text:
    Anglin v. Marr Canning Company.
    Opinion delivered February 13, 1922.
    1. Partnership — dissolution—failure to give notice. — -Where a partnership had been dissolved, but no notice of its dissolution had been published by the firm, one who in good faith entered into a contract with one of the partners purporting to be a partnership contract is entitled to hold the partners liable, even though, before he incurred expenses or carried out any part of his contract, he had actual notice of the dissolution, as the rights of the parties under the contract were fixed at the time of entering into the contract.
    2. Partnership — dissolution—failure to give notice. — Where a contract was entered into by plaintiff in good faith with a member of a previously dissolved firm in the firm name and on its printed contract blank, it was error to refuse to instruct the jury that where partners permitted such member to retain the blank contracts and gave no notice of the firm’s dissolution, and plaintiff offered to comply with his contract, the partners would be estopped to deny liability under said contract.
    ' 3. Estoppel — failure to plead — waiver.—Failure to plead estoppel will be waived where evidence was introduced and the cause was fully developed on that issue.
    4. Appeal and error — sufficiency of objection to instructions.— A correct instruction requested on an issue will be taken to be a specific objection to erroneous instructions given by the court on that issue.
    5. Partnership — dissolution—notice.—A retiring partner who is known to be a member- of a firm must publish notice of such retirement in some newspaper where advertisements are inserted and published in the place where the business is done, in order to. shield himself from liability for the future debts of the firm, even as to those with whom the firm had had no previous dealings.

      6. Partnership — sufficiency of notice of dissolution. — Editorial references in a newspaper to the dissolution of a partnership and to the retirement of certain partners was not sufficient notice of their retirement to relieve them from liability on a subsequent contract of the partnership; no knowledge of such editorials being brought to the notice of the contracting party.
    Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    reversed.

      Walker <£ Walker, for appellant.
    This ease is controlled by the opinion of this court in the case of Wilcox v. Citizens Laundry, delivered April 21,1913, and not reported. See also 2 Thompson on Corporations, 1693; 163 N. Y. 580; 96 Ark. 493. Appellees Marr and Gravette were estopped from denying liability as partners, and not only should the court have directed a verdict against the canning company, Zierenberg, Gravette and Marr, but also, when the jury returned a verdict against Zierenberg alone, it should have sustained appellant’s motion for judgment notwithstanding- the verdict, and have given judgment against all the defendants.

      Rice <& Rice, for appellee.
    If the facts warranted the application of the law of estoppel, the appellant should have pleaded it. There was no reply pleading estoppel. 12 Ark. 769. It is the person who knoivingly permits himself to be held out as a partner who is estopped to deny it. 29 Ark. 512. See also 80 Ark. 65; 79 Id. 273; 109 Id. 58. It is conclusively shown that appellees, Gravette and Marr, lived at a distance, and knew nothing- of the operations of the business after the dissolution, or that Zierenberg was using the old stationery, and also conclusively shown that they received no benefits from such operations or from this contract.
   Wood, J.

Prior to the 25th of February, 1920, W. J. Zierenberg, F. M. Marr and E. M. Gravette were partners engaged in the canning business under the firm name of Marr Canning Company at Cave Springs, Benton County, Arkansas. On the above date Zierenberg bought the interests of Gravette and Marr in the business, and the partnership was dissolved. Some time after this dissolution of the partnership the following contract was entered into:

“Tomato Grower’s Contract.
“I, James Anglin, hereby agree to devote the land and furnish everything necessary to plant and cultivate in proper manner four acres of land in tomatoes, all to be planted with a variety of seeds as furnished by Marr Canning Company at cost and $-per thousand.
“To set as early in the season as weather will permit and to deliver all the products of the above specified acreage to Marr Canning Company in sound ripe condition during season 1920. Tomatoes that are green on one side or not fully developed in size or color or less than 2 inches in diameter or bruised or jammed or overripe will not be considered merchantable, and if not merchantable are subject to dock or refusal. Tomatoes when ripe to be delivered in crates, not to weigh over 45 pounds, to Cave Springs, Ark., between the hours of 7 a. m. and 6 p. m. on each working day, except Saturday, and this day prior to 11 o’clock a. m.
“In consideration of compliance with above conditions Marr Canning Company agrees to pay for the tomatoes $20 per ton, settlement to be made every two-weeks. It is further agreed that, in case of destruction of the factory by fire or elements, or crop failure, the said Marr Canning Company shall have the right to limit the delivery of said acreage.
“J. P. Anglin, Grower.
“Accepted, Marr Canning Company.
“Per W. J. Zierenberg.
“United States Pood Administration
“License No. G 27782.”

Some time after the above contract was entered into Anglin received the following letter:

“W. J. Zierenberg, Mgr.
.“E. M. Gravette,
“F. M. Marr,
“Marr Canning Company,
“Canuers of Fruits and Vegetables.
“Cave Springs, Ark.
“3-10-1920.
“Mr. James Anglin,
“Elm Springs, Arkansas.
“Dear Sir:
“We have decided to pay $20 per ton for tomatoes on contract. If you wish to increase' your acreage, notify us; seed should be at the hardware next week. Please tell Mr. Baucom.
“Yours truly,
“W. J. Zierenberg.”

Anglin instituted this action against the Marr Canning Company, Zierenberg, Gravette, and Marr. In his complaint he sets out the above instruments, and alleged that they constituted the contract upon which his cause of action was founded. He averred that he entered upon and fully performed the contract on his part by planting, cultivating and bringing to maturity and delivering and offering- to deliver the tomatoes specified in the contract; that, after delivering a part of the tomatoes for which the defendants issued to him due bills in the sum of $47.40, they refused to receive any further tomatoes under the contract and refused to pay the due bills for the tomatoes that he had already delivered; that, after his tomatoes were brought to maturity under the contract and ready for market, he demanded that the defendants receive the same, which they refused to do. thereby violating their contract, to his damages in the sum of $.1,225 with interest from the 15th of September, 1920, for which he prayed judgment.

Anglin set out in his complaint specifically the items constituting his damage, which it is unnecessary to set out in detail here. The defendants answered, denying that at the time the alleged contract was entered into a partnership existed as alleged in the complaint. They denied that they entered into the contract alleged; they admitted that Zierenberg, representing the Cave Springs Canning Company, entered into the contract sued on. They denied all the other allegations of the complaint. They averred that the Marr Canning Company, constituted as above set out, was dissolved, and that the Cave Springs Canning Company was organized by Zierenberg, who took over the property formerly owned by the Marr Canning Company and operated it as the Cave Springs Canning Company; that at the time the contract alleged was entered into the plaintiff knew that Marr Canning Company had gone out of business and was no longer in existence. The plaintiff executed his note to the Cave Springs Canning Company for fertilizer to prepare his ground, and whatever tomatoes were raised by the plaintiff were raised after full knowledge of the fact that the Marr Canning Company was not in existence.

. Anglin testified, identifying and exhibiting to the jury the documents above set forth as the contract upon which he relies. He stated that, after receiving the above letter of March 10th, he increased the acreage called for' in the original contract and notified Zierenberg that he would increase it. He enters into detail as to the work done by him under the contract, that the tomatoes were grown and made ready for market; that after the tomatoes were ready for market he began delivering them to the defendants, and did so as long as they would receive them; that they issued him due bill for the first. He specifically itemized the elements constituting his damage. Among other things, he stated that he never heard that the partnership composing the Marr Canning Company had been changed until the 28th of August. He had seen no newspaper account of it. He lived in Washington County and did not take the Benton County papers.

It is unnecessary to set forth in detail the testimony of the plaintiff and the witnesses adduced in his behalf. It suffices to say there was testimony sufficient to - sustain the allegations of his complaint as to the breach .of ihe contract and the liability of the defendants, Marr and Gravette, as well as Zierenberg, provided the contract also bound them.

The appellee, Marr, testified that he and Gravette sold their interests in the Marr Canning Company to Zierenberg on the 25th of February, 1920. He never had anything more to do with it. He went to southern Kentucky. He did not know that Zierenberg used the statements and letterheads of the old firm. There was a notice in the Benton County Record of the dissolution, which notice reads as follows: “Frank Marr may quit the canning business this year. He has sold his interest in the Cave Springs factory and leased his local plant to a canning firm of Marshville, Missouri, who will run it the present season.” And another notice as follows: “W. J. Zierenberg, who recently sold his interest in the Cave Springs Canning factory to F. M. Marr and E. M. Gravette, has repurchased the same and will operate the factory again.” These notices were editorials. The witness never had any notice signed by himself and Gravette published in any paper giving notice that the partnership heretofore existing between Zierenberg, Gravette and Marr, known as the Marr Canning- Company, was dissolved, and that E. M. Gravette and F. M. Marr had retired from the business; that the business in the future would be conducted by Zierenberg. "Witness had been in the canning- business for sixteen years. On cross-examination he testified that he did most, of the printing. He had the business letter heads printed showing Zierenberg as manager and Gravette and witness as partners. The letter-heads had “Marr Canning Company,' Canners of Fruits and Vegetables,” at the top. The Marr Canning Company contracts were signed “Marr Canning Company.” The Marr Canning Company contracts had the word, “Accepted” signed by the “Marr Canning Company” per W. J. Zierenberg. "Whenever the words ‘ ‘Marr Canning Company” appeared in any of the documents they were a part of the printed blank form. Nowhere did the signature of the Marr Canning Company or Gravette or Marr appear except in print. When witness and Gravette sold out to Zierenberg, they did not give him permission to use their stationery, but did not collect it and the blank contracts in the name of the Marr Canning Company. Witness never moved anything; left them in the possession of Zierenberg. When witness and Gravette sold out to Zierenberg, witness did not authorize Zierenberg to take any course with the old letter heads that were left there in any way. Witness knew there were a few old blank contracts left there with Zierenberg. Zierenberg was the manager of the business the year before. Witness had no interest in the contracts or in the property of the canning company at the time the contract sued on was entered into.

