author: Hart, C. J.,

text:
    Hemphill v. Lewis.
    Opinion delivered May 30, 1927.
    1. TRIAL — TRANSFER OF CAUSE TO CHANCERY COURT — WAIVER OF objection. — Where, after a cause was transferred from the circuit to the chancery court, no motion was made to transfer it hack to the circuit court, and no objection to the action of the chancery court in trying the cause, the objection to the forum was waived.
    2. Appeal and error — erroneous transfer of cause to chancery. —An erroneous order of the circuit court transferring the cause to the chancery court may be corrected on appeal from the final judgment or decree.
    3. Landlord and tenant — sufficiency of evidence. — Evidence held to sustain a judgment in favor of a tenant in a suit against the landlord for the balance due on the tenant’s crop against the contention that the tenant was liable as copartner on the landlord’s claim against his father.
    Appeal from Little River Chancery Court; G. E. Johnson, Chancellor;
    affirmed.
    STATEMENT OP PACTS.
    This was an action in the circuit court by B. Lewis against A. T. Hemphill for a balance alleged to be due him from the proceeds of a share crop of cotton raised by him on Lie defendant’s land. The defendant filed an answer, denying* that he owed the plaintiff in any amount, and, by way of cross-complaint, asked judgment over and against the plaintiff' and his father, C. J. Lewis, on account of a balance owed him by them for supplies furnished them with which to make a crop. C. J. Lewis •filed a separate answer to the cross-complaint. B. Lewis also filed an answer to the cross-complaint, in which he denied the allegations thereof. During the progress of the trial in the circuit court, over the objections of both parties, the court withdrew the case from the jury, and, on its own motion, transferred it to equity. Without objection the case was heard and determined there, upon evidence which will be stated and referred to in the opinion.
    The chancellor found the issues in favor of B. Lewis, and it was decreed that he should recover of A. T. Hemp-hill the sum of $525.96, together witli the accrued interest. To reverse that decree A. T. Hemphill has duly prosecuted an appeal to this court.

      A. D. DuLaney and A. P. Steel, for appellant.

      Shaver, Shaver S Williams, for appellee.
   Hart, C. J.,

(after stating the facts). It is first insisted that the decree should be reversed because the case was erroneously tried in the chancery court. The record shows that, during the progress of the trial in the circuit court, over the objections of both parties, the case was transferred to equity. Both parties saved their exceptions to the action of the circuit court. The order of transfer from the circuit court to the.chancery court discontinued the action in the former court but continued it in the latter court until it was disposed of there, either by trying the case or by transferring it back to the circuit court.

If the order of the court is erroneous, it can be corrected upon appeal from the final judgment or decree in the case. Gilbert v. Shaver, 91 Ark. 231, 120 S. W. 833; Vaughan v. Hill, 154 Ark. 528, 242 S. W. 826; and Nicholas v. Bright, 154 Ark. 1, 241 S. W. 33.

When tlie case was transferred to tlie chancery court, no motion was made to transfer it back to the circuit court, nor were any objections or exceptions saved to the action of the chancery court in trying the case. Under these circumstances the case must be'treated as an ordinary action instituted in the chancery court and tried there by consent. By not objecting to the jurisdiction of the chancery court the objection to the forum was waived. Columbia Compress Co. v. Reid, 160 Ark. 436, 254 S. W. 825, and Ohio Galvanizing & Manufacturing Co. v. Nichol, 170 Ark. 16, 279 S. W. 377.

It is next insisted that the finding of fact made by the court in favor of B. Lewis was wrong, and called for a reversal of the decree. We do not agree with counsel in this contention. The record shows that B. Lewis rented land from A. T. Hemphill in Little River County, Arkansas, for the year 1925. He made a crop on the shares and turned over the crop to Hemphill to be sold by him. After the payment of his account in the sum of $198 there remained due him, as his share of the proceeds of the crop, the sum of $525.96. He made demand of Hemphill for this amount, and the latter refused to pay him, on the ground that-B. Lewis and C. J. Lewis, his father, owed him a balance on an old account for supplies furnished them in making crops in partnership during the years 1919, 1920 and 1921.

According to the testimony of A. T. Hemphill, the account for these 3rears was in the name of C. J. Lewis, but the account was kept in this way for convenience. C. J. Lewis and B. Lewis were partners in making crops during the years they traded with him, and owed him a balance on said account in excess of the amount sued for in this action by B. Lewis. C. J. Lewis and B. Lewis indiscriminately would come to the store and purchase supplies, during the years above referred to, in behalf of the partnership.

According- to the testimony of B. Lewis, he had nothing whatever to do with the account made by his father, C. J. Lewis, during the years above referred to. During these years he worked with his brother, Lloyd Lewis, in making a crop, and lived with him for the most part. His brother furnished the supplies with which they made the crop, and paid for them. 'When B. Lewis was at home, sometimes when at the store* he would purchase supplies for his father, when requested to do so. It was understood by A. T. Hemphill that B. Lewis was purchasing these goods for his father and that B. Lewis had no interest whatever in the account. During the years 1919, 1920 and 1921 C. J. Lewis lived in town with his daughters, and purchased goods from A.'T'. Hemphill on his own account.

Lloyd Lewis was a witness for B. Lewis, and in all essential respects corroborated his testimony. Other witnesses testified in the case, but their testimony does not have any direct bearing on the issues. The testimony of A. T. Hemphill is slightly corroborated by the witnesses for him. On the other hand, B. Lewis introduced other witnesses who, to some extent, corroborated his testimony.

The evidence. above set forth, however, warranted the chancellor in finding that B. Lewis did not trade with A. T. Hemphill except during the year 1925, when he made a share crop on the defendant’s place. He delivered all the cotton he raised that year to Hemphill, and it was sold by him. Lewis demanded the balance due him from the proceeds of his share of the crop, after paying his account for that year. This he was entitled to, and the chancellor properly rendered a decree in his favor for that amount. The chancellor made a specific finding that B. Lewis and C. J. Lewis, his father, were not partners during the years 1919, 1920 and 1921, and that B. Lewis was not responsible for the account for supplies furnished by Hemphill to C. J. Lewis for these years, and his finding is sustained by the evidence.

It follows that the decree of the chancellor was correct, and it will therefore be affirmed.


source: Caselaw Access Project

author: Hart, C. J:

license: Public Domain

text:
    Macon v. LeCroy.
    Opinion delivered May 30, 1927.
    1. Prohibition — function of writ. — The purpose of a writ of prohibition is to keep inferior courts within the limitations of their own jurisdiction, and to prevent them from encroaching on the jurisdiction of other tribunals.
    2. Prohibition — when granted. — The writ of prohibition is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that will be done by such usurpation.
    3. Prohibition — appointment of receiver. — Prohibition does not lie to prevent the chancery court from determining whether the affairs of a corporation were mismanaged so as to require the appointment of a receiver on the ground of prior proceedings for a similar purpose in another court, since, if the court erred in determining such fact, there was a remedy by appeal.
    4. Corporations — equity jurisdiction over foreign corporation’s property. — A court of equity in this State may not dissolve and wind up the business of a foreign corporation, but may take charge of its property within its jurisdiction and enforce the rights of creditors here.
    5. Corporations — -jurisdiction to appoint receiver. — Upon allegations of the mismanagement of the affairs of a foreign corporation and of a domestic corporation, to the damage of creditors, the chancery court has jurisdiction to appoint a receiver of such corporations’ assets, regardless of a prior application in another chancery court for the appointment of a receiver of various corporations, including the two above mentioned, in order to prevent the intermingling of their funds to the detriment of stockholders.
    Prohibition to Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    writ denied.

      E. B. Billon, Bownie & Schoggen and Bose, Hemingway, Cantrell & Loughborough, for petitioners.

      Mahony, Yocum & Saye, for respondent.
   Hart, C. J:

This is an application b3r Randolph H. Macon and W. A. Robinson for a writ of prohibition to the Union Chancery Court for the Second Division to vacate an order of said court appointing a receiver in a designated case, and from proceeding’ further in such case.

According to the allegations of the petition, on the 6th day of April, 1927, Randolph H. Macon and W. A. Robinson filed a complaint in the Pulaski Chancery Court against the Central States Gras & Electric Company, hereinafter called the Central company, and otters, asking for the appointment of a receiver for certain corporations and an accounting between said corporations. The defendants in that case are the Central company, a corporation organized under the laws of the State of Maryland and authorized to do business within the State of Arkansas; the El Dorado Cas Company, hereinafter called the gas company, which is a corporation organized under the laws of the State of Arkansas; and the Morgan Utilities, Inc., which is also a corporation organized under the laws of-the State of Arkansas. The principal office of each of said corporations is in Little Rock, Arkansas. S. R. Morgan is a resident of the city of Little Rock, and Hopkins Wade is a resident of El Dorado. They are the managers of each of said corporations, and were the officers in charge of the Republic Power & Service Company prior to the appointment of a receiver for said company by the Pulaski Chancery Court. Plaintiffs are the owners of 222 shares of the capital stock of the Central company and four shares of stock in the gas company. All the rest of the stock of the gas company, is owned by the Central company. All of the stock of the latter company, except that owned by the plaintiffs herein, is owned by the Republic Power & Service Company. S. R. Morgan, M. B. Morgan and Hopkins Wade are in practical control of all of said defendant companies. They are the owners of the stock in the Morgan Utilities, Inc., and all the assets of that company are the property of the Republic Power & Service Company.

