text:
    Alphin v. Blackmon.
    Opinion delivered October 28, 1929.

      Powell, Sinead <& Knox and G. E. Wright, for appellant.

      Earle W. Moorhead, for appellee.
   Butler, J.

S. E. Revels, an old negro preacher, died October 10, 1915, the owner of eighty acres of land, his homestead, in Union County, Arkansas. He left his widow, Ester Revels, four children and'twO' grandchildren, surviving him, one of whom, Willie Eddie Blackmon, a grandchild, was the plaintiff in the court below.

Shortly after the death of Revels, his widow and a number of the children executed a mortgage on a part of the lands left by Revels to secure a debt, and after-wards John Moore, who had married one of the daughters of Revels, made arrangements to pay off the mortgage, and Ester Revels, the widow, and the other children of Revels, deceased, except the wife of John Moore, conveyed to him the land in controversy by quitclaim deed. This deed was executed December 5, 1919, at which time Ester Revels, the widow, John Moore and his wife, and one or two of the other children, were living on the land. There were several houses, one occupied by the widow, and the others occupied by other members of the family. After the execution of this deed, Moore lived in the house with Ester Revels for a time, and, some disagreement arising, he moved from that house into another on the same tract, and continued to reside there until some time in the latter part of 1921, when he was sentenced to the penitentiary for one year. He was paroled along in March, 1922, and never lived on the lands in controversy again, !but went to live with a Mr. Smith, who had been instrumental in -securing his release from the penitentiary.

During the time Moore was in the penitentiary his wife and Ester Bevels continued to reside on the lands, and until the release of Moore, when his wife joined him, and, some months after- — -perhaps in 'September, 1922— the widow, Ester Bevels, also left the lands and moved to Moore’s, on the Smith place. No one occupied any of the houses for a time after Ester Bevels left, until Bertha Macey moved into the house vacated by the widow, and resided there for 'about a year, leaving it the latter part of the year 192-3. The place was unoccupied from the time the Macey woman moved out until one Oliver moved in. Oliver is now dead, and the time he took possession is not definitely fixed, but it was some time in 1925 or 1926. There was a dispute as to who gave Oliver permission to occupy the premises, Moore claiming that he was occupying as his tenant,- while the widow stated that Oliver went into possession by her permission and held under her. Oliver remained on the property and occupied the house for perhaps a year or eighteen months, cultivating only a small potato patch near his residence. Just when he moved away is not shown. After he vacated, Charlie Bogers moved in, about November 1, 1927, and was in possession at the time this suit was instituted, holding as -a tenant of John Moore.

Beginning with the year 1919, Moore paid the taxes for each year down to -and including the year 1925-. J. S. Alphin paid the taxes for the year 1926, and Moore paid them for the year 1927. J. -S. Alphin, one of the appellants, purchased the land under a sale made by the commissioner of the chancery court on April 8, 1926. This sale was made under a decree of the court foreclosing the mortgage given by Moore and others to Alphin to secure the payment of a debt. Previous to that time Moore made Alphin. a deed to the lands, and in June, 19'27, Alphin deeded the lands back to Moore, reserving to himself a 63/64 undivided interest in all of the minerals under and upon said land, Alphin having previously executed a number of oil leases and mineral deeds to the other appellants in this case.

The mother of the" appellee, Willie Eddie Blackmon, died before the death of S. E. Bevels; leaving two children surviving, Willie Eddie Blackmon and a sister. This sister joined with Willie Eddie Blackmon in this suit, but seems to have parted with her interest in the lands before the suit was brought, and since has passed out of the case. The appellee was about two weeks old when his mother died, and about twenty-seven years of age when this suit was instituted. Immediately after his mother’s death he was taken to another settlement in Union County, where he lived with his father’s mother .for some time. Later, he afterwards moved with his paternal grandmother to Parkdale, Arkansas, and from there to Bastrop, Louisiana.

At the time of the purchase of the lands by John Moore, he testified that he 'knew nothing of the existence of the appellee, Willie Eddie Blackmon, and Blackmon himself did not know that he had an interest in any lands in Union 'County until he was informed of that fact some time before the bringing of this suit. This suit was instituted by the appellee as one of the heirs of S. E. Bevels, deceased, to recover a one-tenth interest in and to the lands of which his 'ancestor died seized and possessed. The chancellor found the issues of law and fact in favor of the appellee, and decreed to him a one-tenth interest in the eighty acres of land involved in this suit.

A number of questions are raised by counsel in this ease:

(1) Was the homestead abandoned by the widow? (2) Was Moore acting as a trustee for his wife and the other heirs of Bevels and the widow in paying off the mortgages and acquiring a deed to the property? (3) Was Moore’s possession hostile to that of Willie Eddie Blackmon, or was his possession that of a cotenant? (4) Did Moore have actual, visible, exclusive, continuous and adverse possession for seven years?

We think a decision of the last question will be decisive of the issues of this case, and that it will not be necessary to determine the other questions raised.

The evidence regarding this possession is meager, and makes it difficult to determine. It is clear, however, that Moore’s possession must rest solely on his actual occupancy, either in person or by those holding' under him. He made no improvements on the property, built no houses, cleared no land, nor did anything save to farm it during the years 1920 and 1921, and during all the time that he occupied it Ester Revels, the widow, continued to reside upon it also. John Moore testified that he went to the penitentiary in the fall of 1921, and Mr. Smith got him out early in March, 1922; that he then went to work for Mr. Smith, and that he had not lived on the land in controversy since that time. He further stated that Ester Revels moved from the place about September, 1922, when she moved to his house at Mr. Smith’s place; that after she left the place a man named Oliver moved on the place in 1925 or 1926, and rented it from him.

Charlie Rogers testified, and the abstract does not show when his deposition was given. He stated that he lived at that time on the land, which he rented from John Moore, and had been there, at the date of his deposition, a year and a month; that he was living at the only house on the place; that there was no floor in the house at the time he went there, and he didn’t farm the land.

Bertha Macey stated that, not long after Ester Revels moved off the land, she rented the house from Ester, and stayed on the land and in the house about one year. Moore does not dispute this statement.

At the time John Moore got his deed there were three houses on the land and about forty acres in cultivation. When the depositions in this case were taken, there was only one house left, and the land had grown up in pine bushes. There was at least an interval of one year from the time the Macey woman lived on the place that the land was wholly unoccupied, namely, the year 1924, and an interval of about the same time elapsed between the occupation of Oliver, and that of Rogers. If Bertha Macey’s possession was not that of Moore, then there ivas an interval of three or four years when no one was in possession claiming under Moore. We think that the testimony shows- that the continuity of Moore’s possession was broken, and for a material length of time. The physical facts — the destruction of two houses and the condition of the land with respect to growth of bushes thereon- — shows there had been a virtual abandonment of the lands after the middle of the year 1922.

The appellants seek to fortify their claim of adverse possession by proof of payment of taxes, and insist that actual pedal possession of lands may be tacked to constructive possession of them when wild and unimproved by payment of taxes upon them under color of title. It is true that where one, having color of title, pays taxes on wild and unimproved land, and thereafter takes possession of the same, continuing to pay the taxes, the benefit of the tax payments will not be forfeited by reason of the possession taken (Gaither v. Gage, 82 Ark. 51, 100 S. W. 80), but we cannot see how an application of that rule would be of any benefit to the appellants under the facts of this case. Where reliance is placed on the seven-year payment of taxes, under act March 18, 1899, the burden is upon the one making the payments to bring himself within its terms. Bradley Lumber Co. v. Miller, 94 Ark. 118, 126 6. W. 98.

This suit was filed on November 26, 1927, and if the theory of the plaintiffs is that the lands were wild_ and unimproved, and that title vested 'by reason of the payment of taxes, then it could not avail, because seven years have not elapsed since the lands became vacant in 1922, nor have seven payments of taxes been made since that date. Ester Bevels remained on the lands until the middle of 1922, and, while her possession might have been permissive, yet the fact that she was the widow of Bevels, deceased, and continued in possession of the homestead, was sufficient to divest the possession of Moore of that exclusive character that would be necessary to give constructive notice of his adverse holding to one interested in the lands, and whose right to the possession was in abeyance during the possession of the owner of the homestead. Moore’s possession also and the payment of taxes 'by him were not constructive notice to the appellee of his adversary claim, for the further reason that his wife was the owner of an undivided interest in the lands and a cotenant of the appellee, and Moore’s possession might have been referable to hers, and his possession was not therefore exclusive, notorious and adverse as against all persons.

The burden is upon the party claiming by adverse possession to show that his possession was actual, open, hostile and exclusive and continued without a break for the full statutory period. Nicklace v. Dickinson, 65 Ark. 422, 46 S. W. 945; Norwood v. Mayo, 153 Ark. 620, 214 S. W. 7; Tallman v. McGahhey, 164 Ark. 205, 261 S. W. 306; Meadow v. Weathers, 167 Ark. 264, 267 S. W. 787.

