author: Hart, J.,

text:
    Eades v. Morrilton Lumber Company.
    Opinion delivered November 8, 1926.
    1. Acknowledgment — impeachment—burden of proof. — In a suit to foreclose a mortgage, one-who attacks an officer’s certificate of acknowledgment has the burden of proving that the mortgage was not acknowledged.
    2. Acknowledgment — -impeachment—conclusiveness of finding. —-A finding that an acknowledgment of a mortgage was duly-taken held not against the preponderance of evidence.
    3. Mortgages — burden of proving coercion. — In a suit to foreclose a mortgage, the burden of proof is on a defendant claiming that she signed the mortgage through coercion.
    4. Mortgages — duress—evidence.-—In a suit to foreclose a mortgage, the claim of defendant’s wife that .she was coerced into signing a mortgage of the homestead held not supported by preponderance of the evidence.
    5. Acknowledgment — disqualification of officer. — An acknowledgment of a mortgage taken by a notary who was stockholder and director of the mortgagee corporation is not invalid by reason of that fact.

      6. Mortgages — record.—When a mortgage with a certificate of acknowledgment, as required by the statute, is presented to the recorder, it is his duty to record it, and such record is notice to subsequent mortgagees.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    The Morrilton Lumber Company brought this suit against J. A. Eades and Almedier Eades, his wife, to obtain judgment upon a promissory note and to foreclose a mortgage given to secure the same.
    The suit was defended upon the ground thatAlmedier Eades signed the mortgage through coercion on the part of her husband, and that neither her -husband nor herself acknowledged the mortgage, and that they gave a subsequent mortgage to W. M. Eades on the same property to secure an indebtedness which they owed him. W. M. Eades filed a separate answer, in which he claimed to have a prior lien on the property sought to be foreclosed in the action.
    A. C. Neal, manager of the Morrilton Lumber Company, was a witness for it. According to his testimony, the Morrilton Lumber Company furnished materials to J. A, Eades for the purpose of building a home on a two-acre tract of land near Morrilton, Conway County, Arkansas. J. A. Eades failed to pay it for the materials, and it caused a lien under the statute to be filed on said land. Neal made an agreement with Eades to carry the account with intere'st at the rate of ten per cent, per annum until the fifteen months provided by the statute within which the lumber company might enforce its lien had nearly expired. When the time for enforcing the statutory lien for the materials furnished had nearly expired, Neal informed Eades that he would have to execute a mortgage on the land for the payment of-the amount due, or the lumber company would foreclose its statutory lien for the materials. Eades then executed a note to the Morrilton Lumber Company for $688.41, with interest at the rate of ten per cent, per annum from date until paid, and executed the mortgage sought to be foreclosed in this action.
    On the day the mortgage was executed, Neal and M. H. Dean went to the home of J. A. Eades, and Eades and his wife signed the note and mortgage at a table or desk in a room of their home, near the front porch. Mr. Dean and Mrs. Sue Stamper, an aunt of Mrs. Eades, were on the front porch at the time the note and mortgage were- signed. After J. A. Eades and his wife had signed the note and mortgage, Mr. Eades and Neal walked out on the porch, and Neal handed Mr. Dean the mortgage. Eades and Neal stepped off the porch and walked around the house. After being gone five or six minutes, they returned, and Neal and Dean left, and took the mortgage with them. Dean filled out the acknowledgment to the mortgage as a notary public, and it was then duly filed for record.
    According to the testimony of M. H. Dean, he was on the porch, and saw J. A. Eades and his wife sign the note and mortgage. After Eades and his wife had signed the note and mortgage, Neal handed them to Dean, and all the parties went out on the front porch. Dean first took the acknowledgment of J. A. Eades, Neal and J. A. Eades then walked around the house, and were gone several minutes. While they were out of the presence of Mrs. Eades, Dean took her acknowledgment to the mortgage. She seemed to be in a pleasant frame of mind, and there was nothing to indicate to Dean that she had signed the same on account of the coercion of her husband.
    On cross-examination, Dean admitted that Mrs. Sue Stamper was on the porch when he took the acknowledgment of the parties to the mortgage, and also that, at the time, he was a stockholder and a member of the board of directors of the Morrilton Lumber Company. Both Dean and Neal admitted that Eades objected to a clause in the mortgage providing for a waiver of his right of redemption as shown in the written mortgage, and that this clause was stricken from the mortgage before it was signed. The original mortgage shows that the redemption clause was stricken from it. The record of the mortgage shows that the redemption clause was in the mortgage as' recorded. This was explained by the recorder as being due to the fact that the record contained a printed form of mortgage similar to the one in question, and that the officer who recorded the mortgage failed to mark out the redemption clause as shown on the printed form of the record.
    J. A. Eades was a witness for himself. According to his testimony, Neal demanded that they sign a mortgage to secure the amount due the Mo rrilton Lumber Company, on the 10th day of June, 1922, and threatened to foreclose the statutory lien, of said company for materials if a note for the amount and a mortgage to secure the same were not signed on that day. Eades went home and told his wife that she had to sign the note and mortgage that day, in order to prevent the Morrilton Lumber Company from foreclosing its lien for materials on their home. His wife seemed to get in a flurry about it, and said she would not do any such thing. Eades told her that it had to be done that evening. He used no bad language to his wife, hut simply told her that she must sign the mortgage. His demand amounted to a threat, and his wife knew that, if she did not sign the mortgage, something else might happen. Since the execution of the mortgage, Eades has paid $200 on the amount due on January 13, 1923, and $67.40 on January 3, 1924. According to his testimony, neither Eades nor his wife acknowledged the mortgage. Eades saw Dean there with Neal, but did not know that he was a notary public or that he came to take their acknowledgments to the mortgage.
    According to the testimony of Mrs. Eades, Dean stopped out in the front yard, and she and her husband signed the note and mortgage in the front room. Dean did not come in the house at all, and did not take her acknowledgment to the mortgage. Her husband and A. C. Neal were in the room when she signed the mortgage. Elie did not sign it of her own free will. She-heard her husband tell Neal that he would not sign the mortgage unless the waiver clause was stricken out, and this was done. 'Her husband had demanded that she sign the mortgage, and she did not sign it of her own free will and accord. We quote from her cross-examination the following:
    “Q. I will ask you, Mrs. Eades, if you will say Mr. Eades demanded and caused you to do things against your will other than, as you say, in the execution of this mortgage and note? A. No sir. He demanded and forced me to sign this. He said they were going to close us out, and we had to sign to keep from being closed out. That was all the demand that he made. That if we didn’t sign it they would close us ■ out. Have not read the answer to the complaint that was filed. Q. When was it that Mr. Eades made this statement to you? A. The day you folks came out there. Q. In whose presence did he make this statement? A. My aunt and myself and him, the only ones present.”
    Again, she was asked if her husband was angry or attempted to use any force, and she replied that her husband said that they would have to sign the mortgage to keep from being put out of their home, but never used any bad Words to her.
    Mrs. Sue Stamper was also a witness for the defendants. According to her testimony, Dean was in the yard and she was on the front porch when J. A. Eades and his wife signed the mortgage in the front room of their home. She could see all the parties during the whole time that Neal and Dean were there, and knows that Dean never took the acknowledgment of either of them to the mortgage.
    Other facts will be stated or referred to in the opinion.
    The chancellor found- the issues in favor of the plaintiff, and a decree of foreclosure was entered of record. To reverse that decree, the defendants have duly prosecuted this appeal.

      J. A. Fades and J. F. Koone, for appellant.

      M. H. Dean, for appellee.
   Hart, J.,

(after stating tile facts). Counsel for the defendants contend that the chancery court erred in finding that M. H. Dean took the acknowledgment of J. A. Eades and Mrs. Almedier Eades, his wife, to the mortgage. The burden of proof was on the defendants to establish this fact. Miles v. Jerry, 158 Ark. 314, 250 S. W. 34; Foster v. Graves, 168 Ark. 1033, 275 S. W. 653; Thompson v. Kinard, 158 Ark. 1057, 272 S. W. 1057; and Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 1024. Bearing in mind that the burden of proof in this resp'ect was upon the defendants, we do not think that the finding of the chancellor in favor of the plaintiff upon this point is against the preponderance of the evidence. It is true that J. A. Eades and his wife, and their aunt,' Mrs. Stamper, all testified that their acknowledgment to the mortgage was not taken by Dean. Eades says that he simply supposed he came as an attorney-at-law for Neal. It appears from the record that Eades is a lawyer. At least he knew that the plaintiff had a lien for material under the statute, which was enforceable. It is difficult to perceive why the plaintiff would let this statutory security expire by limitation, and take a mortgage which would be valueless, as far as third persons were concerned, without acknowledging or recording it.

According to the testimony of the defendants, Dean never attempted to take their acknowledgment to the mortgage. He was a lawyer, and it is difficult to perceive why he would not at least have asked them to acknowledge the execution of the mortgage. Eades admitted that he signed it of his own free will, and infer-ably admits that he would have acknowledged it if he had been asked to do so. After the execution of the mortgage, he made two payments on it.