It is alleged that Morgan had mismanaged the affairs of the Central company and the gas company and had acted fraudulently in the management of the affairs of said companies. It is also alleged that said S. R. Morgan is endeavoring to defraud the creditors and stockholders of the Republic Power & Service Company, the Central company and the gas company by fraudulent practices in the management of their affairs and by confusing and intermingling their assets in such a way that the real condition of said companies is not known. The complaint is very voluminous, but the gist of it is that S. it. Morgan is the principal stockholder of all of said companies, and is the practical manager and in control of all of them; that he is intermingling and confusing the assets of Said corporations so that the creditors and stockholders thereof may be induced to sell their stock or to relinquish their claims for a small sum of money. A summons was issued in said case on said 6th day of April, 1927. The return of the sheriff shows that it was served on the authorized representative of the Central company on the 7th day of April, 1927, and on the receiver of the Republic Power & Service Company on the 9th day of April, 1927. Service was had on S. R. Morgan on the 7th day of April, 1927.

The record also shows that on the' 12th day of April, 1927, Gr. R. Anderson and others filed a complaint in the Second Division of the Union Chancery ‘Court against the Central company, the gas company, Morgan Utilities, Inc., S. R. Morgan and Hopkins Wade. It is alleged that the Central company is a foreign corporation with its .principal office in this State located at El Dorado, and that it owns and operates pipe lines for distributing gas in Union County. The gas company is a domestic corporation, and is a subsidiary of the Central company. The gas company is a public utility, and operates a gas distributing system in the city of El Dorado and receives its gas from the Central company. The Morgan Utilities, Inc., is a domestic corporation, owned and controlled by S. R. Morgan. On the 16th day of August, 1926, a majority of the stock of the Central company and the gas company was acquired by Hopkins Wade and S. R. Morgan. The plaintiffs are the owners of shares of stock in the Central company and in the gas company. There is a bond issue in the aggregate sum of $275,000 against two said companies named in the complaint. One of the plaintiffs is the owner of $7,500 of said bonds.

It is further alleged that S. E. Morgan Jias willfully diverted the earnings of said companies to other enterprises in which he is interested, and has willfully defaulted in the payment of interest to the bondholders with the avowed purpose of decreasing the value of said bonds so as to enable himself to purchase them at a discount. Other allegations of gross mismanagement of said companies are made in the complaint.

The prayer of the complaint is for the appointment of a receiver to operate the affairs of said companies and to make payment by said companies on their bonded indebtedness. On the 12th day of .April a receiver was appointed by said chancery court to take charge of the property of all said companies and to operate the same under the directions of the court. The receiver appointed gave the bonds prescribed in the order appointing him, and duly took charge of the Central company, the gas company and the Morgan Utilities, Inc. On the 12th day of April, 1927, the Pulaski 'Chancery Court appointed a receiver for the Morgan Utilities, Inc., and on the 18th day of April, 1927, on his motion, said Union Chancery Court made an order vacating its former order appointing a receiver for said Morgan Utilities, Inc., and turned over the property of said company to the receiver appointed by the Pulaski Chancery Court. Said Union Chancery Court refused to vacate its order appointing a receiver for the Central company and for the gas company on the motion of the receiver for said Eepublic Power & Service Company.

It is the contention of counsel for the petitioners herein that the Pulaski Chancery Court acquired jurisdiction of the property of the Central company and the gas company when an application for receiver for said companies was filed, and that thereafter the Union Chancery Court had no jurisdiction to appoint a receiver for said companies. The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction, but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Russell v. Jacoway, 33 Ark. 191.

This court has ever since recognized that the purpose of a writ of prohibition is to keep inferior courts within the limits of their own jurisdiction and to prevent them from encroaching on the jurisdiction of other tribunals. Weaver v. Leatherman, 66 Ark: 211, 49 S. W. 977; Finley v. Moose, 74 Ark. 217, 85 S. W. 238; and District No. 21 United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S. W. 546. In the case mentioned last it was held that a writ of prohibition is an appropriate remedy to restrain the exercise of jurisdiction by an inferior court over a subject-matter when it has none and over parties where it can acquire none. The court, however, in that case recognized the settled rule that the writ is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection against the wrong that shall be done by such usurpation; In the case of Finley v. Moose, 74 Ark. 217, 85 S. W. 238, 109 Am. St. Rep. 74, it was held that, if the existence or nonexistence of jurisdiction depends on contested facts which the inferior tribunal is competent to inquire into and determine, a prohibition mil not be granted, though the superior court may be of the opinion that the questions of fact have been wrongly determined by the court below, and that their correct determination would have ousted the jurisdiction..

Now, the Union Chancery Court had the power to determine whether or not the affairs of the gas company and of the Central company were being grossly mismanaged and the assets thereof dissipated to the injury of the creditors of said corporations. If it erred in determining this fact, the error could have been corrected by appeal. A writ of prohibition would not lie. The Central company is a foreign corporation, and the courts of this State have no authority to dissolve and wind up its business; the rights of courts of equity in this State are limited to taking charge of the property within the jurisdiction of the court and enforcing the rights of creditors here. Dickey v. Southwestern Surety Ins. Co., 119 Ark. 12, 173 S. W. 398, Ann. Cas. 1917B, 634, and oases cited.

Under the allegations of the complaint in the Union Chancery Court, the affairs of the Central company were being mismanaged and the rights of creditors were prejudiced, thereby involving the jurisdiction of the court in aid of the rights of creditors. A similar allegation of the mismanagement of the affairs of the gas company, which was a domestic corporation, was also made, and this was the ground for the appointment of a receiver to protect the interests of creditors. Excelsior White Lime Co. v. Reiff, 107 Ark. 554, 155 S. W. 921. Thus it will be seen that, in ordinary cases, the jurisdiction of the Union Chancery Court to appoint a receiver to take charge of the assets and property of these two corporations in Union County could not be doubted.

It is earnestly insisted, however, that no jurisdiction could attach, because an application for a receivership for said companies was pending in the Pulaski Chancery Court at the time the Union Chancery Court appointed a receiver for said company. According to tl^e allegations of the complaint, the principal grounds for the appointment of a receiver by the petitioners herein in the Pulaski Chancery Court was to protect their interest as stockholders ill the Central company and in the gas company. The reason for their action was that S. R. Morgan was intermingling the funds of various corporations which he controlled, including these two corporations, to the detriment of the interests of the stockholders. The chancery court might have concluded that a receiver was not necessary, and that the purpose of the suit would be accomplished by the appointment of a master and by appropriate injunctive orders. In any event, the interests of the claiming;» in the suit filed in the Union Chancery Court were those of creditors and were not identical with th« interests of tlie plaintiffs in the suit in the Pulaski Chancery Court. The proof might have developed the necessity of the appointment of a receiver in the Union Chancery Court to operate said properties, although it might or might not have been necessary to appoint one in the Pulaski Chancery Court.

The case is not like that of Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467. In that case the suit involved the same subject-matter and was between the same parties. An action was brought at law for the partition of the land involved in that suit, and the court held that a subsequent suit in equity seeking the same relief between the same parties could not be maintained. All the matters involved in the chancery court were necessarily involved in the suit in the circuit court in that case. This is not true as to the case at bar. The issues in the suit in the Union Chancery Court were not necessarily the same as those in the Pulaski Chancery Court. The jurisdiction of the Union Chancery Court depended upon the existence of facts which were proved in that court, and it could not be said in any sense that the issues raised there must necessarily be the same as those raised and determined in the Pulaski Chancery Court.

It follows that the temporary writ is quashed, and the petition is .denied.


author: Wood, J. JVIehaeey, J.

text:
    Arkansas Bankers’ Association v. Ligon.
    Opinion delivered May 30, 1927.
    1. Rewards — right op recovery. — The right to recover a reward arises out of the contractual relation which exists between the person offering the reward .and the claimant, which is implied by law by reason of the offer on one hand and the performance of the service, on the other; the reason of the rule being that the services of the claimant are rendered in consequence of the offered reward.
    2. Rewards — issue as to liability. — In an action to recover a reward for procuring the arrest and conviction of a bank burglar, the issue as to whether or not plaintiff, in procuring the burglar’s arrest and conviction, was actuated by the offer of a reward, held raised by defendants’ general denial of liability and by, plaintiff’s undisputed testimony although not specifically raised by the pleadings.
    3. Pleading — amendment op complaint to confoem to peoof.— Where the issue as to whether plaintiff in procuring a burglar’s arrest was actuated by the offer of a reward was not specifically raised by the pleadings, but was raised toy plaintiff’s undisputed testimony, the chancery court should have treated the pleadings as amended to correspond with the evidence.
    4. 'Appeal and eeeoe. — On appeal chancery cases are tried in the Supreme Court de novo on the record made up in the lower court.
    Appeal from Pike Chancery Court; G. E. Johnson, Chancellor;
    reversed.

      Will G. Akers, for appellant.

      Tom Kidd, for appellee.
   Wood, J.

This is an action by the plaintiff, Ligón, against the defendants, Special Protective-Bewards Committee of the Arkansas Bankers’ Association and Arkansas Bankers’ Association, to recover a reward.

