author: McCulloch, C. J.

text:
    Armstrong v. State.
    Opinion delivered November 1, 1926.
    1. Criminal law — motion for new trial — assignments of error. —Assignments of error in a motion for new trial that the court erred in excluding the testimony of various witnesses and in admitting testimony objected to, without pointing out what testimony was excluded or improperly admitted, are too general to raise any questions for review.
    2. Criminal law — sufficiency of assignments of error. — Assignments of error in a motion for new trial need not be specific as to the grounds on which the exception is based, but must be sufficient to identify the particular witness and the testimony to which the assignment is directed.
    3. . Criminal law — sufficiency of assignments of error. — An assignment of error in a motion for new trial that the court erred in giving each and every instruction, without mentioning them by number or substance, is an exception in gross, which is not ■ permissible.
    4. Homicide — sufficiency of evidence. — -Evidence held to sustain a conviction of murder in the second degree. ■
    5. Homicide — harmless error. — Appellant cannot complain because the jury found him guilty of murder in the second degree when the evidence established his guilt of the higher degree.

      Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.

      White & White, for appellant.

      H. W. Applegate, Attorney G-eneral, and John L. Carter, Assistant, for appellee.
   McCulloch, C. J.

Appellant was indicted for the crime of murder in the first degree, committed by killing his wife, Marie Armstrong, and on the trial of the case he was convicted of murder in the second degree, and his punishment fixed at six years in the penitentiary.

There were several exceptions saved to the rulings of the court in the introduction of testimony, and those rulings are assigned here as grounds for reversal of the judgment, but the exceptions were not sufficiently raised in the motion for a new trial in order to preserve them for review by this court. The only assignments in the motion for a new trial relating to those rulings are as follows:

“1. The court erred in excluding the testimony offered by the defendant, and committed several errors in excluding the testimony of the various witnesses offered by the defendant and excluded by the court.
“2. The court erred and committed several errors in admitting the testimony admitted over the objection and exception of the defendant.”

These assignments are too general to properly raise the question as to the admissibility of the testimony pointed out in the exceptions made during the progress of the trial. Lomax v. State, 165 Ark. 386. It is not essential that the assignments in a motion for a new trial be specific as to the grounds upon which the exceptions were based, but they must be sufficient to identify the particular witness and the testimony to which the assignment is directed. An assignment as general in its nature as those set forth in the motion for a new trial now before us does not apprise the trial court of the errors sought to be reviewed, and gives the court no opportunity to correct its errors, hence there can be no review here.-

The same may be said about the assignments of error relating to the court’s charge to the jury. The instructions to which the exceptions related were not mentioned in the motion for a new trial, either by number or by substance. It is merely alleged in the motion that the court “committed separate and several errors in the giving of each and every instruction given by the court.” This is an objection in gross, which is not permissible. •

The only other assignment of error relates to .the legal sufficiency of the evidence.

■ Appellant and deceased were negroes, and lived on the farm of a Mr. Horne, about two. and a-half miles distant from Paris. Appellant had a daughter, by a former marriage, and also had children by decedent. The dead body of appellant’s wife was found in a well about sixty yards from their dwelling-house, early in the morning of December 28, 1925. The theory of the State is that appellant killed his wife .by striking her with some kind of blunt instrument or rock, and that he then threw her into the-well where the body was found. - Appellant’s contention is that his wife accidentally fell into the well and was drowned.

In addition .to appellant’s wife and family, he had living with him a hired colored boy named Ernest.

Mrs. Nora Horne, who lived about two hundred yards distant from appellant’s home, testified that, on the morning in question, before daylight, she heard voices over at appellant’s home, which she recognized as those of appellant and his wife. She testified that she heard appellant’s voice, but could not distinguish what he said, and that she heard appellant’s’wife’say, “Oh, Mr. Boss, Mr. Boss, Mr. Boss,” and also' heard her say, “Oh, Ernest, help me!” The witness testified that she hollered to the boy Ernest, and that, when he answered to the call, she called back to him, saying, “If Boss don’t quit, we are going to have him arrested.” The witness testified that appellant made no answer. The witness further testified that she could hear appellant talking to the boy, and heard the boy answer, “I’m. afraid to,’’ but she conld not distinguish what it was appellant said to the boy.

Walter Horne, husband of the preceding witness, testified that, about four-thirty o’clock on the morning in question, he walked out on his porch and “heard a racket, and discovered that it was down at Boss’s” (meaning appellant), “and heard deceased, Marie, holler,.‘Mr. Boss, Mr. Boss, Mr. Boss,’ probably half a dozen times” — that, after that, he heard appellant say, “Go on, Ernest.” The witness testified that he at once started in the direction of appellant’s home and met. the boy. Ernest, who told him that deceased was in the well, and that he (witness) then ran back to his own house and got a butcher-knife and cut down a swing-rope hanging in the yard, and then went over to appellant’s house to try to get the 'woman out of the well. The witness told all about the removal of the body from the well. The woman was dead at the time she was taken out, and was lifted out, after much difficulty, with grabs or hooks. According to the testimony’of the'witness,’the well was about sixty yards from the house, and it was walled up with rock to the surface of the ground and also to a distance of about a foot ór a foot and a-half above the ground. The well was about four and a-half feet square, but the covering lapped over so that there was. a space of about two feet wide, and there was an ordinary bucket attached to the rope, which was used in drawing up water.. There was no windlass or other appliance, and the custom was to drop the bucket down into the water and draw it up by hand. The water was within four or five feet of the top of well.

Witnesses who testified concerning the removal of the body from the well stated that there were wounds made on the head and face of the body where the hooks came in contact with them. One of the witnesses testified that the body was upright in the water, “just like she was standing in a well.” A physician, who assisted in the examination of the body after it was removed from the well, testified that there was a fracture of the skull in the median line, extending up and hack to the right about three-fourths of an inch; that there was a lineal fracture extending parallel to the longitudinal suture about two and a-half inches in length, that appeared to have been caused by a crushing blow, and that blood was continually oozing from it. That on the left side of the head, extending down into the left orbit, was another fracture; that three inches to the left of that was a fracture extending from the outer angle of the left orbit up and back about three inches; that there was a gash to the right of this, extending in the direction indicated by the witness, from which blood was oozing. The witness also testified that he discovered flesh wounds which were made by the grabs, or hooks, being buried in the flesh, and that the fractures spoken of were sufficient to produce death. The witness testified that he and his father, another physician, had held a post mortem and removed the lungs, but that they could not find any evidence of water being in the lungs or any other evidence of drowning. Another physician testified to the same effect, describing the wounds, and giving his opinion as to the cause of death and what time death occurred with respect to the body going into the well. The last physician testified that he did not find any water in the lungs, and that “a part of the lungs showed that she was in the well before she quit breathing entirely.”

Appellant testified as a witness in his own behalf, and stated, in substance, that, when he and his wife arose early in the morning, he was making preparations to assist in killing hogs for his landlord, and that his wife was making preparations to cook breakfast; that, when he told her to get a water-bucket and wash it for him to get milk in, he put on his shoes, and, after leaving the house, crossed a branch about sixty-five yards from the house, and heard his wife calling, “Mr. Boss, Mr. Boss.” He stated that he thought she was trying to scare him, and did not give the matter much consideration, but walked back to the house and into the front room, and asked the hoy where his wife was; that he then got some matches and went hack ont of the house with the milk bucket still in his hand; that when he reached the well he failed to find the bucket, and concluded that his wife, while drawing the water, had stepped back into the bushes somewhere. He testified that he then went back to the well, and struck a match and looked down into the well, and saw something white in the water, which he found to be clothing on the body of his wife. He testified that he then began to holler, and told the boy to go and get some help, but the boy replied that he was afraid. The witness denied that he struck his wife or had any trouble with her, and that he knew nothing about the accident until he found the body in the well. Other witnesses who came on the scene testified that they examined the surroundings, and found no evidence of a struggle.

We think the evidence was sufficient to warrant the inference that the woman did not accidentally fall into the well, but that she was either slain by blows on the head and thrown into the well, or that she was thrown into the well and drowned. In the first place, the testimony of the physicians tends to show that several serious fractures of the woman’s skull, caused by blows on the head, were sufficient to produce death, and that she was entirely dead, or was in the last throes of death, when she was thrown into the well. In the next place, the testimony of Mrs. Horne and her husband was sufficient to warrant the inference that appellant and his wife were engaged in some sort of hostile encounter, at least hostile on his part, a few moments before she got into the well. The account given by appellant is quite unreasonable, and it is also improbable that the woman could have gotten into the well by accident. According to the testimony, there was a narrow opening about two feet wide, and, though it was dark at the time, the woman was familiar with the well, and had been accustomed to drawing water there. The jury had a right, in considering all of this testimony, to determine that appellant had killed his wife and thrown her into the well. The verdict of the jury can scarcely be said to be a consistent one, for if, as the testimony tended to show, appellant killed his wife and threw her into the well, he was guilty of murder in the first degree, and should have been punished accordingly. The fact, however, that the jury has mitigated the punishment affords no reason for setting aside the verdict.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Porter v. Hot Springs.
    Opinion delivered November 8, 1926.
    1. Municipal corporations — delegation op legislative power. — An - ordinance authorizing the mayor and city clerk to issue a permit to persons to haul swill, and prescribing the terms and manner in which the permit shall be granted, is not a delegation of legislative powers to an executive officer, but confers power to determine whether the applicant is equipped to do the work.
    2. Municipal corporations — garbage contracts — validity op ordinance. — An ordinance requiring a fee of $10 for a permit to haul swill, and requiring a bidder for a general contract to remove all garbage and other refuse to deposit $500, is not arbitrary or unreasonable.
    3. Municipal corporations — garbage contracts. — An ordinance relating to the removal of “dry refuse,” limited to. such accumulations as are unhealthy or a nuisance, held not unreasonable. ■
    4. Municipal corporations — garbage contracts. — An ordinance authorizing the board of public affairs to contract for the removal of garbage and other refuse, and prohibiting others from engaging in such work, with the exception of the removal of swill by licensee, held valid.
    Appeal from Garland Chancery Court; W. B. Duffle, Chancellor;
    affirmed.