The testimony of Gravette corroborated the testimony of Marr. . There was testimony in the record to the effect that on the 5th day of April, 1920, Anglin, the plaintiff, executed a note to the Cave Springs Canning Company for $27 for fertilizer. Plaintiff testified concerning this that he didn’t know whether the payee in the note was the Cave Springs Canning Co. or not. He signed the note. It was made for fertilizer to be used in preparing the ground in producing tomatoes.

The original contract specified that the Marr Canning Company agreed to pay for the tomatoes $16 per ton. Zierenberg had written to Anglin that he would pay $20 per ton, and on the day he signed the note for the fertilizer he had Zierenberg to write into the contract that he was to pay $20 per ton, instead of $16. There was also testimony tending to prove that on the 14th of September, 1920, Zierenberg drew up a contract and asked Anglin to sign the same to the effect that he had sold and agreed to deliver tomatoes to the Cave Springs Canning Company. Anglin refused to sign it and r&fused to deliver tomatoes to the Cave Springs Canning Company because he had never sold them any. Anglin told Zierenberg that if he would pay what he owed on the tomatoes already delivered he would deliver the remainder to the Cave Springs Canning Company.

The court, on its own motion and over plaintiff’s objection, gave, among- others, the following instruction:

“5. Although you may find and believe from the evidence that the defendants Marr and Gravette were partners or liable as partners to plaintiff with Zierenberg at the time -the original contract was entered into, yet, if you further find and believe from the evidence that, before the plaintiff incurred any expense or had carried out any part of his contract for the growing of the tomatoes, he had actual knowledge that Marr and Gravette were not partners with Zierenberg, then he could not recover from either Marr or Gravette.”

The court refused the plaintiff’s prayer for instruction, as follows:

“2. If you find from the evidence that Marr, Gravette and Zierenberg composed the firm of Marr Canning Company; that Zierenberg purchased the interest of Marr & Gravette; that Marr & Gravette permitted Zierenberg to retain the blank contracts of said firm and the letterheads and. stationery of said firm, that no notice of the dissolution of said firm was given the general public by publication in a newspaper, or otherwise, that plaintiff entered into a contract with Marr Canning Company signed in type “Marr Canning Company,” by Zierenberg, to furnish tomatoes to Marr Canning Company, and that he offered to so furnish said tomatoes, and that plaintiff’s contract was not with Zierenberg individually, but with Marr Canning Company, then the defendants Marr and Gravette would be estopped from denying liability under said contract, and you will find against Marr Canning Company and W. J. Zierenberg, E. M. Gravette and F. M., Marr for such sum as you may find due plaintiff under said contract.”

The jury returned a verdict in favor of the plaintiff against the defendant W. J. Zierenberg in the sum of $550. The plaintiff moved for judgment, notwithstanding the verdict, against each of the defendants, Gravette and Marr. The court overruled this motion, and also overruled the appellant’s motion for a new trial, in which, among other grounds, he assigned as error the ruling of the court in refusing to give his prayer for instruction No. 2, and also the ruling of the court in giving on its own motion instruction No. 5. The court entered a judgment discharging the defendants, Gravette and Marr, from all liability and for costs in their favor against the plaintiff. From that judgment the plaintiff appeals.

Instruction No. 5 given by the court on its own motion was inherently erroneous and prejudicial to the appellant. /'The rights of the parties under the contract were fixed at the time the contract was entered into, and, unless the appellant himself violated the contract, he had the right to recover damages growing out. of breach of the contract against those who are liable to him under such contract at the time the same was executed/- If, under the law, Marr and Gravette were liable to the appellant at the time the contract was executed, then they were liable, even though the appellant had knowledge on the 5th day of April, when lie purchased the fertilizer, that the appellees, Gravette and Marr, were no longer members of the firm of Marr Canning Company. If the appellant, when he entered into the contract, as he states, did so under the belief that Gravette and Marr were members of the firm of Marr Canning Company, with which firm he thought he was contracting, and if the conduct of the appellees, Marr and Gravette, at the time the contract was executed was such as in law to make them at that time liable on the contract, even though the partnership at that time had been dissolved, then they remained liable, regardless of any knowledge that appellant may have after-wards acquired before he incurred any expense in carrying out his part of the contract.

Appellees in their pleadings and proof do not predicate a defense upon a breach of the contract on the part of the appellant in preparing his land and producing the tomatoes as the contract provided. Their sole defense was that they were not parties to the contract; that the firm of Marr Canning Company had been dissolved before the contract was entered into; that the contract was made with the Cave Springs Canning Company, and that be refused to deliver the tomatoes to that company under the contract. In other words, as we understand the pleadings and the proof, the contention of the appellees is that they were not liable under the contract because they were not parties to it and could not, under the facts developed at the trial, be held liable as partners because at the time the contract was executed the firm formerly constituting Marr & Company had been dissolved and was no longer in existence. Their defense was not based upon the contention that Anglin was not entitled to recover because he had first violated the contract. Instruction No. 5 given on the court’s own motion was therefore not the law, and was prejudicial to appellant.

The court also erred in not granting appellant’s prayer for instruction No. 2. The appellees contend that this prayer was covered by instructions which the court gave, and furthermore should not have been given because the appellants did not in the court below plead and set up estoppel. Although the appellant did not reply to the appellees’ answer and did not in express terms set up and plead that the appellees were estopped from saying that they were not liable under the contract, nevertheless the court permitted the evidence to be introduced and the cause fully developed on that issue, and sent that issue to the jury in its instructions.

While the appellant failed to object specifically to some of these instructions, prayer for instruction No. 2 offered by him was a correct instruction, and itself should be taken and considered as a specific objection to the instructions which were given-by the court in conflict therewith. As the court deemed it proper to submit the issue of estoppel, it should have given appellant’s prayer for instruction No. 2, because that instruction correctly declared the law applicable to the facts as developed at the trial. If the court saw fit to give other instructions on that issue, it should have -made these instructions conform with the law as announced in instruction No. 2.

In Simonds v. Strong, Chamberlain & Co., 24 Vermont 642, it is said: “It seems to be perfectly well settled, both in England and this country, that a retiring partner, who was known to be a member of the firm, must publish notice of such retirement, in some newspaper where advertisements are inserted, and published in the place where the business is done, in order to shield himself from liability for the future debts of the firm, to those even with whom they had had no previous dealings.” See also—

Amidown & Co. v. Osgood, 24 Vermont 278-82; Meyer v. Krohn, 114 Ill. 574; Moline Wagon Co. v. Rummell, 12 Fed. 658; Kennedy v. Bohannon, 11 Ky. Rep. (B. Monroe) 118; Page on Contracts, § 957, and cases there cited; 1 Rowley, Modern Law Partnership, sec. 594.

In Rector v. Robins, 74 Ark. 437, an instruction was given which told the jury that the “defendant would be liable if he was a member of the firm when it commenced business or before the indebtedness accrued if the credit was extended upon the faith of his being a member and no notice, actual or constructive, had been given of the dissolution of the partnership, ’ ’ and in that case we held that the instruction substantially declared the law and cited the above adjudicated cases. There is no testimony in the record tending to prove that the appellees, Marr and Gravette, gave to the appellant any actual notice that they had retired from the firm before the contract in controversy was executed. There is no testimony tending to prove that they had published in a newspaper any notice of the dissolution of the partnership and their retirement from the firm. The editorials appearing in the paper were not such notice, and, besides, there is no testimony tending to prove that these editorials were brought home to the appellant. He testified that he had not seen them. Certainly, it cannot be said that that the undisputed testimony proved that the appellant had actual notice of the dissolution of the linn at the time of the execution of the contract.

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


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Watkins v. Reliance Life Insurance Company.
    Opinion delivered February 13, 1922.
    1. Insurance — self-inflicted death — evidence.—Where an insurer relied upon exemption from liability for self-inflicted death as a defense in an action on the policy, it was error to permit defendant’s agent to testify that at the time the beneficiary made proofs of insured’s death there was no question about accidental discharge of the pistol which killed deceased; there being no proof that any questions were asked or admissions made by her concerning that 'issue.
    2. Insurance — effect of proof of death. — The beneficiary of an accident policy is under no duty, when making proof of insured’s death, to raise the issue as to whether the death was accidental or self-inflicted; proof of death placing on the insurer the burden of overcoming the presumption against suicide.
    Appealed from Jefferson Circuit Court; W. B. Sorrels, Judge;
    reversed.

      Dcmaher & Danaher, for appellant.
    1. It was clearly erroneous to permit defendant to ask the witness Lee the question, “Was there any question at that time about any accidental discharge of the pistol?” and to permit him to answer, “No”. Plaintiff was under no duty at the time to do more than to answer the questions asked her by Lee, who was defendant’s agent obtaining proofs of the death; and’her failure to volunteer some information about which the agent did not ask cannot be distorted into an estoppel in pais.