The plaintiff alleged that the defendants offered a reward of $500 for the arrest and conviction of any pern son ‘ ‘burglarizing by forcible and violent breaking and entry, or attempt to burglarize by forcible and violent breaking and entry, or of robbing or attempting to rob, any member of the Arkansas Bankers’ Association.” The plaintiff alleged that the Bank of Gflenwood, at Grlen-wood, Pike County, Arkansas, was a member of the Bankers’ Association and the rewards committee on the 12th of March, 1925; that on that day Hadley Babbitt did burglarize by forcibly and violently breaking and entering the building occupied by the Bank of Grlenwood, with the intent to commit a felony, and did then and there commit burglary and grand larceny by breaking and entering the building occupied by the Bank of Grlen-wood and carrying away the sum of $65. Plaintiff alleged that he arrested Babbitt as he came out of the bank building and delivered him to the city marshal at Glenwood; that he was afterwards convicted in the juvenile court, and is held as a ward of that court. The plaintiff alleged that he made the arrest as a private citizen, and had complied with the terms of the offer of the reward, and that the defendants had failed and refused to pay the same, for which plaintiff prayed judgment.

. The defendants answered, and admitted all the allegations of the complaint as to the offer by the defendants of a reward and of the burglary and grand larceny by Babbitt, and of his arrest and conviction, but denied that the plaintiff was entitled to the reward, because of the following facts: The said Hadley Babbitt is a minor under the age of eighteen years. At and before the time when the said Hadley Babbitt began the aforesaid forcible breaking and entry of the building in which the Bank of Glenwood was situate, plaintiff was watching said Hadley Babbitt, and saw and observed each and all of the acts and things done and committed’ by the said Hadley Babbitt during and immediately before the forcible breaking- and entry, and the said plaintiff could, without effort or danger, have prevented both the breaking and the entry of the building; but, notwithstanding the fact that he could have thus prevented the commission of the crime, he failed and refused so to do. On the contrary, he continued'to watch and observe the said Hadley Babbitt throughout the entire time during which the latter was committing the breaking, entry and exit, ■ and, after the breaking, the entry and the exit had all been effected under plaintiff's observation as aforesaid, plaintiff captured Hadley Babbitt and delivered him to the city marshal of Glenwood. The defendants are informed and believe, and therefore allege, that at all. .times herein mentioned plaintiff was acquainted with the terms of the notice by which the Special Protective Rewards Committee offers rewards for the-capture and conviction of persons burglarizing member banks, and that his failure to take any steps toward the prevention of the commission by the said Hadley Babbitt of the aforementioned crime was due to his desire to collect a reward from these defendants. .By reason of the facts above set out, plaintiff constituted himself an accessory before the fact to the crime committed by the said Iiadley Babbitt, and he is not entitled to receive or collect a reward in any amount whatsoever from either of these defendants.

The cause was begun in the circuit court and was, by consent of parties, transferred to the chancery court.

The plaintiff testified in his own behalf, substantially as follows: He had been living in the vicinity of Glen-wood for fifteen years. He had been acquainted with Hadley Babbitt for about seven or eight years. Witness was working in a hardware store in the town of Glen-wood, about 100 feet or more from the Bank of Glen-wood. On the 12th of March, 1925, witness saw Hadley Babbitt on the sidewalk which passes along by the bank' building. It was between 12 and one o ’clock. His attention was called to Babbitt by D. M. Caldwell, who was standing in the door of the hardware store where witness was working. Caldwell called witness’ attention to the fact that some one was in the bank building, and witness went down to the bank to arrest him. Witness stopped at the window and saw Babbitt get some money out of the till of the bank and put it in his pocket. Babbitt had entered the building by raising a window at the rear of the bank.- He had gone up a stairway and removed a screen and entered the bank through a window. Witness stepped up to a window to see what Babbitt was doing. Witness went to the place where Babbitt entered the bank, and Babbitt, who was then coming toward the window, saw the witness standing there waiting for him, stopped, and backed himself up in a corner of the building. Witness then went to the side door, and Babbitt-unlocked the door and -came out. Witness took charge of him -and delivered him to the town marshal, and told the marshal what Babbitt had done. After Babbitt had procured the money he started to go out the same way he came in, and, when he saw witness, he hid himself in the directors’ room. Then the witness went around, and, when Babbitt saw him standing at the door, lie unlocked the door and came out, and witness look charge of him. Witness told the officers where he saw the boy hide himself in the bank, and they searched' that place for money and found $21 in pigeonholes and one place and another. Babbitt was convicted of the robbery of the Bank of G-lenwood in the Pike Circuit Court, the crime for which witness had arrested him. At the time witness arrested Babbitt witness did not know that there was a reward offered for him. Witness made the arrest because he thought it was his duty as a citizen for the benefit of the bank and the town. Witness appeared before the grand jury as a witness against Babbitt for the crime.

On cross-examination the witness described the situation of the store building from which he first saw "Babbitt and the bank building which he afterwards saw Babbitt enter. When he first saw Babbitt he,was just walking up and down along the sidewalk. It was probably a minute from the time witness first saw him on the. sidewalk until the time he first saw him lift the screen. While he was lifting the screen he sat down on the steps .of a stairway on the outside of the building. It was Babbitt’s peculiar actions that first attracted the attention of witness and Caldwell. When witness first saw Babbitt there was no one in the bank. The officers and employees had gone to lunch. Witness watched Babbitt from the time he first saw him until a customer came in, and witness went to wait on the customer. Witness had had an account at the bank for several years, and was in and out of the bank frequently. He made his deposit at the teller’s window, just as other customers. After witness’ attention was called to Babbitt’s peculiar action, witness wanted to see what he was going to do if he entered the bank. If there was anything wrong with the boy, witness wanted to know it. Witness and Caldwell were standing there watching him, and said, “We will just see what he is going to do.” Then witness went back in the store to wait on a customer. Witness did not know exactly what Babbitt’s purpose was in walking up and down the sidewalk and-opening .the window, hut his conduct looked out of the ordinary, and it was for that reason that witness watched him. His actions were suspicious. If witness had not been practically certain that Babbitt’s purpose was evil, he would not have watched him. Witness did not know what Babbitt’s occupation was. Witness thought Babbitt was seventeen years old. Witness did not think that he was a janitor in the bank. When witness observed Babbitt’s suspicious conduct, he might have called his attention, but .witness did not know but what he would have been butting in where he had no business, and did not do so. Witness went on and waited on the customer. Witness did not know what Babbitt was going to do, and therefore did not feel like it was his duty to get out there and holler at him. Witness had known Babbitt and his parents for many years. Witness and Babbitt’s father were young men together — had grown up in neighboring settlements. Babbitt’s family were customers of the witness. After witness had finished waiting on his customer, and went to the bank to see what Babbitt was doing, he did not call to Babbitt when he saw him reaching into the till to get the money, but stepped around to a position where witness could arrest him as he came out. Witness thought that was the thing for him to do. Witness was not in the bank, the doors were locked, and witness thought the safest plan was for him to catch Babbitt as he -came out of the bank. Witness probably could have stopped Babbitt before, but did not do so. Witness was first informed, that day or the next, about the offer of the reward made by the Bankers’ Association. Witness had never noticed the offer of reward that had been posted in the window of the bank. He did not know it was there. After it all happened and witness was informed of the reward, witness made this statement: “If the Bankers’ Association publishes a reward for a thing of that kind, if I was entitled to it, I just as well have it as not, otherwise I wou-ld not ask for it.”

Witness went to the- prosecuting attorney and told him about it, not altogether for the purpose of getting the reward. Witness felt that the laws ought to be enforced, and, if Babbitt had broken the law, he should be punished for it. If witness was entitled to the reward, he had just as well have it as not. Witness went to both the’ judge and prosecuting attorney and talked to them about it. After witness was informed about the reward he knew that it was necessary to have Babbitt indicted and convicted in order to obtain the reward.

The testimony of the witness Caldwell corroborated the testimony of the plaintiff in regard to the manner in which Babbitt entered the bank on March 12, 1925. He stated that he called plaintiff’s attention to the boy at the particular moment when Babbitt was sitting on the steps with his arm under the window. That a customer came into the hardware store, and Ligón waited on him and then came out. While Ligón was gone to wait on his customer, Babbitt entered the bank through the window. Witness then went to where Mr. Ligón was, and told him that the boy had gone into the bank. Mr. Ligón then went over to the bank, and was standing* near the door on the north side when the boy came out. Ligón said something to the boy, and came back with him and turned him over to the marshal of the town. It was Babbitt’s peculiar and suspicious actions which caused witness to direct the attention of Mr. Ligón to him. Witness thought that he intended to enter the building through the window. Neither Ligón or witness said anything to the boy while they were watching his actions. After Mr. Ligón went over to the bank he stood there at the window only a few minutes, then walked around to the door, and was there -when the boy came out.