      Cobb & Cobb, for appellant.

      Geo. P. Whittington and Leo P. McLaughlin, for appellee.
   McCulloch, C. J.

Appellants instituted this action in the chancery court of Garland County against the city of Hot Springs and its executive officers to restrain the enforcement of an ordinance providing for the collection and removal of “garbage, night soil, dead animals, and other refuse” from the city, and regulating the manner of collecting the same. Appellants alleged in their complaint that they were residents of Garland County, and were engaged in the business of cleaning up the premises of numerous citizens and business men of the city of Hot Springs under contract, and that the effect of the ordinance in question was to unjustly restrict them in their right to contract for such service. The chancery court sustained a demurrer to the complaint, and, after dismissal of the complaint and a failure to plead further, an appeal has been duly prosecuted to this court.

The ordinance provides, in substance, that the board of public affairs of the city may enter into a contract for a period of years with some suitable person “to remove all garbage, trash, night soil, dead animals, and other refuse as defined in this ordinance,” and that it shall be unlawful for any person other than the person, firm or corporation having the exclusive contract therefor to remove from any part of the limits of the city “any garbage, night soil, etc., or to remove or attempt to remove any dry refuse or dead animals, * * * or to remove, dump or deposit any such anywhere, except as herein provided.” There is, however, a provision in the ordinance authorizing the mayor' and city clerk to issue a permit, for a fee of ten dollars, to permit any person “to remove or transport any kitchen refuse, commonly known, as swill.” The ordinance attempts to define the various terms used therein, and the term “dry refuse” is defined in the following language:

“ ‘Dry refuse,’ as used in this ordinance, shall be held to include, and is hereby defined to be, such refuse as accumulates in, around or about stores, shops, hotels, dwelling-houses, or any other place, as is not included in kitchen refuse as herein defined, and any such refuse as ashes, paper, bottles, tin cans, old shoes, old clothing and rags, or articles such as decaying lumber, whether decaying in their nature or otherwise, as are unhealthy, or a nuisance, or a menace to health, and stable manure and manure of stock or animals which is allowed to accumulate so as to be a menace to health, shall be held and considered as dry refuse for the purpose of this ordinance. ’ ’

Counsel for appellants cite our decision in the case of Dreyfus v. Boone, 88 Ark. 353, 114 S. W. 718, in upholding the power of a municipality to regulate the removal of noxious substances and to enter into an exclusive contract therefor, but they seek to distinguish the present case, and contend that the ordinance in question is void. We fail, however, to see the force of the distinction sought to be made 'by counsel. They contend that the provision in the ordinance for granting a permit to persons to‘haul swill constitutes a delegation of legislative, power to a mere executive officer. Counsel are mistaken in their estimate of the character of the power thus conferred, for it is in no sense legislative. The ordinance itself prescribes the terms and manner in which the permit shall be granted, and only places in the executive officers the power to determine whether or not the applicant is properly equipped to do the work.

Again, it is insisted that the provision in the ordinance requiring a fee of ten dollars for the special permit, and also the requirement for a bidder for the general contract to deposit $500, are both unreasonable. It is urged that these two requirements discriminate against a poor man who is financially unable to pay the fee, or to make the cash deposit when bidding for the general contract. This is not sound argument against the validity of the ordinance, for those requirements are not so harsh and unreasonable as to condemn the ordinance as being arbitrary.

It is next insisted that that feature of the ordinance which relates to the removal of dry refuse is unreasonable, because it applies to a substance the accumulation of which does not constitute a nuisance. We are not called on to decide whether or not the argument would be sound, even if the effect of this feature of the ordinance was as contended by counsel for appellants, for, from an examination of the language of the section defining dry refuse, it is seen that it only applies to such accumulations. “as are unhealthy, or a nuisance, or a menace to health.” Counsel rely on the decision of the Nebraska court in Iler v. Ross, 64 Neb. 710, 90 N. W. 869, 57 L. R. A. 895,ias sustaining their contention that an ordinance regulating the removal of a substance, the presence of which does not constitute a nuisance, is yoid. That decision does not, however, support the contention of counsel in the present case, for the opinion clearly recognizes the power to regulate the removal of rubbish and waste material when it has been allowed to accumulate in such quantities as to become a nuisance. In the opinion the court said: ‘ ‘ There can be, in the nature of things, ho reasonable necessity for the city to gather and remove from the private premises of the inhabitants the accumulation of rubbish and waste material which are not in themselves, and when not allowed to accumulate in unreasonable quantities, nuisances.”

It seems to us -that all of the questions in this case are settled by the decision in Dreyfus v. Boone, supra, and that the ordinance involved in the present case must be upheld under the doctrine of the decision just referred to.

Decree affirmed.


author: Wood, J.

text:
    Cleveland County v. Pearce.
    Opinion delivered November 8, 1926.
    1. Counties — emergency session op quorum court. — A quorum court levying appropriations for payment of claims for county home and farm demonstration work was lawfully in session on giving notice of the session in any manner to the justices of the peace affected; such session being an emergency session under Crawford & Moses’ Dig., §§ 1945-7; section 2270, Id., being inapplicable.
    2. Counties — contracts by outgoing judge. — Contracts of employment of county home and farm demonstration agents for the succeeding year entered into by the county judge immediately before going out of office are binding on his successors.
    Appeal from Cleveland Circuit Court; L. 8. Britt, Judge;
    affirmed.

      George Brown, for appellant.

      J. G. Clary, J, Bruce StreeÜ and W. G. Streett, for appellee.
   Wood, J.

On October 22, 1924, the quorum court of Cleveland County, the Honorable N. A. McKinney presiding, met in regular session, and, among other proceedings, a motion was made and seconded to appropriate $1,000 for home demonstration work. The motion was lost. There being no further business, the court adjourned. Thereafter, the court called a special session of the county court, which was convened on November 18, ,1924. This court, in special session, voted to appropriate. $1,500 for farm demonstration work and $1,000, for home demonstration work. This court made other appropriations which exceeded the amount authorized by law. On December 15, 1924, the county court found, that the levying court, in a recalled session held for the purpose of levying taxes and making appropriation, on the 18th of November, 1924, made appropriations exceeding the amounts prescribed by law, and that, by reason thereof, the normal progress and activities of the county would be greatly hindered, and the court thereupon declared that an emergency existed, and ordered that the quorum court be called in special session on December 18, 1924, for the purpose of rectifying the appropriations and readjusting the entire appropriations, to the end that the same may be brought within the legal limit, and that the appropriations made be legally sufficient, and that the progress and prosperity of the county be not hindered. The court, in its order, directed the sheriff to serve notice on the several justices of the peace and summon them to appear on the day mentioned. The court met in special session, pursuant to the order, on the 18th day of December, 1924, a majority of the justices being present, and, by a majority vote, the court appropriated $1,500 for farm demonstration work and $1,000 for home demonstration work.' The court also adjusted all of the appropriations so that they did not exceed the amount which might be legally appropriated.

On December 19, 1924, N. A. McKinney, county judge, entered into a contract with the dean and director of agriculture of the University of .Arkansas, by which Joe Pearce was employed as county farm demonstration agent for Cleveland County and Miss Clytice Ross was employed as home demonstration agent for Cleveland County. They performed services under the contract. The amount due Pearce was between $750 and $800, and the.amount ¡due Miss Ross was $500.

On or before December 6,1925, the Honorable R. F. Poster, then county' judge, notified Pearce and Miss Ross and the party at headquarters having charge of the farm and home demonstration work that he would-not cooperate with them, and he instructed the sheriff to. tell them, and entered an order to that effect. The county judge did not notify the sheriff to inform them of the order, but he had notified them himself several times before. An order of the court was entered on February 12, 1925, directing notice to be given Pearce and Miss Ross that the county court would not cooperate with them in any way for the year 1925. Notice was served on Pearce and Miss Ross by the sheriff on February 12, 1925. The notice of the call for the November and December special sessions of the quorum court was served on the justices by written notice through the mail and by the sheriff - over the telephone. On May 14, 1925, the county court entered an order which recites, among other things, that the court finds: First, that no legal valid appropriation has been made by the levying court of this county from which to pay for home and farm demonstration work. Second, said home demonstration work and farm demonstration work, as - heretofore operated, would entail upon the county an expenditure of funds which is not justified by the results to accrue and by the funds available. The court thereupon entered a judgment discharging any and all persons assuming to act under the pretended contract, and declaring such contract void.

