony showing the reputation of the hotel was admissible.
    4. Criminal law — prostitution—evidence.—In a prosecution of a hotel keeper for receiving, without consideration, the earnings of a prostitute, where the woman from whom defendant was alleged to have received money testified that she met men at defendant’s hotel for immoral purposes by appointments made by defendant, which defendant denied, evidence of other witnesses as to similar transactions at defendant’s hotel about the same time was competent.
    5. Prostitution — evidence.—Where, in a prosecution of a hotel keeper for receiving earnings of a prostitute, witnesses stated that defendant’s porter was a go-between and cognizant of thq arrangement under which they were operating and acted for defendant in conducting men to them, evidence of a witness that at one time he had intercourse with a girl at the hotel but- paid the porter for the use of the room, was properly admitted, although the witness testified that defendant was not present, and that he had no conversation with defendant when he used the room.
    6. Criminal law — indorsement of witnesses’ names on indictment. — Crawford & Moses’ Dig., § 3010, providing that when an indictment is found the names of the witnesses examined must be written on the indictment, • is directory, and the failure to so indorse names -of witnesses was not reversible error, where there was no showing of prejudice, and their testimony was merely cumulative.
    7. Criminal law — limiting number of character witnesses. — In a prosecution of a hotel keeper for receiving the earnings of a prostitute, where 15 witnesses had testified as to the good reputation of defendant’s hotel, refusing defendant the right to call 10 additional witnesses to prove the same fact was not error.
    8. Prostitution — instruction.—In a prosecution of a hotel keeper for receiving the earnings of a prostitute, where defendant denied having any interest in the prostitute’s earnings or knowledge of the use she was making of the hotel, and her testimony was that she paid defendant for making the date with the man, it was not error to refuse defendant’s request for an instruction that if he furnished shelter, room, linen, etc., these would be a consideration, even though he accepted a portion of her earnings.
    9. Criminal law — newly discovered evidence — diligence.—In a prosecution for receiving earnings of a prostitute it was not an abuse of discretion to refuse a new trial for newly discovered evidence of prostitutes employed about defendant’s hotel where the court found that defendant failed to show due diligence in procuring such testimony.
    Appeal from Greene Circuit Court, Second Division; B. E. L. Johnson, Judge;
    affirmed.

      M. P. Huddleston, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and Wm T. Hammock, Assistants, for appellee.
   Smith, J.

Appellant was tried and convicted under an indictment reading as follows: “In the county aforesaid, on the 1st day of April, 1922, the said Elmer Cole did unlawfully, knowingly and feloniously accept -and receive $25 in gold, silver and paper money, lawful money of the United States, of the value of $25, without consideration, from the proceeds of the earnings of Dollie Cross as a prostitute, and who was then and there engaged in prostitution, against the peace and dignity,” etc.

There was a demurrer to the indictment, and a motion was filed in arrest of judgment, the basis of each pleading being that the facts stated in the indictment do not constitute a public offense. The alleged defect in the indictment is that it does not charge that the alleged prostitute was a female.

Appellant ran a hotel in the city of Paragould, and Dollie Cross was employed ostensibly as a chambermaid, and, ■ according to - her testimony, she performed some duties in that respect, but she also testified that her real occupation and principal source of income was to meet men in the hotel for immoral purposes, and that she had a contract with appellant under which he sent men to her room in the hotel for that purpose, and that she paid appellant fifty cents for each man so sent.

It is insisted that the testimony of the witness Dollie Cross, if true, makes her an accomplice, and that the court erred in not so instructing the jury, and in refusing to submit to the jury the question whether or not her testimony made her an accomplice.

Over appellant’s objection the court admitted testimony showing that appellant’s hotel had the reputation of housing women of bad morals, and Martha Wilson and Ira Polsten, two women, were permitted, over appellant’s objection, to testify that defendant had employed each of them under contracts similar to the one testified about by the witness Dollie Cross.

Over appellant’s objection a witness named McClain was permitted to testify that on one occasion he had intercourse with a girl, not Dollie Cross, at this hotel, but he paid the porter for the use of the room, and did not at any time see appellant or have any conversation with him on the subject.

Witnesses Smith, Wallace and Clark were called by' the State and permitted to testily, although their names did not appear upon the indictment, nor upon the list of witnesses furnished by the State to appellant. Before the commencement of the trial appellant had made - a motion that he be furnished a list of the witnesses examined before the grand jury, and the motion was sustained by the court, and a list of all the witnesses was furnished appellant, except the three stated.