McP. Gibbs testified that he had been an officer of the Bank of Glenwood for the past seven years. During all that time the bank had been a member of the Arkansas Bankers’ Association and a party to the special protective rewards agreement. There had always been on display in the bank in a prominent position a placard or card setting forth the special protective rewards committee’s offer of reward for the arrest and conviction of persons burglarizing member banks. This placard was by the front paying teller’s window, the window to which depositors came to make deposits and at which were presented checks for payment. It was the window through which 90 per cent, of the bank’s business is transacted. The placard faces so that any one'walking in at the door of the bank and up to the window sees it. No one can help seeing it. The placard sets forth, in heavy black-faced type, the offer of the rewards committee to pay rewards for the capture and conviction of persons robbing member banks. Babbitt had never been employed by the bank in any capacity whatsoever. The next day after the commission of the crime by Babbitt, his father had made good the loss. On account of the boy’s youth neither the bank nor its officers pushed any prosecution against him. The bank had nothing to do with the prosecution. Witness was subpoenaed before the grand jury as a witness.

The trial court found, upon the above facts, that the plaintiff was entitled to recover a reward of $500, and entered a decree in favor of the plaintiff against the defendants for that sum, from which is this appeal.

The theory upon which the rewards are recoverable, when offered by individuals or corporations, is that in some manner a contract relation exists between the one offering the inward and the one claiming the same. Before recovery can be had in any action for reward, the facts must be such as to justify the conclusion that the plaintiff or person who .claims the reward is entitled thereto because he has performed the services, for which the reward -was offered on the faith of the offer of such reward. While there is a sharp conflict in the authorities, both the better reason and the weight of authority is in favor of the above doctrine. The rule and the reason for it is well stated by Judge Hand, speaking for the Supreme Court of Illinois, in Williams v. West Chicago Street Ry. Co., 191 Ill. 610, 61 N. E. 456. 85 Am. State Rep. 278, as follows:

“The right to recover a reward arises out of the contractual relation which exists between the pelson offering the reward and the claimant, which is implied by law by reason of the offer on the one hand and the performance of the service on the other, the reason of the rule being that the services of the claimant are rendered in consequence of the offered reward, from which an implied promise is raised on the part of the person offering the reward to pay him the amount thereof by reason of the performance by him of such service, and no such promise can he implied unless he knew at the time of the performance of the service that the reward had been offered, and in consideration thereof, and with a view to earning the same, rendered the service specified in such offer. ’ ’

See other authorities there cited. See also 23 R. C. L., page 1115 el seq., particularly §§ 3 and 6; 34 Cyc. page 1730, § 1 (a) and page 1751, § 6, and authorities cited in notes; also note to Board of Commissioners of Clinton County v. Davis, 162 Ind. 60, 69 N. E. 680, 64 L. R. A. 780, 1 Ann. Oas. page 282, 285,-and cases there cited.

A well reasoned case, where the authorities pro and con are cited and reviewed, is that of Broadnax v. Ledbetter, 99 S. W. 1111, 9 L. R. A. (N. S.) 1905, 100 Tex. 375, in which Judge Williams, speaking for the Supreme Court of Texas, among other things said:

“The liability for a’reward of this kind must be created, if at all, by contract. There is no rule of law which imposes it except that Avhich enforces contracts voluntarily entered into. A mere offer or promise to pay does not give rise to a contract. That requires the assent or meeting of two minds, and therefore is not complete until the offer is accepted. Such an offer as that alleged may be accepted by any one who performs the service called for when the acceptor knows that it has been made and acts in performance of it, but not otherwise. He may do such things as are specified in the offer, but', in so doing, does not act in performance of it, and therefore does not accept it when he is ignorant of its having been made. There is no such mutual agreement of minds as is essential to a contract. * * * The mere doing of the specified things without reference to the offer is not the consideration for which it calls. This is the theory of the authorities which we regard as sound.” See authorities there cited.

There are certain well recognized, exceptions to the above rule which are mentioned in the authorities, hut which it is unnecessary for us to refer to here, because this case does not come within any of them.

The undisputed testimony of the appellee himself shows that the services he performed in the arrest of young Babbitt were without reference to the offer of reward. Among other things he stated: “My purpose was not any money interest, but rather interest in the enforcement of the laws of the country. Dr. Pate called my attention that appellants offered a reward for conviction of a person for such a crime. I appeared before the grand jury and was a witness in the case.” While the witness further stated that he talked with both the prosecuting attorney and the circuit judge, he does not make it clear that his actions in the premises were for the purpose. of obtaining the reward. On the contrary, giving the testimony of the appellee its strongest probative force in his favor, it tends to prove that he was actuated, at least primarily, for the enforcement of the laws and not for the obtaining of the reward.

Learned counsel for appellee, however, insists that a lack of knowledge on the part of the appellee of the offer of the. reward cannot avail the appellants, because this was not made an issue in the court below. While the pleadings do not specifically raise this issue, it was raised on the general issue by the appellee setting out the terms of the offer of reward and claiming that he was entitled to the reward, and that the defendants had-failed and refused to pay him, and the denial by the defendants that they were liable to the appellee. If the issue was not thus raised by the pleadings, certainly the undisputed testimony of the appellee raised it, and the court, in the consideration of the case, should have treated the pleadings as amended to correspond with the undisputed testimony, and thus should have considered the issue as to the liability or non-liability of the appellants on the uncontroverted proof. It must be remembered that this was not a trial at law before a jury, or the judge sitting as a jury, but a trial by the chancery court. On appeal chancery causes are tried-in this court de novo on the record made up in the lower court. The law and the facts are examined the same as if there had been no decision at nisi prius, and this court renders its decree based upon such record. Leach v. Smith, 130 Ark. 465, 197 S. W. 1160, and cases there cited.

Applying the principles of law as above announced to the undisputed facts of this record, it follows that the decree of the trial court must be reversed, and a decree will be entered here dismissing the appellee’s complaint for want of equity. It is so ordered. ’

Mehaeey and Smith, JJ., dissent.

DISSENTING OPINION.

JVIehaeey, J.

I cannot give my assent to the conclusions reached by the majority, and I think it proper to give the reasons for my dissent. The majority opinion states that the theory upon which rewards are recoverable when offered by individuals or corporations is that in some manner a contract relation exists between the one offering the reward and the one claiming the same. The opinion states that, “before a recovery can be had in an action for a reward, the facts must be such as to justify the conclusion that the plaintiff or person who claims the reward is entitled thereto because he has performed the services for which the reward was offered on the faith of the offer of such reward.”

The effect of this is, in my opinion, to hold tlqafc, although a person might arrest and secure the conviction of the most dangerous criminal in the country for Avhose arrest and conviction a reward had been offered, and tlie fact that he did iuot know, at. the time he made the arrest, either that a reward was offered, or, if he did know that, did not know that the person arrested by him was the one for whom the reward was offered, the failure to know either of these facts, according to the opinion of the majority, would disentitle the person making the arrest to receive the reward.

My view is that, when a person or corporation offers a reward in good faith for the arrest and conviction of a criminal, whoever secures the arrest and conviction of the person for whom the reward is offered is entitled to the reward. Certainly the one offering the reward secures that for which the reward was offered, and therefore should be required to pay. If he offers the reward in good faith it cannot be material to him who makes the arrest and secures the conviction, nor whether he knows there was a reward offered, or knows the person to be the man for whom reward was offered when he arrested him. If the reward is offered in go.od faith, the purpose is to secure the arrest and conviction of the criminal, and, if that is accomplished, the person offering the reward should be required to pay.

The Supreme Court of Indiana said:

“The second paragraph of the answer shows a performance of the service without the knowledge that the reward had been offered. The offer therefore did not induce the plaintiff to act. The liability to pay a reward offered seems to rest, in some cases, upon ah anomalous doctrine, constituting an exception to the general rule. In Williams v. Carwardine, 4 Barn. & Adolph. 621, there was a special finding, with a general verdict for the plaintiff, that the information for which the reward was offered was not induced to be given by the offer, yet it was held by all the judges of the King’s Bench then present, Denman, C. J., and Littledale, Parke and Patte-son, JJ., that the plaintiff was entitled to judgment. It was put upon the ground that the offer was a general promise to any person who would give the information sought; that the plaintiff, having given the information, was within the terms of tho offer, and that the court could not go into the plaintiff’s motives. This decision has not, we believe, been serkmsly questioned, and its reasoning is conclusive against the sufficiency of the defense under examination. There are some considerations of morality and public policy which strongly tend to support the judgment in the case cited. If the offer was made in good faith, why should the defendant inquire whether the plaintiff knew that it had been made? Would the benefit to him be diminished by the discovery that the plaintiff, instead of acting from mercenary motives, had been impelled solely by a desire to prevent the larceny from being profitable to the person who had committed it? Is it not well that any one, who has an opportunity to prevent the success of a crime, may know that by doing so, he not only performs a virtuous service, but also entitles himself to whatever reward has been offered therefor to the public? Dawkins v. Sappington, 25 Ind. 199.
“In a case in Indiana the president of a corporation offered a reward for books that had disappeared. The books disappeared during an inquiry under circumstances that led the president of the corporation, to believe that he wa,s under suspicion. He had offered rewards privately, but, when he was on the witness stand, he was asked this question: “You never publicly gave notice of a reward for the discovery of the books ? ’ ’ He answered: “No; I will offer it now, if that is public enough.” Some days later1 the books were found by appellee, who delivered them to appellant, and at his request appeared in court, and explained the circumstances of their finding*. >She did not at the time know of appellant’s statement in court, and, shortly before or after the books were delivered to appellant, he sent appellee $5, and, at the time she received it, she did not know of the alleged offer of a reward. On, learning it, she requested payment of the balance, 'and, on its refusal, brought this suit.
“Appellant’s position is that he only made the offer for the day and the time of the hearing, and that he was not interested in the books. The evidence, however, is that it was not so 'much the actual presence of the books in which appellant was interested as in clearing himself from any imputation of responsibility for their disappearance. That being true, the position here taken is inconsistent with the conditions then existing. * * * Any secret intention he may have had will not be let in to show an intent different from that expressed. * # * It is immaterial,' under the rule in this 'State, that appellee did not know of the reward when she found and returned the books.” Sullivan v. Phillips, 178 Ind. 164, 98 N. E. 868, Ann. Cas. 1915D, 670.

