author: Mehaffy, J.

text:
    Pfeiffer v. Missouri State Life Insurance Company.
    Opinion delivered July 9, 1928.

      Morris & Barron, for appellant.

      Allen Mag and Bose, Hemingway, Cantrell & Loughborough, for appellee.
   Mehaffy, J.

Appellee and M. E. Singleton, trustee, filed suit in the Lonoke Clianeery Court against appellant and others for $40,000. S. C. Pfeiffer and Angie M. Pfeiffer had executed promissory notes for the above amount, and, to secure the payment of said notes, the makers of said notes had executed a mortgage. Appel-lee asked judgment against S. C. Pfeiffer and Angie M. Pfeiffer in the sum of $39,056.13 and interest, and asked that said judgment be declared a first lien on the property described in the mortgage, and, if said judgment was not paid in a short time, to be fixed by the court, that the property be sold, etc.

S. .C. Pfeiffer died before the trial, and the suit was revived against Will S. Pfeiffer, administrator. The administrator and Angie M. Pfeiffer sought to set-off against the mortgage debt the amount they alleged to be due the estate from the insurance company on a policy on the life of S, C. Pfeiffer, deceased. Angie M. Pfeiffer filed no separate answer. The trial court held that the policy had lapsed, and that there was therefore nothing due on the policy. Counsel for- the insurance company prepared a decree of foreclosure, which contained a provision for personal judgment against Angie M. Pfeiffer, but this decree was not approved by the attorneys for Mrs. Pfeiffer, because it contained a provision for personal judgment against her. The attorney for Mrs. Pfeif-fer wrote and mailed to the attorney for the insurance . company the following letter:

“Juné 2,1926.

“Hon. G. B. Bose, Attorney,

‘ ‘ Care of Bose, Hemingway, Cantrell & Loughborough, “Little Bock, Arkansas.

“Be: Missouri State Life v. Pfeiffer.

“Dear Judge: I am returning’ precedent for the •decree in the above entitled case unapproved, because it provides for a judgment against the administrator and Mrs. Angie M. Pfeiffer. The complaint, in my opinion, does not justify a judgment against the administrator, because it is not supported by the statutory affidavit.

“I did not think your client insisted on a judgment against Mrs. Pfeiffer. This question was not raised, hut I took it as a matter of course, since your client paid her one insurance policy without mentioning her indebtedness to it, that no contention would be made for a judgment against her. I do not think there is any doubt but what she signed the mortgage and notes for the purpose of releasing her dower and homestead interest.

“Mrs. Pfeiffer has some little property, probably $3,000 or $4,000, which she received on insurance which Mr. Pfeiffer carried on his life. Your client could, if it desired, deprive her of what little her husband left her.. However I am sure that neither you nor your client intended to take an advantage of her by providing for a-judgment against her in the decree.

“If you will modify the precedent to the extent as suggested herein, I will approve it.

‘ ‘ Yery truly yours,

“GrEM :HN”

The attorney for Mrs.' Pfeiffer received from the attorney for the insurance company, in reply, the following letter:

“Little Bock, Arkansas, June 7, 1926. “Mr. Gfeo. E. Morris,

“England, Arkansas.

“Be: Missouri Life v. Pfeiffer.

“Dear sir: The plaintiff has consented to the change in the decree suggested by you. We inclose the original, prepared in St. Louis, with the. alteration, and a clean copy of it, so that you may compare the two and find that it is correctly copied. Please O. K. the copy and return it to us, and we will get Judge White to order it to be entered.

“You can fix the time that is to elapse before advertising at any period not exceeding sixty days. We observe that it is 20 days in the decree, and you may want a longer time. Please insert the allowance in the blanks.

“Very truly yours,

“Bose, Hemingway & Loughborough, “GfBB:E Gr.B.B.”

The complaint filed by the insurance company was made an exhibit to the testimony of G. E. Morris, attorney for Mrs. Pfeiffer, which showed that a personal judgment against Mrs. Pfeiffer was asked in the foreclosure suit. After the agreement of the attorneys, a decree was entered foreclosing the lien, and no judgment was entered against Mrs. Pfeiffer. An appeal was taken from that part of the decree disallowing a set-off against the mortgage debt of the amount alleged to be due on insurance policy. The opinion on this question is reported in 174 Ark. 783-, 297 S. W. 847. Before the case was decided in this court, the land was sold under the decree of the chancery court, and the insurance company was required to pay the amount due on insurance policy to the administrator. The lands, having been sold, could not be ■returned.

• In October, 1927, appellee and others filed in the chancery court a supplemental complaint, alleging a deficiency, the lands not having been sold for enough to pay the mortgage debt. They asked judgment against Mrs. Pfeiffer for the deficiency, $8,826.47, alleging that she signed the notes and mortgage and therefore became liable for the amount. The insurance company asked that her one-third of the insurance collected be applied to the payment of the indebtedness.

It is the contention of appellant that the matter sought to be litigated in this suit was litigated or could have been litigated in the former trial, and is, therefore res judicata. The appellee, however, contends that our statute, § 6242 of Crawford & Moses’ Digest, is purely permissive, and does not exclude the ancient practice of first selling the property and then asking for a deficiency judgment, and argues that the right to such a judgment has been upheld at least twice by this court, and .cites the case of Birnie v. Main, 29 Ark. 591, and Bank of Eudora v. Ross, 168 Ark. 755, 271 S. W. 703. These cases hold that the mortgagee is entitled to have a personal judgment in the first instance. To the same effect is the holding in the case of McCormick v. Daggett, 162 Ark. 16, 257 S. W. 358.

Whether appellee was entitled to select either remedy or to choose which remedy it would adopt, is unimportant in this case. It did adopt the statutory method of procedure, and, having done this, it could have litigated -the question of appellant’s'liability in that suit, if in fact it did not do so. The complaint in the original suit asked for a personal judgment against appellant. It was, under the-pleiadings, entitled to a personal judgment against her. Her attorney refused to agree to the decree for a judgment against her, and appellee’s attorney thereupon agreed to take a decree of foreclosure without taking any personal judgment against appellant. The letters of attorneys, set out above, do not indicate an agreement merely to postpone taking judgment against her, hut they indicate. an agreement to waive the right to judgment against her. The appellant would not agree to a judgment against herself. What steps she would have taken or what course she would have pursued if the agreement had not been made, is not disclosed. She might have resisted the foreclosure, or she might have appealed, or she might have procured bidders for the property at the foreclosure sale in order to protect herself. At any rate, it was an agreement the parties had a right to make. Birnie v. Main, 29 Ark. 591.

“By agreement of the parties, a foreclosure may amount to a full satisfaction of the mortgage debt, without regard to the value of the property. In.a suit to cancel a judgment rendered for the -balance of a debt after foreclosure of a mortgage, the mortgagor alleged an agreement that he should turn over the land to the mortgagee in full payment, but that, being unable to make a good title because of pending suits against him, an amicable foreclosure was had, and the judgment for the excess was left unsatisfied, by neglect or oversight. It was held that, the evidence being doubtful on this point, the fact that no attempt to enforce the judgment was made for seventeen years would turn the scale in the mortgagor’s favor. The agreement to give up without contest all the land covered by the mortgage, in satisfaction of the debt, was a good and sufficient consideration for tbe agreement to release tbe mortgagor from personal liability.” Jones on Mortgages, vol. 2 (Eighth edition), § 1214; United States Savings Bank v. Pittman, 80 Fla. 423, 86 So. 567, 19 R. C. L. 669; Cooper v. Phillips, 157 Ark. 525, 249 S. W. 12.

We think the agreement between the parties constituted a waiver of the right to a personal judgment against Mrs. Pfeiffer. Appellee was entitled to have the question of personal liability of Mrs. Pfeiffer settled in the original suit, and, if it were not settled by the agreement, it was an issue in the case, and could have been settled, and it is therefore res judicata. McDaniel v. Richards, 141 Ark. 453, 217 S. W. 478; Gaither v. Campbell, 94 Ark. 529, 126 S. W. 1061; Taylor v. Taylor, 153 Ark. 206, 240 S. W. 6.

The conclusion we have reached makes it unnecessary to discuss the other question discussed by counsel.

The decree on cross-appeal will be affirmed, and the decree on appeal will be reversed, and the case remanded with directions to dismiss. It is so ordered.


source: Caselaw Access Project

author: McHaNey, J.

license: Public Domain

text:
    St. Louis-San Francisco Railway Company v. Ozark White Lime Company.
    Opinion delivered July 9, 1928.

      E. T. Miller and Warner, Hardin & Warner, for appellant.

      Pearson & Pearson, for appellee.
   McHaNey, J.

Appellee shipped a carload of lime from its kilns at Johnson, Arkansas, consigned to the Spurrier Lumber Company, Okmulgee, Oklahoma, over appellant’s line of railroad, on or about the 11th day of April, 1927, of the value of $321, for which hill of lading was Issued. Appellant accepted said shipment, and undertook to deliver the same to the consignee. Said car of lime was taken to the town of McBride, Oklahoma, where it ivas placed upon a sidetrack about three feet lower than the main line, and where it remained until it was destroyed, on or about the 18th day of April, 1927, by coming in contact' with the flood waters from G-rand River, near said town, and was burned. It was delayed at McBride, in the first instance, on account of a landslide which covered the tracks west of McBride, so that the train could not proceed.

On account of the excessive rains falling in the month of April of that year, and general flood conditions, the Arkansas River and this particular stream were very high, and the backwaters therefrom flooded the tracks near McBride. On the day this car of lime was destroyed, appellant had an engine available to move this car off the sidetrack to the higher ground of the main line, bnt did not do so. This engine was used to go west across the flooded area and remove some cars from a spnr-track that was about to be flooded, but did not move the car of lime. Appellee brought this action to recover the value of the lime destroyed, and recovered a judgment therefor in the sum of $321.