Separate actions were begun by Pearce and Miss Eoss, presenting their verified claims in the usual form to the county court of Cleveland County, which that court disallowed. They appealed to the circuit court. In the circuit court the claims were, by consent of parties, consolidated and tried by the court sitting as a jury. The trial court found as follows: “The court finds that the proclamation convening the quorum court on the 18th of December, 1924, by the county judge was legal, and sufficiently broad in its scope to cover the question in controversy, viz., the question of an appropriation for farm and home demonstration work, and that they did make an appropriation on that date, and that the then county judge, McKinney, entered into a valid and binding contract with Miss Clytice Eoss and Joe Pearce, and that the present county judge, Foster, who succeeded him, the said McKinney, on the first day of January, 1925, has no authority to repudiate it.” From a judgment entered by the court in favor of Pearce and Miss Eoss, the county duly prosecutes this appeal.

The appellant contends that the levying court of December 18, 1924, was not lawfully in session and could not therefore make a legal appropriation for these claims. Sections 1945 and 1946 of C. & M. Digest provide for the procedure to be had for a special term of the county and levying court, called for the purpose of rebuilding or repairing public buildings of the county which have been destroyed by fire' or otherwise. The statute requires notice of the special term to be given by publication in some newspaper printed in the county ten days, and if there is no newspaper, by written notice posted at some public place at the county seat and at nine other public places in the county ten days before the convening of the special term. This statute is a part of the Acts of 1885, page 85, §§ 1 and 2. Act No. 217 of the Acts of 1917, page 1185, § 1977, C. & M. Digest, provides, in part, as follows: “In case of emergency, the county court may call a meeting of said quorum court and said quorum court shall have jurisdiction and power to act upon any matter designated in the order of the county court calling for such meeting.” Sections 1945 and 1946 supra, relate solely to the calling of special terms for the repair or replacement of public buildings in the county. These have no reference whatever to the emergency sessions of quorum courts provided for in § 1977 supra. If the Legislature had intended that the provision for notice required by §§ 1945 and 1946 supra should apply to the called sessions of the quorum court in case of emergency, it doubtless would have so specified. It must be presumed that the Legislature- was familiar with the provisions of the prior law relating to the. call of special sessions of the county and quorum court for the purpose of rebuilding and repairing buildings of the county which had been destroyed. Doubtless the Legislature of 1917 did not deem these sessions for the repair and rebuilding of county buildings as emergency sessions. Emergency sessions, in the sense of the act of 1917, pertain to other matters than those referred to in the act of 1885. The court cannot supply by intendment a notice for emergency sessions and the time required for such notice to be given. That is purely a legislative function. There is no conflict between §§ 1945, 1946 and 1977 of C. & M. Digest. The facts show and the record recites that the court met pursuant to the call of the county judge December 15, the county judge presiding, and a majority of the justices being present, with the sheriff and clerk of the county, and convened the session of the quorum court on December 18, 1924. The facts tended to' prove that the justices were notified of the called session to be convened on December 18, 1924, by written notice through the mail and also by the sheriff over the telephone. It is wholly immaterial whether they had notice by this method or some other, since it is undisputed that they did actually assemble on December 18, 1921, pursuant to tbe call for the emergency session. Section 2270, C. & M. Digest (Acts 1879, p. 60), requires a notice of ten days to be given by posting ten written or printed notices in ten of the most public places of the county, etc., before any special term of a county court shall be held. This provision has reference to special sessions of the county court only. It has no application to call emergency sessions of the quorum court authorized by § 1977 supra. The call was sufficiently definite in terms to justify the quorum court in readjusting the appropriations and making specific ' appropriations for home and farm demonstration work. We conclude therefore that the trial court was correct in holding that the quorum court was legally convened on December 18, 1921, and that the appropriations were legally made.

The appellant next contends that the contract entered into on December 19,1921, by the outgoing judge was not binding on the incoming county judge for the succeeding year. We cannot concur in this view of the law. The contracts were entered into by the appellees with N. A. McKinney, who, at the time, was the duly elected, qualified and acting county judge of Cleveland County.' At the time the contracts were executed he was authorized to make such contracts for the county, and he was. the only person so' authorized. It being within the power and duty of the county judge to enter into the contracts when they were made, these contracts were valid at that time, and they did not become invalid because of the change in the personnel of the individual holding the office of county judge. The expiration of the term of the individual who was county judge at the time the contracts were executed did not invalidate the contracts. Searcy County v. Jordan, 136 Ark. 138, 206 S. W. 129. See also Gates v. School Dist. 53 Ark. 469, 14 S. W. 656; School District v. Garrison, 90 Ark. 335, 119 S. W. 275; Manley v. Scott, 108 Minn. 112, 29 L. R. A. (N. S.), p. 652.

The judgment of the circuit court is correct, and it is therefore affirmed.


text:
    Falcon Zinc Company v. Flippin.
    Opinion delivered October 4, 1926.
    1. ' Appeal and error — presumption as to- error. — Where the language in the record is ambiguous, the- Supreme Court will interpret it in such'a way as to support the court’s ruling rather than to discredit it. . ,
    2. Appeal and error — harmless error — selection op jury. — Prom a papel Of 24 jurors a list of; 18 jurors was selected as. required . by- Crawford & Moses’ Dig., § 6383, and. each party struck off three names. ’The court asked the clerk if there wás another náme on the' list not challenged besides the first 12, and was told that there was. Held that substitution- of such juror for one of the first 12 jurors on the list was harmless error.
    3. Nuisance — evidence.—In a suit for damage to- a farm caused by gases and other products from a smelter, evidence of similar damage to other lands in the vicinity, and also of similar results from smelters elsewhere,, held, competent on the issue whether it was possible or probable in the operation of the smelter for noxious ■gases and products to injure land as alleged.
    Appeal . from. Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      E. L. Matlock, for appellant.

      Pryor, Miles '& Pryor, for appellee.
   McCulloch, C. J.

Appellee is the owner of a small farm in Crawford County, situated near a zinc smelter owned and operated by appellant, and this action was instituted by appellee against appellant to recover compensation for alleged injuries to the land by reason of contact with.' “noxious gases, sulphur and sulphates, oxides of lead, and other poisonous products” which escaped from the smelter. Appellant,, in its answer, denied the injury to -the land or that it was caused -by the' operation of the smelter,. and on the issue thus raised there w.as a trial, which resulted in a. verdict in favor of ■ appellee for the recovery of a. substantial sum of money.

The first ground urged for reversal is that the court-erred to the prejudice of appellant in substituting a juror after the parties had impaneled a drawn jury by each striking three names from the list. The following is all that appears in the hill of exceptions with respect to the impaneling of the jury:

“After the parties plaintiff and defendant had each used three challenges by striking the names from the lists given them, and after the clerk had called the names of the first twelve not challenged, as directed by the court. The Court: Mr. Clerk, is there another name not challenged on your list? Mr. Bushmaier, circuit clerk: Yes sir, Sid Robinson. The Court: I want to use Mr. John W. Smith as a jury commissioner, and will use Mr. Robinson as a juror instead of him. Mr. Matlock: We save our exceptions to the court’s action in so doing. The Court: Save your exceptions.”

The recital that each party “used three challenges by striking the names from the lists given them” clearly indicates that a list had been drawn from the box in accordance with the statute, and that, after, selecting eighteen qualified jurors, the parties were each permitted to strike three names from the list. Crawford & Moses’ Digest, §§ 6383, 6384, 6385.

If the foregoing recital means that, after the number of names on the list of qualified jurors had been reduced to twelve by each party striking off three names, the clerk, on the direction of the court, drew another name, that of Mr. Robinson, from the box containing the names of the additional veniremen, and the eourt substituted Robinson for 'Smith, one of the jurors already selected, then this would be prejudicial error, or must be treated as such, and a reversal would follow. Appellant had the absolute right to demand a drawn jury, and to have it done in the manner prescribed by the statute. The substitution, if made in that way, deprived appellant of the right to participate in the selection of the jury. It is, however, the duty of this court to place such interpretation upon the language of the record, if there is any ambiguity, as will support the court’s ruling, rather than to discredit it. American National Ins. Co. v. Mooney, 111 Ark. 514. Upon consideration of the language used in the record, we think it is open to the interpretation that the court did not substitute a new name from those of the veniremen in the box, but that there were more than twelve names left on the list of qualified jurors, the names of both Robinson and Smith appearing thereon, and that the court substituted Robinson for Smith, whose name appeared above that of Robinson on the list. This situation could have resulted from both parties striking one or more of the same names and thereby leaving more than twelve names on the list. The court’s inquiry to the clerk and the latter’s response clearly indicate that there were more than twelve names on the list after the parties had exercised their privilege to strike three names. And it is also clear, we think, that the names of both Smith and Robinson were on the list. Taking this view, of the record, we have an instance of the court substituting for one of the first twelve names on the list, another name farther down the list. The question then presented is whether or not this constitutes error which calls for reversal.

The statute (Crawford & Moses’ Digest, § 6384) provides that, after the parties strike the names of three jurors on each side from the list, “the first twelve names' remaining on such original list shall constitute the jury.” This provision is, we think, merely directory, so as to provide an orderly procedure in the selection of the jury. It merely provides, where more than twelve names are left on the list, how the selection shall be made. This is done after eighteen have been found qualified and placed upon the list and each party has had a chance to challenge by striking off three names. All of those whose names are left on the list are deemed acceptable to the parties, and it constitutes no violation of their rights for the court to fail to observe the statutory direction in selecting twelve to constitute the jury. In other words, the parties cannot complain of any change or substitution by the court among those who have been duly accepted by the parties. Our conclusion on this branch of the case is that there was no prejudicial error committed in the court’s failure to follow the statute in the order in which the names shall be taken on the jury.