We think the decree of the chancellor on the whole case is not against the preponderance of the evidence, and is supported by the principles of law hereinbefore stated. It is therefore affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Binganan v. State.
    Opinion delivered October 28, 1929.

      John E. Tatum, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Per Curiam.

The Attorney General has properly confessed error on an appeal by the defendant from a judgment of conviction for forg'ery, and uttering a forged instrument. The facts bring the case squarely within the principles decided in Harrison v. State, 72 Ark. 117, 78 S. W. 763, and State v. Adcox, 171 Ark. 510, 286 S. W. 880. The instrument was not forged, but was simply a check drawn by the defendant on a bank by a name by which he was commonly known. Under the' common law and under the statutes defining forgery, as at common law, the genuine making of an instrument for the purpose of defrauding does not constitute forgery.


author: Hart, C. J.

text:
    Begley v. State.
    Opinion delivered November 4, 1929.

      John G. Rye and Robert Bailey, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Hart, C. J.

'Cecil Begley prosecutes this appeal to reverse a judgment of conviction against him for assault with intent to rape.

It is first earnestly insisted that the evidence is not legally sufficient to- support the verdict. While the defendant took the stand in his own 'behalf and expressly denied that he had attempted to have intercourse with the prosecuting witness against her consent, and while he was corroborated in this respect by a male companion who was with him, yet, in testing the legal sufficiency of the evidence to support the verdict, we must view the evidence for the State in the light most favorable to it; and, i'f that evidence is legally sufficient to support the verdict, we cannot disturb it on appeal. The reason is that the jury are the judges of the credibility of the witnesses, and have decided that question in favor of the State by returning a verdict of guilty. Hence we need only to refer to the evidence adduced in favor of the State. **

Before doing this we will briefly state the principles of law governing cases of this sort, which have been repeatedly announced by this court. In order to warrant a conviction of assault with intent to rape, it must appear not only that defendant intended to have carnal knowledge of the girl alleged to have been assaulted, forcibly and against her will, but that he did some overt act towards the accomplishment of his purpose, which amounted in law to an assault upon her. An assault usually implies force by the assailant and resistance by the assailed. It is not necessary in such cases that the attempt by the assailant be persisted in to the utmost, but it is sufficient that it was actually begun, without reference to the reason which causes the assailant to desist. Anderson v. State, 77 Ark. 37, 90 S. W. 846; Tyra v. State, 120 Ark. 179, 179 S. W. 167; Lockett v. State, 136 Ark. 473, 207 S. W. 55; and Snetzer v. State, 170 Ark. 175, 279 S. W. 9. In Paxton v. State, 108 Ark. 316, 157 S. W. 396, the court again said that subsequent yielding and consent does not mitigate or justify an assault with intent to commit rape.

Tested by this well-settled rule of law, we are of the opinion that the evidence is legally sufficient to support the verdict. According to the testimony of the prosecuting witness, she was sixteen years of age, and lived in Russellville, Arkansas, at the time of the alleged assault. She had only lived in Russellville for about three months, and prior to that time had lived in the country, in the northern part of the county. She first met the defendant, Cecil Begley, at her home, and had gone with him five or six times before the time of the alleged assault. She went to a show with him one night, and he made improper proposals to her, which she rejected. She had never met Jewell Lewis before, and did not know whether he was married or single. Appellant, in a car belonging to Jewell Lewis, came to her house late one evening in May, 1929’, and made a date to take her riding. They claimed that they were going to get another girl to go with them, but failed to do so. They drove south from Russellville on the public highway. Lewis drove the car, and the defendant and prosecuting witness sat on the back seat. After they got out into the country, Lewis stopped the car, and asked the defendant if he wanted to get out while he went on and turned the car around. Defendant then took hold of the prosecuting witness, and pulled her out of the car. He carried her to some bushes near the road, and attempted to' forcibly have intercourse with her. She struggled, and finally got up. The defendant then struck her on the breast and knocked her down. He told her that he intended to have intercourse with her. He pulled her underclothes down, and got on top of her and attempted to have intercourse with her. She screamed, and pulled his hair, and he finally let her up-. It is true that her testimony was considerably weakened on cross-examination, and that there were some inconsistencies in her testimony. She however adhered to the main fact under investigation, and that was that the defendant had actually attempted to have intercourse with her, forcibly and against her will, and that she had resisted him as much as she was able to. The jury may have thought that the inconsistencies in her testimony resulted from her youth, inexperience and ignorance, and they had a right to take into consideration all the attendant facts, and give her testimony such credence as they believed it entitled to. Lockett v. State, 136 Ark. 473, 207 S. W. 55; Brock v. State, 168 Ark. 302, 270 S. W. 98; Lewis v. State, 168 Ark. 509, 271 S. W. 708; Franks v. State, 168 Ark. 932, 272 S. W. 648; and Snetzer v. State, 170 Ark. 175, 279 S. W. 9.

It is next insisted that the court erred in allowing the prosecuting attorney to ask leading questions to the prosecuting witness. In cases of this sort a wide discretion is allowed the trial court in the conduct of the examination of the prosecuting witness, where she is a young girl, inexperienced in the ways of the world, and appears to be embarrassed. Wallace v. State, 177 Ark. 892, 9 S. W. (2d) 21.

Other assignments of error are made on the ground of the giving of instructions by the court at the request of the 'State, and the refusal of others asked by the defendant. We do not deem it necessary to set out the instructions given and those refused. We have examined and considered them, and find that the instructions given conform to the rules of law settled by this court in the eases above cited, and many others that might be cited. The instructions requested by the defendant and refused, were covered by other instructions given at the request of the State, and of the defendant himself.

The defendant elected to cross-examine the prosecuting witness concerning prior acts to show immorality, and now complains that he was not allowed to introduce evidence in contradiction of his cross-examination of the prosecuting witness relative to these acts. While it was competent to impeach the credibility of the prosecuting witness on cross-examination by questioning her concerning particular instances of immorality on her part, the defendant was bound by her answers, and could not introduce witnesses to contradict her. Lockett v. State, 136 Ark. 473, 207 S. W. 55; and Jordan v. State, 165 Ark. 502, 265 S. W. 71.

It is also contended that the court committed reversible error in permitting the prosecuting attorney, in his opening statement, to say that there was an assault upon the prosecuting witness on the same night by Lewis, when he did not attempt to show that there was a conspiracy between Lewis and the defendant to assault the prosecuting witness. The court did not permit any testimony to go to the jury on this point, except that of a witness who testified that her husband and herself picked up the girl on the highway, when they saw her fall out of the car. Blood was streaming out of her jaw, and she had blood all over her. The undisputed evidence shows that Lewis went out riding with the prosecuting witness after the defendant got out of the car, and, while riding with her, she either fell or was knocked out of the car by Lewis, and was picked up by the witnesses and carried home. This testimony was admissible as part of the transaction. The prosecuting witness, a young girl sixteen years of age, had gone riding with the defendant and Lewis, and was picked up by other parties after she had fallen or been knocked out of the car in which she was riding with Lewis, before she returned.home. This testimony could not, in any event, result in prejudice to the defendant, because marks of violence were on the body of the prosecuting witness, and it was not claimed by the State that they were caused by blows inflicted by the defendant. On the other hand, it was shown by the State that they were inflicted by Lewis after he had left the defendant. Under these circumstances no prejudicial error was committed by the court in the respect now complained of.

We have carefully examined the record, and find no prejudicial error in it. Therefore the judgment will be affirmed.


author: Hart, C. J.,

text:
    Smith and Buechley v. Hempstead County.
    Opinion delivered November 4, 1929.

      O. A. Graves, for appellant.

      L. F. Monroe and W. 8. Atkins, for appellee.
   Hart, C. J.,

(after stating the facts). The quorum court, at its regular session in November, 1928, made the necessary appropriation to pay the salaries of appellants for the positions then filled by them for the ensuing year, and passed a resolution recommending their retention in their positions for the ensuing fiscal year. Appellants were reappointed to their respective positions by the State Extension Service cooperating with the United States Department of Agriculture to aid said departments in carrying on extension work in agriculture and home demonstration work in Hemp-stead County, Arkansas. The appointment of appellants as such agents was neither consented to nor ratified by the county judge or the county court. The agents continued in their work, and presented their claims for salary to the county court, and their claims were disallowed.

Under the provisions of the original act on the subject, which is set forth in § 1983 of Crawford & Moses’ Digest, quorum courts were authorized to annually appropriate such an amount as might be deemed necessary, to be used at the direction of the county judge, in cooperation with the United States Department of Agriculture, to aid in carrying on farm demonstration work. In Searcy County v. Jordan, 136 Ark. 138, 206 S. W. 129, the court construed this act to mean that it was the intention of the Legislature to require the money appropriated by the quorum court to be expended under the direction of the county judge. The court said that the Legislature did not vest in the quorum court the power to make contracts for the expenditure of money appropriated by it.

