text:
    International Order of Daniel v. Green.
    Opinion delivered January 27, 1930.

      Coleman & Riddick, for appellant.

      Glover <& Glover, for appellee.
   Smith, J.

Appellant, a fraternal insurance order, operating through local lodges, issued a benefit eertificafe in the sum of $300 to Diana Green, which was payable upon her death to her son Lawrence Green, and upon the death of the insured this suit was brought to collect the amount alleged to be due upon this certificate.

The members were required to pay monthly dues to the local lodge of which they were members, and to pay quarterly assessments to the order itself, hereinafter referred to as the order, 'but these assessments were collected by the local lodge officers. The quarterly assessments were payable upon the first day of each quarter, and became delinquent if not paid on or before the fifteenth day of the first month of the quarter, and the constitution and by-laws of the order which were made a part of the benefit certificate, provided that, if the dues and ■ assessments were not paid within the time limited, the delinquent member should be suspended until duly reinstated, and the certificate was invalid as a contract of insurance during the suspension. Provision was made for reinstating a delinquent member by paying the arrears, and furnishing the certificate of a practicing physician that the member applying for reinstatement was then in good health.

It is insisted by the order that the undisputed competent testimony shows that the insured was delinquent in the payment of both her dues and assessments at the time of her death, and that the attempt which was made to reinstate her was unsuccessful because she was fin-able to furnish, and did not furnish, the required certificate as to the condition of her health.

We do not decide this question, for the reason that the right to recover must be denied upon another ground. The order denied liability on the ground that the insured was not a member at the time of her death and was “non-financial,” as the' officers of the order expressed it. Representations were made t® the ruling officers of the order by the officers and members of the local lodge of which the insured had been a member to the effect that, on account of her protracted illness, immediately preceding her 'death, the insured was in destitute circumstances, and had left no money or property with, which the expenses of her burial might be paid, and an appeal was made to the order to provide funds to pay the funeral expenses.

The president and secretary of the order issued a draft upon the treasurer of the order for $50, which recited that it was issued “ as donation by request of Local Lodge Diana Green nonfinancial, ” and the draft its elf was a part of the receipt, which reads as follows:

‘‘Receipt
$50 “International Order of Daniel
“Little Rock, Ark., February 7, 1929.
“Received of the International Order of Daniel, fifty and no /100 dollars, as payment in full, which releases the International Order of Daniel of all claims that I now hold, or that may come due hereafter ag'ainst the International Order of Daniel, and now this amount accepted as a settlement in full on Policy No. 4480 for Diana Green, Guardian of Council No. 111.
“¡Signed X Lawrence Green,
“Witnessed by Mrs. S. S. Phillips,
“Donation only.”

The attesting witness to the receipt, as well as other members of the local lodge, whose only interest in the matter appears to have been to aid in securing the donation, testified, that the transaction was explained to and fully understood by Lawrence Green, who was the plaintiff in the action. The draft was indorsed b}^ the payee, and was collected in due course. The plaintiff admitted that he could read and write, but denied that he had read the receipt, and explained his failure so to do by saying that he supposed the draft was intended to cover what was known in the order as the “burial benefit.” Under the constitution and by-jaws of the order a burial benefit of $50' was payable to the estate of each member, but this benefit was contingent upon the member being in good standing or “financial,” as it was expressed, at the time of his or her death, so that, if the benefit certificate had lapsed on account of nonpayment of dues and assessments, the burial benefit had also lapsed.

Plaintiff did not testify that he had been induced to sign the receipt through any fraud or misrepresentation practiced upon him, as to the purport and effect of the instrument which he signed, and he seeks to excuse his action in signing' it by saying that he supposed he was being paid the burial benefit. He admits, however, that he had an opportunity to read the receipt, and his only excuse for not doing so was that he did not know what it was, and thought it was something else. The receipt is so unambiguous that any one reading it must know its effect, and, as its execution was free from fraud, this effect must be given it. While it was designated as a mere donation, this donation was recited to be in full satisfaction and settlement of any rights under the certificate here sued upon, and as the sum paid was a sufficient consideration for this release and settlement, a verdict should have been rendered in favor of the order. Bankers’ & Planters’ Mut. Ins. Assn. v. Archie, 145 Ark. 481, 224 S. W. 950.

For the error indicated the judgment in favor of the plaintiff for the amount of the certificate must be reversed, and, as the case has been fully developed, it will be dismissed. It is so ordered.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Almand v. Alexander.
    Opinion delivered January 27,1930.

      W. R. Donhaon, for appellant.

      Dillon <c§ Robinson, for appellee.
   Humphreys, J.

This is a suit by appellant against appellee for a balance of $3,100 on account for alleged architectural work and general superintendence of the construction of appellee’s residence at Scott, Arkansas. Appellant alleged that the cost of the residence was $70,000 and that, according to the written contract between them, he was entitled to ten per cent, of the cost thereof for his services, and had only been paid $3,900. The written contract was incorporated in the complaint as a part thereof, and is as follows:

“contract between architect and owner.
“From John P. Almand, architect, to J'. E. Alexander, owner, for a compensation of 10% ten pere., the architect proposes to- furnish preliminary sketches, contract working drawings and specifications, detail drawings, and give general superintendence of building- operations for a residence to be erected for J. E. Alexander at Scott, Ark.
“Terms of payment to be as follows: ‘60 per cent, based on the cost of the (building, when the contract is let, and the balance on the completion of the building. ’
“If the work upon the building is postponed or abandoned, the compensation for the work done by the architect is to bear such relation to the compensation for the entire work as is determined by the published schedule of fees from the American Institute of Architects. In all transactions between the owner and contractor, the architect is to act as the owner’s agent, and his duties and liabilities in this connection are to be those of an agent only. The architect will make visits to the building for the purpose of general superintendence, of such frequency and duration as in the architect’s judgment will suffice, or may be necessary to fully instruct contractors, pass upon the merits of material and workmanship, and maintain an effective working organization of the several contractors engaged upon the building. The amount of the architect’s compensation is to be reckoned upon the total cost of the building, including all stationary fixtures. Drawings and specifications are instruments of service, and >as such are to remain the property of the architect, the owner will be entitled to a full set of the plans and specifications, but not fee permitted to let or have let, the privilege of building from the plans and specifications without the superintendence of the architect, or his consent for the use of the plans and specifications.
“John P. Almand, Architect.'
“J. R. Alexander, Owner.
“Approved and accepted the 12th day of May, 1925.”
Appellee filed the following answer:
‘ ‘ The defendant admits that on the 12th day of May, 1925, he entered into a contract wdth the plaintiff, whereby the plaintiff was to do the architectural work and give general superintendence of the building operations of a residence to be erected for the defendant at Scott, Arkansas. Defendant states that he and the plaintiff also entered into a contract that the said residence was not to cost more than twenty-five thousand dollars (•$25,000). Defendant states that, due to the negligence of the plaintiff, and the unworkmanlike manner of his
architectural work and superintendency of the construction of said residence, and general inefficiency, it cost the defendant a great deal more than twenty-five thousand dollars ($25,000), thereby greatly damaging the defendant, and causing him great financial embarrassment, and causing him to have to abandon all of his plans for the future. Defendant denies that the said residence cost seventy thousand dollars ($70,000), and denies that he is indebted to the plaintiff in the sum of thirty-one hundred dollars ($3,100) or any other amount.”

The cause was submitted to a jury upon the pleadings, the testimony introduced by the parties, and the instructions of the court, resulting in a verdict for appellee and a dismissal of appellant’s complaint, from which is this appeal.

In addition to the 'introduction of the written contract between the parties set out above, appellant introduced testimony in chief, to the effect that it cost $70,000 to build the residence; that he fully performed the contract, was entitled to receive $7,000 for his services; that he received $3,900 and was entitled to recover the difference between the amount earned and received.

Appellee introduced testimony, over the objection and exception of appellant, to the effect that, at the time the written contract was entered into between them, it was understood and agreed that the plans and specifications should be draw for the erection of a residence not to exceed in cost $25,000, whereas plans and specifications were furnished by appellant for a residence which cost, when completed, $60,419.26; and testimony over appellant’s objection and exception, relative to several defects in the construction of the residence.

Appellant testified in rebuttal that the written contract was the sole and only agreement between them, and that there was no oral agreement whatever limiting the maximum cost of the residence to $25,000, and that the defects referred to in the construction of the building were not due to his negligence.

Appellant ¡contends for a reversal of the judgment, because the court admitted evidence as to an oral agreement limiting the cost of the residence to $25,000, upon the theory that the parol evidence varied and contradicted the written agreement. There is no 'better settled rule of law than that unambiguous written contracts cannot be altered or contradicted by parol evidence. The maximum cost of the residence was not fixed in the written contract. Hence the introduction of parol evidence 'as to the maximum cost thereof would not, and could not, vary and contradict the written contract. If the written contract had fixed the maximum cost of the residence, or had based the fee on the cost, irrespective of the amount, then the rule contended for by appellant would have applied. As the parol evidence did not vary or contradict the written contract, it was admissible in explanation of, and as part of, the contract between the parties. The trial court refused to admit the parol testimony for the purpose of limiting appellant’s fee, but admitted it for the sole purpose of showing whether appellant was negligent or inefficient. The court erred in placing such a limitation upon the testimony, but the error was favorable to appellant.