. The court in the above case cites many authorities supporting the rule announced by it. Several courts have held that, where the Legislature passed a law authorizing the Governor to offer a reward and the reward was offered, notice or knowledge-of the reward being offered was not necessary to entitle a person to claim the reward. Among the cases so holding may be cited Smith v. State of Nevada, L. R. A. 1916A, 1276; Board of Commissioners of Clinton County v. Davis, 162 Ind. 60, 69 N. E. 680, 1 Ann. Cas. 282, 64 L. R. A. 780; and there are many other cases that might be cited.

It may be true that a majority of the cases where rewards are offered by private individuals hold that a person cannot recover the reward unless he knew of its offer, but I think that does not necessarily mean that the weight of authority or reason supports this rule. The purpose of the Governor offering the reward authorized by statute is precisely the same as the purpose of an individual who offers a reward,, and the Attorney General of the United States, in speaking of the claim to a recovery and reward, said:

“The purpose of a reward is, of course, to stimulate persons to make an arrest, and, while knowledge thereof is éssential to effect that purpose, still, if the offer be a general promise to any one, made by a public officer, as in the case at bar, the motive of the person making such .arrest cannot be inquired into. The arrest itself is’ con-elusive of tlie motives which prompted it.” Smith v. State, supra.
“There are some authorities holding that knowledge of a reward is essential to recovery, but we think the weight of authority is as we have stated, especially where the reward has been offered by a 'public officer with authority, ias in the case at bar.”- Drummond v. U. S., 35 Ct. Cl. 356-372.

It has been, said:

“One who offers a reward for the performance of a certain service may prescribe any terms hem-ay wish, hut, as experience has shown that'many persons are profuse in their promises and slow in meeting them, and are inclined to take advantage of mere technicalities in order to avoid carrying out their end of the agreement, courts have often, as in Elkings v. Wyandotte County, held that substantial .compliance with the terms is sufficient, especially -where a literal compliance would be impossible. ” Smith v. State, supra.

- I think the judgment should he affirmed.

Mr. Justice Smith agrees with me in the views herein expressed.


author: Wood, J.

text:
    Holthoff v. Joyce.
    Opinion delivered May 30, 1927.
    1. Easements — conveyance op title. — Where the grantor in a deed agreed, as part of the consideration, to change the location of an alley from the south to the north side of an adjacent lot, making- an alley between it and the lot conveyed, before selling the adjacent lot, this was held not to be a conveyance of title to the alley.
    2. Deeds — partial failure of consideration. — Failure of a grantor to perform an agreement in his deed to change the location of an alley held to have resulted in a partial failure of consideration, rendering him liable to parties deraigning title to the lot conveyed from the grantee.
    3. Covenants — damages for breach. — Evidence held to sustain a court’s finding- that plaintiffs were damaged in the sum of $100 by failure of their predecessor in title to perform a contract to open an alley between a lot conveyed and an adjacent lot.
    4. Covenants — covenant running with lot. — The grantor’s covenant or agreement in a deed to change the location of an alley to a strip between the lot conveyed and an adjacent lot was a continuing contract for an easement running with the lot conveyed and inuring to the benefit of the grantee’s successors in title.
    5. Limitation of actions — contract to open alley. — An action instituted in December, 1925, for breach of a contract by plaintiff’s predecessor in title to open an alley between the lot conveyed and an adjacent lot before selling the latter, which he sold on February 9, 1922, held not barred by the statute of limitations.
    6. Dedication — selling lots by reference to plat. — Where the owner of land divided it into lots and blocks, and spld lots by reference to a plat, he irrevocably dedicated the streets and alleys to public use.
    7. Easements — purchase of lot with reference to plat. — One who purchased a lot with reference to a recorded town plat, and without knowledge of an alleyway between it and the adjacent lot, acquired a perfect title, with right to prevent a change in the location of the alley shown on a plat, though she had constructive notice by recorded deeds of adjacent lot of the grantor’s agreement to make the change or even actual notice of deeds under which the owners of adjacent lots deraigned title.
    Appeal from Lincoln Chancery Court; Harvey R. Lucas, Chancellor;
    affirmed.

      A. J. Johnson, for appellant.

      R. W. Wilson, for appellee. '
   Wood, J.

On November 8, 1916, G-. H. Joslyn and wife executed a warranty deed to T. W. Johnson, conveying to Johnson lot 3, block 5, in Joslyn’s Addition to the town of Gould, Arkansas, the said lot being shown on the plat duly recorded in Lincoln County, Arkansas. In addition to the usual-covenants, the instrument contained the following stipulation: “It is further agreed, as part consideration of this .contract, that the said Joslyn, before the sale of lot 4 of said addition, that he changed the location of the alley from the south side of lot 4 to the north side of lot 4, making alley between lots 3 and 4 as shown on said plat, and open and donate said alley to the town.” On May 10, 1922, T. W. Johnson and wife conveyed by warranty deed tlie lot above described to G. H. Holthoff and L. F. Johnson. In addition to the usual covenants the deed contained the following-: “It is further agreed as a part of this contract that the alley on south side of lot 4 of said block 5 be moved to the north side of lot 4, as shown on said plat.”

On February 9,1922, G. H. Joslyn and wife conveyed by warranty deed to Olive Yeid Joyce lot 4, block 5, in Joslyn’s Addition to the town of Gould, as the same appears on the plat of said addition above mentioned. In December, 1925, G. H. Holthoff and L. F. Johnson instituted this action against Joslyn and W. A. and Olive Veid Joyce, defendants, and later T. W. Johnson, W. E. Free -and O. W. Seifres, as mayor, were also named as defendants. The plaintiffs alleged that, by virtue of the above deeds from Joslyn to Johnson and from Johnson to plaintiff, they acquired title to lot 3 above mentioned and also a title to an opening and location for an alley ten feet wide between lots 3 and 4. ' They alleged that, when their grantor acquired title, an alley as above described was in fact located, opened and donated, and that they and their predecessor in title had been in the open, notorious and adverse possession of the alley since November 8,1916; that plaintiffs and the public generally had continuously so occupied the alley since that time with the knowledge of defendant, Joslyn, and all other parties, and plaintiffs therefore set up title by the seven-years statute of limitations. Plaintiffs alleged that they had constructed a store building to have an opening upon the alley as above described, and that they had no other means of entering the store building with freight except through this alley. They alleged that the defendants, W. A. Joyce and Olive Void Joyce, were attempting- to obstruct the above described alley by placing material thereon for the erection of a building, and would do so unless restrained. They also alleged that, if the court should find that the alley was not properly opened and donated by Joslyn, the plaintiffs had been damaged by his breach of contract in not opening and donating the same in the sum of $1,000. They prayed that defendant Joyce be permanently restrained from obstructing the alley, and that, if this relief were denied, they have alternative relief against Joslyn for damages for breach of his contract in the sum of $1,000.

The defendants Joyce, in a separate answer, admitted that they had purchased lot 4 and had placed material on the ground for the erection of a building, but denied that, in so doing, they will obstruct an alley between lots 3 and 4. They denied that any such alley had been donated and opened and occupied as alleged by the plaintiffs. They alleged that the plaintiffs were estopped from insisting upon any change in the location of the alley from the south side of lot 4 to the north side of lot 4. They set up that the plaintiffs, by their conduct and actions, were left to their remedy, if any, against the defendant Johnson for a failure of consideration. They prayed that the complaint be dismissed as against them for want of equity.

The defendant Joslyn,. in a separate answer, denied that the plaintiffs had acquired any title to the alley in controversy as claimed by them. He denied that, at the time of the execution of the deed from Johnson to plaintiffs, an alley had been in fact donated, opened and occupied as alleged by them, and denied that plaintiffs had built a store on this alley as alleged. He denied that plaintiffs had been damaged as alleged. He alleged that the stipulation in his deed to Johnson, under which plaintiffs claim, was not a covenant or agreement running with the land and did not pass to the plaintiffs under their deed from Johnson. He pleaded the statute of limitations of five and seven years in bar of plaintiffs’ right of action against him. He also embraced in his answer a general demurrer to the complaint.

The defendant Free, in his answer, alleged that he was the owner of block 5 of Joslyn’s Addition; that he had entered into possession of same and erected a brick store building on the north side of the lot immediately adjacent and parallel with the alley between lots 4 and 5 of Joslyn Js Addition to the town of Gould; that this addition was platted and an alley ten feet wide was shown upon the plat between lots 4 and 5; that the town of Gould accepted such plat, and streets and alleys had been laid out in conformity with such plat; that the said town of Gould and the public had used the streets and alleys thus platted continuously for more than seven years since the date of the dedication.of the said streets and alleys to the town. He alleged that at no time since such dedication had there been an effort on the part of any one to change the location of the alley between lots 4 and 5 as it was originally dedicated to the town. He alleged that he, having purchased lot 5 as a corner lot, according to the plat, was entitled to have the alley between lots 4 and 5 remain as originally established.