The correctness of this decision is not challenged by appellants, but they contend that the law has been changed by act 347 of the Acts of 1927, so that it is no longer necessary to obtain the approval of the county-court to such a contract. Acts of 1927, p. 1104. Section 1 of the act reads as follows:

“'Section 1. That § 1983 of Crawford & Moses’ Digest of the Statutes of Arkansas be and the same is hereby amended to read as 'follows: ‘ Section 1983. The quorum courts of the respective counties of this State are hereby authorized and empowered to- appropriate annually such amount as may be deemed necessary to be used in cooperation with the extension service of the College of Agriculture of the University of Arkansas and the United States Department of Agriculture, cooperating, to aid said departments in carrying on cooperative extension work in agriculture and home economics in such county. The county judge shall approve authorized claims against the county for such purposes, and such approved claims shall be paid by the county treasurer. However, no claims shall be allowed in excess of the sum appropriated. ’ ’

It will be noted that the act does not give the quorum court any more power than the original act. By the terms of the statute, the quorum court has only the power to appropriate the money deemed necessary by it to aid in carrying on the work provided for in the statute, and in the case cited the court expressly said that the Legislature did not give the quorum court the power to make contracts for the expenditure of the money appropriated by it. Neither does the act give the State Extension Service or the United States Department of Agriculture, separately or together, the power to make a contract for the services provided for in the act or the power to appoint agents to carry out its provisions.

This is apparent from the language of the statute itself, and it necessarily results from the language used in the opinion above cited. The court said that the only authority for the appropriation and use of the money was in the statute. Under the original act the money was to be used at the direction of the county judge in cooperation with the United States Department of Agriculture. The court said that the Legislature had designated the county judge as the officer who had the power to make the contracts for the expenditure of the money, and this necessarily carried with it the power of appointment. This amounted to holding that our statute did not give the United States Department of Agriculture the power to contract for the expenditure of the money appropriated by the quorum court, and the resulting power of appointment.

Such holding is not changed by the fact that the present statute provides that the money appropriated shall be used in cooperation with the State Extension Service and the United States Department of Agriculture. The first sentence of the act under construction provides only for the appropriation of the money by the quorum court, to be used in cooperation with the State Extension Service and the United States Department of Agriculture. It does not give any authority to these departments to contract 'for the expenditure of the money. That is done ¡by the concluding sentence of the section, which provides that the county judge.shall approve authorized claims against the county for such purposes. Here lies the source of power to make contracts for the expenditure of the money appropriated by the quorum court, and the authority must be vested in the county judge or county court, or.it does not exist at all, and the statute would have to fail because its terms were not capable of enforcement. We are of the opinion, however, that the language used by the Legislature, when read in connection with the opinion of the court heretofore stated, clearly evinces an intention to continue the power to make contracts, and to expend the money in the county judge or county court in the same respect as the authority was given under the original act.

The county court, in the case at bar, refused to enter into a contract with appellants or to appoint them to carry on the work provided for in the statute, and they had no right to continue the work and bind the county for the payment of their salaries. The circuit court correctly held that the county court was not liable for the salaries of appellants as such agents, and the judgment of the circuit court will therefore be affirmed.


author: McHaney, J.

text:
    Crosby v. Lucas.
    Opinion delivered October 21, 1929.

      Jones <& Wharton, for appellant.

      Caraway, Baker Gautney, for appellee.
   McHaney, J.

This appeal is an aftermath of Crosby v. State, 169 Ark. 1058, where the same Crosby was indicted, convicted and sentenced to five years in the penitentiary on a charge of grand larceny for stealing 65 suits of clothes, the property of appellee. While we there held the evidence sufficient to sustain the conviction, the case was reversed for error in an instruction given over appellant’s objection.

In this case appellee sued appellant for the value of the clothes stolen after crediting him with the market value of 35 suits recovered from him in their then condition, a total of $1,502.53. There was a verdict and judgment for appellee for $500.

The only question raised that we can consider is the sufficiency of the evidence to support the verdict. It is said there is no proof as to the measure of damages at the time and pl-ace of conversion. 'But we have examined the evidence, and find it sufficient to sustain a much larger verdict. We do not set it out, as it would serve no useful purpose.

•Complaint is also made of certain instructions. But appellant has not set out in his abstract all the instructions given by the court, and this court will not explore the record to determine whether error has been committed in giving or refusing to give instructions. Moreover, the instructions complained of appear to be correct declarations of law as applied to the facts in this case.

Affirmed.


author: Smith, J.

text:
    Conley v. State.
    Opinion delivered November 4, 1929.

      Eal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Smith, J.

Appellant was convicted under an indictment charging him with the crime of grand larceny, which was alleged to have been committed by stealing a suitcase and its contents, the property of Mrs. Maggie McKinzie.

For the reversal of the judgment sentencing appellant to a term of one year in the penitentiary, it is first insisted that the verdict was arrived at by a consideration of extraneous matters having no relation to the question of appellant’s guilt; but this assignment of error may be disposed of by saying that there is nothing in the record to support it or to require its consideration.

It is assigned as error that, after the jury had reported that an agreement could not be reached, the court inquired how the jury stood as to numbers, without indicating how they stood as to parties. A juror answered that the jury was divided eight to four, and the court then directed that the jury further consider the case. The practical administration of the law in .jury trials, both civil and criminal, has made this practice by the trial courts both common and necessary. There was nothing in the question of the court to indicate that the court was attempting to coerce a verdict contrary to the deliberate and final conclusion of any juror, and there was, therefore, no error in asking the question. Eady v. State, 168 Ark. 731, 271 S. W. 338.

The only other assignment of error in th© motion for a new trial is that the testimony is insufficient to 'Support the verdict. The testimony tending SO' to do was to the following effect. Mrs. MoKinzie kept a small hotel, and appellant was one of her guests. She had money and other valuables in a suitcase which she kept in herTOom. She left her room unlocked on one occasion, and as she went out of the room saw appellant standing in the hall into which the room opened. When she returned to her room appellant and the suitcase were gone. Search was made, and it was learned that appellant had gone to another hotel, where he had registered under an assumed name, and the suitcase was found in his room.

Judgment affirmed.


author: Humphreys, J.

text:
    Wilkerson v. State.
    Opinion delivered November 4, 1929.

      Partain S Agee, for appellant.

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

Appellant was indicted in the circuit court of Crawford County on separate counts charging the crimes of forgery, uttering a forged instrument, and false pretense. A demurrer in short to the indictment was made, entered on the record, and, over the objection and exception of appellant, overruled by the court.' Appellant then moved the trial court to require the State to elect upon which count of the indictment it would stand. The court ordered the trial to proceed, and reserved its ruling on this motion until the testimony was concluded, and then sustained it, whereupon the State elected to stand on the count charging false pretense. Appellant objected, and saved his exception to the refusal of the court to require the State to elect upon which count it would stand at the beginning of the trial.

During the introduction of the State’s evidence T. Guy Reed was allowed to testify, over the objection and exception of appellant, that, when appellant presented the check of Smith & Mallory he was induced to cash the same upon the representation of appellant that Smith & Mallory had an agreement by which the checks of the firm would be signed “Smith” by Smith and “Mallory” by Mallory, without the initials of either. The court also allowed the State to prove by R. E. Covey, over the objection and exception of appellant, that Bob Smith and Ralph Mallory had an understanding with the Crawford County Bank, of which Covey was cashier, that checks drawn on the partnership account should be signed in the firm name with the name “Smith” signed by Bob Smith and the name “Mallory” signed by Ralph Mallory, which understanding and agreement took place in the absence of appellant. At the conclusion of the testimony the court, among other instructions, over the objection and exception of appellant, instructed the jury as follows:

“If you find that Bob Smith and Ralph Mallory were partners at the time this offense is alleged to have been committed, and that these partners were restricted and limited in their powers such that neither was to have the authority to sign the name of the other partner to cheeks, and that this limitation of authority was known to the defendant, Jim Wilkerson, and that the said Jim Wilkerson knowingly entered into a conspiracy to defraud with Ralph Mallory, and that the defendant, Wilkerson, cashed the check in question at the store of T. Guy Reed and obtained from the said T. Guy Reed any money or thing of value in the excess of ten dollars, and that he represented to the said T. Guy Reed that the check was signed by the proper persons, both Smith and Mallory, and that the check was for work, and that the said T. ’Guy Reed believed in and relied on the representations made, and parted with his money or his goods in excess of the value of ten dollars by reason of said representations, and that such representations were known to be false by the defendant, Jim Wilkerson, and were made with the intent to cheat and defraud the said T. Guy Reed out of his money and goods in excess of ten dollars, then you will convict the defendant, and fix his punishment at not less than one nor more than five years in the penitentiary.”

The trial resulted in a conviction of appellant on the count charging false pretense, and as a punishment therefor he was adjudged to serve a term of one year in the State Penitentiary, from which he has duly prosecuted an appeal to this court.