Dean testified in a most forceful manner that he took the acknowledgment of J. A. Eades and his wife. He said that, after Eades and his wife had signed the mortgage, Neal handed it to him on the front porch, and he at once took the acknowledgment of Eades. Eades and Neal then walked off of the porch around the corner of the house, and, while they were absent, Dean took the acknowledgment of Mrs. Eades, and she seemed to sign the mortgage without any compulsion or restraint whatever. She seemed to be in a perfectly good humor, and seemed to have no objection to having her acknowledgment to the mortgage taken.

It is true that Neal was'not present when Dean says that he took the acknowledgment of Mrs. Eades to the mortgage, but, according to his testimony, he and Eades had gone around the house for the purpose of allowing Dean to take the acknowledgment of Mrs. Eades in the absence of her husband.

According to the testimony of M. H. Dean, he had had considerable experience as a notary public, and was also a lawyer of several years standing. It would be unreasonable to think that he would have allowed his company to have given up a perfectly valid statutory security, good against every one, for a mortgage that would only be good between the parties to it.

Again, it is insisted that Mrs. Eades was induced to sign the mortgage through the coercion of her husband. Under the authorities above cited, the burden of proof in this respect was also upon her. It is true that both she and her husband testified that she signed the mortgage through coercion; but, when their testimony is considered in its entirety, we are of the opinion that it is not legally sufficient to establish this fact. Mrs. Eades admitted that her husband used no bad language to her, and that he simply told her that she would have to sign the mortgage or else the statutory lien of the plaintiff for materials would be foreclosed and they would be thereby deprived of their home. As above indicated, this testimony falls short of establishing coercion.

Finally, it is insisted that the mortgage is invalid as to W. M. Eades because M. H. Dean, who took the acknowledgment of J. A. Fades and .his wife to the mortgage, was a stockholder and director of the Morrilton Lumber Company. This court has held that the taking of an acknowledgment to a deed or mortgage is an act ministerial in character, and that, where it does not appear from the face of the instrument or the certificate of acknowledgment that the officer before whom the acknowledgment was taken was a stockholder in a corporation, the acknowledgment will not be held invalid on that account. Davis v. Hale, 114 Ark. 426, 170 S. W. 99. In addition, there must be shown fraud, coercion, or undue influence, as decided in the case just cited.

When a deed or mortgage with a certificate of acknowledgment as required by statute is presented to the recorder, it is his duty to record it, and such record is constructive notice to subsequent mortgagees. Any other rule would destroy the reliability of the public records and lead to most mischievous results. Bank of Benson v. Hove, 45 Minn. 40, 47 N. W. 449; and Titus v. Johnson, 50 Tex. 224.

It follows that the decree of the chancellor must be affirmed.


source: Caselaw Access Project

author: Hart,. J.,

license: Public Domain

text:
    J. B. Colt Company v. Mitcham.
    Opinion delivered November 8, 1926.
    1. Patents — regulation by state. — Const, of U. S., art. 1, § 8, giving Congress power to promote the. progress of science and useful arts, held not to deprive the States of the right, under their police power, to regulate the form and prescribe the effect of negotiable instruments given for patented articles.
    2. Constitutional law — validity op statute — unlawful discrimination. — Crawford & Moses’ Dig., § 7956, making notes given in payment of patented articles or rights void unless they show their consideration on their face, held not invalid as discriminatory, in view of § 7959, excepting merchants and dealers who sell patented things in the usual course of business.
    3. Commerce — regulation op sale of patented articles. — Crawford & Moses’ Dig., § 7956, prescribing the form of a note to be given for patented articles, held not an unlawful interference with interstate commerce, in contravention of art. 1, § 8, of Const, of U. S.

      4. Bills and notes — consideration—form of note. — Á note given for a patented article, not executed in the form prescribed by Crawford & Moses’ Dig. § 7956, is void.
    5. Commerce — patents.—A State law which discriminates against goods outside the State, either in respect to the commerce clause or the patent clause of the Constitution of the United States, is unconstitutional.
    6. Bills and notes — patented article — effect of note. — A note for a patented article which is void because not executed in the ■form prescribed by Crawford & Moses’ Dig., § 7956, may be used in the evidence in arriving at the terms of the contract.
    7. Bills and notes — patented article — effect of statute. — Crawford & Moses’ Dig., § 7956, prescribing the form of a note for patented articles, limits the seller’s right of recovery to the terms of the contract, and makes available to the purchaser any ■breach thereof.
    Appeal from Union Circuit Court; L. S. Britt, Judge;
    affirmed.
    STATEMENT OF FACTS.
    J. B. Colt Company sued L. D. Mitcham in the circuit court to recover $234.10, alleged to be clue on a promissory note. The suit was defended on the ground that the note sued on was given for a patented carbide generator and appliances without showing upon its face that it was executed in consideration of a patented article, as required by statute.
    The record shows that J. B. Colt Company is a foreign corporation, and that L. D. Mitcham is a resident of the State of Arkansas. L. D. Mitcham executed a written order, addressed to J. B. Colt Company at its New York City office, for one carbide generator and appliances. The written order was transmitted by a traveling salesman to the office of the J. B. Colt Company in New York City, and there accepted in writing by it. The article specified in the order Avas shipped by the company from NeAV York City to L. D. Mitcham in Union County, Arkansas, and the latter executed his note for $234.10 in payment therefor. The note Avas not executed on a printed form, and did not show on its face that it was executed in consideration of a patented article.

      The circuit court, sitting as a jury, found that the note sued on was void, and that the plaintiff was not entitled to recover thereon. From the judgment rendered, the plaintiff has duly prosecuted an appeal to this court.

      Stewart & Oliver, J. M. Shackleford, Jean & Jones and Wilfred G. Boszel, for appellant.

      S. E. Gilliam, for appellee.
   Hart,. J.,

(after stating the facts). The validity of § 7956 of Crawford & Moses’ Digest is the only_question raised on appeal.

It is conceded that the constitutionality of the' act has been sustained in the following cases decided by the Supreme Court of this State and of the United States: Tilson v. Gatling, 60 Ark. 114, 29 S. W. 35; Wyatt v. Wallace, 67 Ark. 576, 55 S. W. 1105; Wood v. Carl, 75 Ark. 328, 87 S. W. 621, and 203 U. S. 358; Ozan Lumber Co. v. Union County National Bank, 207 U. S. 251; Columbia County Bank v. Emerson, 86 Ark. 155, 110 S. W. 214; Ensign v. Coffelt, 102 Ark. 568, 145 S. W. 231; Jonesboro Trust Co. v. Nutt, 118 Ark. 368, 176 S. W. 322; and Alley v. Riley, 203 U. S. 347.

It is also conceded that, in the case last cited and in Patterson v. Kentucky, 97 U. S. 501, it was expressly decided that art. 1,'§ 8, of the Constitution of the United States, giving to Congress the power to promote the progress of science and-useful arts, does not deprive the States of the right, under their police power, to regulate the form and prescribe the effect of negotiable instruments given for patented articles. The decision in the case of Woods v. Carl, 203 U. S. 358, was also based upon the same construction of this provision of our Constitution by the Supreme Court of the United States. In Columbia County Bank v. Emerson, 86 Ark. 155, 110 S. W. 214, it was held that the exception contained in the act, applicable to merchants and dealers who sell patented things in the usual course of business, contained in § 7959, does not render the act invalid as being an unlawful discrimination; and the ease of Ozan Lumber Co. v. Union County National Bank, 207 U. S. 251, was cited in support of the decision.

Counsel for the plaintiff, however, rely for reversal of the judgment- upon art. 1, § 8, of the Constitution of the United States, which provides that Congress shall have power to regulate commerce among the several States, and they contend that this court and the Supreme Court of the XJnited States have left open this question because it was unnecessary to a decision of the contentions made in any of the cases heretofore decided.

We do not agree with counsel in this contention. . In the ease of Tilson v. Gatling, 60 Ark. 114, 29 S. W. 35, the court used this language: ‘ ‘ That such an act does not violate § 8, art. 1, of the. Constitution of the XJnited States, giving to Congress the power ‘to regulate commerce with foreign nations, and among the several States,’ etc., and to ‘promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries,’ we think is settled by the better reason, and the weight of authority.”

In Wyatt v. Wallace, 67 Ark. 575, 55 S. W. 1105, the court had under consideration the act in question, and expressly held that a note given by a citizen of this State for an interest in a patent right, which does not show upon its face that it was given therefor, is void. It is true that the case contains no discussion of whether the act in question is in contravention of the interstate commerce clause of the United States Constitution just referred to, but it is of some importance that the same judge wrote the decision in this case as delivered the opinion in Tilson v. Gatling, supra.

Again, in the case of Woods v. Carl, 75 Ark. 328, 87 S. W. 621, the court had the statute in question under consideration, and referred to the case of Tilson v. Gatling, 60 Ark. 114, 29 S. W. 35, as holding that the statute did not invade the power of Congress to promote the progress of science and useful arts by securing to inventors the exclusive right to their discoveries.