Defendant subpoenaed twenty-five witnesses who had been patrons of the hotel, and fifteen of them testified that they had been accustomed to stopping at appellant’s hotel for a long period of .time, and that they never observed any indecent conduct about the premises, and that they had never been solicited by appellant, or any of his employees, for engagements with women working at the hotel, and that said hotel was conducted quietly and orderly. After these fifteen witnesses had testified as stated, appellant offered to call the ten other witnesses to testify to the same effect. The court declined to permit these witnesses to be called, but directed appellant to dictate into the record in the presence of the jury the substance of the testimony of the ten witnesses.

Exceptions were also saved to the action of the court in giving and in refusing certain instructions, and in refusing to grant a new trial on account of. newly discovered evidence.

The indictment in this case was based upon section 2705, C. &. M. Digest, which reads as follows:

■ “Any person who shall knowingly accept, receive, levy or appropriate any money or other valuable thing, without consideration, from the proceeds of the earnings of any woman engaged in prostitution, shall be deemed guilty óf a felony, and on conviction thereof shall be punished by imprisonment for a period of not less than two or more than ten years. Any such levy, receipt, acceptance or appropriation of such money or valuable tiling shall, -upon any proceeding or trial for violation of this section, be presumptive evidence, of lack of consideration. ’ ’

We think the indictment sufficiently charges a violation of the statute quoted. It is true there is no express allegation that Dollie Cross is a woman, but the indictment does describe her as a prostitute and alleges she was engaged in prostitution.

The word prostitute may bo a verb, an adjective, or a noun, but it is used in the indictment as a noun, 'and, when used as a noun, its principal definition is “a woman given to indiscriminate lewdness; a strumpet; a harlot.” Webster’s New International Dictionary. It is true that the noun is also defined by the same authority as “a base hireling; a mercenary man or woman.”

The word prostitute may therefore mean “a base hireling; a mercenary man or woman,” but the indictment not only charges that Dollie Cross was a prostitute, but it also charges that she was engaged in prostitution, the dictionary meaning of which word is an “act or practice of prostituting the body; common lewdness of a woman. ’ ’

“Act of setting one’s self to sale, or of devoting to base or unworthy purposes what is in one’s power, as, the prostitution of abilities; prostitution of the press.” Webster’s New International Dictionary.

The section of the statute quoted above is section 3 of act 105 of the Acts of 1913 (Acts 1913, p. 407), commonly called the pandering act, and a reading of this section 3 in connection with the other sections of the act makes it plain that the word “prostitute,” as employed throughout the act, is itself a designation of a female person. For instance, section 1 of the act makes it unlawful for any one to procure a female inmate for a. house of prostitution, or to induce a female to become a prostitute, etc. Other portions of the statute, which need not be quoted, treat the word “prostitute” as designating a female, and the word “prostitution” as meaning common lewdness of a woman.

We conclude therefore that the allegations that Dollie Cross was a prostitute, engaged in prostitution, sufficiently designates her as a female within the meaning of the statuté.

We think the court properly refused to charge the jury that Dollie Cross was an accomplice, or to submit that issue to the jury. The penalty of the statute quoted is directed against the person who knowingly accepts a valuable thing, without consideration, from the proceeds of the earnings of any woman engaged in prostitution. The thing made unlawful is not the illicit intercourse in which the female participates, but the acceptance of money thus earned without consideration. The act is directed against the person, whether man or woman, who, without consideration, accepts the earnings of a woman engaged in prostitution; but the illicit intercourse itself is not made unlawful by the statute. The prostitute shares in the shame and infamy of the transaction, but not in its unlawfulness, for, as we have said, it is not the act of immoral sexual intercourse that is made unlawful, but the acceptance, without consideration, of a portion of the proceeds thus earned.

In the case of Melton v. State, 43 Ark. 371, it was said: “But we incline to the opinion that Lawrence was not, in the eye of the law, an accomplice in the murder. The guilt of an accomplice must be legal guilt, not merely a participation reprehensible in morals. 1 Bish. Cr. Pro. 3rd ed. sec. 1159. No indictment could have been sustained against him for the murder of Hale.”