The first assignment of error urged by appellant for a reversal of the judgment is the trial court’s action in overruling his demurrer in short to the indictment. It is argued that the description of the property claimed to have been obtained through false pretense was insufficient. It was not. The count charged appellant with obtaining from T. G-uy Reed “certain goods, merchandise and money, current .money of the United States of America, of the value of $12, the personal property of said Reed,” by fraudulently representing an unauthorized check to have been properly signed and genuine. The description of the property in cases of this character is sufficient if it apprises the accused of the property he is alleged to have received. This indictment, in effect, charged appellant with exchanging the check to Reed for goods, merchandise and current money of the United States of America of the value of $12. This necessarily apprised him, that he was charged with receiving both merchandise and money in exchange for the check. It is true that the count did not particularize the exact amount of each that he received, but did specify the total amount of both, and that he received both kinds of property in exchange for the check.

Appellant also argues that, even though the description of the property in the indictment was sufficient, the proof failed to show the value of the property received. A single value of the total amount of the property received was alleged to be $12. The reasonable inference deducible from the testimony of Reed and appellant is that appellant received the full value of the check in goods and money. This proof was sufficient to sustain the verdict and judgment.

The next assignment of error urged by appellant was the action of the trial court in permitting T. Gruy Reed to testify that appellant represented to him that the check was signed by both 'Smith and Mallory, and that he cashed the check on account of the representation. The objection made to Reed’s testimony in this regard was that the count contained no such charge. It is true that the count did not charge that Reed relied upon the representation that the check was signed in any particular manner, but the count did charge that the check was issued without authority, and that, by reason of the false and fraudulent representation that it was genuine, Reed was induced to part with his property. As the State alleged that the check was false, testimony was admissible to show appellant’s representation to the effect that it was valid.

Appellant’s next assignment of error for a reversal of the judgment was the action of the trial court in permitting Covey to testify to the agreement between Smith, Mallory and the bank relative to the manner in which the checks must be signed to validate them. The objection made to the testimony is that appellant had no knowledge of the understanding or agreement. The testimony tended to show that he did have such knowledge. Smith testified that appellant had worked for them quite awhile, and was frequently compelled to wait for his check until he came and signed his own name thereto.

The last assignment of error urged by appellant for a reversal of the judgment is that the court erred in giving instruction number 12, heretofore set out at length in this opinion. The first argument made is that the instruction told the jury that they might find the defendant guilty if he entered into a conspiracy to defraud with Ralph Mallory, without saying that the conspiracy entered into was for the purpose of defrauding Reed out of his property. The instruction, in effect, does say that the purpose of the conspiracy was to defraud Reed out. of his property, because it told the jury that before they could convict appellant they must find that he cashed the check in question at the store of Reed, and obtained from him money or things of more than $10 in value. According to our interpretation of the instruction, this was clearly its meaning, and we do not find any ambiguity therein. If, however, appellant thought it susceptible of any other construction, the alleged error should have been reached by specific objection. None was made. Stotts v. State, 170 Ark. 188, 279 S. W 364.

The next argument made is that the instruction submitted to the jury the question as to whether Eeed relied upon the representations of appellant that the check was properly signed, and was received by him for work. The suggestion is made that Eeed did not testify that he relied upon these representations in cashing the check. Appellant is mistaken in saying that Eeed did not testify that he cashed the check in reliance upon these representations. Eeed in his testimony stated that he relied upon these representations. The following interrogatory and answer thereto appear in Seed’s evidence:

“Q. Did you rely on what he said about the check being for work, and about it being signed by Smith and Mallory, both, in cashing the check? A. Yes sir.”

No error appearing, the judgment is affirmed.

Hart, C. J., dissents.


author: Kirby, J.

text:
    Clark and Tuttle v. State.
    Opinion delivered November 4, 1929.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment of conviction for the manufacture of intoxicating liquors, with a sentence of one year’s imprisonment in the Boys’ Industrial School.

The sheriff of Nevada County and some deputy sheriffs from Lafayette County, and a prohibition enlforce.ment officer made a raid on a still in the south end of Nevada County. The sheriff had information about a still being in the vicinity, and went out the afternoon before and located it on Artie 'Clark’s place. There being no one found at the still, and the mash appearing about ready to be run, the officers decided to leave, and return the next morning. Upon their arrival next morning the still was in operation, and the two boys, appellants, were caught there, with Bo ¡Smith, a negro. “It was a one-ibarrel outfit, and full of mash, and cooking- at the time.” A small amount of whiskey had been made, and some whiskey was dripping out from the worm. Eleven barrels of mash were found, and one of the boys was carrying a bucket when first seen, and the two boys were only 10 or 12 feet from the still, which was of such capacity that one man might have been able to operate it.

The appellant Clark was the son of Artie Clark, and lived with him, about 250 yards from the still. The Tuttle boy was Artie Clark’s brother-in-law, and lived with him, and had the bucket, and was within four or five feet of the still when discovered by the officers. The still was in the open, and could be seen for 50 yards in any direction. The officers went on to the house of Artie Clark, and found three sacks of sugar, two sacks of shorts, a roll of copper sheeting and a ten-gallon keg that had six or seven gallons of liquor in it. Whiskey can be made with shorts and sugar, the sheriff testified. One of the boys, who had started back up the trail upon the appearance of the officers, had a soldering iron in his hand, and the other had a bottle of acid. The still was made of copper sheeting, and it held about 60 gallons.

The negro, Bo Smith, lived on Artie Clark’s place, attempted to assume the entire responsibility for manuf acturing the whiskey, which he said he was doing by himself, without any assistance from the boys, upon a still that belonged to him, and that he had pleaded guilty for making the whiskey.

The boys stated that they had been sent for the cows that morning, and, when they were returning, Smith whistled and motioned to them to come down, and borrowed a knife from one of them. They were not there over fifteen minutes. Neither of them had a bucket in his hand, and they denied having a soldering iron or acid, and. that they had anything to do with the still or any knowledge of the materials, the shorts, sugar and whiskey found at the house. The Tuttle boy was 16 years old and the other boy 14.

The boys were corroborated by the other members of the family about having been sent for the cows, but the officers stated that the cows were being milked when they took the boys back to the house after their arrest. From the appearance of the still and the location, the officers thought it had been operated there for some time.

No brief was filed for appellants. It is only complained that the verdict is contrary to the evidence, and that the court erred in admitting the testimony of the witnesses to the finding of the materials out of which whiskey could be made, the sugar, shorts, sheet copper and the whiskey, at the home of Artie Clark, where the boys lived.

No error was committed in admitting the testimony of the officers showing- the discovery of the materials for making the whiskey, the copper sheeting and the keg of whiskey in the house where appellants were living. It was a question of fact for the jury to determine whether appellants were merely innocent bystanders at the still or helping to operate it in the manufacture of the whiskey, and they have determined it against appellants upon testimony sufficient to support the conviction. Roach v. State, 179 Ark. 1155, 19 S. W. (2d) 1009.

The judgment is affirmed.


text:
    Millar-Jefferies Chevrolet Company, Inc., v. Wakenight.
    Opinion delivered November 4, 1929.

      Culbert L. Pearce, for appellant.

      John. E. Miller and G. E. Yingling, for appellee.
   Kirby, J.

This suit was brought in the justice court by the assignee of the written contract or $300 credit slip issued by appellant’s selling agency for Chevrolet automobiles, for the purpose of taking in the owner’s old car to be applied on the purchase of a new motor-car agreed to Ibe delivered, and from a judgment against it an appeal was taken to the circuit court.

It was agreed on the trial before the court without a jury that the appellee was the holder of the credit slip, which reads as follows:

“Searcy, Arkansas, October 22, 1928.
“It is hereby agreed between Guy Ellis and the Millar-Jefferies Chevrolet Company, that Chevrolet coupe motor No............be delivered to Millar-Jefferies Chevrolet Company to apply as a credit of $300 .on a new model' Chevrolet car to be delivered during 1929, or at such time as I may elect. It is further understood that, if I should elect to transfer this credit, it may be transferred for the full amount of $300, or further, should I be unable to take this car or see fit to cancel my obligation with the Millar-Jefferies Chevrolet Company, my money will be refunded, less twelve per cent, for handling and other expenses incidental to sale of this car.
“Accepted. Guy J. Ellis.
“Millar-Jefferies Chevrolet Co.,
“By W. H. Jefferies, November 15, 1928.
“The writing cert, of credit is hereby transferred to Wakenight Motors.
“Guy J. Ellis.”

Appellant offered to prove that it. was the contract and understanding in the issuance of the credit slip that it should have all the costs and expenses incident to the reconditioning and sale, showing the amount thereof, of the old car taken in for which the credit slip was issued, in addition to the 12 per cent, provided in the contract. The court refused to allow the introduction of this testimony, and rendered judgment against appellant company for the amount of the credit slip, less the 12 per cent, provided therein for handling and other expenses incidental to the sale of the car, from which this appeal is prosecuted.

Appellant insists that the court erred in holding this testimony incompetent, and in rendering judgment for the amount of the credit slip, less the 12 per cent. only.