The testimony of T. W. Johnson was to the effect that he bought lot 3 on November 8, 1916, and also the alley. He went into actual possession, and built a store on lot 3 at that time, and had occupied the alley on the south side of his store since his purchase. He had been in actual possession of the alley six or seven years when he sold to the plaintiffs. He had occupied the lot and the alley all the time until lie sold to plaintiffs. There was no other alley across block 5 during that time. The alley next to his store was the only one used by the public. Witness knew nothing about the alley supposed to be between lots 4 and 5. Lot 3 was 43 feet wide, and witness constructed his store with an opening or door on the alley, which was the only way the witness could deliver and receive freight into his store building except through the front door on the main street. Witness further testified that, at the time he purchased the lot, the surveyor established the corners of the lot but did not mark off the alley. Before witness got his deed, however, he and Judge Joslyn measured off the lot and alley. After witness purchased the lot he did not let any building be put up in the ten-foot space set apart for the alley.

F. E. Grumbles testified that he was the clerk and recorder of Lincoln County. The plat of Joslyn’s Addition west of the railroad in the town of Gould shows an alley between lots 4 and 5 but does not show any alley between lots 3 and 4. The plat was duly recorded July 7, 1915, and was introduced in evidence.

Plaintiff, L. F. Johnson, testified, and his testimony is substantially the same as that of T. W. Johnson as to the purchase of the property in controversy; that he and Holthoff purchased lot 3 as described in the deed from T. W. Johnson, as above mentioned, which he identified and introduced in evidence. He stated that the deed contained a contract for the purchase of the alley in controversy the same as the deed -from Joslyn to' T. W. Johnson. The witness further testified corroborating the testimony of T. W. Johnson to the effect that, at the time T. W. Johnson purchased, the alley in controversy was opened and turned over to the public generally, as set forth in the deed from Joslyn to T. W. Johnson; that it had been continuously used by the public since then. Witness stated that there had been no other alley opened and used in block 5, that there had been no effort by any one to close the alley in controversy except Joyce; that happened about the time this action was begun. About that time witness told Joyce that the alley in controversy had been conveyed to plaintiffs. Witness further testified that, if the alley in controversy should be closed, the damage would be about equal to the value of the lot, which was estimated to be at least $1,000. Witness stated that, at the time he came to Gould in 1916, the alley between lots 4 and 5 shown on the plat of Joslyn’s Addition had not been opened, and it would not be possible to use it as such at the present time. Witness stated that the town of Gould was using the space shown on the plat as an alley between lots 4 and 5, having built a house on it in which to keep the fire-hose.' The space witness claims as an alley is ten feet south of his property line, and no more. At the time witness discussed the matter with Joyce as to the ownership of the alley, 'witness knew that Judge Joslyn had parted with title to lot 4. The testimony of the witness was further to the effect that, in going down the space to the side door of witness ’ store, the space was all open and the wagons traveled this open space — they were not confined to the ten-foot alley. There was nothing to keep them from so doing. The vehicles going north travel across the plaintiff’s lot and those going south cross the Joyce lot. Witness had made no demand upon Judge Joslyn to change the alley from the south side of lot 4 to the north side of lot 4, and had not taken any action to have the town council make the change. At the time witness’ father purchased lot 3 there was nothing on lot 4.

The testimony of Holthoff, the other plaintiff, substantially corroborates that of Johnson.

The testimony of the witnesses for the defendants Joyce was to the effect that lot 4, south of lot 3, since 1917, had been practically an open Space and used as a passageway. One of the witnesses, Mr. McClendon, had lived in Gould about fourteen years, and his testimony was to the effect that there had always been an opening there on the south side of Johnson’s store, for the last four or five years at least. People could drive wherever they pleased. There had been an opening of at least 100 feet since the shack on the south side of Johnson’s store burned, which had been used by the general public in passing from street to street. Another witness, who owned a grist mill located on the lot at the rear of plaintiff’s store and north of their lot, stated that 75 per cent, of the people going to and from his mill and to the back door of Johnson’s store traveled through the open space south of the garage building. That condition existed until the shack burned in 1921 or 1922. All of lot 4, the alleyway between lots 4 and 5, and a part of lot 5 was used for travel.

W. A. Joyce testified that he purchased lot 4, block 5, from Judge Joslyn on February 9,1922, and he identified and introduced the deed above mentioned. He examined the plat mentioned, which showed an alley 'between lots 4 and 5. He purchased with reference to this plat. There Avas nothing to indicate that there was any alley-Avay between lots 3 and 4. Witness did not learn that the plaintiffs claimed an alleyway between lots 3 and 4 until 1922 or 1923: Witness was planning’ to construct a brick building- on lot 4. The lot is 43 feet wide. If a ten-foot alleyway Avere taken off the north side it would not be a practical business lot for the town of Gould, and the market value of the lot thus reduced in size would be $500. Judge Joslyn represented to the mtness, at the time he purchased, that his lot would be 43 feet mde. Beginning at the west end of Johnson’s store, the entire lot is used by travel from Railroad Street to Joslyn Avenue, also hitching and parking wagons and cars. Several witnesses testified that the failure to have an alley between lots 3 and 4 damaged the plaintiffs from $50'to $150.

The trial court found that there was an open space and had been since the purchase of lot 3 from Joslyn, and that not only this ten-foot strip was used by the plaintiffs, but by the general public as well, both for driving across and for parking purposes; that Johnson’s contract Avith Joslyn was contingent that the alleyway be changed from between lots 4 and 5 and located between lots 3 and 4, Avhich was never done. The court declared that no vested right, either by laAv or easement, prescription or possession, divested the defendant Joyce of title to the land in controversy. The court found that the plaintiff was damaged in the sum of $100 because of the failure of Judge Joslyn to comply Avith his contract. Thereupon the court entered a decree dismissing the plaintiff’s complaint against Joyce for want of equity, and entered a decree in favor of the plaintiffs against Joslyn in the sum of. $100. From the decree the plaintiffs-and defendant Joslyn prayed and were granted an appeal to this court.

The paragraph in the deed from Joslyn to T. W. Johnson by which Joslyn agreed, as a part of the con-¡¿deration, that, before tlie Bale of, lot 4, lie would chango, the location of the alloy from the south side of lot 4 to the north side of lot 4, making the alley between lots 3 and 4, was not a conveyance of the title to the alley, the strip of land ten feet wide in controversy. It was an agreement on the part of Joslyn to change the location of the alley as it then appeared on the recorded plat. This agreement Joslyn failed to perform, resulting in a failure of consideration to that extent, and, of course, rendering him liable to the appellants who deraigned their title to lot 3 from Joslyn to T. W. Johnson. The preponderance of the testimony proves that the appellants were damaged by reason of the failure of Joslyn to perform his contract to open the alley in the sum of $1*00. This covenant or agreement on the part of Joslyn was a breach of a contract f-or an easement which ran with the lot conveyed by Joslyn to T. W. Johnson, appellants’ predecessor in title. It was a' continuing contract, and was not violated by Joslyn until he sold lot 4 to Mrs. Olive Veid Joyce on February 9, 1922. The agreement inured to the benefit of the appellants as the successors in title to T. W. Johnson. The action by appellants against Joslyn is not barred by the statute of limitations. Tlie decree therefore in favor of the appellant Holthoff against Joslyn in the sum of $100 is affirmed.

As we have seen, appellants acquired no title to the alley or strip of land in controversy under the deed from Joslyn to T. W. Johnson. Indeed, the agreement of Joslyn to open the alley between lots 3 and 4 was one impossible for him to perform, because the undisputed evidence shows that he had already dedicated the land in Joslyn’s Addition to the town of G-ould and laid off the same into lots and blocks, with streets and alleys, as delineated on a plat which was filed by Joslyn as evidence of his dedication, and duly recorded on July 7, 1915. The law is that “an owner of'land, by laying out a town upon it, platting it into lots and blocks, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable. * * * The dedication becomes irrevocable the moment that these acts occur.” Frauenthal v. Staten, 91 Ark. 350-355, 121 H. W. 395, and oases there cited.

In 19 C. J. 928, it is said:

“Where the owner of a tract of land lays it out in streets and lots delineated on a map or plan and sells lots bounded by such streets, which are referred to in deeds of conveyance as boundaries, the legal effect of the grants is to convey to the grantees the right-of-way over the streets respectively as laid out. * * * The right-of-way passes to each subsequent purchaser of the lots to which the easement appertained, whether mentioned in the conveyance or not. Furthermore, this also constitutes an incipient dedication to the public, which, according to the weight of authority, the grantor cannot revoke, although there has been no formal acceptance by the public authorities, or by user by the general public. Notwithstanding the fact the streets are never used or accepted by the public, the purchasers nevertheless acquire the same right in the'streets so described as against the grantor and each other as. they would if they were in fact.public streets.”