Appellant also contends that the court erred in admitting testimony relative to defects in the construction of the residence. It is argued that none of them were specifically alleged, ¡and for that reason it was error to admit evidence relative to them. The allegation of negligence in the answer was general and very broad. Appellant did not file a motion to make the allegation of negligence and inefficiency more specific; so we think, evidence of any defect in the construction of the residence was admissible.

Appellant’s next and last contention for a reversal of the judgment is that the court submitted the case to the jury upon the erroneous theory that, if appellant and appellee contracted orally that the residence .should not cost more than $25,000, they should return a verdict for appellee. According to the testimony introduced ¡by appellant, the residence cost $70,000, and, according to that introduced by appellee, the residence cost $60,419.26. It is undisputed that appellee paid, and appellant received, $3,900 for his services. In view of the testimony as to the cost of the residence and of the amount that appellant received, the jury should have returned a verdict for appellee, if it found that appellant and appellee contracted orally that the residence should not cost more than $25,-000. This is true, because the maximum fee he could have charged, if the maximum .cost of the house was not to exceed $25,000, would have ¡been $2,500, and he received more than that amount. In this view of the case, it is unnecessary to discuss alleged errors in the refusal to grant certain instructions requested by appellant, and in giving-certain instructions requested by appellee. This case turned upon the issue whether the maximum cost of the residence should exceed $25,000, and that issue was submitted to the jury and determined adversely to appellant.

No error appearing, the judgment is affirmed.


text:
    Coolidge v. Howe.
    Opinion delivered January 27, 1930.

      W. G. Dinning, for appellant.

      Brewer Graeraft, for appellees.
   Humphreys, J.

This is an action for' damages in the sum of $560, brought by appellant against appellees in the circuit court of Phillips County, basing same upon § 6570 of Crawford & Moses’ Digest, which is as follows:

“If any person shall interfere with, entice away, knowingly employ, or induce a laborer or renter, who has contracted with another person for a specified time, to leave his employer or the leased premises before the expiration of his contract, without the consent of the employer or landlord, he shall, upon conviction before any justice of the peace or circuit court, be fined not less than twenty-five nor more than one hundred dollars, and in addition shall be liable to such employer or landlord for all advances made by him to said renter or laborer by virtue of his contract, whether verbal or written, with said renter or laborer, and for all damages which he may have sustained by reason thereof.”

Appellant alleged that appellees interfered with, enticed away, and knowingly employed, his tenant, Will Anderson, with whom he had a contract to occupy and cultivate his farm during the year 1928. for the rental of $800.

Appellees denied that they interfered with, enticed away, or knowingly employed, appellant’s tenant.

The issue joined was submitted to a jury upon the testimony adduced by the parties, and the instructions of the court, which resulted in a verdict for appellees, and a consequent judgment dismissing appellant’s complaint, from which is this appeal.

The record reflects that Will Anderson leased appellant’s farm for the years 1926, 1927 and 1928 for an annual rental of $800, evidenced by three promissory notes; that he occupied the farm, and paid the rent, for the first two years; that in the fall of 1927 he owed the Straub Mercantile 'Company an account of $645, which they agreed to settle with him in full for $600; that he was unable.to pay them that amount, so Straub Mercantile Company refused to advance him supplies for 1928, and that he was unable to get any one else to do so; that, in November, 1927, he notified appellant of his situation, and asked Mm to advance him supplies for the year 1928, and, upon his refusal to do so, notified Mm that he was going to leave his place; that, after making up his mind to quit appellant, and after notifying him to that effect, he entered into a rental contract with appellees to cultivate land on their farm, on condition that they would pay the account he owed the 'Straub Mercantile Company, and, as security therefor, take an assignment of the chattel mortgage which he had given to the Straub Mercantile Company; that, while still residing upon appellant’s farm, they sent their superintendent to inspect the property covered by the chattel mortgage, and, being satisfied with same, paid the account he owed the Straub' Mercantile Company by check dated December 21, 1927, and took an assignment oif the chattel mortgage; that the check was presented to the bank upon which it was drawn and paid, after appellant had notified appellees of the rental contract or lease he had with Will Anderson; that, at the time appellees rented the land to him, they knew nothing, made no inquiry, and he volunteered no information, relative to the rental contract or lease appellant had with him.

Appellant contends for a reversal of the judgment, because the court sent the cause to the jury upon the theory that, if Will Anderson, appellant’s tenant, had resolved in his own mind to break his contract with appellant, appellees were at liberty to deal with him, although they had full knowledge that he was under contract to remain on the place where he was then located. It is argued that this was an incorrect interpretation of § 6570 of Crawford & Moses’ Digest, upon which the suit is based. This interpretation was placed upon the statute in question in the case of Park v. De Priest, 138 Ark. 86, 210 S. W. 777. In that case the court said:

“We think there is nothing in the statute preventing a tenant from breaching his rental contract with his landlord, and vice versa, and then seeking* employment elsewhere, provided, of course, the subsequent employer or landlord did not interfere with the original employment, or entice or induce the tenant to leave his first employer or landlord before the expiration of the rental contract.”

Appellant argues, however, that, even though the cause was submitted under the proper interpretation of said statute, the instructions were abstract, because there is nothing in the evidence tending to show that Will Anderson had. made up his mind to leave appellant before he entered into negotiations with appellees. We cannot agree with appellant in this contention, for Will Anderson testified that he had made up his mind to quit appellant, and that he so notified him before he went to see appellees about renting from them. It is true appellant testified that Will Anderson never told him he was going to leave, and that the first he heard of it was from Will Straub, who told him on January 3, 1928, that appellees had agreed to pay the account Will Anderson owed it. But this only presented an issue of fact for determination by the jury. In view of the testimony of Will Anderson in this particular, it cannot be said that the instructions complained of were abstract.

No error appearing’, the judgment is affirmed.


author: Kirby, J.,

text:
    Anderson v. Shoup.
    Opinion delivered January 27, 1930.

      Elmo CarlLee, for appellant.

      W. J. Dumgan, for appellee.
   Kirby, J.,

(after stating the facts). The allegations of the complaint show the items of the account charged against appellant and the amount of interest also, and that the interest charged exceeds the amount allowed by law, and was usurious in the sum of $30, the correct amount alleged to 'be agreed upon. It was shown, however, that the whole amount of the account had 'been voluntarily paid by appellant without objection to the payment of the alleged usurious interest, until the final settlement was made, and, although the complaint alleges that the different payments were made under protest, and were not voluntary, the allegations showing the method of payment do not show such payments to have been otherwise than voluntarily made. According to the allegations, when the last bale of cotton and seed had been sold, the appellant had the check made payable to the landlord, and his account was given to him, and the balance of the amount of the check over the amount shown to be due him by the account was returned to appellant. He objected at this time to the settlement, claiming usury had been chaig-ed and exacted to him, and later presented his account to the executor of the estate of the deceased landlord, claiming to be entitled to an allowance for the whole amount of the account he had paid to the landlord, including- the interest thereon.

The statute makes no express provision for the recovery of the money paid on.usurious accounts or contracts, although it prohibits the taking of excessive or usurious interest, and declares void all notes and obligations providing therefor. The payments made on the account under the allegations of the complaint should, we think, be treated as having been voluntarily made, the amount of the account and lawful interest, and held not recoverable, under the doctrine of our cases. Kendall v. Davis, 55 Ark. 318, 18 Ark. 185; Murphy v. Citizens’ Bank, 82 Ark. 131, 100 S. W. 891, 11 L. R. A. N. S. 616, 12 Ann. Cas. 536. See also 39 Cyc. 1030, paragraph H.

The complaint alleged that the tender of the amount agreed to be the amount of excessive or usurious interest exacted had been duly made, and the court correctly sustained the demurrer; and the judgment of the court sustaining the demurrer and dismissing the complaint is correct and must be affirmed. It is so ordered.


author: Kjkby, J.,

text:
    Shelton v. Shelton.
    Opinion delivered January 27, 1930.

      Miller ■£ Tingling and Tom W. Campbell, for appellant.

      F. E. West, Geo. W. Emerson, W. R. Donham and Culbert L. Pearce, for appellee.
   Kjkby, J.,

(after stating the facts). Appellant insists that the court erred in holding that the probate court of White County was without jurisdiction to appoint appellant administrator of the estate of Elmer Shelton, deceased, and also in adjudging him not a suitable person to 'act as administrator, and his removal as such and revocation of his letters on that account. Our statutes, § 5, C. & M. Digest, providing where letters of administration shall be granted, reads:

“Letters testamentary and of administration shall be granted in the county in which the testator or intestate resided; or, if he had no known residence, and the lands be devised in the will or the intestate die possessed of lands, such letters shall be granted in the county where the lands lie, or one of them if they lie in several counties; and, if the deceased had no such place of residence and no lands, such letters may be granted in the county in which the testator or intestate died, or where the greater part of his estate may be.”