The credit slip- or contract appears to be plain, and its meaning clear and free from any ambiguities, and, such being the case, it was not competent to vary or contradict its written -terms with parol testimony, as the court correctly held. The writing appears to be complete, and to embody the terms of the contract made, which it is presumed to do, and cannot be qualified by the introduction of any parol contemporaneous terms not included therein. Smith v. Bank of Marianna, 176 Ark. 1146, 5 S. W. (2d) 335; Lane v. Smith, 179 Ark. 533, 17 S. W. (2d) 319; 3 Jones on Evidence, § 440, p. 182; 10 R. C. L. 1070, § 265; Oliver Const. Co. v. Union Trust Co., 171 Ark. 485, 284 S. W. 779; Threlkeld v. Baptist Hospital, 176 Ark. 1073, 5 S. W. (2d) 305.

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


author: MoHaney, J.

text:
    Bethel and Wallace v. State.
    Opinion delivered November 4, 1929.

      O. H. Hurst, W. A. Jackson, and E. E. Alexander, for appellant.

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

Appellants were indicted on a charge of rape. On a former trial they were convicted, and sentenced to death by electrocution. An appeal to this court resulted in a reversal for a new trial. The facts are stated in the opinion on the former appeal, Bethel and Wallace v. State, 178 Ark. 277, 10 S. W. (2d) 370, and we will not repeat them here, as they are substantially the same, and no question of fact is involved in this appeal. The trial in this case resulted in a verdict of guilty of assault with intent to rape, with a sentence of 18 years in the penitentiary.

Appellants urge two assignments of error, numbers 6 and 7, in the motion for a new trial, as grounds for a reversal. First, that “the court erred in refusing to rebuke the deputy prosecuting attorney, after his abuse of the defendants in his opening statement in the presence of the jury, after the court told the jury that the prosecuting attorney had no right to make such statements and that they were improper.” Second, “that the court erred in refusing to rebuke the prosecuting attorney for his abuse of the defendants during his closing remarks, which remarks were: ‘ That the defendants were fortunate in that one of the prosecuting witnesses for the State had circulated a petition prior to the former trial of this cause, and, had it not been for the fact of the circulation of the petition and the fact that the court was then in session and that they were given an immediate trial, they would not have been brought to the bar of justice for a trial.’ To which statement the court sustained an objection, and told the jury that the remark was improper, but refused to rebuke the prosecuting attorney after having been requested to do so by the defendants.”

Relative to the first ground of error specified, it would be a sufficient answer to say that it is too general to point out to the trial court the particular language constituting the abuse complained of, and too general to present a question for review by this court. Neither in the assignment nor in the brief have counsel set out the, language objected to which would call for a rebuke from the court. An examination of the record and the assignment discloses the fact that the court sustained counsel’s objections to certain remarks of the deputy prosecuting attorney in his opening statement, and instructed the jury not to consider them because they were improper. Nor does the record disclose any request from counsel that the State’s attorney be rebuked. On objections being made, they were promptly sustained, and, in the absence of a request for a reprimand, no error has been committed. Skaggs v. State, 88 Ark. 72, 113 S. W. 346, 16 Ann. Cas. 622. It is well settled that trial courts have a wide discretion in .the .supervision off trials before them, including matters pertaining to opening statements, and this court will not reverse unless a manifest abuse of discretion is shown. Nelson v. State, 139 Ark 15, 212 S. W. 93; Stanley v. State, 174 Ark 743, 297 S. W. 826; Adams v. State, 176 Ark 916, 5 S. W. (2d) 946; Bowlin v. State, 175 Ark 1115, 1 S. W. (2d) 553. We conclude therefore that there is no merit in this assignment.

Relative to the second ground of error specified, most of what has heretofore been said in disposing- of the first error relied on applies with equal force here. Moreover, it- appears that the facts regarding the circulation of the petition referred to were brought out by appellants, and were commented on in argument by their counsel. Hence if- error was committed it was invited. Furthermore, the statement set out in this assignment does not appear in the bill of exceptions, but only in the motion for a new trial. In Adkisson v. State, 142 Ark. 19, 218 S. W. 165, in overruling a-similar contention, we said: “Objection is made to-certain statements of the prosecuting" attorney in the course of his argument before the jury; but there appears to be nothing in the bill of exceptions showing what these statements were, the only reference thereto being found in the motion for a new trial. These objections are not therefore properly before us for review. Cravens v. State, 95 Ark. 321, 128 S. W. 1037.” The conclusion necessarily follows that this assignment cannot be sustained.

Having examined all the errors relied on for a reversal of .the case, and having found that they are untenable, the case' must be affirmed. It is so ordered.


text:
    Bailey v. Florsheim Brothers Dry Goods Company, Ltd.
    Opinion delivered November 4, 1929.

      R. T. Boulwure and Edioin A. Upton, for appellant. Pat Robinson, for appellee.
   McHaney, J.

Appellee sued appellant on a promissory note dated February 24,1923, due November 1,1923, for the principal sum of $311, with interest from maturity at 8 per cent. Appellant admitted the execution of the note sued on, and alleged that this note was given in renewal of a former note for $535 and interest, which should be reduced by $250 for a pair of mules delivered to appellee at that agreed price, and the further sum of $175 paid in cash by appellant’s wife; that after deducting said payments there was due $117.23; that the note in suit was signed by appellant in blank, and that he trusted appellee to fill it in for the proper amount, with the correct dates, but that it had been filled in for a larger amount than due, and without proper dates of payments.

The case was tried to a jury, which resulted in a verdict and judgment for appellee for the full amount sued for.

Appellant first says the court erred in permitting the note sued on to be offered in evidence, for the reason he filed an affidavit under § 4114, C. & M. Digest, denying its genuineness before trial. "While this is true, he admitted signing the note, and the above statute is not applicable. The only question was the amount due on the note, not whether it was the genuine note of appellant, and the court did not err in this regard.

It is next said that the court erred in refusing to give certain requested instructions, and in giving certain instructions over his objections and exceptions. As to the requested instructions not given, we cannot tell, without exploring the- record, whether they were covered by other instructions or not, since appellant has not abstracted or set out all the instructions given by the court. The instructions given, about which complaint; is made, are not inherently erroneous, and this court will not explore the record to discover whether error has been committed in the giving or refusing to give instructions under such circumstances. Crosby v. Lucas, ante p. 277.

We find no error, and the judgment is affirmed.


author: Butler, J.

text:
    Newkirk v. Shirley.
    Opinion delivered November 4, 1929.

      Jones & Jones, for appellant.

      John N. Cook, for appellee.
   Butler, J.

J. Gr. Newkirk was engaged in the construction of a portion of a highway in Miller County, Arkansas, under contract with the Arkansas Highway Commission, and sublet a portion of this work to T. S. Shirley under an oral agreement. There is no dispute as to the price Shirley was to receive for the work, which was twenty-five cents per cubic yard for excavation work, $80 per acre for grubbing, and $40 per acre for clearing. The dispute arose on the settlement, Shirley claiming and testifying that the contract was that the amount of work he should be paid for was to be based upon the preliminary estimate made by Mr. H. E. Powell, resident engineer, while Newkirk contended and testified that the work should be paid for on the basis of the final estimate made by the chief engineer of the Highway Commission from data furnished by the engineers in actual charge of the work.

Shirley began work about October 22, 1927, and on January 10, 1928, asked for and received an estimate of his work from Mr. Powell. That part of the highway on which he worked lay north and south of Kelly Bayou. He was to be paid at so much per cubic yard, so much for grubbing, and so much for clearing on that part of the road lying north of Kelly Bayou, and for work done south of the bayou he was to be paid by the day. The amount of work done on the road north of Kelly Bayou, at the stipulated price, was to be divided by the number of days he worked, and whatever that amounted to per day he should receive for the work done south of the bayou. The total amount due for the work, estimated by Powell, on J anuary 10, 1928, ay as $1,657.40. Shirley was engaged in doing this work 156 days, earning $9.50 for each day. Shirley claimed that he had put in 99% days on the work south of the bayou, and under his contract was entitled to receive $9.50 per day for each of these (lays, making $945.25.

It was admitted by Shirley that Newkirk had furnished supplies to him in the sum of $1,997 and brought suit for the difference. The engineer, Powell, testified that the estimate given to Shirley on or about January 10, 1928, was a preliminary estimate, and that when he made the final estimate it was discovered that the preliminary estimate was incorrect, and that the amount of dirt moved and acreage cleared and grubbed was considerably less.

The defendant offered to introduce his contract with the Arkansas Highway Commission for the purpose of showing how the estimates of the work were to be made, and when he was to be paid for the work done. He also offered to testify that he was paid for his work on the road on the final estimate made by the engineers, and offered to introduce the final estimate of the highway engineers showing the quantity of earth moved on that part of the road that was made by Shirley. He also offered to introduce that part of his contract with the Highway Commission which provided that “all prior partial estimates and payments shall be subject to correction in the final estimate and payment.”

The court refused to permit the defendant to introduce any of this testimony, to which action of the court proper objections were made and exceptions saved, and have been assigned as error in the motion for a new trial.