The first assignment of error urged for our consideration is that appellee failed to establish actionable negligence, that appellant was not negligent in any particular, but, on the contrary, the proof showed that the proximate cause of the loss was an act of God. It is true that it is an elementary rule that a carrier is not liable for loss caused solely by the act of God. It is also true that a flood, unprecedented, as this was shown to be, constitutes an act of God. As said by this court in St. L. I. M. & S. R. Co. v. Wood, 99 Ark. 363, 138 S. W. 461: “The undisputed evidence shows that appellant could not perform its contract to transport the cattle to Kansas. City because of an act of God. The flood that washed away appellant’s track was an act of God within the exception to the carrier’s liability as an insurer of freight in his hands for transportation. ’ ’

But, on the contrary, it is equally well settled and elementary that, in order for a carrier to be excused from its liability as an insurer by reason of destruction of the goods by an act of God, the act of God must be the sole and proximate cause of the injury. Where the damage is occasioned by the concurring force of the carrier’s negligence, and from other causes for which the carrier is not responsible, including the act of God, the carrier is still liable in damages if its. negligence is one of the proximate causes of the injury.

In St. L. S. W. Ry. Co. v. Mackey, 95 Ark. 297-301, 129 S. W. 78, it is said: “The act of God which excuses must be not only the proximate cause, but the sole cause. And where the act of God is the cause of the injury, but the act of the party so mingles with it as to be also an efficient and cooperating canse, the party will still be responsible.” Johnson v. Mo. Pac. Rd. Co., 167 Ark. 660, 269 S. W. 67.

Bearing- these rules in mind, we are of the opinion that the act of Cod was not the sole and only proximate cause of the destruction of this car of lime. Appellant placed it on the sidetrack, some three or four feet lower than its main line tracks, four or five days before it was destroyed. During all this time rains were falling and the flood was rising, gradually but continuously. There was no sudden and unexpected rise in the Crand River. The heavy rains had caused the landslide which obstructed the tracks, and, at the time the car was set on the sidetrack, the backwaters from Crand River were near the track, and continued gradually to rise until it covered the sidetrack to such a depth that it flooded the lime, thereby causing it to slack, heat, and be destroyed; and, even though the tracks at this point had never been flooded before, and that the high waters on this occasion were unprecedented, still it cannot be said as a matter of law that it was such a contingency that appellant could not have foreseen and anticipated, by the exercise of ordinary care, foresight and judgment.

As above stated, on the afternoon of the destruction of this car appellant had an engine present, and could have moved this car to higher ground, but neglected to do so.

In Lamar Mfg. Co. v. St. L. S. F. R. Co., 117 Mo. App. 453, 93 S. W. 851, it is said:

“In the exercise of reasonable care, of which negligence is the antonym, human foresight.and prudence cannot foresee and guard against the sudden, unheralded, and overwhelmingly powerful outbursts of natural forces, and because neither time, place, nor destructive power of such visitation may be anticipated, people cannot be expected to act with reference to them, and therefore negligence which, by chance, places person or property within destructive reach, should not be deemed a cooperative cause of injury, * * * But, when an extraordinary natural disturbance gives warning of the time and path of its approach, and of its general magnitude and power, they (such as common carriers) whose business places them in charge of the safety of persons and of property of others, are charged with the duty of exercising care commensurate with the exigencies of the situation, to protect those whom they serve against injury from the approaching danger. A breach of such duty is negligence, and, if injury results, must be regarded as approximate, and not a remote cause of the injury.”

We therefore hold against appellant on this contention.

The next assignment of error is that the title to the shipment had passed to the consignee, and that the consignor had no right of action against appellant for the loss of the goods. There is no evidnce in the record to justify this assignment. Appellee testified that he was the owner of the goods. It was not tried in the circuit court on this theory, and the question was not raised there. It is presented here for the first time. We have examined the evidence, and find it sufficient to show that the car of lime was the property of appellee.

It is next contended that the court erred in the giving and refusing to give certain instructions. We do not set them out here, as no useful purpose could.be served thereby. We have examined the instructions given and those refused, and find that the court fully and fairly instructed the jury in accordance with the principles of law heretofore announced in this opinion.

It is finally insisted that the court erred in admitting the following testimony, over appellant’s objection, by witness Gulley:

“Q. Mr. Gulley, a juror was asking a question awhile ago, Mr. Guinn, I believe, about, if this car had been, on the main line, would it have burned, would the water have got to the lime? A. Right opposite where the car stood there at McBride? Q. Yes sir. A. No sir. Q. You say that it would not have? Go ahead now. A. The water would not have got to the lime in the car if it had been on the main line opposite where it was sitting on the spur.”

There was no error in admitting this testimony. Its purpose was to show that, by slight effort and diligence on its part, appellant could have moved the car from its sidetrack to its main line, just opposite where it stood, and have saved it from destruction. It was not the expression of a conclusion, but was a statement of a fact within the knowledge of the witness, to the effect that the high water did not get over the main line tracks at the point opposite to where the car was stored sufficiently high to have destroyed the lime.

We find no error, and the judgment is affirmed.


text:
    Metcalf v. Jelks.
    Opinion delivered July 9, 1928.

      Ernest Neill, for appellant.

      Colemmy S Reeder, for appellee.
   McHaNey, J.

Appellant, Charles D. Metcalf, was, until it closed its doors and was taken over for liquidation by the Bank Commissioner in May, 1927, cashier of the Union Bank & Trust Company of Batesville, Arkansas. He was indebted to the bank at that time in the sum of $3,050 in his own name and $3,000 in the name of his wife and son. He was also indebted to the appel-lees in the sum of $1,232, as security for which they held 40 shares of the Capital stock of said bank. The bank held no security for its debts. The debt to appellees being due, they demanded payment or additional security, the security held by them being worthless after the failure of the said bank. They asked for a mortgage on a part of his home place, ibut he declined to give it to them, and told them he had promised to let the bank have that, if necessary. His home place consisted of valuable real estate and improvements in the city of Batesville, the extent thereof being in excess of the constitutional limit for an urban homestead, a strip of ground 66x92 feet in size being in excess of the one-quarter acre, together .with the improvements, to which he was entitled as a homestead exempt from execution under the law. Not getting any satisfaction about the payment of their indebtedness or security therefor, they sued out a writ of attachment, and caused same to be levied on this strip of ground on the 21st day of June, 1927, and alleged a,s a g-round therefor that said appellant had sold, conveyed and otherwise disposed of a material part of his property, and was about to sell, convey and otherwise dispose of bis property with the fraudulent intent to .cheat, hinder and delay his creditors in the collection of their just debts and demands. The appellees later amended their affidavit for attachment by stating that, since the issuance thereof, appellant Metcalf had executed and delivered a certain deed of trust, which constituted a conveyance or disposition of his property in fraud of creditors, and in law constituted a sale, conveyance or disposition of his property with the fraudulent intent to cheat, hinder and delay his creditors in the collection of their just debts and demands.

On July 20, 1927, appellant Metcalf and his wife executed a deed of trust covering the entire home place, including the strip of ground attached by appellees, to the Bank Commissioner to secure the indebtedness to the Union Bank & Trust Company above mentioned, in the sum of $6,050. Thereafter, in July, 1927, the Bank Commissioner sold and assigned all the assets of the Union Bank & Trust Company to appellant, North Arkansas Bank, including the notes and deed of trust of appellant Metcalf. Thereafter appellant North Arkansas Bank intervened in the attachment suit, setting up its mortgage and notes, in which it denied that Metcalf had sold, conveyed or otherwise disposed of his property, or a material portion thereof, or that he was about to do so, with the fraudulent intent to cheat, hinder and delay his creditors, and alleged that the attachment was wrongfully issued. Appellant Metcalf admitted the indebtedness to appellees, but denied that they had any ground oif attachment. The case was tried to the court without a jury on the issues upon the attachment, and the court, after hearing the evidence, rendered judgment against Metcalf for the amount sued for, and sustained the attachment.

The only question necessary for our determination on this appeal is the correctness of the court’s judgment in sustaining the attachment. The indebtedness was admitted. It appears that all the property covered by the deed of trust now held by appellant North Arkansas Bank constituted the homestead of appellant Metcalf, with the exception of the strip of ground attached by appellee. It appears that appellant had no other property except his home place, a small sum of money coming to him from the sale of the water and light plant, and some worthless stock in the Union Bank & Trust Company. It further appears that appellant’s homestead was worth approximately $12,000, and that he was indebted to the extent of $8,000 or $10,000. He was therefore insolvent, his homestead not being subject to execution and not being taken into consideration. Appellant North Arkansas Bank holds a valid mortgage on his homestead, which covers all improvements, which appears to be amply sufficient to cover his indebtedness to it. The court found that the attachment properly issued, and sustained it. If therefore there is any substantial evidence in the record to support the finding of the court that a ground for attachment existed, it is binding on this court on appeal.

In Blass v. Lee, 55 Ark. 329, 18 S. W. 186, Judge Mansfield, speaking for the court, said:

“The issue formed by the counter-affidavit of the defendant, denying the existence of the ground on which the attachment was obtained, presented for decision but one question, and that wias whether the defendant, at the time the attachment issued, was ‘about to sell, convey or otherwise dispose of her property with the fraudulent intent to cheat, hinder or delay’ her creditors, as stated in the affidavit of the plaintiffs. In trying this issue, no declaration of law was made or refused, and the court is therefore presumed to have acted upon correct views of the legal principles applicable to the facts. The finding of the trial judge is as conclusive as if it were the verdict of a jury, and there is no such lack of evidence to support it as would justify us in setting it aside. ’ ’

It is the proper practice for the court to determine this question, instead of submitting it to a jury. Von Berg v. Goodman, 85 Ark. 605, 109 S. W. 1006. However, no question is raised here regarding’ the failure of the court to submit the question to a jury. We are of the opinion that the court was justified in sustaining the attachment. Appellant Metcalf told the appellees he was under obligation to let the hank have his home place; that he would use the “water and light money” to pay other hills, and that they had their security, which consisted of the shares of stock in the defunct hank. He attempted to sell his home to the witness Hunter, and Metcalf himself admits that he was trying to sell it, but. he says he was going to- sell it for the purpose of paying his debts. It was amply sufficient to pay off all his debts.