Continuing, the court said: “It is difficult to perceive any distinction between the validity of the two statutes in that regard; for, if the Legislature had the rightful power to pass one of the statutes, it had also the power to pass the other. If the jurisdiction of Congress over the subject of patents and patent rights is so extensive as to exclude the power of a State to declare void, unless made in certain form, written obligations given in consideration' of sales of patent rights, or patented articles, then it also follows that the State is powerless to alter the established rules of the law merchant so as to permit defenses, not applicable to other negotiable paper, to be made to such paper given in consideration of sales of patent rights or patented articles.”

Following this discussion, the court said: “In Wyatt v. Wallace, 67 Ark. 575, the, precise question was presented there as presented here, and the court held that there could be no recovery upon the note sued on.”

This court is committed to the doctrine that the main purpose of the act was to enable the maker of a negotiable instrument, given for patent rights or patented articles, to make the same defense thereto against any holder thereof that could be made against the original holder or party to whom it was given. Roth v. Merchants’ & Planters’ Bank, 70 Ark. 200, 66 S. W. 918; Warmack v. Askew, 97 Ark. 19, 132 S. W. 1013; and Brenard Mfg. Co. v. McRee’s Model Pharmacy, 287 S. W. 187. Hence it is held in these cases that the failure to comply with the statute does not affect the validity of the sale, but renders only the note absolutely void.

It has been held further that, though the note may be void, the vendor may recover whatever may be due him on the contract of sale from the vendee. In the case of Roth v. Merchants’ Planters’ Bank, 70 Ark. 200, 66 S. W. 918, to support the principle of law controlling the decision, the case of Iron Mountain & Helena Railroad v. Stansell, 43 Ark. 275, and other cases of like character, are cited. In the Stansell case it was held that, in an action for money due on a contract, change tickets issued by the defendant in violation of the statute and delivered in payment of the debt, though illegal, may be used as evidence of the amount due on the contract. The court said that they were a written confession that the maker had received the value expressed in them.

In Todd v. Wick Brothers & Co., 36 Ohio St. 370, one of the cases cited with approval in Woods v. Carl, 75 Ark. 320, 875 S. W. 621, it is said:

“The right to regulate the form and prescribe the effect of paper taken in commercial transactions has always been regarded as belonging to the State, and such right has been exercised in -this State during the whole period of its existence.”

Hence it was held that the act under consideration in that case was not in conflict with § 8 of the first article of the Constitution of the United States nor with the act of Congress enacted in pursuance thereof, relating to the granting of letters patent.

It is well settled by the decisions cited above and numerous other cases of like character that a state of law which discriminates against goods outside the State, 'either in respect to the commerce clause or the patent clause contained in § 8, art. 1, of the Constitution of the United States, is unconstitutional. We do not understand, however, that the Supreme Court of the United States has gone to the extent claimed by counsel for plaintiff, or has denied the power of the State to prescribe a form for notes given for patent rights or patented articles where such act does not directly affect interstate commerce.

As we have already seen, the effect of our former decisions is to hold that the State, by the passage of the act under consideration in the case at bar, has gone no further than to prescribe the form of notes given for patent rights and patented articles. The act is general-in its application, and has not in any wise attempted to discriminate against goods manufactured and sold by owners residing in other States to persons in this State. The validity of contracts of sales of such goods has been expressly upheld by this court in sustaining the constitutionality of the statute. Under our decisions, while no recovery can be had upon the note unless it is in the prescribed forms, still the note is capable of being used in evidence in arriving at the terms of the contract.

After all, the practical effect of our former decisions in construing the statute is to limit the right of recovery to the terms of the contract, and to give the purchaser of the patent right or patent article the right to avail himself of any defense he may have to the action. In the absence of such a statute, the purchaser would have that right against the owner of such goods, whether sold to him from within or without the State. So, too, in the absence of such a statute, only an innocent purchaser for value of the note before maturity would be afforded any protection against fraud in the procurement of the note or other infirmities attached to it, such as that the patent was void as not being novel and useful. In short, an innocent purchaser for value, of the note will stand in the shoes of his vendor.

The result of our views in that, we adhere to our former decisions in the interpretation of the statute, and hold that its enactment was a valid exercise of the police power, and that interstate commerce is only incidentally and remotely affected by it. It follows that the judgment will be affirmed.


author: Smith, J.

text:
    Pope v. State.
    Opinion delivered November 8, 1926.
    1. Homicide — murder in second degree — evidence.—Evidence held sufficient to sustain conviction of murder in the second degree for cutting and stabbing deceased with a knife.
    2. Homicide — jury question. — Conflicts in the testimony as to whether defendant or deceased was the assailant held for the jury.
    3. Criminal law — incompetent evidence — harmless error. — An incompetent answer 'by a witness in a prosecution for murder, not responsive to the question asked, held not prejudicial where it ■ was excluded on objection by defendant.
    4. Homicide — general reputation. — A witness testifying that the general reputation of deceased was both good and bad cannot be questioned as to the details of the life of deceased having no relation to the killing, and an inquiry as to whether deceased^ reputation was good among wealthy planters and bad among the poorer classes was properly excluded.
    5. Criminal law — conduct op counsel — -action op court.- — Where the prosecuting attorney interrupted a. witness who was being examined by defendant’s counsel -by directing him to tell what he knew and -not what he believed, an instruction not to consider such remark cured any error.
    6. Witnesses — impeachment op accused on cross-examination.— . In, a prosecution for murder, cross-examination of defendant as to whether he had not cut other, men, and one man in particular, which defendant admitted, was proper to test his credibility as a witness.
    7. Homicide — self-defense—instruction.—In a prosecution for murder it was proper to instruct the jury that, if defendant armed himself with intent to kill deceased, and brought on a difficulty, the defendant could not invoke the law of self-defense, unless he abandoned or attempted to abandon the difficulty before striking the fatal blow.
    8. Criminal law — modification of instruction is to self-defense. ■ —A. requested instruction on self-defense was properly modified by striking out as argumentative the -statement that “in a contest betwen a powerful individual and a weaker, the necessity of taking life in self-defense will be more apparent and easily discovered.”
    Appeal from Clark Circuit Court; J. II. McCollum, Judge;
    affirmed.

      McMillan & McMillan, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Smith, J.

Appellant was convicted of the crime of murder in the second degree, under an indictment charging him with the crime of murder in the first degree, alleged to have been committed by cutting and stabbing one Newt Nelson with a knife.

One of the errors assigned for the reversal of the judgment is that the testimony is insufficient to support' a conviction for murder in any degree. This assignment of error may be answered by giving the version of the killing which Charles Anderson detailed to the jury. According to this witness, he and deceased were covering a house, when appellant walked up to where they were working, but said nothing’. A stepson of the witness asked appellant if there was anything he wanted, when appellant said he wanted nothing, and walked away. Appellant went to town, and, in about half-an-hour, returned, and called to deceased, and stated that he had received a letter which he wanted deceased to read to him. Deceased climbed down from the house and proceeded to read the letter, which had been written to appellant by Bill Meador, who owned the farm on which both appellant and deceased lived. The landlord resided in another county. This letter stated that the writer had been advised that appellant, who was a sharecropper, had not fairly divided the corn grown by him when he gathered it, and, when this letter was read, appellant accused deceased of writing the letter to their landlord which had advised that appellant had not fairly, divided the corn. Deceased denied writing to Mr. Meador, but appellant persisted in asserting that deceased had done so, when deceased said, “No sir, I will swear that I did not write the letter.” As deceased made this remark appellant drew and opened his knife, and, when witness saw this, he yelled, “Run, Uncle Newt, Mr. Pope’s going to cut you,” and he saw Pope strike deceased in the back, and deceased ran, and was soon out of the range of witness ’ vision. When witness saw that appellant was about to assault deceased, he commenced climbing down from the roof of the house where he was working, but, before he could reach the parties, the ‘‘fight,” as he called it, was over, and deceased was staggering- down the hill from the house and appellant was walking rapidly away.

Surgeons who attended deceased testified that there were ten wounds on the body. One was across the right wrist, there was a cut in the thigh, one in the right side over the kidney, there were stab wounds in the breast, and on the stomach, and the remainder of the wounds Avere in the back.

It was- shown that appellant purchased, on the day of the difficulty, the knife with which deceased was killed. There was also testimony to the effect that there was bad blood between the men, and each had made threats-against the other.

We think this testimony sufficient to support the ve]v dict returned by the jury.

The testimony on the part of appellant was to the effect that he was assaulted by deceased, and that he attempted to retire from the difficulty, and that he finally cut deceased in his necessary self-defense. But these conflicts in the testimony were, of course, questions for the jury.