The court permitted appellee, over the objection, of appellant, to introduce testimony concerning damage to other lands in the vicinity in the operation of the smelter —a damage shown to have resulted in the same manner in which it is claimed that appellee’s land was damaged. We think this testimony was competent and that the court did not err in admitting it. There was an issue as to whether or not it was possible or probable, in the operation of the smelter, for noxious gases and other products to come in contact with the land to the extent that they would produce an injurious effect. The testimony of numerous witnesses introduced by appellee tended to show that the land was injured by gas and other substances which came from the smelter. Two expert witnesses were introduced, one by.each party. The expert introduced by appellee testified to the effect .that, in the operation of a zinc smelter, one hundred pounds of ore produces sixty-four pounds of sulphur dioxide, or eighty pounds of trioxide, which, when combined with moisture, makes ninety-six pounds of sulphuric acid, and that that 'quantity of sulphuric acid was sufficient to “kill” one hundred pounds of carbonated lime. The expert witness introduced by appellant testified in substance that, while a small percentage of sulphuric acid is produced from zinc ores, it is hot and light when it comes from the roaster, and, when mixed with air, the percentage of acid is not high enough to destroy the alkaline contents of the soil and was not harmful to vegetation. In this state of the case it was competent to show that other farms in the vicinity had been damaged by the escape of gas from the smelter, and it was also competent to prove that similar results came from similar operation of the same kind of a smelter in Fort Smith. In other words, the issue was whether it was possible or probable that the operation of this smelter could cause the injury claimed by appellee, and it was competent to show by proof of injury in the same way to other farms that the injury to appellee’s farm was caused in this manner.

Judgment affirmed.


author: Hart, J.,

text:
    McCauley v. Arkansas Rice Growers’ Cooperative Association.
    Opinion delivered October 11, 1926.
    1. Agriculture — construction of cooperative marketing contract. — In construing the contract of a cooperative marketing ■association, organized under the Cooperative Marketing Act (Acts 1921, p. 153), the existing conditions and the situations of the producers must be considered, in order to ascertain the intention of the parties from the language used in the contract.
    2. Agriculture — breach of contract — enforcement. — Where plaintiffs, members of a cooperative marketing association, entered into a contract with the association for the marketing of their rice, a breach by the association of independent covenants in such contract did not absolve such members from performance of their contract, since otherwise the usefulness of the association would be impaired if not defeated.
    3. Agriculture — cooperative marketing contract — reserve fund. —Where, under a cooperative marketing contract, a reserve of 2 per cent, was to be deducted from the value of the rice marketed “for credits and general purposes,” the association may retain the unexpended balance as a continuous surplus or reserve fund to be used in case of need.
    4. Agriculture — method of pooling rice. — Where a marketing association’s agreement with its members provides that the association shall pool or mingle the rice of its members, and that it may sell same in the rough or otherwise, and to the trade or to the public, it may pool and sell the rice either in the rough or in the clean.
    5. Agriculture — authority of cooperative marketing association. — "Where an association was organized merely to sell the rice of its members, it was not authorized to buy rice, whether mortgaged or not.
    6. Agriculture — cooperative marketing association — mortgages. —A cooperative marketing association may pay off a mortgage upon a member’s crop when, in good faith, it believes the value of the rice to exceed the mortgage, in which case, if the rice sells for less than the amount of the mortgage, the loss must be borne by the mortgagor.
    7. Agriculture — cooperative contract — advances.—Under a cooperative marketing contract, the association, in making advances to its members, should do so in uniform percentage; otherwise the member receiving an advance should pay interest thereon.
    8. Receivers — appointment to take charge of corporation.— Courts proceed with great caution in the appointment of receivers to take charge of the affairs of a corporation, as such action amounts to displacement of the directors.
    9. Receivers — other adequate remedy. — Receivers are not appointed when the acts complained of may be remedied by injunction or other available means.
    10. Agriculture — marketing contract — distribution of profits.— Profits made by a marketing association during the year through unauthorized dealings with nonmembers are to be distributed at the end of the- year, since no accumulation of a surplus fund therefrom was contemplated by the contract of association.
    11. Costs — allowance in equity. — The granting of costs in equity is within the court’s discretion, and the principle which should guide that discretion is that the party who, by his fault, has unnecessarily involved another in litigation, should pay the costs.
    12. Costs — -allowance—discretion.—Where the trial court found that defendant marketing association breached its contract with plaintiffs in several important respects, though the particular relief sought was denied, it was not an abuse of discretion to charge defendant with the costs in that court.
    13. Costs — allowance on appeal. — Though the chancellor’s decree in part was reversed, yet, where such ruling inured to the benefit of the appellee, costs will be awarded against the appellants.
    Appeal from Lonoke Chancery Court; John E. Martineau, Chancellor;
    reversed in part.
    STATEMENT BY THE COURT.
    Lee McCauley and others brought this suit in equity against the Arkansas Bice Growers ’ Cooperative Association.
    The defendant is a corporation organized under the act of February 14, 1921, which expressly provides that the act should be referred to as the Cooperative Marketing Act, and the plaintiffs are members of that corporation.
    The suit was originally brought by Lee McCauley for himself and for other members. From time to time other members joined in the suit until there were 118 members joined as plaintiffs; and it may be stated here that this number constituted but a small part of the membership.
    The defendant commenced to operate under the act in the fall of 1921, and since that time it has handled the rice grown by the plaintiffs and the other members of the corporation. What was termed a “marketing agreement” was entered into between the defendant and each member of the corporation, including the plaintiffs in this action.
    That part of the “marketing agreement” which is material to a decision of the issues raised by the appeal reads as follows:
    “5. The association shall pool or miiigle the rice of the growers with rice of a like variety, grade and quality delivered by other growers. The association shall grade all the rice, and its grading or classification shall be conclusive. Each pool shall be for a full season.
    “6. The association agrees to resell such rice, together with rice of like variety, grade and quality, delivered by other growers under similar contracts, at the best prices obtainable by it under market conditions, and to pay over the net amount received therefrom (less freight, insurance and interest) as payment in full to the grower and growers named in contracts similar hereto, according to the rice delivered by each of them, after deducting therefrom, within the discretion of the association, the costs of maintaining the association, and costs of handling, cleaning, grading, processing and marketing slich rice; and of reserves for credits and other general purposes, said reserves not to exceed two per cent, of the gross resale price. The annual surplus from such deductions must be prorated among the growers delivering rice in that year on the basis of deliveries.
    “7. The grower agrees that the association may handle, in its discretion, some of the rice in one way and some in another; may sell some in the rough or otherwise; may contract for or effect the milling of all or any thereof and sell the finished product to the trade or otherwise; may adopt such marketing, advertising, merchandising methods as it may deem advantageous; but the net proceeds of all rice o’f like quality and grade, less charges, costs and advances, shall he divided ratably among the growers in proportion to their deliveries to each pool, payments to ¡be made from ¡time to time until all the amounts of each pool are settled.
    “8. The association may sell the said rice within or without-this State, directly to millers or brokers, or the trade or the public, or otherwise, at such times and in such conditions and terms as it may deem profitable, fair and advantageous to the grower, and it may sell all or any part of the rice to.or through any agency, now established oi®tó be established hereafter, for the cooperative marketing of the rice of the growers in other States throughout the United States, under such conditions as will serve the joint interest of the growers and the public; and any proportionate expenses connected therewith shall be deemed marketing costs under paragraph ¡6.

      “9. The grower agrees that the association shall borrow money in its name on the rice, by the issuance of commodity bonds or bearer certificates, or through drafts, acceptances, notes or otherwise, or on any warehouse receipt or bills of lading, or upon any accounts for the sale of rice, or on any commercial paper delivered therefor. The association shall prorate the money so received among the growers equitably, as it may determine, for each district and period of delivery.
    “The association agrees to accept drafts drawn against it by the grower for any amount specified and determined by it, upon delivery of rice hereunder, and to assist the grower to discount such drafts, secured by the warehouse receipts, through the most advantageous banking system.
    “10. The association may establish selling office, warehouses, plants, marketing, statistical or other agencies in any place.
    “11. The grower shall have the right to stop growing rice and to grow anything else at any time at his free discretion; but, if he produce any rice under the terms hereof, it shall be included under the terms. of this agreement, and must be sold only to the association.