This court held in Groschner v. Winton, 146 Ark. 520, 226 S. W. 162, letters issued by the probate clerk of Sebastian 'County appointing an administrator of decedent, who had not resided nor died in that county, void. In Krone v. Cooper, 43 Ark. 547, the terms “resident” and “nonresident,” used in the provisions of our statute governing attachments, were defined. In that case the court held, notwithstanding the fact that the debtor had a home or domicile in St. Louis, Mo., where his family resided, and which he was in the habit of speaking of as his home, that he was a resident of Walnut Ridge, this State, where he spent about three-fourths of his time conducting a partnership contract business in connection with his partner. It was there said: “We may conclude from the cases that, in contemplation of the attachment laws, residence implies an established abode, fixed permanentiy for a time, for business or other purposes, although there may be an understanding all the while to return at some time or other to the principal domicile; but so difficult is it found to provide a definition to meet all the varying phases of circumstances that the determination of this question may present, that the courts say that, subject to the general rule, each case must be decided on its own state of facts.” See also Jarrell v. Leeper, 178 Ark. 8, 9 S. W. (2d) 778.

In Smith v. Union County, 178 Ark. 540, 11 S. W. (2d) 455, this court held, in construing the statute providing for the listing of property for taxation, (% 9890, C. & M. Digest): “Residence, as used in § 9890, Crawford & Moses ’ Digest, means the place of actual abode, and not an established domicile or home which one expects to return to and occupy at some future time. ’ ’ The same construction was placed upon the word “residence” under the taxation laws as had been given it under the attachment laws of the State. It will be seen from these eases, residence and domicile are not to be held synonymous; that a man may have a residence in one State or county, and he may be a nonresident of the State of his domicile in the sense that the place of his actual residence is not there. Conceding without deciding that decedent’s residence followed that of his mother, into whose custody he vras committed upon the divorce granted their parents, the undisputed facts show that he left this residence about two years 'before his death following his employment, wherever it required his residence and presence; that he afterwards married in Arkansas County, and, after his marriage and coming of age, continued to follow his employment and reside with his wife wherever it required liis presence. That he had resided at Brinkley, in Monroe County, in a boarding house, it is true, for 4 or 5 weeks, where his presence was required by his services to his employer, and that he died in that county. He had not established any other residence or home after he in fact left the home of his mother and was married, except as stated; nor did he thereafter return to his old home to reside, and from which his mother, who owned a life estate therein and the right to possession thereof, had removed before his death.

The court correctly held that the decedent resided at Brinkley, in Monroe County, at the time of his death, consequently the probate court of White County was without jurisdiction to issue letters of administration upon his estate, and the court did not err in holding said letters void.

This case is not like Easterling v. Farrell, 178 Ark. 937, 12 S. W. (2d) 889, relied upon by appellant as in point and controlling here. There the undisputed testimony showed that decedent had married and established a domicile, or home, in another county after leaving the home of his father, and it was held that, for the purpose of administration on his estate, the home so established was his residence, in the absence of proof of his having establisted another residence in a different State, and that the burden of proof rested upon the one who sought to have the letters of administration granted to show that he was not a resident thereof when he died.

Having come to this conclusion, it is unnecessary to determine the other point raised relative to the correctness of the court’s holding upon the unifitness of the administrator.

Finding no error in the record, the judgment is affirmed.


author: Mehaeey, J.

text:
    Connelly v. Lawhon.
    Opinion delivered January 27, 1930.

      E. R. Parham, for appellant.

      Robinson, House ■■<& Moses and Dillon <& Robinson, for appellee.
   Mehaeey, J.

The city of North Little Bock, wishing to have repairs made on its streets, through its city council, instructed Harvey Brown, who was chairman of the street committee, to make investigation, and secure estimates and bids for doing the work.

P. F. Connelly submitted his bid to Harvey Brown, and it was reported to the council, and the city council referred the matter to the street and finance committee with power to act. Connelly was directed by the mayor to commence work, and the work was done and completed under the direction and supervision of the mayor and street committee of North Little Bock.

After the completion of the work, the city, by ordinance, authorized the payment to Connelly of $8,960.16 for the work which had been accepted ¡by the city. The majmr vetoed the ordinance, and the council passed same over his veto. The mayor of the city of North Little Book then resigned, and, as a citizen and taxpayer, brought this action, asking- for an injunction to prevent the officers of the city from paying the amount alleged to be due Connelly.

The city of North Little Book, through its attorney, filed a demurrer to the complaint, which was overruled by the court. Connelly filed an intervention, alleging that he had entered into an agreement with the city of North Little Bock, through its duly authorized agents, to furnish it with patching, material and labor to do certain street work contemplated by the city of North Little Bock. He denied that the contract was void, as alleged in plaintiff’s complaint, and denied that it'was entered into with Harvey Brown as an individual member of the city council. He stated that he had in all things performed the agreement; that the work and labor was approved and accepted by the city of North Little Bock, and it was indebted to him in the sum of $8,960.16. He alleged that the city council, by ordinance, had authorized the payment; that the ordinance was vetoed by the mayor, and later passed over his veto. He filed a substituted intervention, alleging, in addition to the facts in his former intervention, that at the time of the execution of the contract Ross L. Lawhon, the plaintiff, was the mayor of North Little Rock; that he entered into the agreement with the city of North Little Rock by submitting his bid and schedule of prices to Brown, a member of the city council of North Little Rock, who had, by proper resolution of the council, been empowered to solicit the bid for furnishing material and labor to do the street work for the • city; that the bid was accepted by the council, and he was directed to perform the work and furnish the materials set out in his offer; that he was directed by the plaintiff to commence the work, and that the work was done under the supervision and inspection of the plaintiff, Ross L. Lawhon, who was the mayor of the city of North Little; Rock, a street commissioner and a member ¡of the board of the city of North Little Rock; that the material, work and labor were approved and accepted by the city, and that it was indebted to him in the sum of $8,960.16.

He alleged that the city olf North Little Rock and Ross L. Lawhon were estopped from pleading the invalidity of the contract, and that the action was not instituted in good faith. He also alleged in his intervention that Pulaski County had contributed $1,000 and the Missouri Pacific Railway 'Company $350.

Plaintiff then filed an amendment to- his complaint, and filed a demurrer to the intervention of Connelly. The court sustained the demurrer of plaintiff to the intervention of 'Connelly, and 'Connelly prosecutes this appeal.

The appellee first contends that the contract is void, and, among other things, relies on § 7715 of Crawford & Moses ’ Digest, which reads as follows: ‘ ‘The board shall have the exclusive power to make purchases of all supplies, apparatus, materials and other things requisite for public purposes in such city, and to make all necessary contracts for work or labor to be done, or material or other necessary things to be furnished for the benefit of such city, or in carrying out any work or undertaking of a public nature therein; but where the amount of expenditure involved therein may exceed three hundred dollars, said board shall transmit to the city council an estimate thereof, and an ordinance authorizing' such expenditure, with their recommendation in relation thereto, and, upon the passage of such ordinance, it shall be the duty of said board to advertise and let the work or contract to the lowest responsible bidder.”

■Section7715 of Crawlford & Moses’ Digest, above set out, is a part of section one of the act of March 21, 1885. One paragraph of § 3 of the same act reads as follows, relf'erring to the additional powers conferred upon cities of first class:

“iSecond, to alter or change the width or extent of streets, sidewalks, alleys, avenues, parks, wharves and other public grounds, and to vacate or lease out such portions thereof as may not for the time being be required for corporate purposes, and where lands have been or may be acquired or donated to such city for any object or purpose which has become impossible or impracticable, the same may be used or devoted for other public or corporate purposes or sold by the city council, and the proceeds applied therefor.”

The section of the act last quoted is a part of § 7684 of 'Crawford & Moses’ Digest. Section 7607 of Crawford & Moses’ Digest reads as follows: “The city council shall have the care, supervision and control of all the public highways, bridges, streets, alleys, public squares and commons within the city; and shall cause the same to be kept open and in repair, and free from nuisance.”

The last section quoted is a part of the act of March 9, 1875. Unless the act of 1875 was repealed by the act of 1885, the board of public affairs would have nothing 1x> do with contracts of the kind involved here. And it is not expressly repealed, and we do not think it is repealed by implication, because there is no necessary conflict between it and the act of 1885. The act of 1885 provides that the board of public affairs shall have exclusive power to make purchases of all supplies, apparatus, materials and other things requisite for public purposes in such city, and to make all necessary contracts for work and labor to be done or material or other necessary things to be furnished -for the benefit of the city, or in carrying out any work or undertaking of the public nature therein. Nothing in the part of ’the section just quoted refers to streets, but it refers to purchases and contracts made for labor and material. And, after the word “therein” above quoted, there is a semi-colon, and the rest of the section reads as follows: “But where the amount of the expenditure involved therein may exceed three hundred dollars, said board shall transmit to the city council an estimate thereof, and an ordinance authorizing such expenditure, with their recommendation in relation thereto, and, upon the passage of such ordinance, it shall be the duty of said board to advertise and let the work or contract to the lowest responsible bidder.”

Section 7568 of 'Crawford & Moses’ Digest confers authority on the city council with reference to streets, and, among other things, gives them the power to improve, keep in order and repair them.