    2. There is a presumption of law against suicide, even though the wound be self-inflicted, but the presumption is that the wound, or injury, was accidental until the contrary is proved. 80 Ark. 195. When the plaintiff proved that deceased was found with a pistol-shot wound in Ms head which caused his death, she made a prima facie case, and the burden was on the defendant to overcome by evidence the presumption of accidental injury and death. The court erred in refusing so to instruct the jury. Id.; 128 Ark. 160; 131 Id. 419; 146 Id. 70.

      Coleman <& Gantt, for appellee.
    1. The question and answer to which appellant objects was not prejudicial. It was answered in the negative, and does not indicate whether it was the accident or the suicide that was not questioned.
    2. There was no error in refusing to give appellant’s requested instruction No. 5. A party cannot complain because the court does not give an instruction in which it was offered, and in this case the court, in instructions given, fully and correctly stated the law on the question of prima facie showing and the presumption against suicide, and as to the burden of proof. The instruction asked was argumentative and misleading. 77 Ark. 434, 438-9; 58 Ark. 108; 95 Ark. 456.
   Wood, J.

The appellant, as beneficiary, brought this action against the appellee to recover on three policies of life insurance; two for $1,000 each issued February 18, 1916, and one for $1,000 issued January 22, 1920. To one of the policies issued February 18, 1916, there was attached an additional accident policy for $1,000. This policy stipulated that if Carl F. Watkins should die from the results of bodily injury, effected solely through external, violent and accidental means, the defendant would pay to the beneficiary, Sarah A. Watkins, the additional sum of $1,000. The appellant alleged that the insured, Carl F. Watkins, died on November 17, 1920, and that the injury from which he died was caused by a pistol shot through the head; that the pistol was accidentally discharged in a manner unknown to the appellant. The appellant prayed for judgment in the sum of $4,000.

The answer admitted that the appellee was indebted to the appellant in the sum of $2,000, but denied that it was indebted to the appellee under the policy issued January 22, 1920, because said policy contained the following provision: “Self-destruction during the first policy year, whether the insured be sane or insane, is a risk not assumed by the company, but in such case the company will return in full all premiums actually received.” The appellee further alleged that Carl F. Watkins destroyed himself on November 17, 1920, during the first policy year, and that under the above provision the appellant was not entitled to recover on this policy anything except the returned premiums, which the appellee tendered, amounting to $31.50. The appellee further alleged that the policy of February 18, 1916, contained the following provision: “This policy does not extend to any .accidental bodily injury caused or contributed to directly or indirectly by sickness or disease, nor cover disappearance nor war risk nor loss due to hernia, however caused, nor loss resulting from any means or action, which, if used or done by the insured while in the possession of all mental faculties, would be deemed intentional or self-inflicted, nor loss suffered while, or resulting from, riding or being in or on an aerial device or conveyance. ’ ’ The appellee pleaded the above provision in bar of appellant’s right to recover on the policy containing such provision.

The trial resulted in a verdict and judgment in favor of the appellant against the appellee in the sum of $2,-031.50. The result was to allow the appellant to recover only the sum which the appellee admitted was due on the policies and to deny her the right to recover the additional sum of $2,000 which she alleged to be due on the policies.

One of the grounds of motion for a new trial is: “The court erred in permitting witness Lee, over plaintiff’s objections, to be asked and to answer the following question, ‘Was there any objection at that time about any accidental discharge of the pistol? A. No.’ There were several other grounds, but the above is all we find it necessary to consider. The motion for a new trial was overruled, and this appeal has been duly prosecuted.

C. A. Lee was a witness on behalf of the defendant below (appellee here). He testified that he lived in the city of Pine Bluff, Arkansas, and was manager of the Metropolitan Life Insurance Company. He was acquainted with Carl Watkins, the insured, and the appellant, Mrs. Watkins, the mother of Carl Watkins. Carl had two policies in witness’ company. Witness had a conversation- with Mrs. Watkins, the beneficiary, after Carl’s death, regarding the manner of his death. “She came in to make out a death claim, and I talked with her about it.” She told witness that she did not see Carl shoot himself, but when she heard the shot she went to his room and got to him in time to lay him down on the floor. She did not say whether or not he killed himself. She stated the facts as she stated them on the witness stand. Witness was then asked the following question: “Was there any question at that time about any accidental discharge of the pistol? ” And the witness answered “No.” The attorney for appellant objected to the question and answer, and the objection was overruled, to which ruling of the court the attorney for the appellant duly excepted.

The question and answer were irrelevant and highly prejudicial to the rights of the appellant. Whether the -attorney for the appellee so intended it or not, the form in which the question was propounded and the answer thereto were calculated to impress the jury with the fact that appellant, soon after the death of her son, when making proof of his death and asserting her claim under the policies of insurance, did not at that time assert or contend that the death of her son was caused by the accidental discharge of a pistol. The form of the question and the answer were calculated to make the jury believe that, if the appellant raised no question and did not contend at the time she was making the proofs of death that the insured came to his death by accidental means, she ought not to he heard at the trial to contend that the death was caused by an accidental discharge of a pistol; that the fact that she did not so contend to .appellee’s agent when she was making proof of death was indicative of the fact that she did not make the contention then because it was not true, and that she knew it was not true. In other -words, that she knew at that time that her son’s death was not accidental, but suicidal.

It occurs to us that the necessary implication from the form of the question and the answer thereto is that the appellant, soon after the death occurred, did not claim that the death was accidental, and that if she did not raise the question then — so soon after the death occurred —her subsequent claim and contention at the trial were but an afterthought and should be so treated. The question and answer, having been allowed to go to the jury in that form, at least furnished the counsel for the appellee legitimate ground to argue that her claim and contention at the trial of an accidental killing by a discharge of a pistol was but an afterthought or fabrication. The form of the question propounded would lead the jury to draw the inference that it was appellant’s duty, at the time she was making- proof of death and at the time Lee was receiving such proof, to in some manner raise the issue as to whether the death was accidental or by suicide. Such was not the law at all. She established a prima facie case against the company for the payment of her claim under the policy when she made proof of the death of her son as the result of violent and external means. In such cases the presumption is that death is accidental, and the burden was upon the appellee companv to overcome the presumption. “All that is necessarv for a plaintiff to show to make out a prima facie case is the. contract and death.” See Aetna Life Ins. Co. v. Taylor, 128 Ark. 160; Grand Lodge v. Bannister, 80 Ark. 195; Bus. Men’s Acc. Assn. v. Cowden, 131 Ark. 419; Aetna Life Ins. Co. v. Little, 146 Ark. 70; Metropolitan Life Ins. Co. v. Chambers, 136 Ark. 84; Central Coal & Coke Co. v. Burns, 140 Ark. 147; Railway Mail Assn. v. Johnson, 140 Ark. 289.

Now the appellee clid not offer to prove by the witness receiving proofs of death that he propounded questions to the appellant which were intended to elicit from her information as to how the death occurred, whether accidental or by suicide, and did not offer to prove that appellant answered any questions or made any admissions concerning that issue. To be sure, if Mrs. Watkins, when making proof of the death of her son, had done or said anything to warrant the conclusion that she was not then contending that the death was accidental, but on the contrary had by her words or acts at that time admitted or déclared that the death was by suicide, then it would be competent to show what those acts and declarations were. Because, under such circumstances, her acts and declarations would be relevant, as in the nature of admissions against interest and contrary to her contention at the trial. Shinn v. Tucker, 37 Ark. 580-92; Woodmen of the World v. Jackson, 80 Ark. 419; St. L. I. M. & So. Ry. Co. v. Dallas, 93 Ark. 209; 16 Cyc. 954; 22 C. J. 317; 2 Jones, Comm, on Evidence, § 236; 1 R. C. L. 477. But such is not the case here. Appellee’s witness, Lee, was permitted to testify to all that Mrs. Watkins said and did when making proofs of death. This witness, after testifying to all she said and did at that time, and after saying that “she stated the facts then as she stated them on the witness stand,” was asked, and permitted, to go further, and to express his own opinion that the effect of wlvat Mrs. Watkins had said and done was to raise no question, i. e., make no claim or contention at the time of proofs of death, that the killing was accidental. As we view it, the question propounded was tantamount to eliciting such a conclusion or opinion from the witness. After testifying fully to what Mrs. Watkins did and said at the time of making proofs'of death, it was for the jury, and not for the witness, to say whether the effect of her conduct at that time was to make no claim that the killing was done by accident, and thereby to virtually admit that it was suicide. It was for the jury, not the witness, to determine whether the words and acts of Mrs. Watkins at the time of making proofs of death were in the nature of admissions against her interest and inconsistent with her contention at the trial. The.question was improper, and, as already stated, prejudicial to appellant.