      “12. Nothing in this agreement shall be interpreted as compelling the grower to deliver any specified quantity of rice per year; but he shall deliver all the rice produced or acquired by or for him as landlord or lessor.
    “13. (a) This agreement shall be binding upon the grower as long as he produces rice directly or indirectly, or has the legal right to exercise control of any commercial rice or any interest therein, during the term of this contract.
    “(b) If this agreement is signed by the members of a copartnership, it shall apply to them and each of .them individually, in the event of the dissolution or termination of the said copartnership.
    “(c) If the grower places a crop mortgage upon any of his crops during the term hereof, the association shall have the right to take delivery of his rice and to pay off all or part of the crop mortgage for the account of the grower and to charge the same against' him individually. . ^
    “The grower may place a crop mortgage upon his rice, and agrees to notify the association prior to making any crop mortgage; and the association will advise the grower in any such transaction.”
    Section 17 of the Cooperative Marketing Act provides that the association and. its members may execute marketing contracts requiring the members to sell, for any period of time not over ten years, all or any specified part of their agricultural products or specified commodities, exclusively to or through the association or any facilities to be created by the association. Under the section, the contracts may provide that the association may sell the products of its members, with or without taking the title thereto, and pay over to its members the resale price, after deducting all necessary selling, overhead and other costs and expenses.
    The section also provides that the marketing contract may fix, as liquidated damages, specified sums to be paid by tbe member to the association, upon the breach by him of the marketing contract.
    It further provides that the association shall be entitled to an' injunction to prevent further breach of the contract and to a decree for specific performance thereof. The contract follows the powers conferred by the act authorizing the incorporation of the association. Gen. Acts of 1921, page 153.
    Pursuant to the terms of the act, the marketing contract provides the sum of one cent per pound for rough rice, as liquidated damages for a breach of the contract by the members. The contract also provides that the association shall be entitled to an injunction to prevent a further breach of the contract and to a decree for specific performance thereof.
    It is conceded by counsel on both sides that the findings of fact made by the chancellor in this case are sustained by the evidence. Therefore, for a statement of the facts and questions involved in this appeal, we quote from the decree:
    “The court makes the following findings as to the material issues in this case:
    “First: That the method of pooling rice in the clean, adopted by the association, was a proper and permissible method of pooling, and also that the association had the right to consent to the sale of mortgaged rice of certain of its members, in the rough, in the seasons of 1921-22 and 1922-23, and accept a commission of 10 cents per barrel for such services as it rendered these members.
    “■Second: That the $54,872.69 which was deducted by the association from the first year’s expenses of milling and storing rice was wrongfully deducted and spread over the five-year period, and should be charged to and paid entirely by the members of the association for the season of 1921-22.
    “Third: That the reserve of 2 per cent, deducted each year for credits and general purposes can be used to pay only contingent expenses of the crop for which it is collected, and must, after the contingent expenses of that season are paid, he returned to the members who paid it, in proportion as they paid it. The unexpended balance of this reserve cannot ¡be returned to the members until the season’s business has been entirely disposed of. Any unexpended part of this reserve then belongs to the particular members who contributed it, and not to the association generally.
    “Fourth: That the association cannot purchase rice at all, whether mortgaged or not, and the purchase of mortgaged rice in 1923-21 was a violation of its contract with its members. The association has a right to pay off a mortgage when it honestly believes the value of the rice exceeds the mortgage, and to take the mortgaged rice upon the same terms and conditions that it takes rice of other members, but if the value of such mortgaged rice, when sold, is less than the mortgage, the difference must be borne by the grower of the rice, and likewise, if its value exceeds the mortgage, such excess goes to the grower.
    “Fifth: That the method adopted by the association in making advances is incorrect. The same percentage should be advanced to all members at the same time, or, if this is not done, members to whom advances are made should pay interest on the amount of the advances received.
    ‘ ‘ Sixth: The issues raised with reference to • the salaries paid the officers, the stolen rice, the cost of milling rice, the payment of attorneys’ fees and the selection of directors, are material only to show such gross inefficiency or mismanagement of affairs of the association on the part of its officers as would justify the appointment of a receiver. The court is of the opinion that the facts proved as to these issues do not establish a right to a receiver. The amount of salaries paid officers and employees is entirely within the discretion of the board of directors. The facts established in connection with the stolen rice do not justify the court in finding that the officers were in any way connected therewith. The cost of milling rice is not shown to be excessive, under the -conditions. The cost of milling rice would perhaps never be the same in different mills nor the same in the same mill under different managements. The manner in which the directors of the association were elected was in accordance with the by-laws and articles of incorporation of the association. The court is also of the opinion that the association had a right to aid the ‘buyers’ association’ in the manner in which it did, and that the contract with the Connell Bice Company was one which the association could properly make.
    “The court finds that the violations of the contract herein found to exist are due to a mistaken or wrongful construction of such contract on the part of the officers and directors of the association, and that any wrong done can be corrected by a restatement of the accounts of the members and that such violations do not relieve the members .from a further compliance with their contract to deliver their rice to the association, nor do they justify the appointment of a receiver. However, unless the two auditors employed by plaintiffs and defendants, respectively, can agree upon a restatement of the accounts of all the members of the association for the season of 1921-22 and upon a distribution of the unexpended annual reserves up to this date, in accordance with this opinion, an auditor will be appointed by the court to make such a finding. No other adjustment of accounts is deemed necessary, but such adjustments are made to apply to all members of the association, whether plaintiffs.or not.
    “The association will be enjoined from making purchases of rice in the future, whether mortgaged or not, and will be ordered to make advances only as found herein to be in compliance with the law.
    “The association will be enjoined from proceeding in. any other court to collect penalties from plaintiffs for alleged breach of their contracts to deliver rice up to this date, but plaintiffs will be required to specifically perform their contracts in the future by delivering their rice to the association.

      “The cost of this proceeding, including the stenographer’s fees, will he taxed against the association.”
    A decree was entered of record in accordance with the findings of the chancellor. The plaintiffs have duly prosecutéd an appeal to this court, and the defendant has been granted a cross-appeal.

      Charles A. Walls and George C. Lewis, for appellant.

      Joe T. Robinson, A. G. Meehan, C. E. Pettit and W. A. Leach, for appellee.
   Hart, J.,

(after stating the facts). At the outset, it may be stated that the validity of contracts under our Cooperative Marketing Act was sustained in the Arkansas Cotton Growers’ Cooperative Association v. Brown, 168 Ark. 504, 270 S. W. 946, and it was held that equity has jurisdiction to grant relief where legal remedies are inadequate. In addition to the authorities cited in the opinion and by the reporter in a footnote, we refer to the case-notes in 25 A. L. R. 1113 and 33 A. L. R. 247, for a full discussion and review of the decisions of the various courts of the different States on the subject of cooperative marketing of farm products by producers’ associations.

In Brown v. Staple Cotton Cooperative Association, 132 Miss. 859, 96 So. 849, the validity of contracts of a cotton growers’ cooperative association was upheld, where its'declared purpose was to promote, handle and encourage the marketing of cotton intelligently, minimizing speculation and stabilizing the market. ' The court said:

“The plan of appellee association, considered in connection with the marketing and association contracts between appellee and its members, does not undertake to fix prices of long staple cotton. The outstanding purpose is to promote intelligent warehousing and marketing of such cotton. Appellee association goes out in the open market and hunts purchasers who compete against each other. It is simply a sales agency or a plan for group marketing. It is true it has large powers, but not even all the power at one end of the bargain. One of the main purposes is to prevent long staple cotton growers from being forced, on account of their financial necessities, to dump their cotton on the market for the producer the year round, instead of for only three or four months. Another object is to save expense to the producer by means of having large quantities of long staple cotton stored, classed,‘and marketed by appellee association, instead of by thousands of producers, who know nothing about classing cotton. Appellee association, under the arrangement, is able to sell direct to the mills as well as to others. ’ ’

In all the cases cited and referred to, it is recognized that the purpose of such associations is to secure for their members the advantages of cooperative bargaining in selling their crops. It has been well said that such associations, wisely and economically administered, tend to work to the advantage of the producers, and that the pooling arrangement tends to stabilize prices, and, in the long run, to secure to the members better prices by affording them better and cheaper warehouse facilities and by enabling them, when necessary, to sell direct to the manufacturers. Again, the associations enable them to sell in larger markets, extending over a much longer period of time and a greater area of territory. It was found out that, individually, the producers could not dispose of their crops at a fair and reasonable price. Those in debt were forced to sell, as fast as their crops were gathered, to local buyers. All were forced to sell in the local markets and to store their products in warehouses furnished by prospective buyers. The buyers, by combining, might practically eliminate competition and thus greatly depreciate the market value of the crops. Single-handed, the producers could not successfully combat this evil; collectively, the producers, by pooling their products and placing them in the hands of a selling agency selected by themselves, might obtain better prices. By acting together, they could greatly lessen the cost of storing their products until ready to sell and could greatly lessen the cost of sale by using the same selling agencies, and could ¡better secure competitive bidders by being able to sell in larger or smaller quantities, at tbeir option, through the same selling agency.

' The decisions in the cases cited and referred to above recognize that, in construing contracts of this kind, the existing conditions and the situations of the producers must be considered. This is merely an application of the general rule of construction in ordinary contracts. It is a cardinal rule of construction that the meaning of a contract is to be gathered from the instrument as a whole, and, in construing a contract, words should be given their usual and ordinary meaning when this can be done.

It is also a fundamental rule of construction that courts may acquaint themselves with existing conditions and place themselves in the same situation as the parties to the contract, so as to view the attendant circumstances as they viewed them, in order to ascertain the intention of the parties from the- language used in the contract. United States Fidelity & Guaranty Co. v. Sellers, 160 Ark. 599, 255 S. W. 26; Alf Bennett Lbr. Co. v. Walnut Lake Cypress Co., 105 Ark. 421, 151 S. W. 275; and Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S. W. 622.

The chancellor found that there had been certain breaches of the marketing contract by the officers of the association, but that the violations of the contract were due to a mistaken or wrongful construction of the contract. The chancellor was of the opinion that any wrong done the members could be corrected by a restatement of the accounts, and that a violation by the officers did not relieve the members from a further compliance with their contracts to deliver their rice to the association, nor did the wrongs justify the appointment of a receiver.