It has been uniformly held by this court that the repeal of a statute by implication is- not favored.

“In a recent decision we undertook to cover this subject in the following statement: ‘It is a principle of universal recognition that the repeal of a law merely by implication is not favored, and that the repeal will not be allowed unless the implication is clear and irresistible, but there are two familiar rules or classifications applicable in determining whether or not there has been such repeal. One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the later one, which governs the subject, so far as relates to the conflicting provisions, and to that extent only. * * * The other is that a repeal by implication is accomplished where the Legislature takes up the whole subject anew, and covers the entire ground of the subject matter of a former statute, and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new.’ ” England v. State Highway Commission, 177 Ark. 157, 6 S. W. (2d) 23; Cordell v. Kent, 174 Ark. 503, 295 S. W. 404; Ouachita County v. Stone, 173 Ark. 1004, 293 S. W. 1021; State v. White, 170 Ark. 880, 281 S. W. 678.

There appears to be no necessary conflict between the acts of 1875 and 1885, and there is, therefore, no repeal of the act of 1875 by implication.

Another rule of construction well established is that all the new legislation must be construed with reference to existing legislation on the same subject. The act of 1875 especially mentioned the repair and improvement of streets, and provided that the city council should have power to lay off, open, widen, straighten and establish; to improve and keep in order and repair, etc. Section 7568, Crawford & Moses’ Digest. And § 7607 of Crawford & Moses’ Digest expressly gave to the city council the care, supervision and control of all public highways, bridges, streets, etc., and provided that the city council should cause the same to be kept open and in repair.

Section 7715, a part of the act of 1885, does not mention streets, but it provides for letting contracts, and we think the contract mentioned in the act of 1885 are contracts other than those for the improvement and repair of streets.

Our conclusion is that the city council had the authority to make the contract involved in this suit. The chancery court therefore erred in sustaining the demurrer to Connelly’s intervention.

The decree of the chancery court is reversed, and the. cause remanded, with directions to overrule the demurrer, and to take suck further proceedings as necessary to dispose of the case, not inconsistent with this opinion.


author: Mehaffy, J.

text:
    Davidson v. State.
    Opinion delivered January 27, 1930.

      Coleman \S Reeder and Theo R. Wilson, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehajfy, Assistant, for appellee.
   Mehaffy, J.

Appellant was indicted by the grand jury of Izard 'County for selling liquor. He was convicted, and his punishment fixed at one year in the penitentiary. The case is here on appeal. The appellant insists that the evidence does not show a sale, and that the case should be reversed for that reason. No other error is assigned.

D. O. Johnson, sheriff, testified that a report came to him that a negro, George Earnest, was drunk at Violet Hill, and he and another witness' followed him to the road camp. George Earnest told them they had been wanting to catch Rom Davidson so long, he would take them to him. They put George Earnest in Mr. Harris’ car, and followed him in the sheriff’s car to near the defendant’s home, but did not take the sheriff’s car up to the house. They walked up- near to the car George Earnest was driving. Earnest got out of the car, and went into the house and came back with two jars of whiskey.

The plan was for this negro to turn on the lights of the car when he went to pay for the whiskey, and the sheriff was to get Davidson while Davidson was getting the money. They set the liquor on the running board, and turned on the lights. Earnest paid him six dollars, and was getting out two dollars when the sheriff stepped from behind the car and said: “Stick ’em up.” Davidson broke one of the jars, and ran with the other one. Harris hit him, -and he fell and broke the other jar. He delivered the whiskey to the negro by setting it on the fender of the car. Earnest never did get the whiskey. Davidson ran off with it.

"Witness says he has the six dollars. Davidson did not keep- the money -or deliver the whiskey. He broke the whiskey. Witness said the money is his. He gave it to the negro to buy whiskey with. Witness did not get any whiskey, but furnished the money to buy it with; took the negro to buy whiskey, and caused the sale to be made; doesn’t know what Earnest told Davidson when he went in the house that night. Eour dollars was on the ground there, and he (found the other two dollars where the first jar was broken, about 15 or 20 feet from the car. . Defendant had both jars in his hands. George Earnest did not take any home brew there in his car. The two negroes went off somewhere. It was a dark night. Witness did not hear any of -the conversation in the house, and does not know where George Earnest is now. He has been gone about two months.

Harris testified to substantially the same facts told by the sheriff.

All the evidence on the part of the State was contradicted by appellant’s witnesses. The evidence of appellant’s witnesses is not set out, because the only question for this court to determine is the sufficiency of the State’s evidence. We do not pass on the weight of the evidence nor the credibility of the witnesses. The verdict of a jury based on substantial evidence will not be disturbed by this court, although we might think that it was againist the weight of the evidence. Southwestern Bell Tel. Co. v. McAdoo, 178 Ark. 111, 10 S. W. (2d) 503; Arkansas Power & Light Co. v. Orr, 178 Ark. 329, 11 S. W. (2d) 761; Mo. Pac. Rd. Co. v. Juneau, 178 Ark. 417, 10 S. W. (2d) 867; Mo. Pac. Rd. Co. v. Edwards, 178 Ark. 732, 14 S. W. (2d) 230; Western Union Tel. Co. v. Downs, 178 Ark. 933, 12 S. W. (2d) 887; Hyatt v. Wiggins, 178 Ark. 1085, 13 S. W. (2d) 301.

The jury having found against appellant, its verdict must stand if there is any substantial evidence to sustain it. It is earnestly insisted that there was no delivery, and therefore no sale. The sheriff testified: “Earnest got out of the car and went into the house, and came back with two jars of whiskey. They sat the liquor on the running board, and turned on the lights. He paid him six dollars. ’ ’

This testimony shows that Earnest went to appellant’s house, and came back to the car with two jars of whiskey. If this is true, the whiskey had already been delivered by appellant. This evidence also shows that Earnest had already paid appellant six dollars. After this was done, the appellant broke one of the jars, and ran off with the other one.

The sheriff also testified that Earnest did not take any home brew there in his car. Earnest, at the direction of the sheriff and Harris, took Harris ’ car, and they knew whether there was any home brew in the car, and whether Earnest had any home brew or other liquor when he went up to appellant’s house.

The evidence was sufficient to submit the question to the jury as to whether there was a sale, and the court instructed the jury: “To constitute a sale there must have been an agreement on the part of the seller to sell, and, upon the paid of the buyer, to buy; and there must have been a delivery of the article sold, and there must have been something paid tfor it.”

On cross-examination, the sheriff testified that appellant delivered the whiskey to Earnest by setting it on the fender of the car. He also said that Davidson did not keep the money or deliver the whiskey. Putting the whiskey on the running board for Earnest would have been a sufficient delivery, and the fact that he returned the money and ran off with the whiskey would not affect the sale already made.

“It has been uniformly held by this court that delivery is a question of intention of the parties, as manifested by overt acts, and that a sale of chattels will be treated as complete, where any act has been done which was intended by the parties as a delivery.” Liveoak v. Hopper, 172 Ark. 362, 288 S. W. 887; Elgin v. Barker, 106 Ark. 482, 153 S. W. 598; Hodges Bros. v. Bank of Cove, 119 Ark. 215, 177 S. W. 925; Vance v. Bell, 153 Ark. 229, 240 S. W. 8.

The jury found against the appellant, and there is substantial evidence to support the verdict, and the judgment is affirmed.


author: McHaney, J.

text:
    Royal v. McVay.
    Opinion delivered January 27, 1930.

      Cravens & Cravens, for appellant.

      A. M. Dobbs, for cross-appellant.

      Hays, Priddy $ Smallwood, for appellee.
   McHaney, J.