“It is true,” as is said in Farris v. Gross, 75 Ark. 391, 87 S. W. 633, 5 Ann. Cas. 616, “that the sale of property by an insolvent debtor in the usual course of trade is not ground for attachment; but when it can be shown that such sale was made for the fraudulent purpose of converting the property into money, so as to place it beyond the reach of creditors by execution or other process, it does constitute ground for attachment.” And the latter is true, even though made in the- usual course of trade and business. But a sale of his homestead in this instance would not be in the usual course of business. Metcalf was not a dealer in real estate, nor was he engaged in the business of buying and selling real estate. The major part of the value of his home place was his homestead, and, if he desired to devote it to the payment of all his debts, he could have conveyed it to a trustee for the purpose of sale and paying his debts, for which it was amply sufficient. But, instead of doing this, he attempted to convey it to secure the bank alone, and at a time, too, after the attachment had issued and the lien thereof attached. The necessary effect of this deed of trust on his home place was to put beyond the reach of appellees a means of 'collecting their debt. A person is presumed to intend the necessary and natural consequences of his voluntary act. Speaking* of the question of intent, under the head of Attachment, 6 O. J. 58 lays down the rule as follows:

“The burden of showing* a fraudulent intent upon the part of the debtor rests on the attaching creditor; but the question of when it was established, so as to justify the granting of a warrant or attachment, must depend largely upon the particular facts and circumstances of each case. It is not necessary that such intention should be positively proved, as it may 'be inferred from the acts and conduct of the party, by an application of the rule that a person is presumed to intend the necessary and natural consequences of his voluntary acts. ’ ’

In Winter v. Kirby, 68 Ark. 471, 60 S. W. 34 this court said:

“The principle that every one is presumed to know the law may be a fiction only, but it is a fiction necessary to be kept up. Otherwise all government would be subverted in the futile efforts to execute its mandates. The kindred principle that every one is presumed to intend the consequences of his own acts is equally as important for its purposes.”

Therefore when Metcalf "executed the deed of trust on his property to the Bank Commissioner to secure his indebtedness to the Union Bank & Trust Company, he attempted to do an act that would necessarily hinder and delay appellees in the collection of their debt. True, the hindering of one’s creditors from collecting their debts is not of itself sufficient to render the sale fraudulent, but only when accompanied by the intent to hinder and delay. And, while Metcalf testified that he had no intent to hinder and delay his creditors, he is presumed to intend the necessary consequences of his act, under the rule above announced.

Another rule established* by this court is that the testimony of a party to an action, who is interested in the result, will not 'be regarded as undisputed in determining the legal sufficiency of the evidence. K. C. S. R. Co. v. Cockrell, 169 Ark. 698, 277 S. W. 7; Gish v. Scantland, 151 Ark. 594, 237 S. W. 98.

So, while Metcalf testified positively that he did not intend to hinder or delay his creditors, it cannot be taken as uncontradicted. When all the facts and circumstances in the -case are considered, we cannot say that there was no substantial evidence on which the circuit court based its finding and judgment on the attachment.

Affirmed.


author: Hart, C. J.

text:
    Trout v. State.
    Opinion delivered September 24, 1928.

      W. L. Parker and Duke Frederick, for appellant.

      H. W. Applegate, Attorney General, and Walter L. Pope, Assistant, for appellee.
   Hart, C. J.

The principal ground relied upon by appellant for a reversal of the judgment is that the court erred in not sustaining a demurrer to the indictment. The indictment charges that the defendant “unlawfully and feloniously did make and manufacture, and was unlawfully and feloniously interested, directly or indirectly, in the making and manufacturing of ardent, vinous, malt, spirituous, alcoholic or fermented liquors, against the peace and dignity of the State of Arkansas. ’ ’ The court overruled the demurrer of appellant to the indictment.

The textwriters lay down the general rule that an indictment must not charge the accused disjunctively, so as to leave it uncertain what is relied on as the accusation against him. Hence it has been held that an indictment alleging the sale of “'Spirituous or intoxicating liquor” without license is bad for uncertainty, and insufficient to sustain a judgment. The general rule is that, where a statute makes it a crime to do any one of several things mentioned disjunctively, all of which are punished alike, the whole may be charged conjunctively as a single offense. Disjunctive allegations render a judgment of conviction invalid. The reason is that the accused is entitled to know certainly with what offense he is charged and to have the offense so charged that, upon acquittal or conviction, he may plead the same in bar of a subsequent prosecution for the same offense and establish his plea by the production of the former record. Clifford v. State, 29 Wis. 327; Commonwealth v. Grey, 2 Gray .(Mass.) 501, 61 Am. Dec. 476; Joyce on Intoxicating Liquors, par. 646; Woollen and Thornton on Laws on Intoxicating Liquors, vol. 2, § 852; and 31 C. J. p. 663.

This court has recognized and approved the general rule. In Thompson v. State, 37 Ark. 408, the court held that an indictment charging that the “defendant did sell or give away whiskey under an act making it an offense to sell or give away whiskey,” is bad for uncertainty; but that the charge that he “did sell and give awiay whiskey,” is good. It also held that the charge that the defendant “sold whiskey or brandy” was bad, but that a charge that he “sold whiskey and brandy” was good.

Therefore the court erred in refusing to sustain the demurrer to the indictment. The Attorney General correctly confessed error on this branch of the case.

It is also earnestly insisted by counsel for the appellant that the evidence is not legally sufficient to support the verdict. In this connection we do not agree with counsel. A witness for the State testified that in February, 1928, be saw appellant making intoxicating liquor at a still about tbree-f ourtbs of a mile east of where he lived, in Polk County, Arkansas. It is true that the defendant denied owning or operating a still, and also introduced witnesses who testified that his own reputation was good, and-that the reputation of the prosecuting witness f or truth and morality was bad. The jury, however, was the judge of the credibility of the witnesses, and, under our settled rules of practice, we are not at liberty to set aside the verdict of a jury founded on evidence of a substantive character.

For the reason above given the judgment will be reversed, and the cause will be remanded with directions to sustain the demurrer to the indictment, and- for further proceedings according to law.

Kirby, J., dissents.


author: Habt, C.' J.

text:
    McCauley v. State.
    Opinion delivered September 24, 1928.

      H. W. Applegate, Attorney General, and Effie Combs, Assistant, for appellee.
   Habt, C.' J.

The first assignment of error relied upon by appellant is that the court' erred in refusing to excuse certain jurors for cause. We do not agree with, counsel for appellant in this contention. One of the jurors in question was of the regular panel, and testified positively that, while he had heard that case discussed, the discussion was not by any person who purported to know the fiacts. He stated that he could disregard the opinion then formed by him and try the case solely on the law and testimony introduced at the trial. Another juror was asked if he was not a member of the chamber of commerce, the check of which the defendant was charged with raising. He answered that he did not remember whether he had a membership in his own name. He stated that, while he had read an account of the charg*e against the defendant in a newspaper, he did not remember any tiling about it, and could try the defendant solely upon the law and testimony introduced at the trial.

The testimony was legally sufficient to support the verdict. According to the evidence for the State, appellant was employed by the Pine Bluff Chamber of Commerce, and was .given a check for $37.50, signed by the secretary and countersigned by the president of the organization, in payment of his salary for one-half of a month. Appellant raised this check to $75, and cashed it. Appellant admitted that he raised the check, but gave as an excuse for so doing that he was suddenly called away from town to the bedside of a sick relative, and that in the past the secretary of the chamber of commerce had made him a payment of his wages in advance. Hence we hold that this assignment of error was not well taken.

The next assignment of error is that the court erred in overruling a demurrer to the indictment. We do not deem it necessary to set out the indictment. In plain and unmistakable language the indictment charges the appellant with the crime of forgery by raising a check given him for $37.50 by the Pine Bluff Chamber of Commerce, as a part of his salary for the month of July, 1927, to $75.

The most serious assignment of error relates to the admission of evidence. The court allowed testimony to go to the jury to the effect that, along about the same time of the transaction in question, the appellant had a shortage of $628.50 in the Pine Bluff Retail Credit Men’s Association, and this shortage was due to the fact that appellant had raised checks given him by said association. There was no reversible error in the admission of this testimony. The defendant admitted raising the check in question, and sought to mitigate or excuse his action by showing that he did not intend to defraud the chamber of commerce. This court has held that evidence in a forgery case tending to prove that, about a month after the defendant cashed the check in controversy, he attempted to cash a second forged check, was competent as bearing on the question of motive or intent. McCoy v. State, 161 Ark. 658, 257 S. W. 386; and Howard v. State, 72 Ark. 586, 82 S. W. 196. As sustaining the same principle, see also Hall v. State, 161 Ark. 453, 257 S. W. 61; and Bernhardt v. State, 169 Ark. 567, 275 S. W. 909.

Therefore the judgment will be affirmed


text:
    Bell and Swain v. State.
    Opinion delivered September 24, 1928.

      W. J. Lanier and G. B. Knott, for appellant.

      H. W. Applegate, Attorney General, and Walter L. Pope, Assistant, for appellee.
   Hart, C. J.

Robert Bell and Grady .Swain were indicted, tried before a jury, and convicted of murder in the first degree. They were sentenced to death, and have duly prosecuted an appeal to this court.