It is assigned as error that the court permitted \vitnes-s Dickey to make erroneous and prejudicial statements in the presence of the jury. This witness was a white man, and so is appellant, while deceased was a colored man. This witness testified that appellant had made threats ■ of violence against deceased. He also testified that deceased was a quiet and peaceful man. The witness was cross-examined at length concerning the sources of the information upon which his opinion that deceased’s reputation was good was based. He was interrogated concerning the statement which he had made to the effect that he would not believe anything bad about deceased if a dozen witnesses testified to that effect, and he was interrogated concerning the time and place when and where he had heard appellant make threats against deceased, and the witness answered that “The day before Newt was killed he came to my house— his mailbox is in front of my house, and I saw him coming up to the mailbox, and it was raining, and the mail rider happened to come along’, and I called him and told him to come in, I wanted to see him, and I told him about the threats Ed had made. I says ‘Watch that man; I know that man,’ and I says ‘He’ll grab you some day and cut you all to pieces.’ ’’ Counsel for appellant objected to this answer, and stated that he had not asked the witness to relate the conversation between himself and deceased. The court inquired, “What did you ask him?” Counsel for appellant answered, “I asked him where it was he had the conversation with Ed Pope.” The court then directed the witness to answer that question, and the witness replied, “I told him, Judge, as near as I can, where.” Counsel then said: “I want to ask that this statement of the conversation with Newt be excluded,” and the court replied: “Very well. It will be excluded.” It is insisted■ that the statement of the witness, set out above, was voluntary, was not responsive to the question asked, and was highly prejudicial, and that the prejudice of the remark was not cured by the ruling of the court.

It is true, of course, that it was incompetent for the witness to detail his conversation with deceased and the advice he gave him about watching appellant, but the witness was being closely cross-examined touching threats which he had testified were made by appellant and with the obvious purpose of discrediting the witness. The question asked by the court indicated that the court was not clear as to the scope of the question, and the answer given by the witness, after the question was explained to the court by counsel, indicated that the witness thought he had answered the question asked. This answer was, of course, broader than the question, and included the incompetent conversation between witness and deceased, but the entire answer was excluded, upon motion of counsel for appellant that this be done. We hold therefore that, while the testimony was incompetent, the prejudice was removed by its exclusion. Mo. Pac. Rd. Co. v. Keller, 168 Ark. 626, 271 S. W. 7; Hale v. State, 146 Ark. 580, 226 S. W. 527.

Appellant called one Dave Anderson to testify concerning the general reputation of deceased.' This witness testified that he knew the reputation of deceased for being a quarrelsome and arbitrary man, and that his reputation was both good and bad. He testified that lie had heard some people say it was bad, while others said it was good. The witness was then asked if the people who said deceased’s reputation was good were not the wealthy planters. An objection to-this question was sustained, and this ruling is assigned as error.

It is the insistence of appellant that the showing could have been made, had the court permitted it to be done, that deceased had a dual reputation, that among well-to-do persons and persons of influence deceased was polite and obsequious, while his attitude towards white people of the poorer class and towards colored people was overbearing’ and offensive.

We think no error was committed in the ruling made. The court permitted the introduction of testimony tending to show the general reputation of the deceased, and it is this which may be shown. Many circumstances may, collectively, make up this reputation, but it is the sum total of them all, or the general reputation, which may be shown. It was not. proper therefore to inquire into the details of the life of deceased having no relation to the encounter which caused his death, and the inquiry was therefore properly confined to the general reputation of the deceased.

At § 222 of the chapter on “Homicide,” in 13 R. C. L., page 919, it is said: “Where character evidence is offered in support of the'contention that the deceased was the aggressor, or to characterize and explain his acts, the defense is restricted to proof of general reputation in the community where the deceased lived, and may not show particular acts or conduct at specified times.' It may not be shown that the deceased had engaged in frequent fights in which he used deadly weapons, and therewith made deadly assaults on his antagonists. But, on the issue whether or not the accused had reasonable ground to believe himself in imminent danger, he may show his knowledge of specific instances of violence- on the part of the deceased. But in no case may a witness state his opinion of the character of the deceased or how the latter would have acted under any particular set of circumstances.”

It is insisted that prejudicial error was committed by the prosecuting attorney in lecturing A. E. Jackson, one of the eye-witnesses to the encounter, who was called as a witness for appellant. Counsel for appellant asked this witness the following question: “When they quit (fighting), what was done by either or both of them?” The witness answered: “Well, when they quit, Mr. Pope ran across the track, and I believe the negro threw at him, maybe — ” The prosecuting attorney interrupted the witness with the remark, “Wait a minute. We want you to tell what you know about him, not what you believe.” Counsel for appellant objected to the interruption of the witness and to the lecturing of the.witness by the prosecuting attorney, and asked that the statement of the prosecuting attorney be excluded from the record and the jury told it was improper. The court responded to this request of counsel by saying, “I will tell the jury they will not consider the statement of the prosecuting attorney made to the witness.” We think this ruling cured the error, if any there was, in the remark of the prosecuting attorney.

On the cross-examination of appellant he was asked if he had not cut other men, and particularly if he had not stabbed a man named Crow, and the witness answered that he had. Exceptions were saved to these questions and answers. There was no error in this ruling. Such testimony, was held competent in the recent case of Whittaker v. State, 171 Ark. 762, it being there held that it is within the discretion of the trial court to permit, within reasonable limits, an inquiry, on cross-examination, into the character and antecedents of the defendant for the purpose of testing his credibility as a witness, when the examination is limited to such antecedents as throw light on the credibility of the witness.

The court gave, over appellant’s objection, an instruction numbered 11, which reads as follows: “If you believe from the evidence in this case, beyond a reasonable doubt, that the defendant, armed with a deadly weapon, sought the deceased with the felonious intent to kill him, or sought or brought on, or voluntarily entered into, the difficulty with the deceased, with the felonious intent to take his life, then the defendant cannot invoke the law of self-defense, no matter how imminent the peril in which he found himself placed, unless the defendant abandoned or attempted to abandon the difficulty before the fatal blow was struck.”

It is objected that this instruction assumed that defendant armed himself with a knife, and that the knife was a deadly weapon, and tells the jury, after so assuming, that appellant could not invoke the law of self-defense unless he abandoned or attempted to abandon the difficulty before the fatal blow was struck.

We do not think the instruction open to the objection made to it. On the contrary, the instruction submitted the question to the jury whether appellant had armed himself with a deadly weapon .and had sought out deceased with the previous intent to kill him, or had brought on or had voluntarily entered into the difficulty, and the testimony on the part of the State warranted the submission of these questions. Having submitted these questions, the instruction told the jury that, if there was an affirmative finding, appellant could not invoke the law of self-defense unless he had abandoned or had attempted to abandon the difficulty before the fatal blow was struck. This instruction correctly declared the law, as has been stated by this court in several decisions.

The court refused to give, at appellant’s request, an instruction numbered 3, which reads as follows: “If you beli’eve from the evidence that the killing was done by Ed Pope while defending himself against an attack by Newt Nelson, it is your duty, in deciding upon the character of the defense, to carefully examine and consider all the circumstances of the difficulty, the true situation of the parties at the time, their respective feelings and intentions as shown by their acts, their threats and their relative strength and power (because, in a contest between a powerful individual and a weaker, the necessity of taking life in self-defense will be more apparent and easily discovered).” The court refused to give this instruction as requested, but amended it by striking out the portion inclosed in parentheses.

"We think no error was committed in thus modifying the instruction, because the part stricken out was argumentative in form. In the case of Prewitt v. State, 150 Ark. 279, 234 S. W. 35, an instruction was asked which contained almost the identical language which was stricken from the instruction in the instant case. In the Prewitt case, supra, the instruction was not modified, but was refused, and we said this was not error, and in so holding vve said: “The instruction was argumentative in form. It was, of course, proper for the jury to consider the circumstances there recited, but this court has said in many cases that it is not good practice to single out and specially direct the attention of the jury to particular circumstances, thereby appearing to emphasize the circumstances named.”

Upon a consideration of the whole case we 'find no error prejudicial to defendant, and the judgment will therefore be affirmed.


text:
    Cahill v. Bradford.
    Opinion delivered November 8, 1926.
    1. Negligence — concurring negligence. — Where a pedestrian’s injuries were caused by the concurring negligence of the drivers of two cars, he may sue one or both of them, although he can have but one satisfaction.
    2. Evidence — opinion of witness. — Testimony of a witness that skid marks were marks of a certain automobile in collision held admissible as against the objection that it was a conclusion of the witness, where the position of the cars had not been changed when the witness saw them, and he could see which car had skidded and the place from- which it began to skid and the place where it stopped.

      3. Evidence — opinion op witness. — The opinion of a witness is admissible where the subject-matter to which his testimony relates cannot be reproduced or described to the jury as it appeared to the witness and the facts upon which the witness is called upon to express his opinion are such as men in general are capable of comprehending and understanding.
    4. Master and servant — course op employment. — Whether the driver of defendant’s service car, who, at the time of the collision which occasioned plaintiff’s injuries, had detoured one block to go on an errand of his own and was returning to defendant’s place of business, was engaged in the master’s service at the time the injury occurred, held properly submitted to jury.
    6. Trial — instructions ignoring issues. — Instructions which ignored the contention that defendant would be liable although the negligence of his driver in a collision was not the sole cause of the injury, if such negligence so contributed to the injury that it would not otherwise have happened, were erroneous where there was evidence tending to prove that plaintiff’s injuries were occasioned by the concurring negligence of the drivers of both cars.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    reversed.