Other errors were assigned, but the above is the only reversible error in the record. For the error indicated the judgment is reversed, and the cause remanded for a new trial.


author: Hart, J.,

text:
    Shaw v. Polk.
    Opinion delivered February 13, 1922.
    1. Pleading — exhibit to complaint. — In a suit in equity the exhibits control the averments of the complaint.
    2. Pleading — amendment.—Where a complaint in a suit in equity to foreclose a mortgage of land misdescribed the land, the action of the court in permitting plaintiff, after foreclosure, to file a petition alleging that a misdescription of the land had been given in the former proceedings, and stating the correct description, was equivalent to permitting plaintiff to amend his original complaint and to ask for a foreclosure of the mortgage by a correct description.
    3. Judgments — conclusiveness of recitals. — A recital ‘n a decree that the defendants had been duly served with summons cannot be contradicted in a collateral attack by proof to the contrary.
    4. Judgments — bar to defenses. — The decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit.
    5. Judicial sale — purchaser as party. — One who purchases at a judicial foreclosure sale which is invalid because the property sold was misdescribed in the notice of sale and in the deed becomes a party to the proceeding, and has a right to ask the court for a .resale under a correct description, and defendants in the original proceeding were required to take notice of all the subsequent proceedings which might affect their rights.
    6. Judgments — right of infant to show cause against. — The statute giving an infant 12 months after reaching full age to show cause why a judgment against it should not be vacated (Crawford & Moses’ Dig., § 6290) has no application to a foreclosure decree under a mortgage upon the lands executed by the infant’s ancestor.
    7. Infants — right to vacate decree. — A decree against an infant foreclosing a mortgage executed by the infant’s ancestor is not a proceeding to which .Crawford & Moses’ Dig., § 6290, authorizing vacation of an erroneous decree against an infant, applies.
    Appeal from Clay Chancery Court, Western District; Archer Wheatley, Chancellor;
    affirmed.
    STATEMENT OE EAOTS.
    On the 19th day of March, 1920, appellants brought this suit in equity against appellees to cancel and set aside a deed to forty acres of land on the ground that the proceedings in the mortgage foreclosure sale under which appellees purchased were void. Appellees interposed the plea of res judicata and the statute of limitations.
    The forty-acre tract of land in controversy was the homestead of John Denton, who died intestate in Clay County, Ark., on January 11, 1912. He left surviving him M. J. Denton, his widow, and appellants, who were his children and sole heirs- at law. At his death there were two valid mortgages against the land; one for $700 to the New England Securities Company, and the other for something over $400 to J. A. Wheatley. Soon after Denton died W. D. Polk purchased the Wheatley mortgage, and then obtained a deed to the land from Mrs. M. J. Denton for the consideration of $100 recited in the deed. W. D. Polk went into possession of the land, and soon afterwards entered into an agreement with Albert Powers, one of the appellees, whereby Powers was to purchase the land at a foreclosure sale of the Wheatley mortgage and to pay off the mortgage of the New England Securities Company.

      On September 8, 1913, W. D. Polk brought a suit in equity against appellants to foreclose the mortgage on the NE 1-4 of the NW 1-4 of section 14, township 20 N., range 3 E., in Olay County, Ark., given by John Denton, Linda Denton, his wife, John Denton, Jr., and Mat Denton to J. A. Wheatley to secure the payment of three promissory notes of $153.63 each. The three said notes and the .said mortgage are made exhibits to the complaint. The mortgage describes the land as the SE 1-4 of the NW 1-4 of sec. 14, township 20 N, range 3 E, of Clay County, Arkansas, and the record shows that this is the correct description of the land in controversy. . The said notes and mortgage given to secure the same were duly transferred by Wheatley to Polk before the foreclosure proceedings were instituted.
    On the 9th day of October, 1913, a decree of foreclosure was duly entered of record in the chancery court, and it contained the same misdescription of the land as the complaint. The same misdescription is also contained in the notice of sale of the land by 'the commissioner, and the report of sale and deed to the purchaser by said commissioner. The report of sale which was confirmed by the chancery court shows that Albert Powers became the purchaser of the land for the sum of $1,000.
    On the 7th day of September, 1915, W. D. Polk filed a pleading against appellants in the same chancery court in which he instituted the foreclosure proceedings above referred to. He sets forth in detail the mistake in the description of the land in the foreclosure proceedings and sets forth the correct description of the land. He asks that the mistake be corrected and for a cancellation of the former sale. He further asks that the land described in the mortgage be sold in satisfaction of the mortgage debt.
    On the 8th day of October, 1915, a new decree was entered of record in the chancery court for the foreclosure of the land described in the mortgage, and the decree recites that the court finds that" the defendants named therein had all been served with personal summons more than twenty days before the first day of the present term, and that they have not appeared or answered. It then decreed that the sale under the former foreclosure proceedings be set aside, and that the land' under its correct description be sold by a special commissioner named in the decree. The property was ordered sold on the terms and in the manner provided in the original decree.
    On the 9th day of November, 1915, the commissioner made his report of sale, and in the land described as the SE 1-4 of the NE 1-4 of section 14, township 20 north, range 3 east.
    On the 8th day of October, 1918, Albert Powers filed his petition in the same chancery court in which he stated that he purchased the land at said sale, but that by mistake the land was described in the notice of sale and the report thereof as the SE 1-4 of the NW 1-4, instead of the NE 1-4 of the NW 1-4, of section 14, etc. He asks that the sale be set aside, and the land be ordered resold under its correct description.
    On the same day the court granted his petition and ordered the land to be re-advertised and sold to cure the errors in the former sale. The land was again advertised and sold by the commissioner, and Albert Powers again became the purchaser at the sale. The land was correctly described in the notice of sale and the report thereof.. The commissioner was ordered to execute a deed to the purchaser, which was accordingly done, and the deed approved in open court on the 4th day of March, 1919. The land was sold this time for $755. Powers, paid off the first mortgage in favor of the New England Securities Company.' Polk and Powers have been in the possession of the land since sometime in 1912, and its rental value has varied from $300 to $400 per annum since that time. At the time of the death of John Denton all his children were of age except appellant, Minnie Shaw. The proof of appellants is not clear, whether she became of age in May, 1916, or 1917. . Minnie Shaw has been married three times, and appellees introduced in evidence her affidavit to procure a marriage license dated March 8, 1916, in which she stated her age to be twenty-one. Again in an affidavit for a marriage license, dated Nov. 1, 1920, she states her age to be twenty-five years.
    The chancellor found the issues in favor of appellees, and it was decreed that the complaint of the plaintiffs be dismissed for want of equity, and that the title of appellee, Albert Powers, be quieted in the forty acres of land in controversy.
    To reverse that decree appellants have duly prosecuted this appeal.

      Pope & Bowers, for appellants.
    The widow’s deed to Polk amounted to an abandonment of the homestead, and possesion thereof then inured to the child Minnie. 44 Ark. 496 ; 40 Id. 393. The possession of Polk and Powers, therefore, was that of a mortgagee in possession. Powers was a mortgagee in possession from the beginning, since he went into possession under Polk and later held his possession as a purchaser at a void foreclosure sale. 7 L. R. A. 273; 64 L. R. A. 320; 142 Ark. 320.
    Their right to possession ceased when the rents and profits extinguished the mortgage debt, which occurred at the end of the crop year, 1918. To proceed with a sale or pretended sale after the indebtedness was paid, was constructive fraud. ’ 12 R. C. L. 230-231; Smith, Law of Fraud, § 1.
    Appellants are entitled to the land, unless they are barred by limitations, or unless appellees are entitled to have granted their prayer to have the deed, made pursuant to the sale in 1913, reformed. On the latter proposition the decisions of this court are against them. 60 Ark. 487; 75 Id. 8; 86 Id. 443. On the question of limitation, neither the three-year, nor the five-year, nor the seven-year statute applies. The child, Minnie, did not reach majority until 1916 or 1917, and at that time a new right of entry accrued to all the heirs. 142 Ark. 230; 92
      Id. 143. Moreover, Polk and Powers, as mortgagees in possession, were entitled to hold the lands until the rents and profits satisfied the debt, and that occurred in 1918.
    There was no judicial sale in 1913 and the 5-year statute does not apply. 61 Ark. 80; 69 Id. 539. See also, as to the 3-year statute, 87 Ark. 502.

      Oliver (& Oliver and G. L. Dcmiel, for appellees.

      1. Polk’s entry was not as a mortgagee, but under the deed executed to him by M. J. Denton. If, as claimed by appellant, he took nothing by the deed, that does not alter the fact that he entered into possession under it, and that by virtue of the possession so obtained he later put Powers in possession. 110 Ark. 172-174; 3 Pomeroy, Eq. Jur. 1215; 70 Ala. 260; 39 Minn. 39. The liability of a mortgagee for rents and profits depends upon whether or not he took possession of and held the property as mortgagee. Ill Ark. 509.
    2. Powers is entitled to have the first deed made in March, 1914, refunded. The mortgage which is the basis of the foreclosure suit correctly describes the land, and was made an exhibit to the complaint. In equity, where there is a. variance between the complaint and exhibit, the latter will control. 31 Cyc. 563-b and authorities cited; 33 Ark. 722. Though it misdescribed the land, the decree was not void, and the order correcting it on October 8, 1915, related back and took effect from the date of the original decree. 23 Cyc. 883. See also, on the question of reformation, 28 Ark. 372; 31 Id. 252; 33 Id, 72.
    3. Appellants are barred of any right to recover the surplus arising from the 1913 sale. Polk received the money and applied it on debts of Denton early in 1914, more than six years before this action was commenced. Kitchens v. Jones, 87 Ark. 502, cited by appellant, has no application whatever. See Kirby’s Dig. § 5064. The burden was on appellants to show that the claim is not barred. 69 Ark. 311.