Two assignments of error are pressed upon us for a reversal of the judgment. In the first place, it is earnestly insisted that the confessions introduced in evidence were obtained 'by the officers who had the defendants in charge by whipping them. In the second place, it is insisted that the evidence is not legally sufficient to warrant the verdict. In making this contention, counsel for the appellants urge upon us that there is no independent evidence to show that the crime of murder as charged in the indictment was committed by any one.

The indictment charged the defendants with murder in the first degree by drowning Julius McCollum in Cutoff Bayou, in St. Francis County, Arkansas. Julius McCollum was a white boy, past eleven years of 'age, weighed about seventy-five pounds, and was strong for his age. He was drowned in Cutoff Bayou, in St. Francis County, Arkansas, late in the afternoon of December '29, 1927. Some days later the body of Elbert Thomas, colored, nineteen years of age, was found in the bayou near where the body of Julius McCollum had been recovered. Thomas was a one-eyed negro, and weighed about 180 pounds, and was strong and vigorous. The place where these bodies were found was about 200 yards from the front of a country store owned and operated by the father of Julius McCollum. On the afternoon in question, Robert Bell, a negro boy of medium stature and weight, eighteen years old, and Gfrady Swain, a negro boy fourteen years of age, and of medium stature, were at the store in question. Julius McCollum and Elbert Thomas were also there. "When Julius failed to return home that evening, a search was made for him, and his body was found in the bayou about nine o ’clock that evening, by his uncle. When Julius left home that morning he had on his leather boots. After he went to his father’s store he pulled off his leather boots and put on some- gum 'boots, which 'he was wearing when last seen that day. When his body was recovered he had no boots or socks on. Later the gum boots which he had been wearing were found in the bayou near where his body had been found. Later a pair of socks was also found in the bayou, which the mother of Julius McCollum said looked like the socks he was wearing on the day he was drowned. The body of Elbert Thomas was found eighteen or twenty feet out in the bayou, in deeper water than that in which the body of Julius McCollum was found. The body of Julius McCollum was found seven or eight feet below a boat, back of a stump, the bank sloped gradually, 'and the boat was untied. The ’boat was at the place where it usually was, at the end of a path leading from the store to the bayou. One end of the boat was not in the water. There was a seat in the end of the boat which was in the water, and there was a ¡big- muddy track on the seat. The boat was wet ¡all over, and had about six inches of water in it. There were no bruises or scratches on the bodies of either of the drowned boys. 'There was nothing- in their appearance to indicate that there had been a struggle when they were drowned.

A witness for the State testified that, about nine-thirty o ’clock on the night the boys were drowned, after the body of Julius McCollum had been recovered, Robert Bell told him that he had drowned Elbert Thomas and that Grady Swain had drowned Julius McCollum. Both boys were drowned at the same time. After Grady Swain and Robert Bell had been arrested and were in the custody of the officers, a confession was obtained from each of them. Evidence was adduced by the defendants tending to show that these confessions were obtained by severely whipping them. The officers admitted whipping the defendants, but denied that they did so to obtain the confessions. 'They claimed that they whipped them because they were impudent to them, and said that the confessions were free and voluntary. For the reason that we have reached the conclusion that the evidence is not legally sufficient to support the verdict, it will not be necessary to decide whether or not the confessions were extorted from the defendants by whipping them. In this connection, however, we again call attention to the fact that this court is committed to the rule that confessions used in evidence against defendants must be free and voluntary, and they must not be extorted from them by whipping them or by any inquisitorial method. Greenwood v. State, 107 Ark. 568, 156 S. W. 427; and Dewein v. State, 114 Ark. 472, 170 S. W. 582.

The reason we must decide whether the evidence is legally 'Sufficient to support the verdict is that the record shows that Robert Bell voluntarily made a confession to' a witness introduced by the State on the night of the day the boys were drowned, and before the defendants had been charged with drowning the hoys. The confessions to the officers, which it is claimed were extorted from, the defendants, were made afterwards. This court has held that, where a confession was once voluntarily miade, the fact that appellant afterwards repeated the confession under duress does not destroy or lessen the effect of the voluntary confession. Lind v. State, 137 Ark. 92, 207 S. W. 47.

This brings us to a consideration of the question of whether the evidence was legally sufficient to warrant a verdict of guilty. Counsel for appellants rely upon the well settled rule in this State that, under § 3182 of our .statutes, to warrant a conviction upon a confession not miade in open court there must he independent evidence to show that the offense was actually committed by some one. This court has uniformly held that, under our statute, to warrant a conviction from an extrajudicial confession of the accused, there must be independent evidence to establish that the crime has been actually perpetrated by some one. Melton v. State, 43 Ark. 367; Greenwood v. State, 107 Ark. 568, 156 S. W. 427; Patterson v. State, 140 Ark. 236, 215 S. W. 629; and Standridge v. State, 169 Ark. 294, 275 S. W. 336.

It is earnestly insisted by counsel for appellants that, outside of the confessions of appellants, which were not made in open court, there is no evidence sufficient to show that Julius McCollum and Elbert Thomas were drowned by any one. Appellants were witnesses in their own behalf, and denied their guilt. It is the theory of their counsel that the muddy track on the end of the boat was that of Elbert Thomas, and that he slipped and fell into the water, and that Julius McCollum jumped in the water to rescue him, and that they were drowned. Whether this theory is correct or not, after a careful consideration of all the testimony in the record, viewed in the light of the surrounding circumstances, we have reached the conclusion that, outside of the confessions of appellants, there is no evidence legally sufficient to show that Julius McCollum and Elbert Thomas were drowned by any one. Counsel for the State point to the fact that the boat was wet and that there was about six inches of water in it at the time Julius McCollum’s body was found on the night of the day he was drowned. His, body was found about nine o ’clock that night. The boat in question was used in going to and fro across the bayou, and there was ¡a negro sehoolhouse where school was in session at the time the drowning occurred. It may have been that the water was put in the boat by these negro children returning from school, while playing in the boat as they crossed the 'bayou. In any event, the fact that there was water in the boat and that one end of it rested on the bank is not sufficient to show that Julius McCollum and Elbert Thomas were drowned by any one. Another circumstance relied upon by the State to show that the boys were drowned by some one is that the rubber boots of Julius McCollum had been pulled off. In the first place, it may be said that, if the boys had Been drowned by the defendants, or some one else, there would seem to have been no reason for the perpetrators of the crime to have pulled off the rubber boots of Julius McCollum. It may be that the little fellow jumped into the bayou in an effort to save Elbert Thomas from drowning, and kicked off his boots as he jumped in. At any rate, these circumstances are not in themselves sufficient to show that Julius McCollum and Elbert Thomas were drowned by any one. There were no marks of violence on the bodies of either Julius McCollum or Elbert Thomas when they were recovered, and nothing from their clothes or bodily appearance indicated that they had been in a struggle before their death. Elbert Thomas was much stouter than either of the boys charged with the commission of the crime. Julius McCollum was also a strong, active young boy. It is not likely that they could have been drowned by the defendants without some kind of a struggle. A careful review of all the testimony, in .the light of the attendant circumstances, impels us to reach the conclusion that there was no independent evidence that any one drowned Julius McCollum and Elbert Thomas.

Hence, under the 'settled law of this State, the evidence was not legally sufficient to warrant a verdict of guilty. Therefore the judgment will be reversed, and the cause remanded for a new trial.


author: Kirby, J.

text:
    Wright v. State.
    Opinion delivered September 24, 1928.

      Gravette & Alexamder, for appellant.

      K. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   Kirby, J.

This appeal is from a conviction for robbery by appellants of one H. G. Price, who operated a billiard hall and lunch room in the town of Manila.

It appears from the record that Price closed his place of business on the night of the robbery after 12 o’clock, and, when he arrived in front of his dwelling house and started to get out of his car, he was held up and robbed of $50 in bills and from $7 to $10 in change, about 12:30 at night. There were two of the robbers, and he had previously .seen the defendants, appellants, together in front of his place of business about an hour before the robbery, and he recognized and positively identified appellant Wright as the man who “held the gun on him” while he rifled his pockets, and said the other man was about the size of Jolliff. It was further stated that the defendants had admitted at the sheriff’s office, while in jail, that they had done the job, and the testimony shows that they had been seen together by a number of persons on the night of the robbery. They relied for their defense upon an alibi.

It is insisted for reversal that the verdict is in conflict with the evidence, that the court erred in giving a particular clause of instruction No. 10, relative to the defense of alibi, over appellant’s objection, 'and in not granting the motion for a new trial because o>f newly discovered evidence.

It is the province of the jury to pass upon the conflicts in and the weight of the testimony, and, the court having correctly instructed them on that point, and there being evidence to support the verdict, the fact that the testimony is conflicting and that the verdict may even appear to be contrary to the preponderarle of the testimony, furnishes no ground for reversal. Tiner v. State, 109 Ark. 138, 158 S. W. 1087; West v. State, 150 Ark. 555, 234, S. W. 997; Melton v. State, 165 Ark. 448, 264 S. W. 965; Evans v. State, 165 Ark. 424, 264 S. W. 933; and Hyde v. State, 168 Ark. 580, 271 S. W. 330.

Neither was it an invasion of the province of the jury by the court, as claimed, in the giving in its instruction relating to the defense of an alibi, the following clause, objected to. iby the defendants:

“But the jury should scrutinize the testimony of the witnesses to see if some of them may not be mistaken as to dates and times when they saw the defendants, and it is proper for the jury to consider lapse of time since such occurrence happened, and whether the witnesses are likely, after such lapse of time, to be accurate as to the -precise time or hour that they saw the defendants -on the night that the robbery occurred. In other words, in arriving at your conclusion on this point, the jury should consider whether it may not be true that the defendants were present at the time of the robbery, and that some of the witnesses are honestly mistaken as to the exact time they saw the defendants that night.”

The instruction does not tell the jury that they should scrutinize the testimony of defendant’s witnesses only, -as claimed, and is not an incorrect declaration of the law relating to the defense of an alibi as has heretofore been held by this oo-urt. Ware v. State, 59 Ark. 379, 27 S. W. 485; Reyburn v. State, 69 Ark. 177, 63 S. W. 356.