On December 17,1928, George McV ay, Ida Johns, RuJby Wilson, Pearl Royal, Ella Iiarley, N. P. Neindam, David Barnes, and Rufus McVay, by his guardian and next friend, George McVay, and Raymond Carpenter, by his guardian and next friend, Ida'Johns, filed their ex parte petition in the chancery court of Logan County, Northern District, for partition of certain real estate consisting of town lots and acreage property inherited by them, as all the heirs at law of David McVay, deceased. The petition was filed by Judge Cochran of the firm of Cochran -and Arnett, and properly traced the ownership of the property, the relationship of all the petitioners, their respective interests in the real estate sought to be partitioned, and alleged that, by reason of the kind and character of the property and the smallness of the interests olf some of the petitioners, the land could not be divided in kind without great prejudice to the owners, but would have to be sold and the proceeds divided. As above stated, the land consisted of lots and houses in the town of Paris, and coal and mineral rights under certain lands, the surface rights of which had been sold to other persons. On February 18, 1929, the court heard the petition for partition, and entered a decree reciting that “the court, being well and sufficiently advised, doth find” all the facts set out in the petition, detailing them, to be true, including a finding that the “lands cannot be divided equitably, justly and fairly in kind because of the great number of shares, and the small interest olf some of the petitioners.” The court thereupon decreed a sale of the land, and that the petitioners be paid, their respective shares as determined by the court after the payment of costs. On March 21, 1929, a sale was had pursuant to the order and direction of the court in which the town lots were sold to one Joe' Beshoner, the sale approved and deed made to the purchaser. The country property consisting’ of farm lands, coal and mineral rights, were sold to appellee, George McVay, appellants, Ida Johns and Pearl Royal,-and Ruby Wilson, for the sum of $9,000, to secure which bond was given by the purchasers, and a certificate of purchase issued to them. Thereafter, on April 15, the commissioner filed a report olf sale, reporting the sale as above mentioned and praying confirmation. Thereupon, appellee, Ella McVay Harley, and Rufus McVay, a minor, by his mother and next friend, filed exceptions to the sale, and asked that same be rejected, and confirmation refused on the grounds that the sale was made for a grossly inadequate price, and that two of the purchasers, George McVay and Ida Johns, were guardians respectively of Rufus McVay and Raymond Carpenter, and therefore could not purchase at such sale. The court sustained the latter exception, holding that ‘ ‘ George Mc-Vay and Ida Johns, under the law of this State, cannot purchase or be interested in the purchasing of their wards’ land, although said George McVay and Ida Johns have a one-eighth interest each in the land sold and purchased.” Another sale was ordered, and thereafter on May 9 the farm lands, coal and mineral rights were sold by the commissioner to Ella McVay Harley for $10,080. On June 18, during the regular June term of court the commissioner filed his report of sale, prayed confirmation thereof, and approval of the deed. Before confirmation the appellants entered their appearance only for the purpose of filing a motion to vacate and set aside the decree of partition made on February 18, and all proceedings had thereunder. They alleged in the motion, which was verified by them, that they were made parties to the ex parte petition for partition without their knowledge or consent and without their authority, that no service was had upon them, either personal or constructive; that neither olf'them authorized Judge Cochran to represent them, and that they had no knowledge concerning the petition, its filing, nor of the decree until about two weeks prior to filing their motion. There was a hearing on this motion, testimony taken on behalf of appellants and appellees, but the appellants, themselves did not testify. Judge Cochran testified that he had no directions from the appellants who are nonresidents to file the suit for them, and, so far as he knew, neither of them had knowledge of it; that he was employed by other of the heirs, and that George McVay told him he knew it would be all right with appellants, and would write them and get their consent. McVay testified that he did not do this, and that, so far as he knew, they did not know anything' about the bringing olf the suit until May; that the property was bid in at the first sale by Mr. Anthony Hall on his instructions for himself and his sisters, but that he had no authority from his sisters to do so, and that appellants were not at the sale. Appellee, Mrs. Harley, testified that she and George McVay consulted Judge Cochran about the partition suit, and that he advised them that all the heirs should be made parties; that immediately after this conference, she wrote to appellants and advised them what Judge Cochran had said, and that he would file the petition; that these letters were written in December, 1908, before the petition was filed, and that both appellants' answered these letters; that she wrote them many letters while the matter was pending, and before the sale regarding this matter. She kept no copies of the letters she wrote, and was able to find only two letters she received from her sisters, one signed by Ida Johns.and the other by Ida Johns and Buby Wilson, both written from Atlanta, Georgia, where Mrs. Johns lived, and while Pearl Boyal was visiting Ida Johns in Atlanta when these letters were written. In the letter of March 18, Ida Johns said among other things: “I do hopo that everything will be all right when the sale comes np, and that everything can be settled for the best. I feel that George is doing all he can for all of us. I am glad that you and George can be there. Lovingly, Ida.” The other letter signed by Buby and Ida said in part, “I am so sorry that I can’t come to Paris for the 21st. * * * We will be anxiously waiting to see what transpires this week, and I do wish that we could be there to help you all.” The first sale was held on March 21.

The court overruled the motion to set aside the decree of partition, confirmed the sale, and this appeal was prosecuted. George McVay has appealed from the order setting aside the first sale, and cross-appealed against Mrs. Harley.

We take it for granted that the property is not susceptible of division in kind. It was so alleged in the petition, found to be so in the decree, and neither appellants nor cross-appellant now contend that the decree is erroneous in this particular. In fact, George McVay, who was admittedly a party to the petition, so charg-ed in the petition and was in court ready to so testify when the decree was granted, and the appellants, in their motion to vacate the decree, say the land sold for an inadequate consideration, and they stand ready to bid a higher amount. This is tantamount to saying the land cannot be divided in kind, but should be sold.

Appellants say in their brief: “The real question, raised by this appeal, is whether or not it is necessary, in a partition suit, to make all of the owners parties to the suit, either by personal or constructive service.’’ We think the evidence sufficient to support the finding of the court that all the owners were in fact parties to the petition. The evidence in this regard has already been substantially stated. Their verified motion alleged that they were not parties, and had no knowledge of the proceeding, and they offered the testimony of Judge Cochran and George McVay to support the allegation. But they did not testify themselves, nor submit to cross-examination. The testimony of Judge Ooehran and George McYay was negative in character, that, so far as they knew, appellants were not notified. But the positive testimony of Mrs. Harley that they were notified by her, and that they knew that they were parties, supported by the two letters from them heretofore mentioned, stands undisputed, and, when taken in connection with all the other facts and circumstances in the case, preponderate in support of the holding of the court.

But, conceding for the sake of argument, that they were not parties to the petition, had no knowledge of the proceeding, and that all the allegations in this regard in their motion to vacate are true, still the partition decree is not void, but voidable only, and the decree cannot be vacated or set aside after the lapse of the term except on compliance with the provisions of the statute in this regard 6290-6292, O. & M. Digest), and then only by setting up a meritorious cause of action or defense. Section 6293. Martin v. Gwynn, 90 Ark. 44, 117 S. W. 754; Hare v. Ft. Smith W. Ry. Co., 104 Ark. 187, 148 S. W. 1038; Horn v. Hull, 169 Ark. 463, 275 S. W. 905; Ingram v. Raiford, 174 Ark. 1127, 298 S. W. 507. It has been frequently held by this court that mere inadequacy of consideration is not sufficient ground to set aside a judicial sale, unless the price at which it was sold is so grossly inadequate as to raise a presumption of fraud or unfairness. Horn v. Hull, supra. In Ingram v. Raiford, supra, the court, spealdng through Mr. Justice Wood said: “By the decree of this court in the case of Ingram v. Wood, above, it is shown that the interest of all the parties named had been adjudicated and determined by the decree of the Union Chancery Court, May 25, 1925. That decree was final as to all the parties in the original action, except Charlie Ingram, who, to be sure, under the law, had a right, if she were an inlfant when the decree was rendered, to have the same set aside if no defense was made for her by natural guardian or guardian ad litem; but the decree so rendered against her was not void, but only voidable. ’ ’ The court then held that, before she could set aside the decree, she would have to follow the procedure prescribed by the statute. The court also quoted from Ryan v. Fielder, 99 Ark. 374, 138 S. W. 973, with reference to a judgment rendered against an infant who was not represented by guardian as follows : “But, if a judgment is rendered against an infant without such defense, it is only voidable under our decisions, and it may be vacated or modified after the expiration of the term of the court in which it was rendered, where the condition of such defendant does not appear in the record nor the error in the proceedings. The proceedings to vacate the judgment for this cause must be by complaint, verified by affidavit setting forth the judgment, or order, the ground to vacate or modify it, and it will not be vacated until it is adjudicated that there is a valid defense to the action in which the judgment was rendered, the court first deciding upon the grounds to vacate before trying the validity of the defense.”

Therefore, not having followed the procedure provided by the statute for setting aside judgments and decrees after the lapse of the term, appellants must fail. They not only did not follow § 6290, by alleging one or more of the grounds therein, but failed to allege any defense as provided by § 6293.

With reference to the appeal and cross-appeal of George McVay, it appears that his prayer for appeal was from the order setting aside the first sale. Yet, in the very beginning of his argument in the brief filed by his counsel, it is conceded that the court did not commit “reversible error in setting aside the first sale to four of the tenants in common,” and it is further said “that the sale was not void on account of the fact that two of the purchasers in that sale were guardians of minors,” as the court held. Whether the reason given by the court in making the order vacating the first sale is right or wrong, if it be conceded that the court did not err in making the order, the question becomes academic, for this court does not reverse where' the order, judgment or decree is right, although the wrong reason may foe given therefor. What we have already said regarding the decree not being void, but voidable only, if the infant parties were not represented, applies with equal force to the argument of McVay thereon. Here, on the face of the record, both minors by their statutory guardians were joined as petitioners, in accordance with § 8095, C. & M. Digest, and the statute appears to have been complied with in all particulars, so far as the face olf the record is concerned.

Cross-appellant also contends that the court erred in confirming the sale to Mns. Harley. What we have already said disposes of this question, although a different argument is made. We think the case of Frazier v. Frazier, 137 Ark. 57, 207 S. W. 215, cited by him, does not support the argument made. It would unduly extend this opinion to follow the argument further, if it is not already too long. Suffice it to say, that we have examined all the points urged in this regard, and find that we cannot sustain them.

The decree is accordingly affirmed.


text:
    Graves v. Jewell Tea Company.
    Opinion delivered January 27, 1930.

      Melbourne M. Martin, for appellant.