      4. The decree and orders made in the case of Polk v. Benton et al. in which the Wheatley mortgage was foreclosed are res judícatae of all contentions made by appellants in this case. It is true that the order of October 8, 1918, does not recite that appellants were served with notice, bnt, in the absence of proof to the contrary, it is conclusively presumed that proper notice was served. 49 Ark. 413; 92 Id. 141; 72 Id. 101; 74 Id. 81; 123 Id. 389. They are estopped from litigating any questions which could and should have been litigated in the former suit. 76 Ark. 423; 141 Id. 453-458; 119 Id. 413; 80 Id. 403; 9 Id. Ill; 97 Id. 450; 105 Id. 488.
   Hart, J.,

(after stating the facts). It is first insisted by counsel for appellants that the foreclosure proceedings commenced by W. D. Polk against appellants on September 8,1913, are void and of no effect because the land was misdescribed in his complaint and in the notice and report of sale. Hence they contend that appellees are mortgagees in possession within the rule anounced in Lesser v. Reeves, 142 Ark. 320, and that the proof shows that they have collected sufficient rents and profits to pay off the mortgage.

In making this contention counsel have not taken into consideration the effect of the subsequent foreclosure decree made on the 8th day of October, 1915. Conceding W. D. Polk to be a mortgagee in possession, still he had a right to foreclose his mortgage. Again, conceding that the first foreclosure proceeding was invalid because the land, was not correctly described, still this did not prevent Polk from amending his complaint so as to correctly describe the land embraced in the mortgage: It will be remembered that the mortgage was made an exhibit to the first complaint, and that the mortgage as exhibited contained a correct description of the land. On the 7th'day of September, 1915, W. D. Polk filed his petition against appellants in the same chancery court and set forth the mistake which had been made in the former proceedings in the description of the land. He stated the correct description of the land, and the relief prayed for was the foreclosure of the particular mortgage which was exhibited with his original complaint, and which correctly described the land.

In an action to foreclose a mortgage in equity the exhibits control the averments of the complaint. The action of the court in permitting this pleading to be filed was equivalent to giving Polk permission to amend his original complaint and ask for a foreclosure of the mortgage which was exhibited with it. Blasingame v. Loudermilk, 132 Ark. 542. Under this decision the pleading of W. D. Polk filed on the 7th day of September, 1915, was equivalent to granting him permission to amend his foreclosure proceedings.

Another foreclosure decree was entered of record on the 8th day of October, 1915. This decree recites that all the defendants had been served with personal summons more than twenty days before the beginning of that term of the chancery court. The defendants in that suit are the plaintiffs in the present suit and the appellants in this court. The decree in that case having recited that the parties had been duly served with summons, allegations to the contrary cannot avail appellants in the present suit, which is a collateral attack on that decree. Taylor v. King 135 Ark. 43. In the last ease cited it was also held that the decree of a court of competent jurisdiction operates as a bar to all defenses, either legal or equitable, which were interposed or which could have been interposed in the former suit.

When Polk obtained permission to file his amended complaint in the mortgage foreclosure proceedings on the 7th day of September, 1915, and obtained service of summons on appellants, who were the defendants in that action, it was their duty to have presented all the defenses they might have to the suit. They knew as well then as they do now that Polk had been in possession of the land and collecting the rents and profits therefrom. They then should have interposed as a defense to that action that the mortgage had been satisfied by the collection of the rents and profits by Polk from the mortgaged premises, if such was the fact. In short, all the matters asserted by appellants in this suit might have been claimed by them and adjudicated in the foreclosure suit. Having failed to interpose any defense to that suit, they are barred by the decree in that case from seeking to adjudicate the question in this case.

Again counsel for appellants claim that the first sale made under' the foreclosure decree of October 8, 1915, last referred to, is invalid because the mortgaged premises are again misdescribed in the notice of sale and the report of sale.

The record shows that Albert Powers became'the purchaser at that sale, and subsequently on the 8th day of October, 1918, moved the court to set aside the sale as being invalid on account of the misdescription of the property sold and to again have the property sold by the commissioner under the foreclosure decree. His motion was granted by the chancery court on the same day that it was filed, and the land was again advertised and sold by the commissioner under the foreclosure decree. Albert Powers again became the purchaser, and the report of sale by the commissioner was confirmed by the court, and a deed was made by the commissioner to Albert Powers subsequent to the order of the court, and this deed was approved in open court. •

It is the contention of counsel for appellants that this last sale is void because no notice was given to them. We do not agree with them in this contention. As we have already seen, they were duly served with summons before the foreclosure decree was made. The first sale under the foreclosure decree of October 8, 1915, was invalid because the land was not correctly described in the notice and report of sale. The land was correctly described, however, in the foreclosure decree. When Albert Powers purchased at the sale, he beoapie a party to the proceedings, although the sale itself was invalid because the land was incorrectly described in the notice of sale. Miller v. Henry, 105 Ark. 261, and Purcell v. Gann, 113 Ark. 332. Having become a party to the proceedings, Albert Powers had a right to ask for a resale of the land, and no notice thereof to the appellants was necessary. After appellants were served with summons as recited in the decree of October 8, 1915, they were required to take notice of all the subsequent proceedings in the case which might affect their rights. It was their duty to follow the case to its end, and, not having done so, they are not now in an attitude to complain in a collateral suit that no notice was given to them that the second order of sale would be asked. Trumbull v. Harris, 114 Ark. 493.

It is true there is evidence in the record tending to show that the appellant, Minnie Shaw, was an infant at the time the foreclosure proceedings were rendered against her and the other appellants. Her infancy, however, is not shown in the proceedings. Besides, the statute giving an infant twelve months after reaching full age to show cause why the judgment should not be vacated, Crawford & Moses’ Dig., § 6277, has no application to a foreclosure decree under a mortgage upon the lands by the infant’s ancestor. Estes v. Lucky, 133 Ark. 97.

Neither is it a proceeding under § 6290 of Crawford & Moses ’ Digest to vacate a decree for erroneous proceedings against an infant where the condition of the infant does not appear in the record.

Therefore, the decree will be affirmed.


author: Hart, J.

text:
    Dierks Special School District v. Van Dyke.
    Opinion delivered February 13, 1922.
    1. Schools and school districts — authority to contract. — No contract can be made by a school board except at a board meeting, and no meeting can be held unless all the directors are present, or the absent member or members have been duly notified; but notice of regular meetings at stated times fixed by the board is unnecessary.

      2. Schools and school districts — ratification of contract — instruction. — An instruction as to the ratification of an illegal contract of a school district at a meeting at which all of its members were present or of which they had notice was abstract and prejudicial where there was no proof of such meeting.
    3. Evidence — varying or contradicting a written contract.— While parties to a written contract may prove that after its execution they substituted a new agreement for it, they cannot prove that at the time the contract was entered into they had an understanding not expressed in the written contract nor reduced to writing.
    4. Schools and school districts — modification of invalid contract. — If a contract between school directors and an architect to prepare plans and superintend the erection of a school building never became binding because not executed under authority given „at a regular meeting or a called meeting at which all the directors were either present or had due notice, testimony of an oral understanding prior to the signing of the contract that, if the architect’s services proved unsatisfactory he would quit, was properly excluded; such modification being invalid likewise.
    Appeal for Howard Circuit Court; James S. Steel, Judge;
    reversed.
    STATEMENT OP PACTS.
    V. B. Yan Dyke sued the Dierks Special School District to recover $2,000 alleged to be due him for services as architect in preparing the plans and superintending the erection of a school building for said district. The school district denied liability.
    The facts, briefly stated, are that on the 4th day of August, 1918, the president and' secretary of Dierks Special School District in Howard County, Arkansas, and V. B. Yan Dyke signed a written contract whereby the former employed the latter in the capacity of architect to prepare and furnish drawings and specifications for a schoolhouse and to have general superintendence of the building operations for 5 per cent, of the cost of the building. It does not appear that the execution of the contract was authorized by the board of directors of said special school district at a regular meeting of the hoard, or at a call meeting after due notice to all the members. The record merely shows that four of the directors passed a resolution to employ V. B. Van Dyke as architect in the erection of the new school building, and that the four directors who were named were present. Again the minutes of the school board show that there was another meeting of the board on the 4th day of September, 1918, at which the four members who were named were present. At that meeting the resolution shows that the board voted to receive the contract for the services of V. B. Van Dyke as architect in the construction of the new school building and instructed the president and secretary to sign the same. It is not shown that this was at a regular meeting of the board, or that all the members were given notice of the meeting. There are six directors of the special school district. Thus far there is no contradiction in the evidence.
    V. B. Van Dyke was a witness for himself. According to Isis testimony, he prepared the plans and specifications for the erection of the new schoolhouse and superintended the building operations with the knowledge of each of the directors until he was discharged by the directors of the school district in August, 1919. Van Dyke denied that in November, 1918, he accepted $750 as payment in full for his services as architect for the preparation of plans and the superintendence of the erection of the new schoolhouse for the district. He admitted that the directors paid him that sum of money, but said that it was a payment on account, and that it was not agreed between them that this should be in full payment. of his services, and that he should no longer act as architect in the erection of the new school building.
    According to the testimony of several of the directors in November, 1918, they had an agreement with V. B. Van Dyke whereby he agreed to accept $750 as payment in full of his services as architect under a contract which he claimed to have with Dierks Special School District,1 and that he was to act no longer in the capacity of such architect. A warrant for $750 was' delivered to Van Dyke, and lie received and collected the same. The directors did not recollect whether all the members of the school board were present when this was done, but state that no record of the proceedings was kept by the school board. Van Dyke was discharged by a written resolution at a meeting of the school board held on August 20, 1919, for the purpose of investigating the trouble between V. B. Van Dyke and J. W. Epperson, who was in charge of the construction of the school building for the school board. It was shown that Van Dyke had interfered with Epperson in the discharge of his duties, and had threatened to shoot Epperson if he did not leave the building. Van Dyke also failed to make certain changes in the plans of the schoolhouse which the board had directed him to make.
    Van Dyke on his part denied that he had interfered with Epperson as superintendent of construction of the building, or that he had refused to make the changes in the plans of the building requested by the board. He said that he had merely delayed making the changes until it was necessary to work upon that part of the building where the changes were to be made. He further stated that he could make the changes within thirty minutes. Other facts will be stated or referred to in the opinion.
    The jury returned a verdict in favor of the plaintiff, Van Dyke for $870, and from the judgment rendered the defendant school district has duly prosecuted an appeal to this court.