      W. H. Pemberton and W. R. Donham, for appellant.

      Price Shofner and T. M. Mehaffy, for appellee.
   Smith, J.

M. E. Bradford is engaged in business as the M. E. Bradford Tire Company, and sells automobile tires in the county of Pulaski, and, as a part of tbe business, conducts what is called a road service, which consists in delivering tires and inner tubes on the roads and highways of the county as well as on the streets of the city of Little Rock, and, in connection therewith, owns and uses a number of service cars, with a driver for each car, who put on and installed the tires and inner tubes whenever he was called upon for such service.

Appellant Cahill was injured by the operation of one of these service cars, and brought this suit to recover damages to compensate the injury. He alleged, and offered testimony tending to show, that on the 9th day of June, 1924, he was standing on the sidewalk at the southwest corner of Second and Perry streets, in the city of Little Rock, when the driver of one of the Bradford service cars, while driving the ear at a high and dangerous speed, and without having control of the car, drove the car on to the sidewalk where plaintiff was standing, pushing and forcing him entirely across the sidewalk and against a brick building which stands at the said- corner, thereby breaking and crushing plaintiff’s leg.

The answer -contained a general denial of these allegations, and alleged the fact to be that, at the time of plaintiff’s injury, the driver of the car was engaged in the discharge of a private errand of his own which had no relation to his employment, and that this was done without the knowledge or consent of defendant. It was further alleged that the driver was proceeding at a moderate speed, and was keeping a proper lookout, and was driving west on Second Street, where he approached the intersection of that street with Ferry Street, when another car, being driven south on Ferry Street, at a fast and dangerous speed, was suddenly propelled against the right fender and running-board of defendant’s automobile, with great force and violence, causing the course of defendant’s car to be changed to the left and south, and bending the rods and the steering apparatus of defendant’s car, causing it to be run upon the sidewalk; that the -collision was so sudden and violent that defendant’s driver had no opportunity to avoid the collision, and" the injuries sustained by plaintiff were caused solely by the careless and negligent operation of the automobile which ran into and against defendant’s automobile.

There was a verdict and judgment for the defendant, from which the plaintiff has appealed.

Suit was brought against defendant Bradford alone, although there was testimony from which the jury might have found that the plaintiff’s injury was occasioned by the concurring negligence of the drivers of both cars. This, of course, the plaintiff had the right to do, as the law is well settled that, if one is injured as the result of the concurring negligence of two or more joint tortfeasors, the injured party may, at his election, sue one or more or all of them, although he can have only one satisfaction for his injury.

Among the witnesses who testified in defendant’s behalf was J. P. See, who stated that “the sldd marks were evidently the marks of the Ford, and it looked to me like the car had been pushed or jammed toward the sidewalk. These marks that I saw were skid marks where the car had been jammed toward the sidewalk. I mean swiped sideways.”

This evidence was objected to by the plaintiff, on the ground that the witness was permitted to state a conclusion, whereas he should have described the conditions which he saw and left the inferences therefrom to be drawn by the jury.

We think this objection is not well taken. The position of the cars had not been changed, after the plaintiff’s injury, when the witness saw them, and he could, of course, see and know what car had skidded and the place from which it began to skid and the place where it stopped. He said this was true because he saw the skid marks. This was not necessarily a matter of opinion. Preceding the language objected to- — the language quoted —the witness had stated, as a part of the same answer, that the car (Bradford’s) was hit about the end of the right fender. It would have required descriptive powers of a high, order to -have reproduced the scene witnessed by See without stating what he saw in the manner he did.

In the case of Little Rock Traction & Electric Co. v. Nelson, 66 Ark. 494, 52 S. W. 7, it was said: “Asa general rule, witnesses who are not required to testify as experts must state facts, and not conclusions. The opinions of such witnesses are admissible on conditions which are correctly stated in Commonwealth v. Sturtivant, 117 Mass. 122, 137, as follows: ‘First, that the subject-matter to which the testimony relates -cannot be reproduced or described to the jury precisely as it appeared to the witness at the time; and, second, that the facts upon which the witness is called upon to express his opinion are such as men in general are capable of comprehending and understanding. ’ According to this rule, opinion evidence is not admissible when the fact is susceptible of being adequately exhibited to the jury in the ordinary way.”

There is involved in the answer of the witness a mixture of fact and opinion, but the portion of the answer which is objected to as an opinion is a part of the description of the conditions which the witness saw". It may have been difficult for him to have otherwise reproduced the scene to the jury, and the statement as a whole was one which men in general could comprehend and understand.

It is insisted that the court erred in submitting to the jury the question whether the driver of defendant’s car had so far departed from the scope of his employment as to discharge defendant from liability for the negligence of the driver. It is a close question, under the facts of this case, whether this question should have been submitted to fhe jury. Defendant’s driver had been to the Rock Island depot, which is on Third Street, to deliver tires, and had started to return to defendant’s place of business, which is also on Third Street but a number of blocks west of the depot. The driver’s most direct route would therefore have been to return via Third Street, but, instead of this, he was returning on Second Street, a street which is adjacent to and parallel with Third Street. If only this had been shown, we would hold, on the authority of the cases of Healey v. Cockrill, 133 Ark. 327, 202 S. W. 229, and Bizzell v. Hamiter, 168 Ark. 476, 270 S. W. 602, as a matter of law, that the detour was so slight that there had been no departure from the master’s business. The testimony shows, however, that some white man had given to defendant’s driver, who is a colored man, a suit of clothes, which required altering, and that the driver was on the way to the shop of a tailor on Second Street to have the alteration made. This was a matter of which the master had no knowledge or concern and which had no relation to the driver’s employment, and we have concluded therefore that there was a question for the jury, whether the servant was pursuing the general course necessary to accomplish the purposes involved in his master’s business at the time the injury occurred. The instructions given conformed to the opinion of this court in the case o'f Healey v. Cockrill, supra, where the authorities were reviewed and the law of the subject declared.

As has been said, the defendant interposed two defenses. The first was the one which we have .just discussed and have said was properly submitted to the jury. The second was that the injury was caused solely by the negligence of the driver of the car which collided with defendant’s car. That car was a Star car, and is referred to by the witnesses under that name. Defendant’s car was a Ford roadster.

The instructions given by the court, at the request of the plaintiff, were to the effect that defendant would be liable if the injury was caused by the negligence alone of the driver of defendant’s car or as a result of the concurring negligence of the driver of defendant’s car and that of the driver of the Star car. Without further recitation of the testimony, it may be said that the testimony is sufficient to support a finding either that the negligence of defendant’s driver was the sole cause of the injury or that the injury was occasioned by the concurring negligence of the drivers of both cars. On behalf of defendant the testimony was to the effect that the negligence of the driver of the Star car was the sole cause of the injury.

It is insisted that the instructions given on behalf of the defendant do not properly take into account the theory that defendant would be liable if the injury to plaintiff was the result of the concurring negligence of the two drivers, an objection which was specifically made to a number of the instructions given at the defendant’s request.

We have concluded that the objection is well taken, and that the instructions given at defendant’s request are erroneous for this reason.

The court gave, at defendant’s request, instructions numbered 2, 3, and 10, which read as follows:

“2. You are instructed that, before you can find the defendant liable in this case, it must be shown by the greater weight of testimony: First, that the defendant was guilty of negligence that caused the injury; second, that he was in the employ of the defendant at the time; and, third, that the injury was committed at a time when the servant was in the prosecution of his master’s business; and if the plaintiff has failed to show either of these by a fair preponderance of evidence, then your verdict must be for the defendant.
“3. The burden of proof is on the plaintiff to make out his cause by a fair preponderance of the evidence, and you are therefore instructed that, if he has failed to show either that the defendant’s driver was guilty of negligence that caused the injury, or that the injury was caused while the driver was in the prosecution of defendant’s business, in either event your verdict will be for the defendant. ’ ’
“10. You are instructed that, before the plaintiff is entitled to recover in this case, he must show by a fair preponderance of the evidence, not only that the defendant’s servant was negligent, but that his negligence, without the intervention of any other independent agency, caused the injury, and, if he has failed to do this, your verdict must be for the defendant.” •

It is insisted, in defense of these instructions, that, when read in connection with the instructions given at the request of the plaintiff, the law of the case was submitted as a harmonious whole, and that these instructions were necessary to make it plain that it was essential, before defendant could be held liable for the injury, for the jury to find that the injury was due to the negligence of defendant’s servant, either alone or in concurrence with that of the driver of the other car.