No error was committed in refusing to grant the motion f or a new trial because of newly discovered evidence. Appellants did not claim, at the time the certain witnesses were introduced, whose testimony they desire now to contradict by evidence alleged to be newly discovered, that they were surprised on account of their introduction, nor did they -ask for iany time to be granted them or a continuance of the cause for the purpose of rebutting the .statements of these witnesses, and there was no sufficient showing of diligence used in procuring this testimony, and no good reason was .shown for not producing at least one of the witnesses, who was known to the defendants to have been present at the time when the occurrence testified to by the certain witnesses took place. Then, too, its effect was for impeachment largely of the statements of other witnesses. Newton v. State, 37 Ark. 333; Ward v. State, 85 Ark. 179, 107 S. W. 677; Ary v. State, 104 Ark. 212, 148 S. W. 1032; Osborn v. State, 96 Ark. 400, 132 S. W. 210; and Young v. State, 99 Ark. 407, 138 S. W. 475.

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


author: Smith, J.

text:
    Baker v. State.
    Opinion delivered September 24, 1928.

      Duty & Duty, for appellant.

      H. W. Applegate, Attorney General, and Walter L. Pope, Assistant, for appellee.
   Smith, J.

Appellant was indicted and sentenced under a special plea entered by Mm for violating § 7437, C. & M. Digest. The indictment charged that appellant “did unlawfully and feloniously possess and have in his possession one Ford touring oar, the motor and serial number of which had been mutilated to such an extent that same could not be read. ”

, After a demurrer to this indictment had been filed by appellant and overruled by the court, appellant filed a special written plea, which recited that appellant had in his possession a Ford touring car, with the motor number thereon mutilated to such an extent that same could not be read, but that he did not do so knowingly or willfully, and that he did not know that the motor .number on said motor vehicle was mutilated.

The trial court construed this special plea to be a plea of guilty, and sentenced appellant to a year’s imprisonment in the penitentiary. After filing a motion in arrest of the judgment, appellant, without filing a motion for a new trial, prepared and filed a bill of exceptions, and has dxdy prosecuted this appeal.

The relevant portions of § 7437, C. & M. Digest, under which appellant was sentenced, read as follows: “It shall be unlawful for any person * # # to have in its possession an automobile * * * the motor and serial number of which have been mutilated to the extent that same cannot be read * #

Section 7439, C. & M. Digest, provides that any person violating § 7437 shall be guilty of a felony and, upon conviction, be imprisoned in the State Penitentiary not less than one nor more than five years.

It is first insisted that § 7437, C. & M. Digest, is unconstitutional, if construed to apply to one having possession of an automobile the motor and serial number of which have been mutilated to the extent that the same cannot be read, without knowledge of that fact.

We have held against this contention in the cases of Ogburn v. State, 168 Ark. 396, 270 S. W. 945; and Hall v. State, 171 Ark. 787, 286 S. W. 1026. See also vol. 3 Cyclopedia of Automobile Law (Blashfield), page 2824, chapter “Changing, Concealing or Removal of Engine Numbers or Identification Marks,” and cases cited in the notes to that text.

It is next insisted that appellant’s plea was not a plea of guilty, for the reason that he did not admit that the serial number of the car had been mutilated so that it could not be read, but had admitted only that the motor number thereof had been so mutilated.

This contention, requires us to determine whether it is essential that both the motor and serial number be mutilated, or whether a mutilation of either constitutes a violation of the statute.

Our own oases of Ogburn v. State and Hall v. State, supra, as well as oases from other jurisdictions construing similar statutes, have said that the purpose of legislation of this character is to prevent the defacing of distinguishing numbers which preserve the identity of motor vehicles. These numbers may be that of the motor, or of the car itself, and legislation in other States makes it unlawful to mutilate any trade-mark, distinguishing or identification number or serial mark or number; while our statute, so far as it is applicable to the facts of this case, makes unlawful the act of one who mutilates the “motor and serial number” so that the same cannot be read.

This statute must be strictly construed as against appellant and liberally in his favor, and, when so construed, we think the legislative intent was to impose the penalty of § 7439, C. & M. Digest, only on one who mutilated both the motor number and the serial number of a car, or possesses a car so mutilated. Either number, if umnutilated, would furnish the means of identification which the statute intended should be preserved.

.Any other construction of the statute would require that the word ‘ ‘ and ’ ’ be read to mean “ or, ” which would, of course, be a liberal construction of the statute against appellant, rather than a strict construction in his favor.

In the very recent case of Beasley v. Parnell, ante, p. 912, we had occasion to consider when and under what circumstances the words “and” and “or” should be construed as having been used interchangeably. It was there said:

‘‘'Counsel invoke the well known rule that ‘or’ may be construed to mean ‘and,’ or vice versa, in order to harmonize the provisions of a statute or to carry out the manifest intent of the Legislature. The court would not be justified in making the proposed substitution unless the whole context of the statute requires, plainly and .beyond question, that it be done in order to give effect to the intention of the Legislature. The reason is that, where words have a settled legal meaning, it is dangerous to conjecture that they were used in other than their legal signification.” (Citing authorities).

We do not think that the word “and,” as used in § 7437, C. & M. Digest, should be read as meaning “or,” to carry out the manifest intent of the Legislature, which, as we have said, was to prevent the destruction of the means by which the identity of automobiles might be preserved, as this identity could be preserved as well by the motor number as by the serial number of the car.

We conclude therefore that appellant’s plea was not a plea of guilty.

The Attorney General concurs in the construction of the statute which, we have announced, but asserts that appellant is in no position to insist that his plea was not an unrestricted plea of guilty,, for the reason that appellant did not file a motion for a new trial.

We think, however, that the error of the court in construing appellant’s written plea, which was duly filed, as an unrestricted plea of guilty, is an error which is apparent from the face of the record, and in such cases a motion for a new trial is not necessary. Burns v. Harrington, 162 Ark. 162, 257 S. W. 729; Anthony v. Sills, 111 Ark. 468, 164 S. W. 117; Ford v. State, 100 Ark. 515, 140 S. W. 734; Independence County v. Tomlinson, 95 Ark. 565, 125 S. W. 423; Hare v. Shaw, 84 Ark. 32, 104 S. W. 931, 120 A. S. R. 17; Badgett v. Jordan, 32 Ark. 154.

The judgment of the court below must therefore be reversed and the cause remanded.

Similar records are presented in cases Nos. 3488, 3489, and 3490, and the judgments in those cases must also be reversed, and the causes remanded. It is so ordered.


author: Kirby, J.,

text:
    Cazort v. Bahner.
    Opinion delivered September 24, 1928.

      J. C. $ Wm. J. Clark, Frauenthal & Johnson and Coulter'S Coulter, for appellant.

      R. W. Robins, for appellee.
   Kirby, J.,

(after stating the facts). Appellant insists that the court erred in bolding him not entitled to recover an interest in tbe profits derived from tbe sale of tbe leases taken in tbe name of appellee during bis employment. Appellant knew, when tbe contract off employment was executed, tbe kind of business Babner was engaged in and that be bad been taking oil and gas leases in 1915 and 191'6 in Faulkner County, and is now claiming an interest in leases on 3,000 acres of land taken by Babner in 1916, before his employment.

Tbe terms of the written contract, tbe only one made between tbe parties, are plain and unambiguous. It recites tbe business engiaged in and being operated by Babner, and that Cazort “has agreed and engaged to work for Babner for tbe term beginning on tbe day of its execution (January 18, 1917) and ending on December 31, 1917, doing such work as is incident to tbe business of said Babner &' Company, and tbe com-pensiation of the said W. 'S. Cazort shall be forty-five per cent, of the net cash commissions of the said Baimer & Company,” after deducting certain commissions and expenses for the operation of the abstract ¡business and the loan and insurance agency, and “all the salaries of other employees of Bahner & Company, and after all other expenses of said business of Bahner & Company have been paid. ’ ’ It further provides that the contract may be terminated by either party upon giving 30 days ’ written notice, and, in the event of its termination, that the compensation paid Cazort “for the time he worked shall be forty-five per cent, of the net cash earnings of the above described business of Bahner & Company for the time the said W. S. Cazort has worked, first deducting the expenses as above set forth.” In other words, the contract fixes the amount of compensation to be paid to Cazort specifically, the method for arriving at it, 'and provides upon its termination that he shall be paid the fixed per cent, of the net cash earnings of the 'business for the time he worked. It is certainly, as between the parties, no more than a contract of employment, providing for appellant's compensation or salary a certain fixed amount of the net profits of the business, during the time of his employment, and did not create a partnership between them. He was, notwithstanding he participated in the profits by being paid his compensation therefrom, but an agent or employee of the appellee in the performance of the services for which he was employed. Hazard v. Hazard, 1 Story, 371; 22 A. & E. Enc. Law (2 ed.) p. 32; Haycock v. Williams, 54 Ark. 384, 16 S. W. 3; Christian v. Crocker, 25 Ark. 327; Clark v. Emery, 58 W. Va. 637, 52 S. E. 770, 5 L. R. A. (N. S.) 503.

It is not contended that appellant advanced any money for the procuring of the leases, nor that he was not paid in accordance with the terms of the contract ■all the compensation out of the profits of the business realized during the time of his employment and before he terminated the contract, as he had the right to do. Neither is it contended that the leases were sold or disposed of before he terminated his contract of employment, and the undisputed testimony shows, in fact, that any money realized from the disposition of the leases long after he terminated his contract was made or realized without any service whatever rendered -by him in connection therewith. No profit was derived from the disposition or ¡assignment of the leases which appellant helped to procure during the time of his employment, the disposition thereof having been made long after the termination of his contract. Certainly he could be entitled to no compensation or division of any profits for the disposition, of the Howard-Johnson leases, which he did not help to procure and which were not disposed of until long after his employment had been terminated. The testimony shows that he received as his compensation the stipulated percentage of the profits derived from the business during the time of his employment, including commissions on the sales of real estate, regardless of whether- the lands were listed for sale before he was employed.