      Abe Collins, for appellant.
    1. The president and secretary of a school board can not execute a contract which would bind the district unless they are authorized so to do at a regular meeting of the school board, or at a special or called meeting at which all members were present and participating, or of which meeting they each had due notice of the time, place and purpose of the meeting. 52 Ark. 511; 54 Id. 58; 55 Id. 473; 64 Id. 489; 67 Id. 236; 73 Id. 194; 84 Id. 550; 90 Id. 335; 105 Id. 106; 109 Id. 125; 110 Id. 262; 58 L. R. A. (N.- S.) 1047, case note.

      Tlie burden was on the appellee to show that the execution of the contract was properly authorized. 86 Ark. 687; 62 Id. 33; 21 Kan. 389; 94 Ark. 584-586.
    2. There was no issue of ratification raised by the complaint nor joined in the pleadings. However, the burden of'proof was on the appellee on that issue, if raised. 67 Ark. 236; 81 Ark. 843; 110 Id. 262; 82 Id. 533; 95 Id. 26.
    3. It was error to exclude evidence to prove either before the contract was signed or immediately thereafter, appellee agreed to step down and out in the event his services became unsatisfactory, etc. This amounted to an additional agreement. 112 Ark. 223; 118 S. W. (Ark.) 409; 82 Ark. 547.
    4. The contract, if binding at all, was entire, calling for completion of the whole work, and providing for a fixed compensation for the completion of the whole. The jury should have been.instructed that, if the appellee gave reasonable grounds therefor, and was discharged by the board without having completed all of the work, he was not entitled to recover. 5 C. J. 261; 2 K. C. L. 402; 102 Ark. 152; 112 Id. 608.
    5. If discharged without reasonable cause, he could recover only the reasonable value of services actually rendered. 5 C. J. 259, § 8, and note 38; 2 Cal. Ap., 220; 83 Pac. 282.

      W. P. Feasel and II. P. Epperson, for appellee.
    1. If the board knew that appellee was acting or claiming to act as architect by virtue of his contract, and permitted him to do so, and accepted the benefit of his plans, specifications and work, it thereby ratified the contract and is bound by it. 67 Ark. 236; 109 Id. 546; 86 Id. 309; 78 Id.. 483; 142 Id. 560; 129 Id. 214; 126 Id. 622; 110 Id. 262; 103 Id. 587.
    2. The evidence as to the alleged oral agreement to “step down and out”, etc., was properly excluded because, first, it is not shown that it was made at a regular meeting of the hoard at which all members attended or of which they had notice; hence, not binding and no mutuality. 96 Ark. 184; 78 Id. 276. Second, it tended to .contradict, add to, or vary, the signed, written contract. 5 Ark. 65; 102 Id. 575.
    3. This court’s decisions do not support the contention of appellant with reference to the entirety of the contract, and that appellee could not, because of his own conduct, recover for partial performance. 115 Ark. 437; 232 S. W. (Ark.) 534.
   Hart, J.

(after stating the facts). It is settled in this State that no contract can be made by a school board except at a board meeting, and that no meeting can be held unless all the directors are present, or the absent member or members have been duly notified. It has been further held that notice of a regular meeting is, however, unnecessary where regular meetings are held at stated times fixed by the board. School District v. Bennett, 52 Ark. 511; Rice v. School District No. 20,109 Ark. 125; and School District No. 56 v. Jackson, 110 Ark. 262, and.cases -cited. This is in application of the general rule that where persons are authorized by statute to perform a public service as a board or as an organized body which requires deliberation, they must be convened in a body that they may have the advice of every member, although they may not all be of the same opinion as to the matter in hand.

"While there is in the record in the present case a contract signed by Van Dyke and the president and secretary of the Dierks Special School District employing him as architect in the construction of a new school building, it is not shown that this contract was authorized at a regular meeting of the school board, or a special meeting where all the directors were present, or where each of them had been duly notified of the meeting. In the application of the rule above stated, it is conceded by counsel for plaintiff, Yan Dyke, that he is not entitled to recover on the contract just referred to, but it is -claimed by him that the contract in question was ratified by the members of the school board, and that therefore he is entitled to recover upon it just as if it had ¡been legally executed in the first instance.

The case was submitted to the jury upon the question of ratification of the contract by the members of the school board. As just stated, Van Dyke bases his right to recover for his services as architect in the construction of the school building upon the ratification of his contract by the members of the school board. Therefore, at his request, the court gave to the jury, over the objections of the defendant, the following instruction:

“No. 3. Although you may find from the evidence that the president and secretary had no authority to sign the contract sued on for and in behalf of the board of directors, but in case you find they did do so, and if you further find that said board at a meeting when all its members were present or had notice of the meeting, accepted the plans and specifications provided for in said contract and constructed its building in accordance with said plans and specifications and knowingly permitted the plaintiff to supervise the work on said building for several months, then you are instructed that defendant can not repudiate its obligations contained in said contract. ’ ’

Counsel for the defendant objected to this instruction generally and also specifically on the ground that there was no proof that the board ever accepted the plans and specifications provided for in said •contract. In this contention we think counsel is correct. The record shows that on the 4th day of September, 1918. at a meeting of the school board in which four members were present, the board voted to receive the contract presented by the architect, V. B. Van Dyke, and instructed the president and secretary of the school board to sign the same, and that the president and secretary did so. There is nothing to show, however, that this was at a regular meeting of the school board, or that all the members of the board were duly notified to be present at it. It will be noted that two of the members were absent, and it is not shown that they received any notification whatever to be present. This is the only evidence in the record from which to find that the board of directors of said special school district ratified the contract which its president and secretary made with Van Dyke, and this testimony is not sufficient to show a ratification of the contract. As we have already seen, such a contract could only be made or ratified by the board at a regular meeting, or at a call meeting of which all the members of the hoard were present or had been given due notice.

But counsel for the defendant insists that the language complained of in the instruction was an amendment to the instruction at the instance of counsel for the plaintiff, and that therefore the plaintiff is not now in an attitude to complain. We have examined the record carefully in this respect, and find that counsel are mistaken in their contention. The record shows that counsel for the plaintiff objected generally to the instruction and saved his exceptions to the ruling of the court in giving it. The record further shows that counsel for the plaintiff specifically objected to the instruction on the ground that there was no proof that the board ever accepted the plans and specifications. He stated that the board as such never convened in session with power to act, and that a special or called session in which each member was present or had notice was never had. Again he insisted that there was no proof that such a board meeting ever passed upon the plans and specifications, accepted them or knew anything about them. Thus it will be seen that counsel for the plaintiff made in the court below the very objection to the instruction which he is making here now. It will be readily seen that the instruction was misleading, and should not have been given. The iury might have found under it that the board had ratified the contract made by some of its members with Van Dyke and signed by its president and secretary, and based their verdict upon such a finding. There being no testimony upon which to support the finding, the instruction was abstract, and necessarily prejudicial to the rights of the defendant. We can not know whether the jury based its verdict upon a finding that the board had ratified the contract with Yan Dyke as submitted' to it by this instruction, or whether its finding was (based upon the ratification by all the individual members of the board as submitted to them by other instructions given by the court at the request of the defendant. The giving of the instruction, therefore, constitutes prejudicial error which calls for a reversal of the judgment.

Again, it is insisted by counsel for the defendant that the judgment should be reversed for the error of the court in refusing to allow certain testimony offered to prove by the secretary of the school board and three other members of it that, after the contract between the school board and Van Dyke had been prepared and just before it was signed, they had an understanding which was not reduced to writing, that,if at any time Yan Dyke’s services became unsatisfactory and he was unable to get along with the contractor, he would quit. This court has held that parties to a written contract may, subsequent to its execution, rescind it in part or in toto and substitute a new oral agreement therefor. Weaver v. Emerson-Brantingham Implement Co., 146 Ark. 379. It is equally well settled, however, that a written contract can not be varied or modified by parol evidence.