Mrs. Olive Yeid Joyce had a right to purchase and to acquire a perfect title to lot 4, block 5, Joslyn’s Addition to the town of G-ould, with reference to the alleys and streets in such addition as were on record at the time of her purchase. The undisputed testimony shows that Mrs. Joyce purchased lot 4, block 5, with reference to the plat of the town then on record, and that she had no knowledge of an alleyway running along from Railroad Street to Joslyn Avenue by the side of Johnson’s store on the south. Even though she had constructive notice by the deeds on record that Judge Joslyn had agreed to change the alley as specified in those deeds, this would not affect her right to purchase lot 4, block 5, Joslyn’s Addition, with reference to the recorded plat of such addition. Even actual notice of the deeds under which appellants deraigned title to the lot in controversy could not affect her right to purchase lot 4 with reference to the recorded plat of Joslyn’s Addition. The appellee, Mrs. Joyce, acquired title to lot 4 in Joslyn’s Addition, and with it the right to protest, and to successfully resist, the effort on the part of the appellants to have the alley changed from between lots 4 and 5, as it appeared on the recorded plat, to an alleyway between lots 3 and 4.

In this view of the law it becomes unnecessary to discuss the question of appellants’ alleged claim of title by prescription. The decree of the trial court is in all things'correct, and it is therefore affirmed.


author: Smith, J.

text:
    Chicago Mill & Lumber Company v. Lamb.
    Opinion delivered May 30, 1927.
    1. Process — error in summons — Where a summons in a personal injury action in Prairie County was erroneously directed to the sheriff of that county instead of to the sheriff of Phillips County, who served the summons on defendant’s agent in the latter county, the error was merely clerical, which could be corrected on motion.
    2. Process — waiver of defect in summons: — The defect in summons was waived by defendant in filing an answer after the motion to quash the summons was overruled, where defendant did not preserve the point that the motion had been improperly overruled.
    3. Master and servant — duty to furnish safe place. — In an action for injury sustained by an employee at a sawmill, who was struck in the eye by a piece of wood, evidence held sufficient to support a finding that the employer was negligent in failing to use ordinary care to furnish a reasonably safe place in which to work.
    4. Damages — when award for personal injuries not excessive.— The verdict awarding $3,000 to ‘a sawyer in a sawmill for injury to his eye, resulting in 50 per cent, reduction of the vision and causing severe aches and pains in his head and eye, causing him to lay off from work frequently, and resulting in his discharge, though he was subsequently employed by another sawmill company at a larger salary, held not excessive.

      5. Appeal and ERROR — conclusiveness op verdict. — The appellate court, in testing the legal sufficiency o-f evidence to sustain a verdict awarding damages for personal injuries, must view the evidence in a light most favorable to the plaintiff.
    Appeal from Prairie Circuit Court, Northern District; George W. Clark, Judge;
    affirmed.

      Moore, Walker & Moore, for appellant.
    J. M. Jackson and Bogle & Sharp, for appellee.
   Smith, J.

Appellee brought this suit to recover damages to compensate an injury sustained by him while employed as a sawyer by the appellant company at itsmill in West Helena, Phillips County. The suit was filed in Prairie County, and the summons was directed to the sheriff of that county, but was sent to and served by the sheriff of Phillips County on appellant’s designated agent for service in Phillips County, where the said agent was actually found and served by the sheriff of Phillips County. A motion to quash the summons was filed upon the ground that it was not directed to the officer who served it, and that the sheriff of Phillips County had no authority to serve a summons directed to the sheriff of Prairie County. It is not contended that the proper person was not served, but only that the sheriff of Phillips County had no authority to serve the summons.

Upon hearing the motion to quash, the court made an order in which it was recited that it was intended that the summons should be directed to the sheriff of Phillips County, and that it was a clerical error on the part of the clerk in not so directing it, and it was ordered that the summons be amended to read “To the sheriff of Phillips County,” instead of “To the sheriff of Prairie County.” An exception was saved to this order of the court.

We think no error was committed in this ruling. Section 1239, C. & M. Digest, provides, that:

“The court may, at any time, in furtherance of jus-lice, and on such terms as may be proper, amend any pleadings or proceedings by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case; or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.”

By section 1242, C. & M. Digest, it is provided that:

“The court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect.”

In the case of Campbell v. Stiles, 9 Mass. 216, a writ directed to the sheriff of Franklin County was served and returned by the sheriff of Hampden County, and it was held that this was a mere clerical error, which could be corrected on motion. See also Alderson on Judicial Writs and Process, p. 43.

Moreover it appears that, after the motion to quash was overruled, appellant filed an answer containing a general denial of all the allegations of the complaint, but which did not preserve the point that its motion to quash had been improperly overruled. This being true, it must be held that, if there was a defect in the process, it was waived by the answer, which did not preserve the point. Barry v. Armstrong, 161 Ark. 314, 256 S. W. 65.

It is next insisted that the verdict of the jury, which was in plaintiff’s favor, is contrary to the evidence.

The testimony on behalf of plaintiff was to the effect that he was employed to operate a ripsaw, and that he was so engaged at the time of his injury. That, to dispose of the waste wood or offal from the various machines operated in the mill, the defendant operated a machine known as a hog, which is a piece of machinery used in grinding or cutting up the waste wood, which is carried from the hog by a conveyor, where it is destroyed by fire. A number of rubber bands are suspended from the top opening of the hog io ilie floor on which it rests, to prevent particles of wood from being thrown from inside, the hog, but which bands had become worn and some of them had been knocked off, and those remaining 'Were in a defective condition to snch an extent that they wonld not prevent, and did not prevent, pieces of “wood from being thrown from inside the hog, as the belts wonld have done had they not been in a defective condition, and, because of this defect, a piece of wood was thrown from the hog a distance of twenty-five or thirty feet, which struck plaintiff in the eye.

There was testimony to the effect that other pieces of wood had been thrown Lorn the hog, one of which struck and injured another employee, and that the attention of the foreman of the mill had been called to this defect, and he had promised to repair it.

The testimony on the part of the defendant was to the effect that the piece of wood which struck plaintiff did not come from the hog, but from another machine, and that his injury was due to an accident which ordinary care would not have avoided. This conflict in the testimony is concluded by the verdict of the jury.

The case appears to have been submitted to the jury under correct instructions, and the testimony is sufficient to support the finding that defendant was negligent in failing to use ordinary care in furnishing plaintiff and other employees a reasonably safe place in which to work.

It is finally insisted that the verdict of the jury, which was for the sum of $3,000, is excessive. Appellee’s testimony was to the effect that the piece of wood struck his eye with such force as to burst the ball, and that he suffered continuously for a year after his injury, and still suffered at frequent intervals from severe aches and pains in his head and eye. An eye specialist testified that plaintiff had recovered and that his eye was well, although he admitted there was a fifty per cent, reduction in the vision, and that plaintiff was unable to read with that eye.

Plaintiff testified that, after he was able to resirme work, he was frequently forced to lay off from work, as ids eye hurt him so badly that he could not work, and that he was finally discharged by defendant company. Plaintiff admitted that he was later re-employed by another sawmill company at a larger salary,' notwithstanding his impaired vision.

We have stated the testimony in'the light most favorable to plaintiff, as we are required to do in testing its legal sufficiency to support the verdict, and, as thus viewed, we are unable to say that the verdict is excessive.

As no error appears, the judgment must be affirmed, and it is so ordered.


author: Kirby, J.

text:
    Baker v. Loveland.
    Opinion delivered May 30, 1927.
    1. Trial — repetition op instructions. — Refusal of instructions covered iby the charge or instructions given which fully and correctly declared the law held no error, though requested instructions were correct.
    2. Insane persons — maintenance and education. — Crawford & Moses’ Dig., § 5058, providing that a guardian shall not be allowed in any case for the- maintenance and education of the ward more than the clear income of the estate, without a direction from the probate court, held not to apply to the guardian of an insane person.
    3. Executors and administrators. — claim for care op insane mother. — The daughter of an insane person, who cared for her mother for two years, expecting to be remunerated therefor, held entitled t'o an allowance of $1,037 for such services from the mother’s estate after her death, •
    Appeal-from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      W, N. Neal and E. D. Chastain, for appellant.

      Starbird & Starbird and D. H. Howell, for appellee.
   Kirby, J.

«fTlais appeal is prosecuted from a judgment of allowance of a claim, $1,037, of appellee, daughter of Mrs. M. C. Baker, deceased, against her estate for nursing and caring for the deceased from March 11,1923, to March 11, 1925. The claim, was first presented to the administrator, by him referred to the probate court, and,' on December 31, 1925, the day of the hearing in the probate conrt, an amended claim was filed showing that claimant had paid ont of the funds of deceased for the services of other persons $53, the amount of her claim being placed at $1,042. The probate court order recites findings as follows:

“ * * * Deceased was more than 80 years old, and was very seriously affected with mental disability; on the 18th of December, 1922, the claimant was appointed by the probate court as guardian of the estate and person of deceased; was administering to deceased under a tentative agreement between the heirs of deceased and herself to the effect that she would be compensated for her services, and that said agreement extended until the death of ■ deceased. Further finds deceased was, during the last two years of her life, an invalid, and required attention day and night, and, while there was no court, order authorizing the employment of a nurse, it was necessary that deceased have said service, and that claimant rendered said service during last illness of deceased, and that said service was rendered by claimant with the full knowledge and consent of all the heirs, but no definite amount had been fixed.”

The court then allowed the claim in* full for $1,037, and, on January 25, 1926, appellant, John F. Baker, petitioned to be made a party, and filed his affidavit and bond appealing from the allowance of the claim.