Counsel for appellants contend that this rule is wrong; they quote the well-established rule that the one who first breaks a contract cannot maintain a suit to recover upon it, and that the failure of one party to comply with the contract releases the other party from performance. Jerome Hardwood Lumber Co. v. Beaumont Lumber Co., 157 Ark. 220, 247 S. W. 1059, and cases cited.

The reason for the rule is that, where covenants are mutual and dependent, the failure of one party to perform absolves the other and authorizes him to rescind the contract. Emigrant Co. v. County of Adams, 100 U. S. 61.

There are certain well-known exceptions to the general rule, and one of them' is the effect of a' failure to perform an independent covenant. In 5 Page on Contracts, § 2976, the rule is stated as follows: “From the nature of the independent covenant, the essential characteristic of which is that the parties intend that the performance thereof shall not depend upon the performance of the adversary party, it follows that the breach or nonperformance of such covenant does not operate as a discharge of the covenants which, by the terms of the contract, are to be performed by the adversary party. If such independent covenant is broken, the adversary party has a right of action for damages thereon, but he cannot treat such breach as a discharge. ’ ’

In Taylor v. Patterson, 3 Ark. 238, it was held that, in the case of independent covenants, either party may recover damages for a breach of the covenant in his favor, and the nonperformance of one is no excuse for the other. See also Desha v. Robinson, 17 Ark. 228, at 243.

In principle, the effect of the failure of the association to'perform certain covenants of the contract is no wise different from the failure to perform an independent covenant.

As will appear from our statement of facts, both the statute and the contract provide for an injunction to prevent a breach, and for liquidated damages in compensation therefor.

The services of the association in pooling and marketing the rice of its members were to be furnished continuously during the life of the contract. Bach season’s business was separate and distinct. Manifestly, each member signed the contract upon the faith of the signature of the other members.

Appellee has no capital stock, and is not operated for profit. The association is not allowed to purchase, handle and sell rice, except for its members. It is dependent f.or its existence and an opportunity to serve its members upon their observance of their contracts and upon the continued existence of the association. Members join' the association for a stated number of years, and are permitted to cease growing rice at any time they see fit to do so. New members are being admitted year ■by year. The purposes of the association are fully set out above, and need not be recited here. In consideration of the members’ promises-in signing the “marketing contract,” the association agrees specifically to receive, handle and market the rice .of its members and to settle therefor according to specified terms.

Appellants signed the “marketing contract” with the other members of the association. Hence appellants’ agreements were made in consideration of like agreements of the other members and for their mutual advantage. If appellants could be absolved from the performance of the contract because the officers of the association had committed breaches of the contract in certain respects, it is certain that the other members of the association would suffer by this course. The action of the appellants in rescinding the contract would tend to cripple the association and thereby harm the other members of it.

To illustrate, if a sufficient number had joined in this suit, and it should be held that they were released from a performance of the contract because of the breaches committed by the officers, this might result in destroying the association and in depriving those remaining in it of the advantages all members expected from joining the association. It will be noted that the members of the association joined for a specified number of years, and doubtless in the expectation that all thp members would remain in the association for the specified time.'

The “marketing agreement” contains a clause that a member may cease to grow rice at any time while a member of the association. It is fairly deducible from the entire contract that it was contemplated between the parties that all the members who did grow rice should deliver it to the association to be marketed,, during the period of time provided for in the contract. Under these circumstances, we think the chancellor was right in holding that the breaches of contract' in this case, on the part of the officers of the association, did not absolve the members from delivering their rice to the association to be marketed during the period of time stipulated in their contracts.

This question has not been directly passed upon by this court or by any other court of last resort to which our attention has been called, but we think our present holding is in accordance with the principles of law laid down in cases of this sort cited above. Any other rule would certainly impair the usefulness of such associations, if it did not wholly defeat their purpose and destroy them. It will be noted that, in construing similar contracts, it has been held that, while the contract was one which could not be specifically enforced in equity because such course would require the performance of continuous duties, still this did not prevent the courts from entering injunctions restraining its ¡breaches, which indirectly accomplish the same result. . In addition. to the cases above citéd, see Pratt v. McCoy, 128 La. 570, 54 So. 1012.

It follows that the chancellor’s holding on this branch of the case was correct.

The chancellor held that the reserve of two per cent., deducted each year for credits and general purposes, can be used to pay only contingent expenses of the crop for which it is collected, and must, after the contingent expenses of that season are paid, be returned to the members who paid, in proportion as they paid it. The chancellor, however, held that the unexpended balance of this reserve cannot be returned to the members until the season’s business has been entirely disposed of.

Counsel for appellee challenge the correctness of this holding and contend that the reserve should be construed as a permanent continuing fund and corporate asset. They insist that such construction is necessary to make the association a complete workable organization.

The correctness of the holding of the chancellor depénds upon the construction to be placed upon article 6 of the “marketing agreement,” which is set out in our statement of facts, and need not be repeated here; The majority of the court is of the opinion that the contention of counsel for appellee should be sustained.

Bearing in mind the general rule for the construction of contracts above announced, we all agree that the intention of the parties should be gathered from the language used as a whole, and that the paragraph should be read in connection with the remainder of the contract ánd in the light of the situation of the parties when the contract was executed. Each member signing the contract agrees to be bound by its terms for a designated number of years. Members may cease to grow rice during a particular year or years during the life of the contract. New members are constantly coming in. The success of the association in accomplishing the purpose of its organization depends upon its continued existence. The accumulation of a .moderate reserve will enable the' directors to have at their disposal a sum to be used whenever occasions of sufficient urgency arise. It is pointed out that this is the usual practice in commercial undertakings, and it is equally desirable in cooperative ventures.

That this meaning was intended is shown by the clause “and of reserves for credits and other general purposes.” It is said that this language, when read in connection with the context, evinces an intention on the part of the parties to the contract that the officers of the association should retain out of-each year’s operations a certain percentage to be set aside as a surplus or reserve fund to be used in case of need.

Such is the line of reasoning made by counsel for the association and adopted by the majority of the court. It is said that the words “annual surplus,” used in the last sentence of paragraph 6, is not the unused portion of the reserve but is the sum remaining after all deductions have been made.-

On the other hand, Judge-Humphreys and I think the 'better view of the matter is that urged by counsel for appellants and adopted by the chancellor. We think the language used clearly indicates that each season’s pool was to take care of itself, and that it means that the reserve belongs -to the members who contribute' it, and any surplus remaining after the close of the season’s business must be distributed to them.- We think the words “annual surplus” refers to a sum to be kept by'the association, after the sale of the rice and the payment of the proceeds -of sale to the rice growers, until the final close -of the season, in order to meet unforeseen liabilities which might arise from the conduct of that year’s business.

As stated by counsel for appellants, the evident purpose of the contract as a whole is that the' association shall sell the rice of its members as cheaply and expeditiously as practicable and pay the proceeds to its members, and that the “annual surplus” was to meet unforeseen liabilities for the current year and not as a reserve fund for future years. •

“In this connection we may say that we all agree that, if-the directors of the association should undertake to reserve an amount greater than appeared -to be reasonably necessary to meet unforeseen emergencies, the members -might enjoin them from collecting more than appeared to be reasonably necessary for' an economical administration of the- affairs of -the association.

It results from -the view of the majority that, the use of the reserve provided for in article 6 of the “marketing agreement” is not limited to the year’s business in which • it is collected, and that an annual distribution thereof is not required.

The chancellor held that the method of pooling rice in the clean adopted by the association was warranted under the terms of the “marketing agreement.” It was the contention of counsel for appellants that the contract means that the rice should be pooled in the rough. According to the view of the- association, a pool constitutes a volume of rice of a given quality, variety and grade, handled throughout the season, and its practice in pooling clean rice was to put rice of like variety, grade and quality into one pool, each pool to be for the full season. It will be noted that articles ,5-, 6, 7 and 8 all deal expressly with the question of pooling and selling the rice of the members, and the correctness of the court’s ruling depends .mainly upon the interpretation to be given these articles.

Articles 5 provides that the association shall pool or mingle the rice of the growers with that of a like variety,, grade and quality delivered by other growers. It also provides that the grading or classification of the association shall be conclusive.

Article 6 provides for the resale of such rice by the association, together with rice of like variety, grade and quality, delivered by other growers, for the best price obtainable.

Article 7 provides that the grower agrees that the association may handle, in its discretion, some of the rice in one way and some in another; may sell some in the rough or otherwise; may contract for or effect the milling of all or any part thereof, and sell the finished product to the trade or otherwise.

Article 8 provides that the association may sell the rice within or without the State, directly to millers or brokers or the trade, or to the public, or otherwise. This article provides that the association may sell all or any part of the rice, to or through any agencies, now or hereafter established, for the coope'rativé marketing of the rice of growers in 'other States throughout the United States. '

Thus it will be seen that the largest discretion in the premises is given the association. The contract not only does not by implication or otherwise restrict or limit the' powers of the association to grading and selling the rice in the rough, but, by necessary implication, as well as by express language, gives the association the authority to sell rice either in the rough or after it has been cleaned or run through the mill.

When the contract provides that the association may effect the milling of all or any of the rice and sell the finished product to the trade or otherwise, this would seem to confer'express authority to form a pool of the rice in the clean.

Again, the contract gives the association the authority to sell the rice to or through any agency established or to be established in any other State for cooperative marketing. It is a matter of common knowledge that this could not be as successfully done if the rice was to be pooled in the rough. In such state, it might not be practicable to ship it to a selling agency or purchaser in another State.