We think, however, in view of the specific objection made to these instructions, that they cannot be thus reconciled with the instructions on the subject given at the request of the plaintiff. Garrison Co. v. Lawson, 171 Ark. 1122. Each of these instructions told the jury under what conditions the verdict should be for the defendant, and none of them took into account the fact that the defendant would be liable, although the negligence of his driver was not the sole cause of the injury, if such negligence so contributed to the injury that it would not otherwise have happened.

We think instruction numbered 10 is especially objectionable, in view of the issues of fact in the case, and for the error in giving this instruction, as well as instructions numbered 2 and 3, the judgment of the court below must be reversed, and the cause remanded for a new trial, and it is so ordered.


author: Humphreys, J.

text:
    Stover v. State.
    Opinion delivered November 8, 1926.
    1. Intoxicating liquors — -making mash — evidence.—Evidence held sufficient to sustain a conviction of making mash for distillation of intoxicating liquor.
    2. Criminal law — remark op court — -prejudice.—A remark of the court in a liquor prosecution that “this is a case in which it looks like we are not going to get the witnesses here for the defendant,” made because of failure of several of defendant’s witnesses to answer upon call of the case, held harmless', especially in view of immediate admonition to the jury to disregard the remark.
    Appeal from .Clark Circuit Court; James II. McCollum, Judge;
    affirmed.

      Fletcher McElhanon and B. W. Huie, Jr., for appellant.

      II. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Clark County for the crime of making mash for the distillation of intoxicating liquor, and was adjudged to serve a term of one year in the State Penitentiary as a punishment therefor, from which judgment an appeal has been duly prosecuted to this court.

Appellant assigns two alleged errors as grounds for a reversal of the judgment, the first being that the evidence is not sufficient to support the verdict, and the second, that the trial court made an improper remark in the presence and hearing of the jurors which prejudiced his rights.

(1). The testimony introduced by the State was to the effect that the sheriff of the county and two other officers discovered a still a mile and a-half or two miles east of appellant’s home about a week before he was arrested. During the interim the still was moved to a point about three-quarters of a mile west of appellant’s home. After .the removal of the still, the officers discovered. two barrels containing mash near it, and a pot about twenty-five yards from the barrels. Early the next morning they returned to the scene and concealed themselves behind some bushes. In the neighborhood of 8 o’clock a. m., the sheriff and one of the officers, W. D. Cook, observed appellant carrying water from a nearby branch to the barrels, and, from his swinging movement, thought that he was stirring the mash in the barrels. Their view was obstructed to some extent by intervening-bushes. The other officer, EL L. Bachelor, was about ten or fifteen feet from his brother officers, and had a better view than they had. He testified that appellant passed within ten or fifteen steps of him, with a bucket on his arm; that he made two trips to the branch for water, which he poured in the barrels, then stirred the mash in the barrels with a stick; that he observed appellant closely, taking particular notice of his very unusual mustache, and noticed, particularly, that appellant was the man who carried the water and stirred the mash. The officers went back to the still the following morning, and found that the mash had been run off, and that the worm had been attached to the pot, which was hot, having been fired up. They also found some whiskey in a tin can. After pouring out the mash and whiskey and destroying the still, they repaired to a point near appellant’s home, and again concealed themselves. A short time after sunup, appellant approached the house, in a drunken condition, and was arrested by the officers. His clothing was wet up to his waist. His excuse for being away from home so early was that he had been out hunting for a neighbor’s cow.

The testimony recited above is ample to support the verdict. Appellant was positively identified as the man who was mixing the mash, and the circumstances warranted the inference that he was guilty of making mash fit for the distillation of intoxicating liquor.

(2). On the call of the case for trial, several of appellant’s witnesses failed to answer to their names, whereupon the court said, “This is .a case in which it looks like' we are not g'oing to. get the witnesses here for the defendant.” The remark was made in the presence of all of the jurors on the regular panel, and was objected to and excepted to at the time by appellant. The court told the. .jury that he did not intend .to reflect upon appellant, and. for them to disregard the remark entirely in their consideration of the case. ■■

We do not see how the remark could have prejudiced the rights of appellant, but, if it tended to do so, the immediate admonition of the' court necessarily removed any resultant prejudice.

No error appearing, the judgment is affirmed.


text:
    Hughes-Speith Pipe Line Company v. McWilliams Hardware & Furniture Company.
    Opinion delivered November 8, 1926.
    1. Garnishment — effect of subsequent judgment against garnishee. — A garnishee cannot avoid liability for funds garnished by reason of having subsequently paid all funds in his hands belonging to defendant by order of court to the receiver in another suit against defendant, where the garnishee failed to contest the payment to- the receiver on the ground of the prior garnishment having imposed a lien on the funds.
    2. Pleading — amendment—discretion of court. — Refusal to permit an amendment to an answer which conflicts with the original answer, and was not requested until the case was called for trial, held within the court’s discretion.
    Appeal from Union Circuit Court, Second Division; W. A. Speer, Judge;
    affirmed.

      Marsh & Marlin, for appellant.

      Mahony, Yoc'imv & Saye, for appellee.
   Humphreys, J.

On December 20, 1924, appellee brought suit in the second division of the Circuit Court of Union County against J. J. Page, upon a note for $487.50, with interest at 10 per cent, per annum until paid, for which amount it prayed judgment.

Based upon the allegation in the complaint that appellant was indebted to J. J. Page in the sum of $500, it prayed for and obtained a writ of garnishment, which was duly issued and served upon appellant upon the same day the suit was brought.

On the 9th day of March, 1925, judgment by default was rendered against J. J. Page upon the note, and appellant was given until April 15,1925, to file an answer to the writ of garnishment. On said date it filed the following answer:

“Comes now the Hughes-Speith Pipe Line Company, garnishee herein, and, for its answer to the writ of garnishment herein served on the 20th day of December, 1924, states that, on and after the service of the writ of garnishment in this cause, it had and held in its hands and possession goods, chattels, moneys, credits and effects accrued to the credit of J. J. Page on account of oil run from a certain oil and gas lease located in Union County, Arkansas, as follows, to-wit:
“The northwest quarter of the northwest quarter of section 23, township 16 south, range 15 west, in the sum of $487.50.
“That, subsequent to the service of the writ of garnishment in this cause, and prior to a judgment by default obtained herein on the 9th day of March, 1925, in the case of T. L. Senter, plaintiff, v. J. J. Page, defendant, in the Union Chancery Court, Second Division, it was, on the 24th day of December, 1924, ordered by said court to pay over to and deliver to Y. L. Robie, the duly appointed receiver in said cause, all sums of moneys then in its hands and possession, and authorized said receiver to collect and receive all moneys accruing on account of oil runs from said above described lease.
‘ ‘ That, pursuant to and in accordance with said order of the Union Chancery Court, Second Division, all sums arising or becoming due to the said J. J. Page, on account of oil runs from the above- described lease, by this garnishee, were by-this garnishee paid to the said Y.L. Robie, receiver, and his successor, Windell Utley, receiver in said cause of F. L. Senter, plaintiff, v. J. J. Page, defendant, same being cause No...................of the Union Chancery Court, Second Division.
“That, on account of its having complied with said order of court, it did not, at the time of the rendition of the judgment in this cause on the 9th day of March, 1925, have or hold in its hands or possession goods, moneys, chattels, credits or effects, of any nature or character, owing or belonging to the defendant, J. J. Page.
“Wherefore, having answered, garnishee prays that it be discharged from further answering, for all its cost herein, and all other proper relief.”

On April 23, 1925, appellee filed a demurrer to the answer of the garnishee, and a motion for judgment, upon the grounds that the facts stated in the answer were insufficient to constitute a defense to the writ. The cause was called for trial on May 20, 1925, whereupon appellant filed a motion for permission to amend its answer as follows:

“Comes now Hughes-Speith Pipe Line Company, garnishee, herein, and prays leave to amend its answer herein, and for cause states:
“That, by error or oversight, it omitted from its answer, as garnishee herein, the allegation that, at the time of service of the writ of garnishment herein, the defendant, J. J. Page, owed and was indebted to it in the sum of $4,500 as balance due on a certain mortgage debt secured by mortgage recorded in book........:........, page .................., of the records of Union County, Arkansas, and that said mortgage debt was due and unpaid and is yet unpaid, and that it has the right to offset the amount of $487.50 on said indebtedness. That same was the value of one-half of oil run from said lease during the last 1-5 days.
“That said facts are true, and that same' should have been alleged in the original answer of the garnishee herein.
“That said answer was proffered by Tom Marlin of the firm of Marsh & Marlin, who was not at the time furnished with the above facts, the same not being called to his attention at the time of said answer.
“Wherefore he prays leave to amend the said answer herein to incorporate said facts herein.”

The motion was duly verified.

The trial court denied .the motion of appellant to amend its answer, sustained the demurrer to its original answer, and rendered a judgment against it for $487.50, from which is this appeal.

The two questions to be determined on this appeal are, whether the original answer stated facts sufficient to entitle the appellant to a release from the writ of garnishment, and whether the trial court abused its discretion in refusing to allow appellant to amend its answer.