After the evidence was in, the court was requested by the defendant to give instruction No. 5, as follows :

‘ ‘ If the jury find from the evidence that plaintiff was to be paid for the work done by him north of the bridge according to the estimate to be made by the engineer of the Arkansas Highway Commission, and that correct data was 'furnished by H. E. Powell, the resident engineer, to the district engineer at Hope, and that said district engineer, or his assistant, G-eorge Fry, made an estimate of such work, which was sent to C. S. Christian, chief engineer of the Arkansas Highway Commission, then you are instructed that the estimate so made shall govern in this ease.”

The court refused to so instruct the jury, and the defendant duly excepted to this ruling.

There was a verdict for the plaintiff in the sum of $500. Motion for a new trial was made and overruled, and this case is here on appeal.

The theory of the defendant (appellant) was that the work was to be paid for according to the final estimate made 'by the engineer of the Arkansas Highway Commission. He testified that such was the agreement, and he was entitled to have the testimony in support of that theory presented to the jury, and we think that the testimony offered and refused by the court should have been admitted, and that the court’s refusal to permit the testimony hereinbefore mentioned to be introduced was error.

Appellant also contended that the evidence offered, showing the amount of work done and the number of days required to do it north of Kelly’s Bayou, would show that the number of days of work south of said bayou was less than the number claimed by appellee, and that the value of the work per day, based on the earnings per day for the work north of said bayou, would be less than appellee claimed.

The defendant was also entitled to have his theory presented to the jury under correct instructions. Instruction No. 5 correctly presented this theory, and should have been given. Taylor v. McClintock, 87 Ark. 281, 112 S. W. 405, and cases cited.

Other assignments of error are made which we find unnecessary to discuss, as the principles of law herein announced will be a sufficient guide for the trial court, both as to the admission or exclusion of evidence, and as to its declarations of law.

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


text:
    Martin v. Street Improvement District No. 349.
    Opinion delivered November 11, 1929.

      June P. Wooten, for appellant.
    • Leivis Photon, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for appellant, Martin, contends that the court erred in not setting aside the verdict in favor of the defendant on the Marshall Street Annex on the ground that, under the undisputed evidence, he was entitled to recover certain court costs advanced by him in the formation of the annex, and for fees based on a quantum meruit basis. Under the evidence introduced the jury had a right to find that the contract paade by the commissioners for a fee of $7,000 on the Marshall Street Annex was so improvident as to demonstrate its unreasonableness. While the evidence for Martin tends to establish the reasonableness of the fee, still there was sufficient evidence to warrant a finding against him on his contract for a fee of $7,000. Evidence was adduced by the defendant tending to show the amount of the bond issue, and Martin himself testified as to the various services performed by him and the costs advanced by him in these suits. When the amount of the bond issue is considered with reference to'the various suits relating to the formation of the district, the jury might have found that a fee of $7,000 was so improvident as to demonstrate its unreasonableness. Hence there was no error in the finding of the jury on this branch of the case.

When this finding was made the contract would be treated as being void, but in such a case the attorney would be entitled to recover on a quantum meruit basis. It is sought to uphold the verdict, however, on the ground that the amount of fee which Martin might claim on a quamtum meruit basis was only established by his own testimony, and that thus the case falls within the principles of law announced in Skillern v. Baker, 82 Ark. 86, 100 S. W. 764, 118 Am. St. Rep. 52, 12 Ann. Cas. 243, and later decisions of this court, to the effect that, where the witness is interested in the result of the suit, his testimony cannot be considered as uncontradieted, and the case must go to the jury. Martin’s right to recover upon a quantum- meruit basis does not depend alone upon his testimony. The extent of his services was stated in detail to the jury, and, according to all the lawyers who testified in the case, he was entitled to recover some substantial amount. They only differed as to the amount of his recovery. In this connection it may be stated that Martin was entitled to recover whatever costs were legally advanced by him in the suits brought seeking to establish the district. He would have a right to defend the districts or the commissioners from any suit seeking to invalidate it or to overthrow the assessment of benefits made by the assessors, and to advance costs in such suits. He would not have a right, however, to advance costs for suits brought by the district against him, and to recover them as costs expended for the benefit of the district.

Upon the appeals of the defendant district, on their cross-complaint against Martin to recover illegal fees advanced him in the original district and in the Summit Street Annex, but little need be said. Upon the former appeal it was held that a suit for the recovery of excessive fees paid to an attorney is barred by the three-year statute of limitation. On this branch of the case the testimony is in irreconcilable conflict, and the jury by its verdict has found the disputed question of fact in favor of Martin, and against the district in the suit against the original district, and in the suit against the Summit Street Annex. Ño useful purpose could be served by setting out this testimony in detail, for the jury was the judge of the credibility of the witnesses. We deem it sufficient to say that the issues raised by the cróss-complaint of the original district and of the Summit Street Annex were submitted to the jury upon competent evidence, and under proper instructions. Therefore the verdict of the jury is binding upon us on appeal, and the judgment in each of these cases will be affirmed.

In the suit against the Marshall Street Annex the judgment must be reversed because, under the undisputed evidence, Martin was entitled to recover some substantial amount upon a quantum meruit basis. We cannot, however, remand the case to be submitted to the jury upon this issue alone. The practice in this State has been that, when a verdict is set aside as being inadequate, the court must grant a new trial in the whole case. The reason is that a verdict, as the foundation of a judgment at law, is an entity, and cannot be divided by the trial' court. Hence under our rules of practice we cannot remand the case for a new trial of the issues as to the amount to be recovered by Martin for his attorney’s fee and for costs advanced by him in the Marshall Street Annex case, but the case must be remanded for a new trial. Krummen Motor Bus & Taxi Co. v. Mechanics’ Lumber Co., 175 Ark. 750, 300 S. W. 389.

Therefore the judgment as to the Marshall Street Annex will be reversed, and the case remanded for a new trial.


text:
    Sanders v. Flenniken.
    Opinion delivered November 11, 1929.

      A. D. Murphy, M. L. Allday and R. M. Hutchins, for appellant.

      Marsh, McKay & Marlin, for appellee.
   Hart, C. J.,

(after stating the facts). Appellants brought this suit in equity, and asked that certain conveyances by appellees be canceled as clouds upon their title. Such a suit is of purely equitable cognizance, although appellants ask that the title to the land be also declared in themselves, and that they have possession under their claim of title.

Appellees pleaded in bar of the recovery of the land by appellants that they were guilty of laches. The doctrine of laches is entirely a defense in equity, and, if the facts justified it, constituted a bar to the right of appellants to the relief asked by them.

Mere lapse of time before bringing suit, without change of circumstances or in the relation of the parties, will not constitute laches. Not only must there have been unnecessary delay, but it must appear that, by reason of the delay, some change has occurred in the condition or relation of the parties to the property which would make it inequitable to enforce the claim. So long as the parties are in the same condition, a claim for land may be asserted within the time allowed by law. But when, knowing his rights, a party takes no steps to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state if the right's should be enforced, delay becomes inequitable, and operates as a species of estoppel against the assertion of the right. The disadvantage may come from loss of evidence, change of title, intervention of equities, and other causes; but, when the court sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief. This doctrine has been recognized and applied according to the facts of the particular case in a great many cases by this court. It would serve no useful purpose, and would make this opinion too long to cite all of them. We deem it only necessary to cite a few of them in which the doctrine has been applied in cases of this sort: Avera v. Banks, 168 Ark. 718, 271 S. W. 970; Walker-Lucas-Hudson Oil Co. v. Hudson, 168 Ark. 1098, 272 S. W. 836; Horn v. Hull, 169 Ark. 463, 275 S. W. 905; Langston v. Hughes, 170 Ark. 272, 280 S. W. 374; Clark v. Friend, 174 Ark. 26, 295 S. W. 392; and Clark v. Wilson, 174 Ark. 669, 297 S. W. 1008.

The doctrine of laches has also been recognized and applied by the Supreme Court of the United States in cases involving oil and mining lands. The case of Taylor v. Salt Creek Consolidated Oil Co., 285 Fed. 532, contains a review of the decisions of the Supreme Court of the United States in cases of this sort, and an instructive discussion of the reason for the application of the doctrine in oil and mining cases. In this connection, we quote from the opinion in Patterson v. Hewitt, 195 U. S. 309, 25 S. Ct. 35, the following:

“There is no class of property more subject to sudden and violent fluctuations of value than mining lands. A location which today may have no salable value may in a month become worth its millions. Years may be spent in working such property, apparently to no purpose, when suddenly a mass of rich ore may be discovered from which an unusual fortune is realized. Under such circumstances, persons having claims to such property are bound to the utmost diligence in enforcing them, and there is no class of cases in which the doctrine of laches has been more relentlessly enforced.”

In Twin-Lick Oil Co. v. Marburg, 91 U. S. 587, the court said:

“Property worth thousands today is worth nothing tomorrow; and that which today would sell for a thousand dollars at its fair value may, by the natural changes of a week or the energy and courage of desperate enterprise, in the same time be made to yield that much every day. The injustice therefore is obvious of permitting one holding the right to assert an ownership in such property to voluntarily await the event, and then decide, when the danger which is over has been at the risk of another, to comb in and share the profit. While a much longer time might be allowed to assert the right in regard to real estate whose value is fixed, on which no outlay is made for improvement, and but little change in value, the class of property here considered, subject to the most rapid, pregnant, and violent fluctuations in value of anything known as property, requires prompt action in all to hold an option whether they will share its risks or stand clear of them.”