      A. L. Barber and Roscoe R. Lynn, for appellees.
   McHaney, J.

Appellant and one Joe Murphy brought separate actions against the appellees to recover damages for personal injuries received by them in an automobile accident, which occurred on January 9, 1929, at 18th and Taylor streets, in the city of Little Rock, Arkansas. Appellant was riding in the automobile of Joe Murphy as his guest, traveling south on Taylor street, while the truck of appellee, Jewell Tea Co., was being driven west on 18th street by the appellee, Hewitt. The truck entered the intersection of the two streets, traveling at a very moderate rate of speed, at a time when the car driven by Murphy was some distance north of the intersection, and was struck by the Murphy car about the right rear wheel, with such force as to practically demolish the truck, and painfully injured appellee Hewitt. Murphy’s car, after striking the truck, ran some distance beyond, knocked down a fence post and turned over, severely injuring appellant. Appiellees filed answers, denying any negligence on their part, and alleging that the injury was caused ¡by the negligence of Murphy by driving his car at a reckless rate of speed, and without same being properly equipped with proper brakes and good working condition. Appellees also filed a cross-complaint against said Murphy, praying damages received by them because of said collision. The case was tried to a jury, which resulted in a verdict and judgment for appellees. Mary Graves only has appealed.

It is first insisted that the verdict is contrary to the law and the evidence, and this raises the question of the sufficiency of the evidence to support the verdict. The evidence was in dispute relative to the negligence of the respective drivers of the automobiles. In determining this question in this court, we must view the evidence in the light most favorable to the appellees, in whose favor the verdict was rendered. According to the testimony of appellant and Murphy, they saw the truck about three-quarters of a block away, and thought it was stopped on the east side of Taylor street, on 18th, and that Murphy blew his horn; that they continued to approach 18th street, and when they had got within 25 to 50 feet of the intersection, Hewitt drove the truck into, the intersection in front of their car, and that Murphy swerved his car to the east in an effort to avoid a collision, but failed to do so. According to the evidence of appellees, Murphy was driving his car south on Taylor at a very rapid and dangerous rate of speed, from forty to eighty miles an hour; that Hewitt was driving west on 18th street at a very ordinary rate of speed, from five to ten miles an hour, as testified to by Murphy, and that he did not stop his car at the intersection to proceed west; that he saw Murphy’s car about three-quarters of a block away, did not know he was driving so rapidly, thought he had ample time to cross the intersection, and that Murphy had his car under such control as he would be able to stop without hitting him. We think this testimony is sufficient to support the verdict for the appellees, even as to Mary Graves, an invited guest in the Murphy car. While it is true that the negligence of Murphy cannot be imputed to appellant riding with him as his guest, it was the duty of appellant to exercise ordinary care for her own safety, and a failure to exercise such care, which contributed to her injury, would constitute contributory negligence on her part, barring- a recovery. Carter v. Brown, 136 Ark. 23, 206 S. W. 71; Pine Bluff Co. v. Whitlow, 147 Ark. 152, 227 S. W. 13. The court correctly instructed the jury at appellant’s request in this regard in instruction B, as follows: "The court tells the jury that, even though you believe from a preponderance of the evidence, that both Joe Murphy and C. J. Hewitt were negligent, that Mary Graves is entitled to recover against defendants, unless she contributed to her injuries by some act on her part of omission or commission.”

By returning- a verdict for appellees, the jury must have found either that Hewitt was not negligent or that "she contributed to her injuries by some act on her part of omission or commission.” The evidence was sufficient to support the verdict, and appellant’s contention in this regard must be overruled.

It is next said that the verdict is not responsive to the pleadings, because it does not state whether it is for the defendants on the complaints, and that no verdict was returned for or against appellant on her complaint. The verdict of the jury was, "We, the jury, find for the defendants.” The court instructed the jury very carefully on the form of verdict they should return, giving them five different -forms, depending upon their findings: (1) for Murphy, (2) for appellant, (3) for appellee Hewitt on his cross-complaint, (4) for Jewell Tea Company on its cross-complaint, and then the court told them-in the 5th form, "If, in your deliberations, you find that neither of the parties are entitled to recover, you will say, ‘We, the jury, find for the defendants’.” By the finding- of the jury, in accordance with the instructions of the court, it is evident that in their opinion neither of the parties was entitled to recover, and therefore they followed the 5th form. Appellant made no- objections to the forms of the verdict provided by the court. Moreover, the record reflects that the jury, after it deliberated some hours, came into court and stated they were unable to arrive at a verdict, and that, if the counsel did not object, they would give their reasons therefor, which was agreed to. A member of the jury then stated that they would like to know whether they could find damages for Mary Graves and not find any damages for Murphy and Hewitt, and requested further instructions from the court thereon. The court then read all the instructions, and about fifteen minutes later the jury returned a verdict for the defendants on the 5th form. We therefore cannot see that the verdict rendered was the result of a misapprehension in the forms of the verdict submitted. Appellant made no objection to the action of the court in reading- the instructions again, and did not insist on the court answering’ the question. She is therefore in no position to complain.

It is next said that the court erred in permitting a certified copy of the judgment of conviction of Murphy for reckless driving in the Little Rock municipal court to be offered in evidence, on the ground that evidence of a previous conviction in a criminal matter is not admissible in a civil action, and because the pleading alleged “speeding” -and not reckless driving. If this might be said to be error, it was invited. A wdtness for appellant, Leonard Roberts, had testified that Murphy was arrested as a result of the accident. On cross-examination, he was questioned further about the arrest and trial, when counsel for appellant objected on the ground that “the record is the best evidence — he can introduce that.”

“Mr. Lynn: Can I introduce a certified copy?”
“Mr. Martin: Yes, sir, re 'bob.”

Hewitt was also cross-examined regarding this matter by appellant’s counsel, as was also appellant’s witness, Barber. Therefore appellant cannot complain.

Appellant next says that the court erred in permitting the introduction in evidence of the photographs of the scene of the accident, and of Hewitt’s damaged car.

The witnesses, who made the kodak pictures and who made the enlarged photographs, were introduced and identified them, and many others who testified that the photographs were exact reproductions of the situation, with the exception of Murphy’s ear, which had been removed. No effort was made by appellant to show that the pictures did not correctly represent the situation. In Sellers v. State, 91 Ark. 175, 120 S. W. 840, this court quoted with approval from 9 Enc. of Ev., 771, as follows: “As a general rule, photographs are admissible in evidence when they are shown to have been accurately taken, and to be correct representations of the subject in controversy, and are of such a nature as to throw light upon it. ’ ’ In that case the court held: “ It was error in a murder case to admit in evidence a photograph which purports to show the situation of the parties, and the place and conditions connected with the final rencounter, unless such photograph is verified by some witness in the case.” Here the photographs admitted were sufficiently identified and verified, and were proved to be correct representations of the scene of the accident.

The next error appellant relies on relates to instruction No. 3, given at the request of appellees over appellant’s objections. That instruction is as follows: “If you find from a preponderance of the evidence that, at the time the defendant, Hewitt, entered the intersection, the. car in which the plaintiffs were riding was some distance away from the intersection, then Hewitt had a right to assume that the plaintiff’s car was being driven at a rate of speed that would not be dangerous, and that he had his car under such control that he would be able to stop his car in time to prevent the accident, and, if you so find, your verdict will be for the defendants.”

Only a general objection was made to this instruction, and it is now argued that it authorized the jury to impute the negligence of Murphy, assuming that he was negligent, to her. •Conceding that this may be the effect of this instruction, standing alone, still, when considered in connection with instruction B, above copied, we do not think the jury was so misled. If appellant had considered the two instructions to be in conflict in this regard, it was the duty of appellant to make this specific objection to it. Therefore the general objection was not sufficient.

Appellant next complains of appellee’s instruction No. 13, given over her objections. This instruction is as follows: “'Section 7426 of Crawford & Moses’ Digest of the statutes of Arkansas provides that no person shall drive a motor vehicle upon any public highway in this state at a speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb or injure the property of another person, and that, if the rate of speed of any motor vehicle operating on any public highway outside of the closely built up or business section, or residence portion of any inhabited city, town or village, exceeds twenty miles an hour for a distance of one-fourth of a mile, such rate of speed shall be prima facie evidence that the person operating such motor vehicle is running at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the way, or to endanger the life or limb of any person. If you find from a preponderance of the testimony that the plaintiff, Murphy, was driving his car in excess of the speed limit as set out by this law, and that such speed was the proximate cause of the collision, then your verdict must be 'for the defendants.” ; '

A specific objection was made to this instruction on the ground that it was not the statute in force at that time, and because the statute relates to speed within the city, and that the collision occurred outside the city. The applicable statute is act 223 of 1927, page 721. By comparing the latter act with § 7426, C. & M. Digest, it will be seen that the provisions are substantially the same. There is nothing in the record to show that the collision occurred outside the city of Little Bock, and the parties in the trial of the case appear to have assumed as a fact that the intersection of 18th and Taylor streets is in the city. It is also argued that this instruction failed to protect the rights of Mary Graves, and precluded a recovery by her, as it had the effect of imputing Murphy’s negligence to her. What we have said with reference to appellees ’ instruction No. 3- applies with equal force here. No specific objection was made to this instruction on this latter ground. We therefore overrule appellant’s contention in this regard.