It follows that the court did not err in holding the plaintiff, appellant, not entitled to any interest in the money or profits derived from the sale of the leases made after appellant ’¡s contract of employment was ended. The decree is accordingly affirmed.


author: Kikby, J.

text:
    Johnson v. State.
    Opinion delivered September 24, 1928.

      G. T. Carpenter, for appellant.

      3. W. Applegate, Attorney -General, and Effie Combs, Assistant, for appellee.
   Kikby, J.

Appellant -prosecutes this -appeal from a judgment of conviction for selling intoxicating liquors, and has abandoned all assignments of error save one— that the court erred in permitting the introduction of incompetent testimony.

Indictment was returned on the 29th day of November, 1927, and charged the -sale to have been made on the 26th day of July, 1927.

Two witnesses testified that ’they purchased a pint of whiskey from appellant on the 26th day of July, and the sheriff was -allowed to testify, over objections, that he had made a search of the defendant’s premises since he was arrested for the -sale of the whiskey, -and found six pints -of liquor and a number -of large containers in his house, on .September 17, 19-27.

The court -overruled the objection to the introduction of this testimony, stating: ‘ ‘ The jury will determine whether it sheds light on the kind and character -of business he was engaged in. ’ ’

This testimony was admissible as tending to throw light upon the transaction and the kind and character of business that appellant was engaged in, and the court’s statement that the jury would determine this matter was sufficient .to prevent the- jury’s consideration of the testimony for any other purpose. (Sections 3019 and 3013, par. 2, C. & M. Digest; Casteel v. State, 151 Ark. 69, 235 S. W. 386; Tong v. State, 169 Ark. 708, 276 S. W. 1004; Lynn v. State, 169 Ark. 680, 277 S. W. 19; Taylor v. State, 169 Ark. 589, 276 S. W. 577.

The-testimony is sufficient to support the verdict, and the judgment -is affirmed.


author: Mehafey, J.

text:
    McCoy v. State.
    Opinion delivered September 24, 1928.
    I. J. Matheny and Coleman & Reeder, for appellant. H. W. Applegate, Attorney General, and Walter L. Pope, Assistant, for appellee.
   Mehafey, J.

Appellant was convicted of the crime of manufacturing liquor, and prosecutes this appeal to reverse .the judgment of conviction.

Charles Houston, marshal of Batesville, and W. A. Landreth, a deputy sheriff, went to appellant’s house to iarrest some persons they thought were engaged in a crap game, but did not find any one shooting craps. While there, they looked through the house and found a twelve-gallon jar behind the stove, and looked into it and found what they thought was home-brew or something in the process of making.

Houston testified that appellant said: “If you had just waited a little while I would have had it bottled.” He made no statement about who made it. They took the jar to the mayor’s office, and kept it there a day or two and then poured it out. No one tasted it, and no one testified that it was intoxicating or that it contained alcohol. They thought from the smell it was intoxicating.

Landreth testified to substantially the same facts as Houston, except he thought appellant said he made it. This in the jar appeared to be the same as home brew that witness had seen. Landreth did not know whether it was intoxicating or not. It is true that Dr. Woodward said, on direct examination, that it was intoxicating, but he ,said he did not taste it and did not test it. He said it .smelled li'ke home brew, and he judged it contained ¡alcohol from its odor. He would not swear that it was intoxicating, hut thought it was.

These officers took the home brew, or whatever it was, kept it a day or two, and could have tested it and determined whether it was home brew and whether it was intoxicating liquor, but they did not do this.

Appellant is charged with the manufacture of intoxicating liquor. The nearest approach to any testimony that the appellant manufactured it is the statement of Mr. Landreth, who said that he thought that the ¡appellant said he made it, and Mr. Houston, who was present with Mr. Landreth, testified that appellant said nothing about who made it. Appellant did say, however, that they came too soon; if they had waited a little while he would have had it bottled. This is all the testimony there is in the record tending to show that appellant manufactured it. And, while this would probably be sufficient to submit to the jury the question of whether he did manufacture it, still we think the testimony is insufficient to show that it was the kind of liquor the manufacture of which is prohibited by the statute.

The statute prohibits the manufacturing of alcoholic, ardent, vinous, malt, fermented, spirituous and intoxicating liquors. All of these terms in the statute, alcohol, ardent, fermented, and spirituous, are used to designate the intoxicants the manufacture oif which the statute prohibits. The term “liquor” used in the statute means intoxicating liquor. The evil sought to be remedied by the statute is the manufacture of intoxicating liquors, and the burden is on the State to show that the appellant manufactured the kind of liquor mentioned in the statute.

The Alabama court has said: “But, if it contains elements and ingredients in such proportion or in such form as to bring it within one of the general clauses named in the law, then it is prohibited; otherwise, not. In other words, the term ‘alcoholic liquors,’ as used in the law, does not necessarily include every article or compound which contains alcohol. On the other hand, it does embrace all articles which contain alcohol or malt in such proportions or form or state, which are or may be used as an intoxicating beverage, no matter what it is called, or what else it contains, or for what other purpose it was intended or is used, or for which it may be used, and although the vendor or disposer did not know it contained such ingredients or could be so used as an intoxicating beverage, unless the law expressly so excepts such article or such disposition.” Marks v. State, 159 Ala. 71, 48 Sou. 864, 133 A. S. R. 20.

In the case of Sheridan v. State, 159 Ark. 604, 252 S. W. 579, two deputy constables went to the house where Sheridan lived and found 75 or 80 pints of beer and a lot of empty bottles. The empty bottles appeared to have contained some kind of home brew. On cross-examination one of the witnesses testified that all of the liquor found by them appeared to be some kind of home brew. Both of them said they did not know whether the liquor contained any per cent, of alcohol.

The court in that ease said that the liquor found on the premises was called beer, ¡but that it appeared from the evidence to have been some kind of home brew, and the witnesses did not know whether it contained any alcohol or not. The court further said: “The burden of proof was upon the State to show the guilt of the defendant, and it devolved upon it to show that the liquor came within the kind enumerated above. Having failed to show that the home brew found on the premises of Harry Moore contained any per cent, of alcohol, a material ingredient of the offense was not proved.”

We think the statement of the court in France v. State, 68 Ark. 529, 60 S. W. 236, is applicable to the facts in this case. The court there said: “The defendant may be guilty; a jury of his county have found that he is, and the circumstances are suspicious. But a consideration of the evidence has convinced a majority of the judges that it is too slight to support the verdict, and that it would he safer to submit the facts to another jury.”

This court also said in a recent case: “While it may be true, as the jury has found, that 'Ben is equally guilty with George on the charge against him, yet there is no substantial testimony in the record to show that he was guilty. The jury, in order to convict him, would have to deal purely with speculation and conjecture, which are insufficient in law to justify a conviction.” Yeager v. State, 176 Ark. 725, 3 S. W. (2d.) 977; Halford v. State, 173 Ark. 989, 294 S. W. 33.

We have concluded that the evidence is insufficient to .support the verdict of conviction, and the case is therefore reversed, and remanded for a new trial.


text:
    Lacy v. State.
    Opinion delivered September 24, 1928.

      Golemcm & Reeder and S. M. Gasey, for appellant.

      II. W. Applegate, Attorney General, and Walter L. Pope, Assistant, for appellee.
   McHaNey, J.

Appellant was indicted at the October term, 19'27, of the Independence Circuit Court for the crime of assault with intent to kill one Kent Davidson, by shooting him with a pistol. At the April term of said court, sis months later, after both parties had announced ready for trial, this indictment was quashed on motion of the State, and the matter again referred to the grand jury, then in session, and ¡another indictment, charging the same offense, was shortly thereafter, on the same day, returned. The first indictment 'omitted to charge that the offense was committed “with the felonious intent then and there to kill and murder the said Kent Davidson,” which the second indictment properly covered.

Appellant was called upon to answer the second indictment, shortly after its return, on the same day, and ■moved the court for a continuance .on account of the shortness of the time intervening between the finding and return of the second indictment and the calling of his case for trial, which was alleged to be 30 minutes, and for that reason he was not ready or prepared for trial, and was entitled to a reasonable time in which to prepare for trial; that the first indictment did not charge an offense against the law; that, without his knowledge or consent, the first indictment was quashed and a new indictment returned within 30 minutes; and that he was not prepared for trial. His motion for continuance was overruled. He was tried, convicted, and sentenced to 5 years in the penitentiary. He seeks a reversal on the following grounds:

1. That the court erred in overruling his motion for a continuance or ¡a postponement of his trial to another day of the same term. The court did not err in this regard. His motion stated no legal ground for either a continuance or a postponement. Motions for continuance rest in the sound discretion of the trial court, and the settled rule is that this court will not reverse on this ground unless an abuse of such discretion is shown. No such abuse of discretion is shown. The ease had been pending for six months, and appellant well knew that he was charged with the same offense alleged in the second indictment. In the opinion of the learned prosecuting attorney, it was deemed best to amend the first indictment in the manner heretofore stated 'by charging the intent. Whether this was necessary or otherwise we are not called upon to decide. He does not alleg*e any statutory ground for a continuance, and we therefore hold that the court did not commit reversible error in this regard.