In the circuit court the appellants answered denying:
(1). That claimant is entitled to the sum claimed.
Alleged:
(2). That claimant entered the home of deceased, taking her with her, obtained guardianship for deceased, taking possession of real and personal property, the home being of the value of $2,000.
(3). That claimant during all these years held possession of said property, renting parts of farms, utilizing the balance, which continued until after the date of death of deceased, without intimation that any agreement was entered into for compensation for services; that the parties resided together and had all tiling’s common, only that claimant and her husband were in authority under the guardianship.
(4). That said guardian had requested of the probate court an allowance of certain sums out of the estate, claiming commissions, but she has not intimated, during all these years, the claim filed herein.
(5). Alleging that claimant had no intention, in the lifetime of deceased, to make such charge, and' neither was there any intention on the part of deceased to pay for the services, but they were gratuitous, and that claimant had already received a greater sum than due her, because of the rents and personal property. Also, during this guardianship, claimant could not legally bind the estate in any contract for a greater sum than the income.

The appellee denied the truth of the objections, and exceptions made, and that the administrator had joined in the appeal; denied that his attorney had authority to appeal from the order of the allowance of the claim, which he had himself approved and allowed. •

The testimony shows the conditions as recited by the probate court in its allowance of the claim, and is in conflict in many respects, but it all tends to show that appellee was not expected by any one to stay at her mother’s and render the services needed without compensation. Some of them thought she should go. to live with and take care of her mother for 25 acres of land, rent free, and a contract was written up, but was never executed by all the heirs. Appellee agreed to try such arrangement for the first year, but throughout her testimony insists that she was only making this claim for the two years’ service last rendered to her mother, ending at her death.

Mrs. Graham, sister of the claimant, - lived about three miles from her mother’s place, and she and her husband had begged Dora to move over there, as her mother had gotten so she could not cook for herself, and was living alone; stated that the next year after her sister bad moved into her mother’s home, Mr. Baker (John) started to write a contract. “They wanted all of ns to come over and try to fix it np. They conld not get together; jnst like they are now. He wanted her to have 25 acres of land rent free, and wanted me to sign. I wonld not do it. I told her (claimant) if at the last there was anything coming to me from the- estate she was welcome to it. I still say that. I supposed they all (the heirs) wanted to do right. Dora stayed there ahont five years, and I told her, if she conld not take care of mother, that I had the money to see that she was looked after, and wonld pnt it np.. When I visited mother, I thought she was taking good care of the farm also. I still do.”

Witness said her mother was not able to take care of herself, and appellee did,not want to leave her own home, and they begged her to go to her mother, who was living alone, and no one else offered to take.care of her mother. “Brother Will said he thought the girls ought to do it, and Dora not having any children, we thought Dora was the one to stay with our mother. When mother first began to lose her mind, I went to see her often. * * * John1 took the team off. She had $300 in the bank, and John drew it out, after the day we were all there, and she did not know us. I was there as many times as I could go, the last two years of my mother’s life. She was in an awful bad condition; she was in bed part of the time, and, after she fell and broke her hip, she conld not turn over for nine months. For a year and a half before she died it was necessary to wait on her just like she was a little baby. The bedclothes had to he changed every morning of the world, and her clothes were -to change too. At last she got so had she wonld tear her clothes off. Sometimes it -was necessary to he up with her all night. Appellee never neglected mother. It was necessary to do the washing every day, and Dora •did it or hired it done, which she paid out- of her own money. ’ ’

Appellee testified that she went, in 1919, to take care of her mother, Mr. and Mrs. Graham, Mrs. Jones and one of her mother’s brothers requesting her to do so; that she cared for her till the day of her death, March 11,1925; that she only got rent for the year 1924, allowed by the judge, $100, and that it was used for her mother’s benefit. That she was her guardian from 1922 to her death. Said that when she first went there they wanted her to agree to stay for 25 acres of land rent-free; told John she would try it one year, the first one, and they thought if we could get him to do anything it would be all right; he was the hardest pne to get to do anything. Witness believed she signed the contract and took the land they allowed, but that was all long before the two years for which the claim for services was made. Admitted filing a claim in probate court for $14.95, as guardian, paid out of her own money for the benefit of her mother; and to the question, “Why did you not file the claim of $1,037 at that time?” answered, “I thought they would all be white enough to pay me what was right and proper without setting up this claim. ’ ’ Said that the last two years of her mother’s life it was necessary to care for her just like a baby; that she had to wash for her, sometimes twice a day. “That the last two years she slept with her hand in mine, or my hand over her, so-if she moved I would know it; that is the condition in which we slept. ” Said her mother was more feeble after she broke her leg, which happened on June 12, 1924; and that the agreement for having 25 acres of land rent-free was for the years 1919 and 1920, or the first two years she was on the place. That she makes no claim for anything back of the last two years, and that all she did was for her mother’s welfare.

The guardianship letters were introduced, showing the appointment by the .probate court of appellee as guardian of the person and estate of her mother, an insane person, on December 18, 1922.

Appellants insist that the court erred in the refusal to give their requested instructions and in giving certain instructions over tlaeir objections, and also that the evidence is not sufficient to support the verdict.

A careful examination of the instructions given and refused shows that all correct instructions refused were, covered by the charge or instructions given by the court, which fully and correctly declared the law defining the issues in accordance with this court’s announcements in Lewis v. Lewis, 75 Ark. 191, 87 S. W. 134, and William v. Walden, 82 Ark. 136, 100 S. W. 898.

Neither do we find any merit in appellant’s contention that the claim for services rendered could not be allowed against the estate of the deceased, under the statute (§ 5058, C. & M. Digest) providing that the guardian shall not be allowed in any case, for the maintenance and education of'the ward, more than the clear income of the estate, unless upon an order first made permitting such expenditure. This statute has no application to the guardianship or estates of insane persons.

All the testimony tends to show, in'fact there is nothing in the record indicating to the contrary, that it was neither intended nor expected by any of the interested parties that appellee should render this indispensable service without remuneration or compensation therefor, and the assiduous and faithful care bestowed by this daughter upon an invalid and insane mother is little compensated by the amount1" allowed, which is altogether reasonable.

No error appearing in the record, the judgment is affirmed.


author: Humphreys, J.

text:
    Franklin v. Spratt.
    Opinion delivered May 30, 1927.
    1. Trover and conversion — damages. — The rule of damages applicable tó an unlawful conversion of personal property is that, if the defendant has equitable interest in the property, recovery against him is limited to the actual net amount of the plaintiff’s interest, although the possession is wrongfully assumed or retained.
    2. Trover and conversion — instruction as to damages.- — It was error to instruct that if the jury found defendant unlawfully converted an automobile to return a verdict for plaintiff for its value at the time of conversion, with interest, where the instruction failed to tell the jury to deduct from that value the amount which plaintiff owed defendant for purchase price and repairs.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    reversed.

      Dave Par tain, for appellant.

      G. W. Knott and B. T. Davidson, for appellee.
   Humphreys, J.

This is an appeal from a judgment of $450 against appellant in favor of appellee for the alleged unlawful -conversion of a Chalmers automobile. Appellee had traded an equity valued at $300 in a Ford coupe to appellant for a second-hand Chalmers car valued at $850, executing twelve notes in the sum of -$45 each, or a total of $540, for the balance of the purchase money. Title was retained Fy appellant to secure the purchase-money notes. After appellee had used the Chalmers car for a time it became necessary to have it repaired, and the car was returned to appellant for that purpose. Appellee testified that appellant agreed to repair it for $50. Appellant testified that he agreed to repair it for the actual cost of the material and labor. The actual cost of material and labor entering into the repairs was $105. In addition to tlie dispute relative to the amount *of the repairs, a dispute arose between the parties concerning the amount of the monthly payments, appellee testifying that appellant had agreed to accept notes in denominations of $35 each covering the balance of the purchase money in lieu of the notes he had given appellant for $45 eadi, and tliat, In keeping with the understanding, he had paid $35 on the first note which was due August 3, 1924. Appellant testified that he made no agreement to vary or change the original contract or to substitute notes in denominations of $35 each for the $45 notes given for the balance of the purchase money. The- dispute became acute, resulting in a refusal by appellant to return the car to appellee unless he would pay $105 for the repairs and the entire balance of the purchase money of $505. Appellee refused to comply with this demand, whereupon appellant sold the Chalmers car for $150. This suit was then instituted.by appellee for the alleged unlawful conversion of the car.

In the course of the trial the court committed reversible error in defining the rule of damages applicable to unlawful conversion of personal property where each party to the suit has an interest therein.

“The rule is that, wherever the defendant has a legal or equitable interest in or claim upon the specific property for the conversion of which he is sued, the recovery against him is limited to the actual net amount of the plaintiff’s interest, although the possession is wrongfully assumed or retained. This fully indemnifies the plaintiff and leaves the balance of value- in the hands of him who is entitled to it, thus settling the whole controversy in one suit. ’ ’

Instructions numbers 5 and 9 told the jury that, if they found appellant unlawfully converted- the Chalmers automobile, to render a verdict in favor of appellee against him for the value thereof at the time of the conversion, together with interest thereon. These instructions failed to tell the jury to deduct from the value of the automobile the amount appellee owed appellant thereon for purchase money and repairs.

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