So, here, the guilt of Dollie Cross was moral, and not legal, for she could not be indicted for her participation in the felony charged in the indictment. 1 R. C. L. 3157; 16 C. J. 671; Hillian v. State, 50 Ark. 526 Gaston v. State, 95 Ark. 233; Wilson v. State, 124 Ark. 477.

We think the testimony showing the reputation of appellant’s hotel was admissible, as was also the testimony of Martha Wilson, Ira Polsten, and Mr. McClain. Dollie Cross testified that she met men in appellant’s fiotel for immoral purposes, pursuant to apointments made for her by appellant and his porter. Appellant denied this, and he denied accepting any of Dollie Cross’ ill-gotten gains,, and ho undertook to show that his hotel had the reputation of being a decent place.

All these witnesses testified to transactions occurring in the hotel about the time Dollie Cross was an inmate thereof, and this testimony was competent therefore to show the uses which appellant was making of his hotel; that he was in fact using it for pandering purposes, and tends to corroborate the testimony of Dollie Cross that she so used it. Parks v. State, 136 Ark. 562; Monk v. State, 130 Ark. 358; Casteel v. State, 151 Ark. 69; Cain v. State, 149 Ark. 233; Lowery v. State, 135 Ark. 159; Wald v. State, 136 Ark. 372; Sneed v. State, 143 Ark. 178.

It is true witness McClain testified appellant did not appear on the scene, and he had no conversation with appellant when he used the room, and the charge paid by him for the use of the room was paid to the porter; but all the women testified the porter was a go-between and was fully cognizant of the arrangement under which they were operating, and acted for appellant in conducting men to them.

Section 3010, C. & M. Digest, provides that when an indictment is found the names of all witnesses who are examined must be written at the foot of or on the indictment, and this court, in the case of Snow v. State, 140 Ark. 9, held that the trial court should, on the application of the accused, require the prosecuting attorney to endorse the names of the witnesses on the indictment or furnish a list of the witnesses to the accused. The accused here made this application, and the court gave directions to the prosecuting ¡attorney to furnish a list of witnesses used before the grand jury, and that officer apparently complied with the court’s order. There is no showing that either of the three witnesses whose names were not furnished appellant were before the grand jury, but the statute is directory, and there was no attempt to show any prejudice resulting to appellant from the omission to furnish him. the names of these three witnesses, even though they may have in fact been examined by the grand .jury. Their testimony was cumulative to other testimony-.

We think no error was committed in refusing appellant the right to call the ten witnesses to prove the good reputation of his hotel, after the fifteen other witnesses had'testified in his behalf on that subject. The testimony of the ten was admittedly cumulative to that of the fifteen, and the court permitted appellant’s attorney to dictate into the record, in the presence of the jury, a. statement of what the ten witnesses would testify. The court below has a discretion in limiting the number of witnesses who are offered to prove an issue like that of reputation, and when fifteen have been allowed to testify on that subject we think it was not an abuse of the court’s discretion to refuse to permit additional cumulative testimony to be offered. Sheppard v. State, 120 Ark. 160.

Appellant requested instructions to the effect that, if the jury found he had furnished shelter, room, accommodations, service, attendance, linen, sheets, towels, etc., these things would be a consideration, even though the jury found he had accepted portions of Dollie Cross’ earnings. We think, however, this contention is answered by the statement of the Attorney General that the instruction, if correct, would have been-abstract, as appellant did not testify that he agreed to furnish any of' the things mentioned. On the contrary, he denied having any interest whatever in Dollie Cross’ earnings, or any knowledge of the use she was making of the hotel, and her testimony was that the fifty cents which she paid in each instance to appellant, or to the porter for him, was f ^ the service in making the date with the man.

The court heard the testimony of a number of witnesses on the motion for a new trial on the ground of newly discovered evidence, and overruled the motion on the ground that appellant had not showm proper diligehce in procuring the attendance of the witnesses who would have given this newly discovered testimony. These witnesses were two prostitutes who had been employed about appellant’s hotel, and the court found the fact to be that appellant might have seen these witnesses and have ascertained any facts known by them before the trial. Without setting out the testimony heard by the court on the hearing of the motion for a new trial on account of newly-discovered evidence, we announce our conclusion to be that no abuse of the court’s discretion in this respect was -shown. Young v. State, 99 Ark. 407; Ward v. State, 85 Ark. 179; Cravens v. State, 95 Ark. 321; Osborne v. State, 96 Ark. 400.

No error appearing, the judgment is affirmed.