2. That the verdict and judgment are against the law and the evidence. Counsel for appellant concede the well established rule of this court that it will not reverse cases on conflicting evidence, that is, where there is any substantial evidence to support the verdict, but say that the accomplice, Leland Sexton, has not been corroborated sufficiently. The facts are that Kent Davidson was paying court to Miss Madeline Barnes, and, on the night of the unfortunate assault upon him, was calling upon her in her home. Appellant and Sexton, at appellant’s suggestion, went to the Barnes home to scare him and have some fun out of him — perhaps to run him away from the young lady’s home. The exact manner in which they expected to scare him or have some fun out of him is not shown. But the fact remains that they went to the Barnes home, armed with a pistol, taken from appellant on his arrest the next day, loaded with cartridges which were too long ifor the cylinder and the bullets of which had been cut off to permit the cylinder to revolve, exactly like the bullet taken from Davidson’s head, and which is admitted to' be the same pistol used to inflict the injury on Davidson. Sexton says appellant fired the shot. Appellant says Sexton fired the shot. Sexton, being an accomplice, must be corroborated by other evidence.

Kent Davidson testified that appellant and Sexton came to the Barnes home, made a noise on the outside, and that he went out to see what it was all about; that he recognized them, although he thought both had robes and masks on, and Sexton said: “Hey, Buddie, you go borne in a'bout 30 minutes, and be darn sure you stay there when you get there.” A short time thereafter he heard the noise again, and saw his mule going across the field. He went out again, caught the mule, and tied it up again. In a few minutes he again heard the noise outside, and went out to see what they wanted to do. As he walked around the house both Sexton and appellant came toward him. Sexton hit him over the head with something, and caught him by his tie. He tried to push Sexton away, and appellant walked up to his side, and he was shot. He does not know who fired the shot, and does not remember anything thereafter until nine days later, when he became conscious in the hospital. He was shot in the right eye, which was destroyed, and the bullet was removed from the top of his head. “He had known appellant all his life. They were boy friends. There was no enmity existing between them, to his knowledge. This is sufficient corroboration of Sexton’s testimony to the effect that, at appellant’s request, he went with him to the Barnes home to scare Davidson and have some (fun out of him, and, in attempting to do so, he and Davidson got into a fight, and that, as they did so, appellant came up to his side and shot Davidson. See Middleton v. State, 162 Ark. 530, 258 S. W. 995.

3. That the court erred in refusing to give his requested instruction No. 9, as follows:

“Unless you find from the evidence, beyond a reasonable doubt, that defendant and Sexton went to the place where Davidson was for the purpose of doing him bodily harm or injuring him, then defendant would not be guilty, if Sexton later shot Davidson without the knowledge or encouragement of the defendant. ’ ’

The court did not err in this regard. We have examined all the instructions given, and find that they fully cover the case, moreover, the above instruction is not the law. If appellant and Sexton entered into a conspiracy to go to the Barnes home on an unlawful mission, which is conceded, and the act of one of them, proceeding according to the common, plan, terminated in a criminal result, both would be liable, although not the particular result intended. Boone v. State, 176 Ark. 1003, 5 S. W. (2d.) 322. Therefore the above instruction did not correctly state the law in requiring the jury to find that they went to the Barnes home for the purpose of doing Davidson bodily harm or injuring him.

Having examined all the errors assigned and finding them not sustained, the judgment must be affirmed.


author: Hast, C. J.,

text:
    Ives v. Ives.
    Opinion delivered October 1, 1928.

      B. W. Wilson, T. J. Moher, Sami T. Poe, Tom Poe and McDonald Poe, for appellant.

      Peyton D. Moncrief, A. O. Meehan and John W. Moncrief, for appellee.
   Hast, C. J.,

(after stating the facts). This suit is biased upon § 70 of Crawford & Mioses’ Digest, which gives the executor or administrator of any fraudulent grantor, who, by deed, shall have conveyed an interest in land with intent to defraud his creditors in the collection of their just demands, the right to apply to a court of chancery to have the same set aside for the use and benefit of the heirs-at-law of the fraudulent grantor. This statute has been construed to change the common law to the extent of allowing the fraudulent, deed to be set aside for the benefit of the heirs-at-law of the deceased. Moore v. Waldstein, 74 Ark. 273, 85 S. W. 416; Johnson v. Johnson, 106 Ark. 9, 152 S. W. 1017; Deniston v. Phillips, 121 Ark. 550, 180 S. W. 911; Davis v. Davis, 142 Ark. 311, 218 S. W. 827; and Murphy v. Murphy, 165 Ark. 246, 262 S. W. 677.

Counsel for the plaintiff seek to reverse the decree on the ground that the Anderson Engine & Foundry Company was an existing creditor, and that there was a conclusive presumption of fraud when A. H. Ives conveyed his property to his children without paying that claim. They invoke the well-settled rule in equity that conveyances made to near relatives of an embarrassed debtor are looked npon with suspicion; and, when they are voluntary, they are prima facie fraudulent; and, when the embarrassment 'of the debtor proceeds to financial wreck, they are conclusively presumed to be fraudulent as to existing creditors. Wilks v. Vaughan, 73 Ark. 174, 83 S. W. 913; Home Life & Accident Co. v. Schichtl, 172 Ark. 31, 287 S. W. 769; and Gavin v. Scott, 172 Ark. 234, 288 S. W. 391.

In the two oases last cited it was held that there is no conclusive presumption of fraud as to existing creditors, where a grantor executed a voluntary conveyance, if he was not at the time insolvent.

The record shows that the Anderson Engine & Foundry Company obtained a judgment against A. H. Ives and B. B. Ives. While there was a joint liability in the premises, B. B. Ives had purchased the machinery, and A. H. Ives had signed his note. The record shows that the principal part of the property of A. H. Ives was conveyed by him to his son, B. B. Ives. Hence there is nothing in the record to show that the creditor was at all hindered or delayed in the collection of its debts. It could have levied upon the land or personal property because the bulk of it was conveyed by A. H. Ives to B. B. Ives. Being the joint liability of A. H. Ives and B. B. Ives, in the very nature of things a conveyance by A. H. Ives to B. B. Ives could not hinder a creditor of A. H. Ives and B. B. Ives jointly in the collection of his debt.

Besides that, the statute upon which this suit is based was passed for the 'benefit of the heirs-at-law of a decedent. Now A. H. Ives had given nearly all his property to two of his children, who are named defendants in the action. They both resisted the present suit, and B.. L. Ives, having no interest whatever in the property, had no right to maintain the action. It will be noted that the creditors are not parties to the action and are not seeking to set aside the conveyances as being fraudulent. The record shows that the Anderson Engine & Foundry Company was the principal .creditor of the estate. The other claims probated did not amount to a hundred dollars. Under these circumstances R. L. Ives, having no interest in his father’s estate, could not maintain the action for the benefit of his brother and sister, who were the other heirs-at-law of A. H. Ives, and who alone had any interest in his estate, against their will in the matter.

R. L. Ives cannot maintain the suit in his own name, because the overwhelming proof shows that A. H. Ives was a man of strong mind and character, and knew what he was about when he conveyed his property to his children. In a will which he had executed some years before he expressly stated that he had given his oldest son, R. L. Ives, his share of the estate, and therefore had only made a small provision for him in his will. The record in this ease shows that A. H. Ives executed the deeds in question because he wanted to settle his estate in his lifetime. Whether he had divided his property equally and justly between his children makes no difference. He had a right to prefer one to another. The evidence shows clearly and unmistakably that he was of sound mind when he made the conveyances, and under these circumstances R. L. Ives could not set them aside as having been procured by undue influence.

Therefore the decree will be affirmed.


text:
    Brown v. Arkansas Central Power Company.
    Opinion delivered October 1, 1928.

      Charles S. Harley and W. R. Bonham, for appellant.

      Elmer Schoggen and Rose, Hemingway, Cantrell & Loughborough, for appellee.
   Smith, J.

On March 1, 1925, appellants brought separate suits against the appellee power company to recover damages to compensate the losses sustained by them through the negligent operation of appellee’s power plant. The causes were consolidated, and demurrers to the Complaints were sustained and the causes dismissed upon the ground that they were barred by the statute oí limitations.

Upon the appeal from this judgment it was held that the trial court erred in sustaining the demurrers. Brown v. Arkansas Central Power Co., 174 Ark. 177, 294 S. W. 709. The opinion on the former appeal copied in extenso the material allegations of the complaints, and need not he repeated here.

Upon the remand of the consolidated cases there was a trial before a jury, under instructions conforming to the opinion on the former appeal, and a verdict and judgment for the defendant power company,.from which is this appeal.

It was shown by the undisputed evidence that the construction of the power plant was completed in 19'20, and that it was constructed (for the use of slack or soft coal, and was operated as constructed. To provide the necessary draft, a smokestack 278 feet high was erected as a part of the plant. The undisputed testimony also shows that, from the completion of the original construction, there was thrown off from the coal'and slack consumed in generating steam, soot, cinders and ashes, which fell upon plaintiff’s property and greatly damaged it.

At the request of the plaintiffs the court directed the jury as follows:

“3. You are instructed that if you find from a preponderance of the evidence that the defendant caused the plaintiff to suffer damage from the operation of its plant within three years prior to the date of the filing of the complaint herein, plaintiff’s cause of action is not barred by the .statute of limitations, unless you further find that the construction and operation of said plant was such that damage must necessarily result in such manner that the certainty, nature and extent of the damage could have been reasonably estimated and ascertained at the time of its construction and the beginning of operations. In other words, if it was known merely that damage was probable, or that, even though some damage was certain, the nature and extent of that damage could not be reasonably known and fairly estimated, but would be only speculative and conjectural, then the statute of limitation was not set in motion until injury occurred, and in such case there may be as many successive recoveries as there are injuries.”

As we have said, this instruction conforms to the law as declared in the opinion on the former appeal.

■Certain real estate agents testified that the damage to plaintiffs’ property was such that it could have been estimated and ascertained at the time of the completion of appellee’s plant, and, if this be true, the right of the plaintiffs to sue for damages commenced at that time, and the statute of limitations was then set in motion, and its running for three years operated .to bar the plaintiffs’ right to sue for the damages which might have been ascertained and recovered when the plant was first put in operation.