Another ground suggested for reversal is the argument of one of the attorneys for appellees, based on the record of Murphy’s conviction of reckless driving in the Little Rock municipal court. The record does not show what this argument was, or that it was objected to at the time, but is referred to for the first time in the motion for new trial. This was insufficient to present the question to the lower court, or to this court on appeal. Sanderson v. Marconi, 149 Ark. 97, 231 S. W. 554. Moreover, as we have already shown, the certified copy of the record of conviction was properly admitted as invited, and, having been properly admitted, it was subject to proper comment in argument of counsel.

The remaining' assignments of error argued cannot be considered, as they were not included in the motion for a new trial, but were set out in an amendment to the motion for new trial filed out of time. Section 1314, C. & M. Digest; Spivey v. Spivey, 149 Ark. 102, 231 S. W. 559; Field v. Waters, 148 Ark. 325, 229 S. W. 735; 20 R. C. L., p. 302, § 83. In the last citation it is said: “To invoke the jurisdiction of the court to entertain a motion for a new trial, the motion must be made within the time allowed by the statute or enlarged by the court. * * * If the motion is filed out of time, it may be either stricken from the files or overruled, and all matters included therein will be unavailing on appeal or review. After the expiration of the time limited, the court is without authority to permit the filing of another motion upon different grounds, or even to permit an amendment of a notice of motion, for a-new trial by adding thereto a new and independent ground therefor.”

The trial was concluded March 16,1929. The motion for a new trial was filed March 28,1929, the court having given thirty days for this purpose. It was overruled April 2, 1929, and appeal prayed and granted. Thereafter, on June 13, 1929, appellant filed what is called amendment tó motion for a new trial, containing additional grounds of alleged error, and on June 14, the judge made this indorsement thereon:

‘ ‘ This amendment to motion for a new trial was filed on this June 13, 1929, and the court having previously adjourned until court in course, and, the court having no authority under the laiw to consider the motion in vacation at said time or1 after, the said motion is rejected or overruled. Exceptions saved. Done in vacation, th’is June 14, 1929. Thomas E. Toler, Judge.”

This action of the judge was correct, and this amendment presents nothing to this court for review.

Judgment affirmed.


author: Butler, J.

text:
    Weas v. Montgomery.
    Opinion delivered January 27, 1930.

      Rodney Parham and Carmichael •& Hendricks, for appellant.

      Robinson, House & Moses and W. H. Holmes, for appellee.
   Butler, J.

The appellant, J. A. Weas, at the April election, 1923, was elected to the office of judge of the municipal court of North Little Rock. He held the office without further election until the city election in April, 1926, when he again ran for said office against two opponents, and received a majority of the votes cast at that election. At the April election, 1927, he again ran for the office and was again elected. Before the April city election, 1929, the appellee, R. L. Montgomery, became a candidate for said office to be voted on at the election following, and the appellant again offered for election at the general election to be held on April 2, 1929, but at the time he made the decision to enter the race, he filed with the board of election commissioners of Pulaski County a letter in which he claimed that the term of office which he was then serving would not expire until April, 1931, and expressed the belief that the election commissioners would not place the name of any one on the official ballot for the office of municipal judge unless required to do so by some court of competent jurisdiction. At this election appellant was defeated by R. L. Montgomery, who thereafter qualified and was inducted into office to succeed the appellant. The appellant thereupon brought action in the circuit court of Pulaski 'County to oust appellee from said office.

On the trial of the ease the court found that the election for judge of the municipal court of North Little Bock ■was properly held in 1929, that the appellant’s term had expired at that election, and that the appellee was duly elected, qualified and legally acting judge of said court. To reverse that judgment, the appellant has appealed to this court.

There are a number of questions presented by the parties to this action in their respective briefs which it will be unnecessary to consider or determine, for a decision of this case must rest upon the interpretation of act No. 702 of the Acts of 19.23, approved March 27, 1923. Section 2 of that act provided that the term of the municipal judge should be fixed at four years. The act also contained other important provisions, one being that the salary of the judge should be increased from two thousand to three thousand dollars per annum; another, for the appointment by the judge of a clerk with an increase in salary from $1,200 to $1,950 per annum, and prescribed the powers and duties of such clerk. To this act no emergency clause was attached, and in the last section there was a clause for the repeal of conflicting laws, and directing that the act “shall take effect and be in force from and immediately after the general city election of 1923.” The term of office for the municipal judge for the city of North Little Bock, prior to the passage of this act, was two years, as fixed by act No. 221 of the Acts of 1917, and therefore the term for which the appellant was elected will depend upon which of the two acts was in force at the time of the April election, 1923. To determine the intent and meaning of a statute, it will be considered as a whole, giving the language used its ordinary and sensible meaning. Applying these cardinal rules to the construction of the act of 1923, swpra., it is certain that the act did not become effective until after the city election in that year. This is the only interpretation of which the language of § 5 of that act is susceptible: “This act shall be in force from and immediately after the general city election of 1923.” If it had been the legislative intent that the act should be in force when that election was held, surely the language used would have been different, as “shall take effect and be in force from and after its passage,” or take effect and be in force before” or “at” such general election.

The act could not have been in force at the 1923 election for another reason. The act was without an emergency clause, and therefore did not become effective until ninety days after March 8 the date of adjournment of the Legislature, and until June 6 following. Gaster v. Dermott-Collins Road Imp. Dist., 156 Ark. 507, 248 S. W. 2. When appellant was elected in 1923, he was elected 'for two years, which term expired in April, 1925. Indeed, counsel for appellant seems to concede this, for in his argument presented to this court he says: “Appellant was elected at the general election of 1923 for a two,year term, because the act did not go into effect until after that election.” If then the appellant was elected at the 1923 election to the office of judge of the municipal court for a term of two years, the question arises, When did the four-year term created by act No. 702, supra, begin? Upon the answer to this question depends the correctness of the judgment of the trial court. Appellant argues that, since the concluding section of the act provides that it shall be in force from and immediately after the city election in 1923, the term of four years prescribed therein began at the time appellant took office under that election. If this is true, we have this peculiar and unusual situation — that of a judge of the municipal court serving for two terms during* one and the same period of time, namely, for a term of two years, and one for one of four years by virtue of the same election, one term ending* in 1925 and the other in 1927. Appellant contends that the four-year term of office began in 1923, because the statute makes the specific provision that it should begin then. We are of the opinion that counsel for the appellant has confused that part of the act relating to the term ■with the other portions of the act, which, as we have seen, are important; i. e., that part providing for the salary of the judge of the court, and increasing same over that received by him previous to the passage of the act of 1923, and, also for the appointment by the judge of a clerk o'f the court, and the increase in salary of said clerk. As to these provisions, the Legislature intended and so specified that the judge and clerk of the court should receive the benefits immediately after they were inducted into office, and doubtless they have drawn these1 salaries at the increase named in said act over the salaries previously provided. The record does not say so in so many words, but we can reasonably presume that the officers took advantage of this manifest intention of the Legislature. But, as to the term provided by the act of 1923, we do not see how it could have begun immediately after the election, because the judge was elected for a different term, and the reasonable inference is that the four-year term provided did not begin until the term for which the judge had been elected had expired. This would have been in 1925, and that election was the proper one at which the appellant should have offered himself for reelection, and, if then elected, he would have held office for four years therefrom. For some reason, there was no election held in 1925, and a vacancy therefore would have occurred in the office of municipal judge but for the provision of the Constitution that the incumbent in office should continue until his successor should have qualified. By virtue of said constitutional provision, appellant continued in office during the year 1925 and until April, 1926, and at the general election held in April, 1926, he became a candidate for the office of municipal judge, and was elected, receiving a majority of the votes cast at that election. The record is not clear as to just what was the nature of that election — whether or not it was a special election called to be held at the time of the general election to fill the vacancy in the office of judge of the municipal court, as provided by § 50, art. 7, of the State Constitution. However, as the appellant continued to hold office after the election of 1926, we think it makes no difference whether he was holding by virtue of a special election, or by virtue of his right to serve until his successor was duly elected and qualified. At the general election in 1927, appellant again offered as a candidate for the office of municipal judge and was again elected. He contends that the term of office under which he had previously been holding expired, and that the 1927 election was the proper time at which the municipal court judge should be elected for another term. In this he was clearly mistaken; in 1925, appellant’s two-year term having expired, if the new four-year term began, whether the election of 1926 be treated as a special election to fill a vacancy or whether the 1927 election was such, the practical result is the same, for, no matter how he was holding, he was, and could, only have been holding for the four-year term beginning with the April election, 1925. As the four-year term began in 1925, the election of April, 1929, was the proper time to elect the appellant’s successor in office, and the appellee, having received a majority of the votes cast at that election, is now the legally elected judge of the municipal court.

The trial court was correct in so holding, and the .judgment is therefore affirmed.


author: Butler, J.,

text:
    Farmers' & Merchants' Bank of Bearden v. State use Calhoun County.
    Opinion delivered January 27, 1930.