In the present case the offered testimony shows that the change in the contract was made before it was signed. Therefore the court was correct in excluding it because the contract in such a cáse would be the last expression of the agreement between the parties.

The court was right in excluding the offered evidence for another reason. The theory of the defendant is that the alleged contract never became binding because it was not properly executed. If the contract never became binding because it was not executed pursuant to authority given at a regular board meeting or at a call meeting of which, all the members were present or had due notice, the alleged modification which occurred at the same time would be invalid for the same reason. Therefore the court did not err in excluding the offered testimony from the jury.

For the error in giving instruction No. 3 asked by the plaintiff, the judgment will be reversed, and the cause remanded for a new trial.


text:
    Mason v. State.
    Opinion delivered February 13, 1922.
    Continuance — sufficiency of application. — Where a motion for continuance for absent witnesses stated that a subpoena for them had been placed in the sheriff’s hands, and same has been returned non est; that the witnesses were temporarily out of the court’s jurisdiction, but their presence could be secured if the case should be continued, no abuse of discretion was shown in denying the continuance, as the motion did not state where the witnesses were, why they left the State, nor any grounds for believing that their attendance could be secured at a later date.
    Appealed from Jefferson Circuit Court; W. B. Sorrels, Judge;
    affirmed.

      H. K. Toney, Caldwell, Triplett, & Ross, for appellant.
    The court erred in refusing to grant appellant’s ■motion for continuance.

      J. S. Utley, Attorney G-eneral, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The motion for 'Continuance was properly denied, as appellant made no showing of the whereabouts of the absent witnesses or that their atetndanee could be procured by him in time for the trial, within the continuance requested by him. 113 Ark. 142; 100 Ark. 132; 100 Ark. 180; 54 Ark. 243; 96 Ark. 254; 95 Ark. 555; 120 Ark. 562;- 71 Ark. 62.
   Hart, J.

Jim Mason prosecutes this appeal.to reverse a judgment of conviction against him for the crime of selling intoxicating liquors. The only assignment of error urged for a reversal of the judgment is that the circuit court erred in overruling the defendant’s motion for a continuance to procure the attendance of three witnesses named in the motion.

Pink Harris testified that he bought a pint of whiskey from the defendant at his place of business in Pine Bluff, Jefferson-County, Arkansas, during the fall of 1919, and that Tom Cogbill, Clifton Clowers, and Bob Thomas were with him when he bought the whiskey. His testimony was corroborated by that of Tom Cogbill and Clifton Clowers.

In his motion for a continuance the defendant stated that he could prove by A1 Kirk, Ed "Wilson and Dudley Longley that they were present at all times when Pink Harris was at the business house of the defendant, and that the defendant did not sell or give any liquor of any kind to Pink Harris. The motion states that the defendant has used due diligence to obtain said witnesses, and has had a subpoena placed in the hands of the sheriff of Jefferson County for them; that the same has been returned non est; that the witnesses are now temporarily out of the jurisdiction of the court, but their presence can be obtained if the case is continued. The matter of granting continuances in criminal cases because of the absence of witnesses is largely within the sound discretion of the trial court, and its ruling will not be reviewed except in cases where manifest injustice has resulted to the defendant. No such abuse of discretion is shown in the present ease. The motion is too indefinite. It does not state when the defendant caused a subpoena to be issued for the witnesses, or where they were when the subpoena was placed in the hands of the sheriff for service. It merely states in general terms that they were out of the jurisdiction of the court. The defendant should have stated where the witnesses were, why they left the State, and his grounds for believing they would return so that he could secure their attendance at a later date. Jackson v. State, 54 Ark. 243; Puckett v. State, 71 Ark. 62; Rider v. State, 140 Ark. 1, and Hays v. State, 142 Ark. 587.

Therefore, the judgment will be affirmed.


author: Smith, J.

text:
    St. Louis-San Francisco Railway Company v. DeVoe.
    Opinion delivered February 13, 1922.
    Master and servant — nonpayment of wages — penalty.—Under Crawford & Moses’ Dig., § 7125, imposing a penalty on railroad companies for failure to pay the wages of their employees promptly upon their discharge, recovery of the penalty can not he had unless the discharged employee shows that he requested of his foreman or keeper of his time to have his wages sent to a station where a regular agent is kept, and that the money did not reach such station within seven days from the date of such request.
    Appeal from Lawrence Circuit Court, Eastern District; Dene H. Coleman, Judge;
    reversed.

      W. P. Evans, W. J. Orr and Ponder & Ponder, for appellant.
    The demurrer to the amended complaint should have been sustained. 13 Ark. 379.
   Smith, J.

This cause came on to be heard upon a demurrer to the plaintiff’s amended complaint, the material portions of which read as follows: “That this plaintiff was employed by the defendant company through the first half of the month of August, 1920, as a laborer in the construction of a water tank and pumping station at Hoxie, Arkansas, his daily wage being five and 12-100 dollars for eight hours’ work, and this plaintiff worked in the first half of August, 1920, one hundred and ten hours, for which the said defendant owed him the sum of seventy dollars and forty cents, less hospital fees amounting to seventy-five cents, leaving a balance of sixty-nine and 65-100 dollars due this plaintiff on the first half of August. That on the 20th day of August, 1920, he was discharged from service of the said company and the said sum became immediately due and payable. That defendant failed, neglected and refused to pay said sum for more than .seven days after said discharge, to-wit, for a period of fourteen days. That ¡by reason of the failure of said defendant to pay plaintiff within seven days after his discharge it became liable to him under the statute for his daily wage until he was paid, for fourteen working days at five and 12-100 dollars per day. ’ ’ There was a prayer for the statutory penalty in the sum of $71.68, and as the railroad stood on its demurrer and refused to plead, further judgment was rendered in accordance with the prayer of this complaint, from which is this appeal.

The demurrer was upon four grounds, hut as three of these are merely suggested without 'being fully ibriefed we do not stop to consider them, as we find that the first ground of demurrer — that the complaint fails to state facts sufficient to constitute a cause of action — is well taken.

The complaint is defective in that it omits the essential allegations that the plaintiff requested “his foreman, or the keeper of his time, to have the money due him, or a valid check therefor, sent to any station where a regular agent is kept,” nor does it allege that the money or check did “not reach such station within seven days from the date” it was so requested, as required by § 7125, C. & M. Digest, which confers the right to sue for the penalty by a discharged employee for non-payment of his wages.

In the case of Bush v. Coleman, 131 Ark. 379, we said this statute was penal in its nature, and that a recovery could not be had under it unless the discharged employee shows that he has made a distinct demand for the payment of his wages in accordance with the terms of the statute. In that case the demand was made on the master mechanic, who was the division foreman, having jurisdiction, as such, over Russellville, Arkansas, where the discharged employee had been employed. We held this demand insufficient to comply with the requirements of the statute for the reason that the words, “foreman or keeper of Ms time,” appearing in the statute, refer to the immediate foreman or timekeeper, and not to any superior of the discharged employee in the same department.

We have here a total failure to alleg*e a demand upon any one, and the demurrer should therefore have been sustained.

The judgment is therefore reversed and the cause remanded.


text:
    Rogers v. State.
    Opinion delivered February 13, 1922.
    1. Homicide — assault with intent to kill — evidence.—In a prosecution for assault with intent to kill, growing out of a dispute as to the right to use a meadow, the testimony of defendant’s father who owned the meadow that a few days before the alleged assault he had been assaulted by the prosecuting witness with a knife because he had told defendant not to use the meadow, and that he had told defendant of such assault, was competent as tending to show the state of mind between defendant and the prosecuting witness and to show who was the aggressor.
    2. Homicide — assault with intent to kill — specific intent.-— In a prosecution for assault with intent to kill, the assault must be shown to have been made with a specific intent to take life.
    3. Criminal law — failure to give instruction- — request.—In a prosecution for assault with intent to kill, defendant cannot complain of failure to give an instruction as to the specific intent to kill being necessary, in the absence of a request therefor.
    4. Criminal law — failure to give instruction — necessity of request. — In a prosecution for assault with intent to kill, defendant cannot complain of the court’s failure to- define the lesser grades of assault, in the absence of a request for such an instruction.
    5. Homicide — assault with intent to kill — sufficiency of indictment.; — In -a prosecution for assault with intent to kill, an indictment alleging that defendant committed an assault “with a deadly weapon, to wit, a pistol,” held sufficient, as against objection that the manner in which the pistol was used should have been alleged.

      Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    reversed.