The original answer was insufficient as a defense, because appellant made no showing that he contested the claim of the receiver to the money he owed J. J. Page in the suit in the chancery court, wherein P. L. Senter was plaintiff and J. J. Page was defendant. .It should have appeared in that suit and defended against the payment to the receiver therein of the amount it owed J. J. Page, upon the ground that the writ of garnishment issued in the instant case and served upon it December 20, 1924, fastened a lien upon said fund in its hands. The failure to plead its action on its part rendered its original answer herein ineffectual. Hartford Fire Ins. Co. v. Citizens’ Bank of Booneville, 166 Art. 551, 206 S. W. 675, 39 A. L. R., 1458.

The defense tendered in its proposed amendment to the original answer was inconsistent with the defense contained therein. In fact, it was in direct conflict with the allegations in the original answer. It was also a belated request, not having been made until the case was called for trial. We cannot say, under these circumstances, that the court abused its discretion in not allowing the amendment to be made. Cumbie v. St. L. I. M. & S. R. Co., 105 Ark. 406, 151 S. W. 237.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Cate-LaNieve Company v. Plant.
    Opinion delivered November 15, 1926.
    1. Attachment — intervention—title of intervener. — An intervener claiming property seized under a writ of attachment against a third person must prevail, if at all, upon the strength of his own title.
    2. Mortgages — bill of sale distinguished. — A bill of sale of logs, on its face an absolute conveyance, though intended as security for money advanced for payment of the logs, is not a chattel mortgage nor subject to the mortgage registration laws.
    3. Sales — constructive delivery of logs. — Where logs were purchased from plaintiff by an agent of a lumber company and a bill of sale was given to one advancing money for purchase of the logs, which are held by the lumber company and converted into hoops for the one advancing the money, the delivery was sufficient te pass title to the latter.
    4. Sales — constructive delivery! — Constructive delivery on the sale of a chattel is sufficient to pass title, and the intention of the parties, when manifested by any overt act, is controlling.
    Appeal from Prairie Circuit Court, Northern District; George W. Clark, Judge;
    reversed.

      Emmet Vaughan and E. L. Westbrooke, for appellant.

      John E. Miller, Cidbert L. Pearce and Craig S Wimmer, for appellee.
   McCulloch, C. J.

Appellee was the plaintiff below in an action at law instituted against R. W. Bowen to recover upon a promissory note executed by the latter. An order of attachment was duly issued at the time of the commencement of the action, and the writ was levied on 459 sawlogs as the property of Bowen. Appellant inter-pleaded in the action, claiming to be the owner of the attached property. Bowen made default, and a judgment was rendered against him on the note, and the attachment was sustained. The issue between appellant and appellee on the former’s interplea was tried before the court sitting as a jury, and the trial resulted in a finding and judgment against appellant.

Appellant is a foreign corporation, engaged in the hoop business at Memphis, Tennessee. The Des Arc Hoop & Lumber Company is a domestic corporation, owning and operating a plant at Des Arc for the manufacture and sale of hoops and other timber products. R. W. Bowen is the president and acting manager of the Des Arc Hoop & Lumber Company. The lumber company purchased logs from various persons and manufactured them into hoops and lumber and sold the product to appellant and other dealers in those lines of business. It was the custom between appellant and the lumber company that, when the latter purchased logs for the manufacture of hoops, appellant furnished the money to pay for same and the lumber company gave appellant a bill of sale for the logs purchased. The logs were then transported to the mill at Des Arc, and hoops manufactured therefrom Avere shipped to appellant. Appellant took the hoops at the prevailing market price at the time of shipment, which was agreed upon between the parties from time to time, and the price was credited to the lumber company on appellant’s books, the amount advanced to purchase the logs having been already charged to the lumber company, and settlement between the two corporations was made on the basis of the difference- between the amount advanced by appellant for the purchase of the logs and the market price of the hoops delivered.

Appellee was originally the owner of the logs in controversy, and sold them to the lumber company, R. W. Bowen acting for the company in the purchase. The logs were then banked on Black River, and, after the sale and purchase, were throAvn into the river and rafted and then floated down Black River into' White River, and thence down White River to Des Arc. On the day the logs were purchased from appellee they were scaled, and appellee executed the following certificate to appellant:

“7/27/23.
“Cate-LaNieve Co.,
Memphis, Tenn.:
“R. W. Bowen has this day scaled 459 elm logs which are clear from all incumbrance.
“T. C. &R. L. Plant,
“By T. C. Plant, Bald Knob, Ark.”

The scale of the logs, showing 53,226 feet, was forwarded to appellant by the lumber company, together with a bill of sale for the logs, duly executed by Bowen as president of the lumber company, and appellant sent a check for $852.61, the purchase price of the logs, and this check was delivered to appellee in payment. The bill of sale was dated July 28, 1923, and Avas in absolute terms conveying the logs to appellant.

The order of attachment in this case was levied on the logs after they reached the mill at Des Arc. Bowen testified that he purchased the logs for his company, and was acting for the latter throughoüt the transaction. Bowen and the secretary of appellant company, Mr. Bigelow, both testified concerning the method of doing business between appellant and the lumber company, and their testimony is undisputed. Appellee did not introduce any evidence, but relied upon the supposed failure of appellant to make out a case showing title to the property in controversy. The trial court found, as before stated, in favor of appellee, and the primary question presented on this appeal is whether or not the evidence is legally sufficient to support the finding of the court.

Counsel for appellee rely upon the settled rule of law, that an interpleader claiming property seized under a writ of attachment against a third person must prevail, if at all, upon the strength of his own title.

The bill of sale executed by the lumber company to appellant is, on its face, an absolute conveyance, but the evidence tended to show that it was really intended as security for the money advanced by appellant for the payment of the price of the logs.' This fact is mentioned for the reason that counsel for appellee treat it as of primary importance in sustaining the judgment of the court. Their ‘argument in support of the judgment is that the bill of sale was nothing more nor less than a chattel mortgage, and that it was void against third parties because not filed or recorded. The answer to this contention is that the instrument was not in form of a mortgage, even though so intended by the parties, and is not controlled by registration laws governing mortgages. Martin v. Schichtl, 60 Ark. 595, 31 S. W. 458; Priddy & Chambers v. Smith, 106 Ark. 79, 152 S. W. 1028, 44 L. R. A. (N. S.) 285; Williams-Echols D. G. Co. v. Bloyd, 169 Ark. 529

The case stands, then, the same as if the bill of sale was in fact what it purported to be on its face, ail absolute conveyance, and tbe case turns upon tbe question of fact whether or not there was a sufficient delivery of the property to pass the title. Bowen, the defendant in the attachment, has never been the owner of - the property, for, according to the undisputed evidence, he was acting for his company in making the purchase. When the title passed out of the appellee, the original owner, it went to the purchaser, Des Arc Hoop & Lumber Company, and thence passed to appellant under the bill of sale, if there was a sufficient -delivery to consummate the conveyance. There is no question of fraud involved in the case, and appellee is not claiming as an innocent purchaser. He is merely an attaching creditor, and, if there was sufficient delivery, either actual or constructive, to pass the title, then the judgment, of course, should have been in favor of appellant. It has always been the rule of this court that constructive delivery on the sale of a chattel is sufficient to pass title, and that the intention of the parties, when manifested by any overt act, is controlling. Cocke v. Chapman, 7 Ark. 197; Durr v. Henry, 44 Ark. 301; Shaul v. Harrington, 54 Ark. 305, 15 S. W. 835; Lynch v. Daggett, 62 Ark. 592, 37 S. W. 227; Guion Mercantile Co. v. Campbell, 91 Ark. 240, 121 S. W. 164; Elgin v. Barker, 102 Ark. 482, 153 S. W. 598; Vance v. Bell, 153 Ark. 229, 240 S. W. 8. In Shaul v. Harrington, supra, it was said: “If the vendee may leave the vendor in possession to enjoy temporarily the full fruits of ownership, as was done in Twine’s case, and yet be allowed the opportunity to maintain his title, as he may in this State, the reason is all the stronger for allowing the vendor to retain possession as bailee for the vendee’s profit and benefit.”

The testimony in this case shows unmistakably that the intention of the parties was to transfer the title of the property to appellant, and that the lumber company, as the vendor, should retain possession merely for the profit and benefit of the vendee, so this brings the case squarely within the rule announced by the court in Shaul v. Harrington, supra. The facts of the case also come clearly within the rule announced by the court in Lynch v. Daggett, supra, and in that case the facts with regard to delivery were the same, the only difference in the cases being that one was in fact an absolute sale, whereas, in the present case, the bill of sale was intended as security; but, as we have already seen, that distinction is immaterial. The case also falls within the control of our decision in Vance v. Bell, supra, where there was a bill of sale executed without actual delivery or visible change of possession, and the property remained in possession of an employee of the vendor. The trial court held, the same as in this case, that there was no delivery, but this court reversed the judgment, holding that the delivery was complete.