From these citations it will be seen that this court, as well as the Supreme Court of the United States, has uniformly recognized that, on account of the fluctuating and'uncertain values of oil and gas lands, parties asserting title thereto must act more promptly than in ordinary cases in which the values remain practically the same.

Of course, it is equally well settled that, when the question of laches is in issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known to him were such as to put the duty of inquiry upon a man of ordinary intelligence. Walker-Lucas-Hudson Oil Co. v. Hudson, 168 Ark. 1098, 272 S. W. 836; and Johnson v. Standard Mining Co., 148 U. S. 360, 13 S.Ct. 585. In the latter case the court said:

“While there is no direct or positive testimony that plaintiff had knowledge of what was taking place with respect to the title or development of the property, the circumstances were such as to put him upon inquiry; and the law is well settled that, where the question of laches is in issue, the plaintiff is chargeable with such knowledge as he might have obtained upon inquiry, provided the facts already known by him were such as to put upon a man of ordinary intelligence the duty of inquiry. ’ ’

Tested by this well-settled rule, we think the court properly held that appellants were guilty of laches. Some of them resided in the same vicinity in which the lands were located at the time of their father’s death, and have continued to reside there ever since. 'The rest of the appellants either have resided in the same community ever since their father’s death or have lived in the same locality. Although some of them stated that they had paid taxes during some of the years, the record shows that the purchasers at the' foreclosure sale under the power contained in the deed of trust and their grantees have paid taxes on the land ever since 1907. Two of the appellants who executed the deed of trust lived on the land at the time of its sale under the power contained therein. They moved off of the land after the foreclosure, nnd, although they continued to live in the same vicinity, never exercised any other acts of ownership over the land, or attempted to do so. In 1922 appellants went to one of their attorneys in the present suit, who was then an abstracter of titles, but who had not yet been admitted to practice law, and stated facts under which they claimed the land to him. He advised them that he thought that they might recover the land. This shows at least that they had knowledge of the facts upon which they based their claim at that time. Notwithstanding this, they delayed bringing their suit until some time in 1925. During this time Mrs. Flenniken, who claimed title to the land under deed from the purchasers at the foreclosure sale, executed an oil lease as sole owner of the land. She thus bound herself to the lessees for the performance of the covenants in her lease, and upon faith of her ownership they commenced extensive drilling on the land for oil and gas. They paid Mrs. Flenniken the sum of $20,000 under the lease, and also over $32,000 in royalties. Before the suit was commenced, in 1925, the original mortgagees and the trustees under the mortgage had died. Alymer Flenniken had also died. After the purchase of the land by the firm of Marsh & Flenniken, Flenniken alone looked after it, because he had been reared in that part of the county where the lands were situated. These persons might have shed light upon the question of appellants’ claim of title. Alymer Flenniken died after 1922, and thus appellants waited until appellees could not prove any facts known by him with regard to the claim of title of appellants. It will be remembered that appellants admitted themselves that they knew in 1922 of the facts under which they claim title. The widow of Seaborn ¡Sanders, from whom appellants claim to inherit the land, died in 1919.

Under these circumstances, appellants ’ claim should not in equity be enforced. After the changes of situation during all of these years, after the changes in title, after the execution of the oil lease and the subsequent discovery of oil, and after evidence of the facts upon which they base their title has been lost by the death of disinterested witnesses who best knew them, equity will not now enforce a claim which it seems would not likely have been asserted if oil had not been discovered on the land. The undisputed evidence shows that the land was comparatively worthless except for the mineral rights. They could not rest on their rights and see appellee expend great sums of money in exploring for oil and gas, and, after the land had suddenly and unexpectedly made a great increase in value on account of this, come into a court of equity, and demand the enforcement olf their rights.

Therefore the chancellor properly held that they were barred of relief under the doctrine of laches, and the decree will be affirmed.


text:
    Grable v. Blackwood. Finton v. Blackwood.
    Opinion delivered November 11, 1929.

      Robinson, House <& Moses, Harry E. Meek, W. H. Cooper and Horace Sloan, for appellants.

      Hal L. Norwood, Attorney General, Claude Duty, Assistant and Harry P. Daily, for appellees; Rice $ Dickson, Amici Curiae, for appellants.
   Hart, C. J.,

(after stating the facts). The correctness of the decisions of the trial courts depends upon the construction to he given to act 153, passed by the Legislature of 1929, which was in aid of road districts in the State of Arkansas. Acts of 1929, vol. 1, p. 785. Section 1 provides for the payment of outstanding indebtedness other than bonds incurred prior to J anuary 1, 1927, and reads as follows:

“That the Highway Commission shall, as soon as possible, ascertain the amount of any valid outstanding indebtedness incurred prior to J anuary 1, 1927, against any road district in the State of Arkansas organized prior to the passage of act No. 11 of the Acts of the General Assembly of the State of Arkansas for the year 1927, which was approved February 4, 1927, and shall draw vouchers to be paid out of the appropriation already provided for in act No. 18 of the Forty-seventh General Assembly for the payment of road district bonds and interest obligations; such voucher shall be delivered to the person authorized to receive the same, on proper satisfaction of such indebtedness; provided that such payments so made shall be charged against the allotment to the respective counties (in which the road was located) as made by the Highway Commission, and, if in two or more counties, it shall be prorated in accordance with the mileage of the road in each county. ’ ’

The act under consideration was passed by a two-thirds majority of those voting thereon, both in the Senate and in the House of Representatives, but it did not receive a two-thirds majority of the members elected to each branch of the General Assembly.

Counsel for appellants seek to reverse the decree in the chancery court, and the judgment in the circuit court under the authority of Belote v. Coffman, 117 Ark. 352, 175 S. W. 37, where it was held that the legislative appropriation for the exhibit of the resources of the State at the Panama-Pacific Exposition was not a necessary expense of government, and required a two-thirds majority vote on the act by each house of the Legislature in its favor to render it valid. They claim that, while the act under consideration was not an appropriation to defray the necessary expenses of government, it was in the nature of a donation in aid of the road improvement districts of the State which were duly organized under acts of the Legislature, and that the appropriation made was for a public purpose.

On the other hand, it is contended by counsel for appellees, that the act under consideration is governed by the provisions of § 27, article 5, of the Constitution, which was construed in the case of Oliver v. Southern Trust Company, 138 Ark. 381, 212 S. W. 77. In that case it was held that the Legislature could not appropriate money to pay a claim against the State not authorized by pre-existing law, except by a bill passed by two-thirds of the members elected to each branch of the General Assembly. They contend that the outstanding indebtedness referred to in the act under consideration are not claims under preexisting laws, under the section of the Constitution construed in the Oliver case, and that the bill is unconstitutional because it was not passed by two-thirds of the members' elected to each branch of the General Assembly.

As we have already seen, counsel for appellants contend that the case does not fall under the provisions of the section of the Constitution construed in the Oliver case, but that, if it does, the indebtedness provided for is a claim under preexisting law, and requires only a majority of the votes cast on the bill to pass it.

In the Belote case the court had under consideration article 5, § 31, of the Constitution, which reads as follows:

“No State tax shall be allowed, or appropriation of money made, except to raise means for the payment of the .just debts of the State, for defraying the necessary expenses of government, to sustain common schools, to repel invasion and suppress insurrection, except by a majority of two-thirds of both houses of the General Assembly.”

The Legislature had appropriated money for the purpose of exhibiting the resources of the State at the Panama-Pacific Exposition. The act appropriated $40,000 for that purpose, but it did not receive a two-thirds majority of those voting thereon in the House of Representatives. The court held that, under our system of government, the Senate and the House are separate and independent bodies, and each votes separately on every bill presented to it. Therefore it was held that the bill did not legally pass, because it was not a necessary expense of government, and did not receive a two-thirds majority of those voting on it in each branch of the General Assembly. Citizens of the State advanced the necessary money to pay for the exhibit of the natural resources of the State at the exposition, and, at a subsequent session of the Legislature, asked for an appropriation to reimburse them for the amounts expended. The act did not receive a two-thirds majority of the members elected to each branch of the General Assembly. In a test case, which was appealed to this court, Oliver v. Southern Trust Co., 138 Ark. 381, 212 S. W. 77, it was contended that citizens who advanced the money had claims under a preexisting law, and that the appropriation to reimburse them need only pass by a majority vote of those cast on the bill. They insisted that the original appropriation bill which came up for construction in the Belote case made their claim for reimbursement one under a preexisting law. The court held that the first act was essentially an appropriation act, and did not have the effect to make the subsequent claims for reimbursement claims under preexisting laws within the meaning of article 5, § 27, of the Constitution.