      Walker & Walker and Duty S Duty, for appellant.
    Before a conviction for assault with intent to kill can be sustained, the evidence must show beyond a reasonable doubt that the defendant would have been guilty of either murder in the first or second degree, had death ensued from the assault. 47 Ark. 275; 120 Ark. 494; 125 Ark. 542; 72 Ark. 569.
    The burden was upon the State, which it has failed to discharge, of proving a specific intent to kill. 96 Ark. 55; 49 Ark. 156; 54 Ark. 283; 54 Ark. 336 and 489; 94 Ark. 69. Neither has the State proved the other necessary element of malice to sustain the charge. 8 Ark. 451; 10 Ark. 318; 34 Ark. 275; 54 Ark. 335; 72 Ark. 569; 82 Ark. fi4.
    The court erred in refusing to admit the testimony of D. P. Bogers as to the threats and hostile demonstration toward him by the prosecuting witness, which facts were communicated to the appellant. These acts were part of the res gestae and tended to throw light on the state of feeling existing on the part of Elkins. 135 Ark. 388; 130 Ark. 101; 82 Ark. 595; 55 Ark. 593; 59 Ark. 148; 72 Ark. 436; 29 Ark. 248; 79 Ark. 594; 76 Ark. 495.
    Instruction No. 4 correctly stated the law applicable to malice and intent, which are essential ingredients of the offense, and should have been given. 115 Ark. 566; 54 Ark. 283; 34 Ark. 275.
    Instruction 9 on the question of reasonable doubt as to the grade of the offense was not covered by any instruction given, and it was error to refuse it. 33 Ark. 712; 114 Ark. 201.
    The indictment was defective in that it failed to allege the manner in which the assault was committed. 26 Ark. 323; 27 Ark. 493; 29 Ark. 165; 102 Ark. 595; 34 Ark. 263.
    The court erred in not instructing the jury on manslaughter. 91 Ark. 570; 162 IT. S. 466; 162 IT. S. 313.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    There was abundant evidence of the intent to kill on the part of appellant, and the jury so found, and its verdict will not be disturbed on appeal. 135 Ark. 117; 136 Ark. 385.
    Appellant is not in position to complain of the exclusion of the evidence of the father of appellant, as he failed to show what the testimony would have been. 88 Ark. 562; 87 Ark. 123; 133 Ark. 599. The difficulty about which the elder Rogers sought to testify was too remote to be a part of the res gestae. 107 Ark. 87.
    It was not error to refuse appellant’s instructions No. 4 and 9, as they were covered by others given. 101 Ark. 120.
    An indictment for assault with intent to kill need not state the means made use of by the assailant to effect his intent, as in homicide cases. 34 Ark. 275; 13 R. O. L. 804.
    Appellant did not request any instruction on manslaughter, and cannot now complain. 95 Ark. 593; 101 Ark. 513; 102 Ark. 588; 110 Ark. 567; 137 Ark. 530.
   Smith, J.

Appellant was convicted of assault with intent to kill upon his trial under an indictment which, omitting the formal parts, reads as follows: £ £ The said Earle Rogers in the county of Benton and State of Arkansas on the 11th day of November, 1921, feloniously, wilfully and with malice aforethought did commit an assault on one Alfred Elkins with a deadly weapon, to-wit, a pistol, with the felonious intent then and there to kill and murder him the said Alfred Elkins, no considerable provocation for said assault then and there appearing and the circumstances thereof showing an abandoned and malignant disposition on the part of him the said Earle Rogers, against the peace and dignity of the State of Arkansas.” Appellant and Elkins had married two sisters, and both lived on a farm owned by appellant’s father, of which appellant had possession under a contract to give his father a third of the crops grown on the place. Elkins was a sub-tenant of appellant, and had possession of a part of the farm under a written contract, which was offered in evidence, but does not appear to have been copied into the bill of exceptions. There was a meadow of about fifteen acres on the farm which Elkins claimed the right to use in common with appellant. This right appellant denied, and he testified that Elkins’ right of pasturage was limited under the 'contract to a part of the meadow, about three acres in extent, which had been separately fenced and set apart to Elkins.

Appellant took the contract to a justice of the peace of the township, and was advised by him that the contract gave Elkins no right to use the part of the meadow not assigned to Elkins.

Elkins persisted in using the entire meadow, and a bitter feeling sprung up between him and appellant on that account. Appellant turned Elkins’ cattle out of the meadow on three occasions, and each time Elkins put them back in the meadow.

Appellant’s father was called as a witness, and was asked to tell, in his own way, what the trouble was between his son and Elkins, but the prosecuting attorney objected and assigned the following objection: “I can see the purpose of that — trying to get in that knife deal again, and I object.” The court ruled that the witness might testify as to any previous trouble between appellant and Elkins. The witness then proceeded to state that on Monday, before the shooting occurred on the following Thursday, he saw Elkins, and told him he had no right to' put his cattle in the meadow, and not to do so, and that Elkins called him a liar and went for his knife. The prosecuting attorney objected that “this witness has insisted on making that statement about the knife. I asked the court to tell the jury it is not competent evidence and not to consider it, after the court has sustained an objection three or four different times.” The court ruled: “Just strike that out, Mr. Stenographer, and also the jury will eliminate that from their consideration of the case.” Thereupon counsel for appellant said: “The defendant insists that the testimony is competent, and will fee followed up by showing that the acts and conduct of the prosecuting witness at that time were communicated to the defendant, and goes to show the state of mind of the parties at the time of the difficulty and who was the aggressor, and the defendant excepts to the ruling of the court in refusing to permit said testimony.” An objection to this question was sustained and exceptions saved, whereupon counsel for appellant asked the following question: “Now, Mr. Rogers, I want to ask you this question, and don’t answer it until Mr. Nance objects. I will ask you if on that occasion when you stated that Elkins went after his knife and called you a liar, if you immediately communicated that fact to your son?” The prosecuting attorney objected to this question upon two grounds, first, that the question was immaterial, and, second, an objection had been sustained to it. In ruling upon this objection the court said: “I will just sustain another objection.”

The testimony as to what happened at the time of the shooting can not be reconciled. According to the testimony on behalf of the State, the appellant was told by his mother that Elkins’ cattle were again in the meadow, whereupon appellant armed himself with a pistol and went at once to the meadow, where he met Elkins and assaulted him without provocation, first striking him with his fist, then the pistol, and thereafter firing twice at him, one of the shots taking effect in Elkins’ leg. According to appellant, he went to the meadow for the purpose only of again turning the cattle out. It had been communicated to him that Elkins had said he would “beat the ears down” of the appellant or any one he found turning his cattle out of the meadow, and that he armed himself for protection in the event only that he was assaulted, and that he was assaulted by Elkins, who knocked his hat off with the pistol and struck him in the face with his fist, whereupon he shot Elkins through the leg.

In this view of the testimony, it is insisted that it was error for the court to refuse to allow appellant’s father to testify that Elkins assaulted him with a knife when he went, as the representative of his son, to remonstrate with Elkins about turning his cattle in the meadow.

In response to this contention, it is first said that appellant did not complete his record by showing what the elder Rogers would have testified had he been permitted to do so. But this is not true in view of the recitals of the record set out above. The witness stated that he was called a liar, and that Elkins “went for his knife,” and the special objection of the prosecuting attorney to the question being asked the witness was that the defense was trying to prove that the witness had been assaulted by Elkins with a knife. Another objection made by the prosecuting attorney to the question in regard to the difficulty 'between the elder Rogers and Elkins was that bad reputation was 'being proved by a specific act.

We think the testimony by the elder Rogers was competent,.and that error was committed in excluding it. It was not an attempt to prove reputation. On the contrary, it tended to show the state of mind beween Elkins and appellant and had probative value in determining who was the aggressor. Appellant had undertaken to prove that Elkins had said he would “beat down the ears” of any one who undertook to turn his cattle out of the meadow, and had assaulted appellant’s father for denying that he (Elkins) had the right to use the pasture. Appellant testified that when he turned the cattle out of the meadow he did not know Elkins was near, and that Elkins came running to where he was and assaulted bim, and that Elkins had an object in his hand which he thought was a knife. As we have said, there was the sharpest conflict in the testimony just here, and the excluded testimony of the elder Bogers would have tended to show the purpose on the part of Elkins to assert and maintain, with force, his right to use the meadow against any one who questioned that right. If Elkins made such threats, or had such purpose, proof thereof would have had probative value in determining who the aggressor was when the fight occurred, and also in determining whether appellant had reason to believe he was in imminent danger of receiving great bodily harm when Elkins came running up to him, as the jury might have found that Elkins’ threat of violence against the elder Bogers was in effect a threat against any one who sought to deprive him of the right to use the meadow. Blackburn v State, 135 Ark. 388; Cranford v. State, 130 Ark. 101; Burton v. State, 82 Ark. 595.

It is insisted that the court erred in failing to instruct the jury that the offense of assault with intent to kill is not committed unless there is shown a specific intent to take life. Such is the law; but, if the instructions are open to this objection, then it may be said that appellant cannot be heard to complain, for the reason that he did not ask an instruction to that effect.

The same answer may be made to the objection that the court did not define the lesser grades of assault embraced in the indictment.

Numerous other assignments of error are argued; but we do not think they require discussion by us except that the objection to the sufficiency of the indictment is not well taken. The objection is that the testimony shows the pistol was used as a bludgeon, and was also used as a pistol by shooting it, and the indictment should therefore have alleged the manner in which the pistol was used in the attempt to kill. The answer to this insistence is that the indictment does not charge the crime of murder, but only an attempt to commit that crime, and in the case of Lacefield v: State, 34 Ark. 275, the court said: “The rule is well settled that in an indictment for an assault with intent to commit an offense, the same particularity is not necessary as is required in an indictment for the actual commission of the offense; and an indictment for an assault with intent to murder need not state the means made use of by the assailant to effect his murderous intent. They are matters of evidence to the jury.” (Citing cases). State v. DeLong, 89 Ark. 391.

For the error in refusing to permit appellant’s father to testify as to Elkins’ conduct and threats when he spoke to Elkins about the use of the meadow, the judgment will be reversed and the cause remanded for a new trial.