For these and other reasons which might be given, we are of the opinion that the holding of the chancellor, that the association was given the authority in the contract to pool the rice in the clean, was correct.

The chancellor correctly held that the association could not purchase rice at all, whether mortgaged or not, and that the purchase of mortgaged rice in 1923-24 was a violation of its contract with its members. The correctness of his decision on this branch of the case is apparent when the “marketing agreement” is read in connection with the act authorizing cooperative marketing associations. As we have already seen, similar acts authorizing pools of farm products have uniformly been upheld by the courts of last resort of numerous States, as against various constitutional objections, and as not being monopolies or contracts in restraint of trade.

Under the articles of incorporation of the association, which followed the terms of the act under which it was organized, the association was organized for the purpose of pooling and selling the rice grown by its members, and no person was eligible to membership except rice growers. The articles of incorporation do not contemplate that the scope and purpose of the association could be so extended a» to become a business corporation conducted for profit. The act authorizihg the incorporation of the association contemplates that the association may only make contracts to pool and sell the product of its members. The “marketing agreement” by its terms follows the statute, and does not contemplate that the association should purchase rice from any person or persons at all.

The contract also expressly provides that the association may make advances to its members under certain stipulated terms or conditions. In carrying out the power thus conferred, the chancellor properly held that the association might pay off a mortgage, when, in good faith, it believed the value of the rice to exceed the mortgage, and take the mortgaged rice upon the same terms and conditions as the rice of other members. It was also rightly held that, if the rice was sold for less than the amount of the mortgage, the loss must be borne by the mortgagor. In this connection it may also be stated that the chancellor properly held that, in making advances, the association should do so to all the members at the same percentage, or, if this was not done, the member should pay interest on the amount of advances received.

On the subject of the appointment of a receiver but little need be said. As we have already seen, it is conceded that the finding of facts made by the chancellor is sustained by the evidence in the record. The chancellor held that the facts did not show such fraud and .mismanagement of the affairs of the association as would justify the appointment of a receiver. The court expressly found that the cost of milling the rice was not shown to be excessive under the existing conditions, and that the directors did not abuse their discretion in the payment of attorneys’ fees and salaries to officers and employees.

The general rule- is that courts proceed with great caution in the appointment of receivers to take charge of the affairs of a corporation, for the reason that such action amounts to a practical displacement of the directors in managing the affairs of the corporation. It may also he said that the rule is not to appoint á receiver when the specified acts complained of may be remedied by injunction or are capable of redress by othér available means. Hence the chancellor did not err in refusing to .appoint a receiver.

The chancellor correctly held that the $54,872.69 which was deducted by the association from the first year’s milling and storing rice, was wrongfully deducted and spread over the five-year period of contract remaining. During the first year of its operation the association handled rice for persons who were not members as well as for those who were members. It sold a large amount of rough rice, which was not pooled, on which it charged a commission- of 10 per cent. As we have already seen, the association had no right to handle the rice of persons who were not members of the association, and no right to sell rough'rice without pooling it, and no fight to sell rice on commission.

These matters were all foreign to the object and purposes of the association, and were extremely hazardous. Such a course of conduct, if pursued, would ultimately tend to defeat the purpose of the organization, which was cooperative marketing, and might destroy the organization. Any member of the association could have obtained an injunction stopping it. ' Such a course of conducting the business of the association did not result in a loss to the members, and, as a necessary consequence, no damage was suffered. Indeed, this particular transaction resulted profitably to the association, and, in the final settlement of the season’s business, $54,872.69 was on hand to be distributed. As we have already seen, the contract does not contemplate that there should be an accumulation of a surplus fund, except the reserve fund provided for in article 6 of the contract, as pointed out in the opinion. In other respects, the proceeds of sale at the close of the season, and, in this particular instance, the profits-made, are to be shared by the members of that season, and are not to be carried forward into succeeding years and spread over the remaining five-year period-of the contract and distributed accordingly.

Complaint is made that the chancellor taxes the costs against the association. In equity, the granting of costs rests entirely within the discretion of the court. The principle which should guide the discretion is that the party who, by his fault, has unnecessarily involved another in litigation, should pay the cost thereof; and it does not always follow that the unsuccessful party was at fault, or that the litigation was unnecessary.

In the case at bar the chancellor found that the association had breached its contract with its members in several important respects, and only denied them the relief asked for by them. Considering the matter in all its aspects in connection with the attendant circumstances, we cannot say that there is a plain case of an abuse of discretion in the chancellor ’s allowance of costs. Temple v. Lawson, 19 Ark. 148; and Penix v. Pumphrey, 125 Ark. 332, 188 S. W. 816.

The costs upon the appeal stand on a different footing. The decision of the chancellor in the main has been affirmed. The reversal of the chancery court as to the disposition of the reserve fund inures to the benefit of appellee. Under all the circumstances,' the appellee will be allowed to recover the costs of the appeal.

As stated by the chancellor, counsel on both sides have clearly and, with as much conciseness as practicable, presented the issues, and we could do little except adopt their reasoning, which we conceive to be just and plainly warranted by the “marketing agreement, ’ ’ when read and interpreted in connection with the articles of incorporation and the statute under which they were authorized. The result of our views is that the finding of the chancellor was correct, except as to his holding on the reserve fund, as indicated in the opinion.

It follows that the decree will be reversed, and the cause remanded ydth directions to the chancery court to hold the reserve fund to be a continuous permanent fund of the association, as held in this opinion. In all other respects the decree will be affirmed.


author: McCulloch/C. J.

text:
    Reeves v. Saint Louis-San Francisco Railway Company.
    Opinion delivered October 18, 1926.
    1. Appeal and error — direction of verdict — test of sufficiency of evidence. — On appeal from a judgment based on a directed verdict, in testing the legal sufficiency of the evidence, it must be viewed in the light most favorable to appellant.
    2. Railroads — origin- of fire — presumption.—In the absence of direct and positive testimony as to the origin of a fire, which consumed inflammable property situated near a railroad track soon after the passing of a locomotive, the inference may he drawn that the fire originated from sparks from such locomotive.
    3. Railroads — origin of fire — evidence.—Evidence that a pile of lumber situated near a railroad track was discovered to be on fire two or three hours after a train passed, and that it burned so slowly that it lasted for several hours before being consumed, was sufficient, to justify a finding that the fire originated from sparks thrown from a locomotive.
    Appeal from Mississippi Circuit Court, Chicksawba District; W. W. Bandy, Judge;
    reversed.

      J. A. Wathins, for appellant.

      E. T. Miller, E. L. Wesibroolce, Jr., and E. ■L. WestbrooJce, for appellee.
   McCulloch/C. J.

This is an action against the railway company to recover damages arising from the destruction of property by fire communicated by sparks from a locomotive. The property consisted of lumber piled on the right-of-way of the company, placed there by permission of tbe company, to be shipped ont when sold. The fire occurred on December 23, 1921, and, according to the testimony adduced, there was an old loading platform, about thirty feet in length, next to the railroad track, and the' lumber was piled next to this platform. There was dry grass around under the platform, and newspapers and other debris scattered about on the ground. The platform was old and out of repair. It was alleged in the complaint that the fire was communicated to the platform and thence to the lumber, or directly to the lumber, by sparks from a passing engine operated by appellee. The answer contained appropriate denials concerning the origin of the fire, and the issue was tried before a jury, but the court, at the conclusion of the introduction of testimony by appellant, directed a verdict in favor of appellee.

In testing the legal sufficiency of the evidence we must, of course, view it in the light most favorable to the cause of action of appellant. There was, as before stated, testimony to the effect that the grass around the old platform and the newspapers scattered about were dry and inflammable, and there was also testimony to the effect that the platform itself was old and dry and highly inflammable. This was sufficient to warrant the inference that sparks from a locomotive, if of sufficient size and intensity, could communicate fire to the grass or to the platform and thence to the piles of lumber..

The fire occurred at a flag station in Mississippi County, on the east side of the railroad track, and there were several families living in the immediate locality, some of them within one hundred feet of the lumber piles. Most of these residents were introduced as witnesses by appellant, and they testified that the fire vras discovered between two and three o’clock in the morning; that the wind was blowing from the southwest, and that about two-thirds of the platform was consumed by the fire, and that two stacks of lumber had been partly consumed, one of them about half and the other to a considerable extent. These witnesses testified that they fought the fire, bringing water from a near-by pool, and that it continued to burn until after daylight, until the two stacks had been fully consumed. They succeeded in preventing the spread of the fire to the other stack of lumber. Two other witnesses introduced by appellant testified that, on the night of the fire, they passed along the track by the platform and stacks of lumber, between eleven and twelve o’clock, and saw no evidence of smoke or fire anywhere about there. One of the witnesses, who lived near by, and who was aroused by the fire later, testified that a train passed there about twelve o’clock that night. Appellee introduced no testimony, but asked for a peremptory instruction, which was given.