We are of the opinion that the outstanding indebtedness incurred prior to January 1, 1927, mentioned in the act under consideration, does not fall within any of the provisions of § 27, article 5, of the Constitution. It is certainly not extra compensation made to any officer, agent, employee, after the service shall have been rendered or the contract made. On the other hand, the indebtedness claimed to be due was reduced to judgment, and was for an amount due under contracts made with improvement districts. It is not money appropriated or paid on a claim either provided for by preexisting law or the subject-matter of which shall not have been provided for by preexisting law. In other words, it is not a claim at all. It is a bill passed in aid of road improvement districts which had been legally formed under laws passed by the Legislature. That this view is correct will be seen by the reasoning of the court in the following cases: Cone v. Hope-Fulton-Emmett Road Improvement District, 169 Ark. 1032, 277 S. W. 544; Bush v. Martineau, 174 Ark. 214, 295 S. W. 9; and Arkansas State Highway Commission v. Kerby, 175 Ark. 652, 300 S. W. 377.

In the Cone case the court said that the statute, which was in aid of the taxpayers of road districts and the bondholders thereof, had set apart a portion of the revenue to be applied on the payment of said bonds, and that such act on the part of the sovereignty was a gratuity rather than a contract. The court pointed out that the State, unless inhibited by some constitutional provision, had, by its Legislature, full power over all matters of taxation, and the collection and disbursements of taxes, and might exercise absolute control over all revenue collected by subordinate branches of the State G-overnment. Therefore it was held that the act in aid of the payment of the bonds of this road district was in the nature of a donation to them. This being true, the amount donated could in no sense be considered as claims against the State.

We can illustrate our meaning by an application of the principles of law decided in Compton v. State, 38 Ark. 601. In that case Compton had been employed by the Governor to assist the Attorney General in the foreclosure of a mortgage against a railroad, and was to receive $5,000, to he paid out of the sum recovered. Upon appeal to this court it was held that the State’s attorney had no lien on the judgment recovered, and that Compton must look to the Legislature for his compensation. The court recommended that the Legislature should make an appropriation for the compensation, because the State had profited by his labors, his learning, and his experience, and it was only 'bare justice to recompense him. Now, we think it results from the reasoning of the court in that case that the Governor had the inherent power to employ Compton, but that he had no power to employ him so as to give him a lien on the judgment recovered. If Compton had presented his claim to the Legislature, it would have been only necessary to pass a bill appropriating the money to.pay it by a majority of those voting on the question, because, if the Governor had the inherent power to employ him, he had a claim against the State under a preexisting law, just as much as if- the Legislature had passed a statute authorizing the Governor to employ him before he did so. On the other hand, if Compton had been employed by the Attorney General without any statute authorizing him to do so, his employment would have been outside of the jurisdiction of the Attorney General, and would have been illegal. Under these circumstances, a bill to appropriate money to pay his claim must have been passed by two-thirds of all the members elected to each branch of the Legislature, because it was not a claim which had been provided for by a preexisting law.

In this view of the matter, appellants in the case at bar did not have any kind of a claim against the State. As already pointed out, the act of the State in appropriating money to pay the indebtedness of the various road districts was in the nature of a donation, and was not the result of any obligation which had been incurred or attempted to be incurred by the State itself. It is only in cases where the State has incurred an obligation, or attempted to do so, that a party can be said to have*a claim against the State, within the meaning of article 5, § 27, of the Constitution.

The court has held valid the acts of the Legislature appropriating money for the payment of the bonds of the various improvement districts which had begun or completed the construction of the improved roads authorized by the laws creating them. No useful purpose could be served by again giving the reasons for so holding. It is obvious that, if the Legislature had the power to appropriate money to pay the outstanding bonds of these road improvement districts, it would also have the authority to appropriate money to pay any other valid indebtedness incurred by said districts in the accomplishment of the purposes for which they were organized.

It is next insisted that the act under consideration is unconstitutional because it violates the provisions of article 5, § 23, of the Constitution, which provides that no law shall 'be revived, amended, or the provisions thereof extended or conferred, by reference to its title only.

Section one of the act provides that the Highway Commission shall ascertain the amount of any valid outstanding indebtedness incurred prior to January 1, 1927, against any road improvement district in the State organized prior to the passage of act 11 of the Acts of 1927, and shall draw vouchers to be paid out of the appropriation already provided for in act 18 which had been previously passed by the Legislature of 1929, appropriating money for the payment of road district bonds and interest obligations.

The framers of the Constitution meant only to lay a restraint upon the Legislature where the bill was presented in such form that the members could not determine what its provisions were from an inspection of it. Here, no confusion would result to the Legislature in the premises. Both statutes were passed at the same session of the Legislature, but it is apparent from reading them that act 18 and act 153 are original statutes in form, and complete in themselves'. The two statutes are separate and distinct legislative enactments, and each had its appointed sphere of action. No alteration, change or repeal of the one would affect the other. We are of the opinion that an act complete in itself, and which would not mislead the members of the Legislature is not within the evils to be remedied by this provision of the Constitution, and cannot be held to be prohibited by it without violating its plain intent. Watkins v. Eureka Springs, 49 Ark. 131, 4 S. W. 384; Common School District v. Oak Grove Special School District, 102 Ark. 411, 144 S. W. 224; State v. McKinley, 120 Ark. 165, 179 S. W. 181; and Farris v. Wright, 158 Ark. 519, 250 S. W. 889.

It is next contended that the act under consideration is not an appropriation act, or that, if it should be construed to be an appropriation act, it is also an appropriation by reference, which is prohibited by the section of the Constitution just referred to. An appropriation need not be made by any set words. It is the setting apart from the public revenues of a certain sum of money for a specific object in such manner that the executive officers of the government are authorized to use that money, and no more, for that object, and no other. Clayton v. Berry, 27 Ark. 129; Jobe v. Caldwell, 93 Ark. 503, 93 S. W. 503; Dickinson v. Clibourn, 125 Ark. 101, 187 S. W. 909; and Conner v. Blackwood, 176 Ark. 139, 2 S. W. (2d) 44.

Act 18 was approved February 13, 1929, Acts of 1929, vol. 1, p. 26. 'Section 7 makes the biennial appropriation to retire road district bonds and interest assumed by the State. Section 8 makes it the duty of the Highway Department auditor to certify amounts necessary to go to road districts each year, and for certificates of indebtedness.

Act 153 is an act for the payment of outstanding debts other than bonds from road district bond allotment fey counties, and was approved 'March 20, 1929. It expressly provides for vouchers to be paid out of the appropriation already provided for in Act No-. 18 of the same Legislature. It contains proper direction to the proper officers to pay monéy out of the treasury for a given object, and constitutes an appropriation to pay the debts of the road districts which had been incurred prior to January 1, 1927, out of the appropriation which had already been made for the payment of the bond indebtedness of said road districts. This view of the matter has been adopted by the court in the following cases: Jobe v. Caldwell, 93 Ark. 503, 125 S. W. 423; Hudson v. Higgins, 175 Ark. 585, 299 S. W. 1000; and Comber v. Blackwood, 176 Ark. 139, 2 S. W. (2d) 44.

In the Jobe case the court sustained an appropriation to pay an award in favor of Caldwell & Drake by the Capitol Commission out of money appropriated out of the Capitol Fund. So, too, in the other cases just cited, the same principle of law was applied.

It cannot be said that act 153 violates article 5, § 29, of the Constitution, which provides that no money shall be drawn from the treasury except in pursuance of specific appropriation made by law, the purpose of which shall be distinctly stated in the bill, and the maximum amount which may be drawn shall be specified in dollars and cents. Both act 18 and act 153 are specific appropriation acts. Each act is complete in itself. Act 153 expressly grants the power to the Highway Commission to ascertain the amount of any valid outstanding indebtedness incurred prior to January 1, 1927, against any road district in the State of Arkansas, and to pass on its merits, and refers to act 18 for the purpose of pointing out the procedure to be exercised in executing the power conferred, and that was, after ascertaining the amount due, to pay the same out of the amount appropriated by act 18. That act expressly states the maximum amount which is appropriated for the purposes specified in the act, and this maximum amount determines the total amount which may be expended under the provisions of act 18 or act 153.

The latter act sets apart or assigns to a particular use of a kindred kind a sum of money out of a specific appropriation made by the first act, the maximum of which is stated in that bill. That is to say, it is for the payment of certain indebtedness of various road districts which had not been included in act 18. The appropriation is specific as to the purpose for which it is to be used. It is specific as to the time of payment, and as to the fund out of which it shall be paid. This was sufficient to constitute a valid appropriation.

The result of our views is that the decree of the chancery court and the judgment of the circuit court were wrong. The chancery court should have overruled the demurrer to the complaint of appellant and the interveners in that case, instead of sustaining it. It was decreed that the complaint of each one should be dismissed for want of equity; and for the error in so holding the decree must be reversed, and the cause will be remanded with directions to the chancery court to compel appellees to carry out the provisions of act 153, and for further proceedings in accordance with the principles of equity, and not inconsistent with this opinion. In consolidated case No. 1373 the judgment will be reversed, and the cause will be remanded with directions for further proceedings in accordance with the principles of law decided in this opinion.

It is so ordered.