      Gaughan, Sifford, Godwin S Gaughan, for appellant.

      Compere Compere and Joe Joiner, for appellee.
   Butler, J.,

(after stating the facts). The appellee, Calhoun County, predicates its right to recovery from the appellant bank on the theory that there was a wrongful conversion by the county treasurer of the funds in his hands belonging to the county, and that the appellant bank, with knowledge of such facts, or knowing facts from which such knowledge could be imputed, when it accepted and appropriated the proceeds of the $2,000 check unlawfully drawn by the county treasurer on the funds of the county in the Calhoun County Bank, became liable jointly with the county treasurer for such wrongful conversion; and that appellee, Goodwin, although he might himself not have known that the check drawn was not the personal check of Easterling, but a check of the county treasurer drawn on county funds, is liable, because the appellant bank, in receiving and collecting the check, was the agent of Goodwin, and its knowledge and acts, being in the line of its duty and within the scope of its authority, became the knowledge and acts of Goodwin himself. The question as to whether the appellant bank knew or should have known that the funds of the county were being- unlawfully converted was submitted to the court sitting as a jury, which had before it testimony tending to, establish the facts hereinbefore stated. While it Avas stated by one of the officers of the appellant bank tlfat the abbreviation “Co. Treas.,” taken together with the knowledge of what the check was for, made him think that the abbreviation meant company treasurer, this statement the court had the right to weigh with the surrounding circumstances, and, being the sole judge of the credibility of the witnesses and the weight to be given their testimony, concluded, and had the right to conclude, that the bank, when it received the check in question, knew that it was the check of the county treasurer, and drawn on county funds.

Did this knowledge render the appellant bank liable? The appellant bank insists that, notwithstanding the finding oif fact by the court, it is not liable, because, as.it says, it “never-has. claimed or held any right, title or interest in or to any part or portion oil said funds,” and, although the court might have found from the circumstances known to the bank that it should have known that the check was for county funds unlawfully converted, this would not be sufficient to 'bind it, because it must have had “actual knowledge that Easterling was using county funds to pay his individual obligations, or the obligations of the Calhoun Supply 'Company. ’ ’ The appellant bank contends that it merely was the agent for the collection of the check, and that, when collected, it held the proceeds in trust for Goodwin. Appellant relies upon the cases of Second- National Bank v. Bank of Alma, 99 Ark. 386, 138 S. W. 472, and State National Bank v. First National Bank, 124 Ark. 531, 187 S. W. 673, to support this contention.

In the first mentioned case the court said: “The uncontroverted evidence shows that the plaintiff received the draft with the accompanying bill-of-lading from the Judge Machine Company (owner of the draft) for collection only, and did not discount said draft or purchase same. The Judge Machine Company was a depositor with the plaintiff, but the testimony clearly shows that m> part of this draft was placed to its credit by the plaintiff, and no part thereof was paid to the Judge Machine Company by it. The plaintiff was not a purchaser of this draft, and it therefore was not a> holder thereof for value. It therefore did not become the purchaser or owner of the machine covered by the bill-of-lading accompanying the draft. ’ ’

In the latter case the court found that the bank sought to 'be -bound had never at any time had any interest in the check or title in its proceeds, but received same in the ordinary course of business for collection merely, and held the proceeds in trust solely for the purpose of remitting.

In the instant case, the check in question was drawn payable to the order of the appellant bank itself, and, while it was acting’ as the agent of Goodwin for the collection, yet, when the proceeds were collected, it appropriated the money and became the owner of same, crediting an equal amount to the time deposit of Mrs. M. H. Goodwin, according to the instructions received by it from Goodwin. Therefore the appellant bank became the owner of the money and indebted to Mrs. Goodwin for a like amount. It will be seen from an examination of the cases cited by the appellant bank, 99 Ark. and 124 Ark., that they are unlike the case at bar, in that the proceeds of the draft and check in those cases were never deposited to the credit of the owners, and in this case they were so deposited, and the check itself was made payable to the order of the appellant bank. As we have seen, the bank was the agent for Goodwin in the collection of the check, yet that relation ceased when the money on the check was received, and the account of Mrs. Goodwin credited with an equal amount. Therefore the relation of creditor and debtor, as between the appellant bank and Mrs. Goodwin, obtained, the bank being the owner of the money, but at the same time owing Mrs. Goodwin therefor. This is the general rule, (3 R. C. L. 634), which has been adopted and approved by this court in a number of decisions, among which are Southern Sand & Material Co. v. Peoples’ Savings Bank, 101 Ark. 266, 142 S. W. 178; Brown v. Yukon National Bank, 38 Ark. 210; Guaranty Bank & Trust Co. v. Davis, 170 Ark. 86, 279 S. W. 357; City of Helena v. First National Bank of Helena, 173 Ark. 197, 292 S. W. 140.

In. support of its contention that it did not have actual knowledge of the conversion of county funds by the county treasurer, appellant bank argues that it might reasonably have concluded that the check, although drawn by the county treasurer on funds of the county, was not an unlawful conversion, because the testimony shows that Easterling, in paying himself commissions as treasurer of the county, would do so by checks drawn by himself as such on the county funds, and, for that reason, appellant bank was led to believe that Elasterling was legally authorized to execute and deliver the check. This could not have been the belief of appellant bank, because, in the first place, it was shown that the county treasurer had no commission due him during- the year 1928, having previously largely overdrawn his account as such; and, second, it knew that the check drawn was not for commissions, but to take the place of two checks of the Calhoun Supply Company, which had previously been dishonored, and that these checks so dishonored were for a debt due G-oodwin. While it might be true that the bank would not be required to inquire into the legality of checks drawn by public officers on public funds under circumstances where there could be no reasonable grounds for suspicion that they were being diverted, yet the circumstances of the instant case show that the transaction was not of such character as to make it apparently legitimate on its face. Nothing is better settled than that the existence of a fact may be proved by circumstances as well as by direct testimony, and in this case the circumstances were sufficient to lead to the inference that the appellant bank must have known that the funds of the county were being used for an unauthorized purpose. It knew that the Calhoun Supply Company did its banking business with the Hampton State Bank, and that no checks had ever passed through its hands drawn by the supply company upon the Calhoun County Bank; it also knew that the supply company was indebted to Goodwin, and in payment of wbicb debt certain post-dated checks had been issued drawn on the Hampton State Bank ¡by the supply company, which had been dishonored, and that the identical check in question was drawn in its favor upon the Calhoun County Bank in payment of the dishonored checks, and that the signature of the check was not such as had been usually signed to the cheeks of that company, but by the name of a man whom it knew to 'be the treasurer of the county with the usual indicia of his official character. All this leads to the irresistible conclusion that the appellant bank knew, or should have known, all the facts of which it now has knowledge. This being true, liability attaches to the appellant bank by virtue of § 2833 of Crawford & Moses’ Digest, act approved April 9, 1891. Section 2 of that act provides that “It shall be unlawful for any person or persons whomsoever to borrow or receive any public funds of any such officer, deputy clerk or employee, knowing the same to be public funds, and for the purpose of converting or applying the same to his or their own use or benefit, or to the use or benefit of any other person or persons, or of any corporation.” Such “officer” referred to is any State, county, township or city officer mentioned in act 627, Acts of 1923, page 526, amending § 2832, C. & M. Digest.

A number of cases are cited by appellant bank and appellee, Calhoun County, in support of their various contentions, which we do not deem it necessary to review because of the conclusion reached. It is clear that, under the facts and the law, the appellant bank is liable to the county, and that the judgment of the trial court as to it is correct.

Since the lower court found that the appellant bank rvas in possession of facts sufficient to put it on inquiry, and, as we have seen, the evidence justifies such finding, it follows that the court erred in dismissing the complaint as to M. H. Goodwin, on the ground that he “had no notice or knowledge of the fact that the public fund was being unlawfully converted by said county treasurer, and liad no information sufficient to put him on inquiry thereof.” The appellant bank, in accepting the check drawn in its favor by the county treasurer on county funds, and in making the collection from the drawee bank, was acting within the line of its duty and the scope of its powers as agent for M. H. Goodwin (3 it. C. L. 634) and he therefore was affected ivith notice of all that the agent knew or should have known. Bank of Hoxie v. Meriwether, 166 Ark. 39, 265 S. W. 42. The circumstances surrounding this transaction were sufficient to warrant the inference that the appellant bank had actual knowledge of the unlawful conversion of public funds, and it is unquestionably true that'Goodwin was benefited by such conversion, for he was able thereby to collect the value of two worthless checks. It is immaterial whether the proceeds were deposited to his individual account or to that of his wife, for he owed his wife, according to his own testimony, $3,800, and this was a payment of his indebtedness to his wife pro tanto. Therefore he is clearly liable under § 2833, C. & M. Digest, hereinbefore quoted.

It follows that the judgment of the trial court will be affirmed as to the appellant, Farmers’ & Merchants’ Bank of Bearden, and as to the appellee, M. H. Goodwin, is reversed, and it appearing that the case was fully developed in the court below, a judgment mil be entered here against the said M. H. Goodwin for the amount converted, together with six per cent, interest thereon from November 21, 1928. It is so ordered.