We have steadily adhered to the rule that “in the absence of direct and positive testimony as to the origin of the fire which consumes inflammable property situated near a railroad track soon after the passing of a locomotive, the inference might be drawn that the fire originated from sparks from the passing locomotive.” C. R. I. & P. Ry. Co. v. Natl. Fire Ins. Co., 161 Ark. 218. Other decisions of this court are referred to in the case just cited. But it is insisted by counsel for appellee that none of our cases apply, for the reason that, in the various opinions of the court, it appears that the fire occurred within a very short space of time after the train passed, whereas in the present case the fire was discovered two or three hours after the train passed. This distinction, however, relates more tó the weight of the evidence than to its legal sufficiency. Of course, the time between the passing of the train and the discovery of the fire might be so long that the court could say, as a matter of law, that there was no connection between the two events, but that would depend upon the circumstances of each particular case. In those cases where reference was made to the short length of time, it appeared that the property to which the fire was communicated was highly inflam- ■ mable and the fire was rapid in its progress. Some of the cases were where grass and other dry stuff caught fire from sparks, hence the rapid spread of the fire. In the present case it is shown that, a short time before the train passed, there was no evidence of fire, and that the fire was discovered between two and three hours after the train passed. Fire communicated to the dry grass or paper would, of course, spread very rapidly, but, in the present case, when the fire reached the timbers composing the old platform or the lumber piled in stacks, whether directly from the sparks or from the burning grass or paper, it burned very slowly. That is shown by the fact that, while the fife was discovered burning in two stacks of lumber between two and three'o’clock, it lasted until after daylight before those two stacks were completely consumed. This circumstance leads to the inference that the fire had been burning several hours when it was discovered, and it affords a strong inference, in the absence of próof of other possible causes, that the fire originated from sparks thrown from the engine. At least, under the circumstances of this case, we do not think that the trial court should have taken the case away from the jury, but should have left it to the jury to say whether or not it was fairly inferable that the fire was communicated from the engine.

The court therefore erred in directing a verdict, and the judgment is reversed, and the cause remanded for a new trial.


author: Humphreys, J.

text:
    Miller Rubber Co. v. Blewster-Stephens Service Station.
    Opinion delivered October 18, 1926.
    1. Sales — construction of warranty. — A written warranty of pneumatic tires sold by the maker, warranting the tires for 90 days and stipulating that “no dealer or agent is authorized to make any other or additional guaranty or warranty,” held to be restricted in application to the original users of tires, and not to exclude an implied warranty of merchantability arising on a sale of tires to a dealer.
    2. Sales — breach of warranty — jury question. — In an action on account for tires sold by the manufacturer to a dealer, testimony that 5 per cent, of the tires sold were worthless was sufficient to warrant submission of the issue of merchantableness to-the jury.
    3. Appeal and error — question not raised below. — Contention that the verdict was excessive, not raised on the motion for new trial, is not available on appeal.
    Appeal from Miller Circuit Court; J. H. McCollum,, Judge;
    affirmed.

      John N. Cook, for appellant.

      Burgess, Burgess, Sadler, Chrestman & Brundidge, of Dallas, Texas, of counsel.

      Frank S. Quinn, for appellee.
   Humphreys, J.

This suit was brought by appellant against appellee in the municipal court of Texarkana to recover a balance upon open account showing a balance due of $65.10, after allowing credits of all payments which had been made to it.

Appellees filed a counterclaim in the sum of $127.39 for tires in the lot which were not merchantable and reasonably fit for the purposes intended, basing their claim upon an implied warranty.

Appellant interposed the defense to the counterclaim that it had furnished a written warranty when the tires were shipped, which had not been complied with by appellees, and for that reason it was not liable on the written warranty; and that it was not liable on an implied warranty, because such warranty had been supplanted by the written warranty.

Appellees denied that the written warranty applied to them, claiming that, by .its terms, it applied solely to the original users of the tires.

The cause was appealed to the circuit court of Miller County, where it was submitted upon the issues joined, as detailed above, and testimony adduced responsive to said issues, which resulted in a verdict and judgment in favor of appellees on their counterclaim in the sum of $32.20, from which is this appeal.

The main contention of appellant for a reversal of the judgment is that the court submitted to the jury the question of its liability on an implied warranty which had been supplanted by an express warranty. This must depend upon a correct construction of the written warranty accompanying the shipment of tires. The undisputed testimony disclosed that appellant was the manufacturer of tires, and that appellees were dealers to whom they sold them. The written warranty is as follows :

“The Miller Rubber Co. of New York,
“Dallas, Texas, April 30, 1924.
“New 90 Day Warranty.
“To Dealers:
“All agreements are contingent upon strikes, fires or any other causes beyond our control. All prices subject to change without notice.
“Effective May 1, 1924, we have adopted the new 90-day warranty approved of and accepted by the tire manufacturers’ division of the Rubber Association of America, Inc., as follows:
“We do not guarantee pneumatic tires for any specified mileage. Every pneumatic tire bearing our name and serial. number is warranted by us against defects in material or workmanship developing within 90 days from date of first road wear.
“No claims hereunder will be entertained unless the tire claimed to be defective'is presented within the said 90-day period, all transportation charges prepaid, and accompanied by this company’s claim form duly filled out, certified, and personally signed by the user of the tire.
“If, upon examination of the tire so presented, it is our judgment that the direct cause of its failure is attributable to defective material or workmanship, we will, at our option, either repair the tire or make a reasonable allowance on the purchase of a new tire.
“Pneumatic tires in which a substitute for air has been used, tires used when not inflated to the pressure recommended by us, used on wheels out of alignment, abused or misused, used on rims other than those hearing these stamps (), (), (), or which have been injured through accident-or design, are not subject to claim hereunder.
“This company’s warranty is given solely to the original user and only to. the extent above expressed. No dealer or agent is authorized to make any other or additional ‘guaranty’ or ‘warranty.’ ”

We think the last clause in. the written warranty restricts its application to the original users of the tires. The language is plain and unambiguous.

It is in no sense a contract between appellant and appellees, and it was not intended to supplant the implied warranty arising between them when. it sold them tires. The learned attorney for appellant frankly admits that the express warranty was to the original users, but claims that the express warranty to the users amounts to a written refusal to make any warranty, either express or implied, to the dealer. There is no express refusal in the written warranty to protect the dealer against unmerchantable and reasonably unfit tires for the purposes for which intended, and no language therein from which a refusal to extend such protection may be inferred. According to our construction of the contract, the cause was submitted to the .jury upon the correct theory.

• The '-undisputed testimony revealed that about 5 per cent, of the tires are worthless and unmerchantable. This is a sufficient proportion of the whole number to ■warrant the submission of the issue of unmerchantableness of the tires to the jury for determination, so that issue was properly submitted to the jury.

Another contention of appellant for a reversal of the judgment is that the verdict is excessive. As we understand the record, no such contention was made in the trial court nor raised in the motion for a new trial, hence is not available here. Citizens’ Fire Ins. Co. v. Lord, 100 Ark. 212, 139 S. W. 1114.

No error appearing, the judgment is affirmed.


text:
    Miller v. Gordon.
    Opinion delivered July 5, 1926.
    1. Replevin — form op judgment. — The proper practice in actions of replevin is to render judgment for money, or, in the alternative, for the return of the property, unless it appears that the property cannot be returned.
    2. Appeal and error — presumption in favor of judgment. — Where an unconditional money judgment in a replevin suit was rendered, it will be presumed on appeal- that the property could not be returned.
    Appeal from Ouachita Circuit Court; L. 8. Britt, Judge;
    affirmed.

      O. W. Matthews, for appellant.

      W. K. Oldham., Jr., for appellee.
   Humphreys, J.

One opinion will suffice in the two cases, as the same question is involved in both. They are replevin suits, No. 9247 being to recover a Wilbourne wagon 2 3-4, of the value of $115, which appellee sold to Alex Miller and Rice Miller and retained title therein until the purchase money was paid; and No. 9248 being to recover a bay horse mule, a bay mare mule and two cows and calves of the value of $193, which were embraced in a chattel mortgage executed by Francis Miller to appellee. When the writs of replevin were served, each appellant, in brder to retain the property, gave a bond signed by each with the other appellants as sureties, which bonds are as follows:

“We undertake and are bound to the plaintiff, George R. Gordon, in the sum of two hundred thirty ($230) dollars, that the defendants, Ales Miller and Rice Miller, shall perforin the judgment of the court in the above entitled case.
“Dated this 27th day of *May, 1924.”
“We undertake and are bound to the plaintiff, George R. Gordon, in the sum of four hundred dollars ($400), that the defendant, Francis Miller, shall perform the judgment of the court in the above entitled cause.
“Dated this the 27th day of May, 1924.”

Default judgments were rendered against the appellants and their bondsmen in the cases in the court of the justice of the peace where the suits were brought, from which appeals were prosecuted to the circuit court. When the cases were called for .trial in the circuit court, appellants failed to appear, whereupon default judgments were again rendered against appellants and their bondsmen for the value of the property involved in each suit, from which appeals have been duly prosecuted to this court.

The respective appellants contend for a reversal of the judgments against them upon the alleged ground that the trial court erred in rendering unconditional money judgments against them, whereas he should have rendered judgments in the alternative for the return of the property or its value. It is usual and proper in replevin suits to render judgments in the alternative for the return of the property unless it appears, for some reason, that the property cannot be returned. In that case it is proper to render an absolute money judgment for the value of the property. Cathey v. Brown, 70 Ark. 348, 68 S. W. 31. We must presume that the testimony in these cases disclosed some good reason why the property could not be returned, and that the absolute money judgments were rendered ag*ainst the appellants on that account. This presumption will be indulged whSre default .judgments were rendered and where the contrary is not made to appear, for every presumption must be indulged in favor of the validity of the judgments.

No error appearing, the. judgments are affirmed.