There would therefore be no difficulty about affirming the judgment from which this appeal comes, under the finding of the jury, except for the assignment of error relating to the exclusion of certain offered testimony. This testimony wlas to the effect that the power company -might have used natural gas or hard coal, which would not produce so many cinders, or might have installed spark and cinder arresters, smoke consumers, or other well-known equipment, which would, at least, have minimized the damage.

The insistence is that this testimony, if admitted, would or might have shown that the damage to plaintiffs’ property was temporary and recurrent, and not permanent and original, and that a continuing cause of action therefore existed, which could be maintained at any time when an injury was inflicted.

The undisputed testimony, however, shows that the power plant was constructed at a very great cost to consume 'soft and slack coal, and to use gas or other fuel would require a reconstruction of the plant. From the beginning the plant was operated by using soft and slack coal, without spark arresters or smoke consumers, and the jury has found, under the instructions quoted above, submitting that issue, that there was inflicted upon plaintiffs a damage which could have been ascertained and estimated land fully compensated at the time the injury first occurred.

The case of Dayton v. Asheville, 185 N. C. 12, 115 S. E. 827, presented the question here under consideration. In that case a city had built an incinerator, from, which ashes and grease were blown and oast upon plaintiff’s property. It was there said that for an irregular, intermittent and variable trespass, if the city were liable for such a tort at all, the plaintiff would be entitled to recover any and all such damages as have accrued within the three years next immediately preceding the commencement of the action, but that where the injury is permanent, constant, 'and continuing in its nature, the cause of action accrues and the statute of limitations begins to run in such cases from the time the first substantial injury is sustained or when the first appreciable damage is done.

We think the jury in the instant case was warranted in finding that appellee’s power pliant as constructed and operated inflicted an original and permanent injury, which might have been ascertained and compensated when the first appreciable damage was done; and, as more than three years had expired after that time before the institution of the suits, the jury was warranted in finding that the causes of action were barred.

Appellants requested the court to give an instruction numbered 6, which reads as follows: “You are instructed that the fact that the defendant may have obtained a franchise from the city of Little Bock authorizing the construction of its light ¡plant in no way avails it 'anything as a defense in this case.”

'This instruction correctly declares an abstract proposition of law, but we think: no error was committed in refusing to give it, as it was not contended that the fact that appellee had a franchise to construct and operate its light plant availed it anything as a defense in this suit.

The controlling question in the case, and the one upon which the verdict of the jury was based, was whether the plaintiff's’ cause of action was barred by the statute of limitations, and the jury was told to find for the plaintiffs unless the causes were barred by the statute of limitations. There is not involved in this ease any question about the right oif the city, in the exercise of its police power, to regulate the power company’s plant.

We discover no error in the record, so the judgment of the court below must :be affirmed, and it is so ordered.


text:
    Kennedy v. Quinn.
    Opinion delivered October 1, 1928.

      Charles W. Mehaffy, Cul L. Pearce and John E. Miller, for appellant.

      Sam Costen and Wils Davis, for appellee.
   Smith, J.

Under the will of W. P. Miller, 'who died in 1904, Sue E. Quinn took a life estate in valuable property in Mississippi County, Arkansas. The Miller will provided that, upon the death of the life tenant, the property should be solid and the proceeds of sale divided among the heirs of the testator niamed in the will. The life tenant married appellant, H. B. Kennedy, and lived with him as his wife until her death, which occurred August 26,1922.

After the death of Mrs. Kennedy the heirs named in the Miller will filed a partition suit praying that the property be sold for partition.

After her marriage Mrs. Kennedy removed with her husband to White County, where she acquired title in her own name to lands in that county.

Upon the death of Mrs. Kennedy, her surviving husband filed an alleged will of his wife for probate in Wbite County. In a contest over the probate of this will it was found that the execution of the will had been procured by undue influence, and that judgment was affirmed on the appeal to this court. Kennedy v. Quinn, 166 Ark. 509, 266 S. W. 462.

Thereafter Kennedy filed for probate in "White County a prior will which his wife had executed, and probate of this will was resisted by appellees, who are the heirs-at-law of Mrs. Kennedy. 'This last-mentioned will gave all the testatrix’s property to Kennedy, except certain bequests of money to the testatrix’s brother and sisters land certain nephews and nieces.

Kennedy and an executor who had been appointed under Mrs. Kennedy’s will first offered for probate, filed an answer and cross-complaint in the Mississippi County case, in which it was alleged -that Kennedy was the owner of all the property of which his wife died seized under the provisions oif the will first offered for probate.

In the answer and cross-complaint the executor alleged that Kennedy was entitled to a part of the rent for the year 1922 (the year in which Mrs. Kennedy died), proportioned as the statute provides, and that the executor was entitled to recover the amount of certain improvement taxes paid by Mrs. Kennedy and the value of certain improvements made by her on the Mississippi County lands, and it was prayed that the amount of the improvement taxes and the value of the improvements be declared a lien on those lands.

With the estate of Mrs. Kennedy thus involved in litigation, the litigants, on April 7, 1925, entered into a written contract which contained, among others, the following recitals, after referring to the above litigation:

It is agreed between the parties hereto that all differences between the parties be settled in the following manner: (1) An unimportant provision relating to an oil lease in White County; (2) assigns to the heirs certain jewelry, which wias described, and certain bank stock; (3) provides that Kennedy should surrender to J. W. Quinn, a brother of Mrs. Kennedy, the note of the said Quinn to the order of Mrs. Kennedy for a thousand dollars; (4) the heirs agreed to execute and deliver to Kennedy a quitclaim deed for all the real estate owned by Mrs. Kennedy at the time of her death in White County; (5) “In the case of J. W. Quinn et al versus H. B. Kennedy et al., now pending in the chancery court, Osceola District, Mississippi County, Arkansas, there is to be entered a decree by the chancellor dismissing the intervention or pleading of H. B. Kennedy and Bankers ’ Trust Company, or any administrator who might intervene, and the court to decree a construction of the will of William P. Miller free from any interest that might be claimed by H. B. Kennedy. (6) The case now pending in the pro-bate court of White County, Arkansas, for the probation of the will of Mrs. Sue E. Kennedy, is to be settled by appropriate order of the probate court in proper form to carry out the true tenor of this agreement, and, if desired by counsel for J. W. Quinn, H. B. Kennedy will consent for the probate court to hold against the probation o.f the will. (7) J. W. Quinn, Mrs. Mary Paschall and Mrs. Alice Mulkey will pay to H. B. Kennedy in cash the sum of $2,250. (8) J. W. Quinn, Mrs. Mary Paschall and Mrs. Alice Mulkey shall have all real estate owned -by Sue E. Kennedy in Mississippi County, Arkansas, at the time of her death, and H. B. Kennedy shall have all of the real estate owned by the said Sue E. Kennedy in White County, Arkansas, and in addition thereto all personal property owned by the said Sue E. Kennedy at the time of her death, except the seventy-five shares of the capital stock of the Citizens ’ Bank of Osceola, Arkansas, and the jewelry mentioned and set forth in paragraph 2 hereof, and the note of J. W. Quinn mentioned in paragraph 3 hereof.”

Pursuant to the terms of this settlement, the chancery court of Mississippi County, on June 6,1925, entered a decree reciting that “the defendants confessed the justness of the claim of plaintiffs, and announced their willingness that judgment be entered herein against them and in favor of the plaintiffs, dismissing the answer of the defendant H. B. Kennedy, and the answer and cross-complaint of defendant Bankers’ Trust Company, executor. ’ ’

After directing a sale of the lands for partition, the deoree concluded with this recital: “hut this decree shall not he given a construction that will in any way conflict with or impair the right of H. B. Kennedy under a contract heretofore entered info between said Kennedy and J. W. Quinn (et al.) for the purpose of fixing the rights of said Kennedy in the estate of Sue Kennedy, deceased.”

Thereafter, on November 10, 1926, Kennedy brought this suit, alleging that, under the terms of the contract of settlement, he was given all the personal property owned by his wife lat the time of her death, except the jewelry and bank stock given the heirs by that settlement. As a part of the personal property owned by his wife at her death, Kennedy claims the proportionate part of the rent for the year 1922 which his wife’s estate would have been entitled to, and, in 'addition, the value of the improvements made by Mrs. Kennedy, and the improvement taxes paid by her on the lands comprising her life estate.

It is the contention of Kennedy that the concluding clause of the decree above quoted reserved to him the right to maintain this suit, and expressly excluded that cause of action from the operation of the decree which would otherwise have precluded the maintenance of this suit.

In a written opinion, which was made a part of the decree from which this appeal comes, the chancellor held against appellant's present contention, and decreed that the decree of June 6, 1925, was conclusive of the present litigation. 'The chancellor states in his opinion that he so held because the compromise agreement, upon which the decree of June 6, 1925, was based, recited that the express purpose of the compromise was to end and settle the then pending litigation, and, if the present suit may he maintained, the contract failed to accomplish its declared purpose. The opinion of the chancellor calls attention to the fact that the answer and cross-complaint of the executor of Mrs. Kennedy sued for the very items upon which the instant suit is based, and that this cross-oomplaint was dismissed. The opinion of the chancellor recites that, if there had been any intention to reserve from the operation of the decree the right to sne for the value of . the improvements and the improvement taxes and the proportionate part of the rents, the cross-complaint would have been dismissed without prejudice or would have been reserved for future determination, but that neither was done.

We concur in this interpretation of the decree of June 6, 1925, as the subject-matter of the instant litigation was expressly raised by the pleadings of the executor in the case compromised and settled, and the reservation by Kennedy “of fixing the rights of said Kennedy in the estate of Sue Kennedy, deceased,” must be construed as referring to parts of the estate oif Mrs. Kennedy not involved in the Mississippi County litigation.

The decree is therefore affirmed.