It follows that the judgment of the circuit court was, upon the undisputed facts in the case, incorrect, and the same must be reversed. Appellant having given bond for the attached property, and the case having been fully developed in the trial below, it is unnecessary to remand the cause for a new trial, and .judgment will be entered here in favor of appellant. It is so ordered.


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    McConnell v. Arkansas Coffin Company.
    Opinion delivered November 15, 1926.
    1. Limitations op actions — running account. — An account sued on which merely stated charges and credits is not a “mutual open account current,” within Crawford & Moses’ Dig., § 6964, making the course of action thereon to accrue from the time of the last item, hut is a mere open running account.
    2. Limitation op actions — payment on running account. — Partial payments made on a running account, generally without specifying any particular item, interrupt the running of the statute, so as to constitute a new point from which the statute begins to run as to the whole account.
    Appeal from Sebastian Circuit Court, Fort Smith District; John E. Tatum, Judge;
    affirmed.

      A. M. Dobbs, for appellant.

      Daily é Woods, for appellee.
   McCulloch, C. J.

This is an action instituted by appellee against appellant to recover a balance of $2,459.27 on open account for merchandise sold and delivered, and appellant pleaded the statute of limitation as to all the items of the account except the last ones, aggregating $943.30, as to which liability was admitted. There is no controversy as to the original correctness of the account, the only question in the case being whether recovery is barred by limitation. The cause was tried before the court sitting as a jury, and there was a finding in favor of appellee for the full amount of the balance on the account.

The case was heard on an agreed statement of facts, from which it appears that appellee was a wholesaler and appellant a retailer, and that numerous purchases were made by appellant from appellee, beginning with December 11, 1919, and ending November 1, 1921, the total of all the items being the sum of $3,360.10, and payments were made thereon in the aggregate of $900.83, reducing the balance of the account to $2,459.27. It is further shown in the statement of facts that the various bills of goods were shipped on separate orders of appellant, made from time to time; that the invoice for each separate shipment was mailed out and the amount thereof was due and payable ninety days from date; that appellee kept a ledger account of the sales, item by item, the said account consisting solely of charges on one side and credits of payments on the other; that payments were made on the account after the last item, and within three years before the commencement of the action, and that there was “no agreement or understanding between the parties as to what portions of the account the respective payments should be applied,” but that the payments were made by appellant and credited by appellee generally on the account, and not to any particular item.

It is plain that the action is not one upon “mutual open account current,” within the definition of the statute (Crawford & Moses’ Digest, § 6964) which makes the accrual of the cause of action run from the last item on the account, for the reason that this account was merely one of charges on one side and credits of payments on the other. McNeil v. Garland, 27 Ark. 343; Parker v. Carter, 91 Ark. 162, 120 S. W. 836. The account sued on was just an open running account, consisting of various items, and the real question in the case is whether or not the payments generally upon the account interrupted the running of the statute so as to constitute a new point from which the statute began to run. According to the statement of facts, the payments were made on the account, and not in discharge of any particular item.

The doctrine contended for by counsel for appellee is aptly stated in the decision in Day v. Mayo, 154 Mass. 472, 28 N. E. 898, as follows:

“Where a partial payment is made on account of an existing indebtedness, the whole debt upon which such payment is made is thereby taken out of the statute of limitations up to that time. The identity of the debt sued on with that upon which the payment was made must, of course, be established. But, if it is shown that the payment was made to apply upon an indebtedness consisting of many items, all of them will thereby be saved from the effect of the statute. The payment is an acknowledgment of the existence of the indebtedness, and raises an implied promise at that time to pay the balance.”

This court has adopted the same rule. In Nunn v. McKnight, 79 Ark. 393, 96 S. W. 193, the decision of-this particular question was not essential to -a disposition of the issues in the case, but Judge Riddick, who wrote the opinion of the court, stated his own personal view to be that a payment generally on account would “make a new point for the running of the statute as to the whole account.” In Pettus v. Rawles, 131 Ark. 125, 198 S. W. 874, we distinctly recognized the rule that a payment of that kind would arrest the statute, but we found that, under the circumstances of that particular case, -there was not such a payment made. In W. T. Rawleigh Co. v. Pritchard, 151 Ark. 390, 236 S. W. 833, we decided outright that a general payment on account, without specifying any particular item, constituted such a payment on the whole account as would arrest the running of the statute. Counsel for appellant insist that this rule would only obtain in the case of an account stated, but we do not think that the rule can be thus limited, for a payment made generally on a running account is as much a recognition of the continued existence of the whole debt as if it were upon an account stated.

Our conclusion is that the court was correct in its ruling, and the judgment is therefore affirmed.


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    Hester v. Arkansas Railroad Commission.
    Opinion delivered November 15, 1926.
    1. Carriers — regulation of motor busses. — By Acts 1921, p. 177 et seq., the Railroad Commission is authorized to regulate the operation of common carriers, including motor busses and similar vehicles operated for hire on public highways.
    2. Highways — regulation of use. — The use of public highways for business purposes is not a matter of common right which any citizen may enjoy at will, -but it is a privilege which the State may either extend or withhold.
    3. Automobiles — motor ' busses — surety bonds. — A regulation of motor' busses by the Railroad Commission under authority of Acts 1921, p. 177 et seq., is not invalid in requiring that an indemnity bond be signed by an authorized surety company.
    4. Automobiles — motor busses — requirement of surety bonds.— Where the Railroad Commission, under authority of Acts 1921, p. 177 et seq., required bus operators to furnish corporate surety bonds before giving license to operate, the fact that the bond ■ required could not be given by an applicant, and that the business could not stand the expense of a corporate surety bond, did not render the regulation invalid on account of unreasonableness. -
    5. Licenses — validity of regulation. — The validity of the regulation of a business operated under a license cannot be made to depend upon the ability of the applicant to comply therewith.

      Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      Sidney L. Graham, for appellant.

      H. W. Applegate, Attorney General, and Brooks Hays, Assistant, for appellee.
   McCulloch, C. J.

Appellants have each been engaged in the business of operating motor cars or busses on the public highways of Pulaski County, and they attack the validity of the regulation prescribed by the Arkansas Railroad Commission requiring all persons operating such business to deposit with the Commission “a liability or indemnity contract, written by some solvent insurance or indemnity company authorized to do business under the laws of the State of Arkansas, agreeing to indemnify the legal liability of said owner or licensee of said motor or jitney bus on account of personal injury, in the sum of $5,000, to any one person, and $10,000 for any single accident where more than one person is injured or killed, and $1,000 on account of property damage to any one.” Appellants each applied to the Railroad Commission for a permit, or license, to operate busses, and offered to give bond in the sums named in the rules prescribed by the Commission, executed by personal sureties, but the Commission declined to approve the bond or to issue a permit, and appellants resorted to an action in the Pulaski Circuit Court to compel the Commission to accept the bond. Relief was denied in the circuit court, and an appeal has been prosecuted to this court. •

Appellants introduced testimony, in the hearing before the Railroad Commission, to the effect that the premium rate for a bond such as that required was $270 per annum; that the income of one of appellants from the business amounted to eighty or ninety dollars per month, and that of the other about $120 per month. This was urged as a reason for treating the requirement as unreasonable and oppressive.

The statutes of this State (Acts 1921, p. 177) plainly authorized the Commission to regulate the operation of common carriers, and we have held that this authority extends to the operation of motor busses and vehicles of that kind being operated for hire on a public highway. Mason v. Inter-City Terminal Ry. Co., 158 Ark. 542; Railroad Commission v. Independent Bus Line, ante p. 3. The contention in the present case is, however, that the regulation that requires a bond executed by a surety company, and not permitting bonds executed by personal sureties, is arbitrary and unreasonable, and should not be upheld. The validity of this regulation must be tested in the light of established law, to the effect that the use of the public highways for business purposes is not a matter of common right which any citizen may enjoy at will, but it is a privilege which the State may either extend or withhold. Pine Bluff v. Arkansas Traveler Bus Co., 171 Ark. 727.

The regulation is not invalid merely because it prescribes the kind of surety to be given on the bond. The fact that appellants are unable to give the bond required, or that the particular business in which they are engaged will not stand the expense of a surety company bond, does not render the provision unreasonable. If the inability of an applicant for license to comply with the regulation concerning the same were sufficient to render the regulation invalid, then there could be no regulation at all. The validity of the regulation of a business operated under a license cannot be made to depend upon the ability of the applicant to comply.

Counsel for appellants rely upon the case of Jitney Busses Association v. Wilkes-Barre, 256 Pa. 452, 100 Atl. 954, as sustaining their contention, and the case does seem to hold that such a provision is unreasonable and void, but the decision does not appeal to us as being sound, and we decline to follow it.

There are many decisions upholding the right of a State or municipality to regulate carriers on the public highway, and such regulations are generally sustained, but there are only a few cases which relate to the particular, point involved in the present case, namely, the requirement to give bond with a surety company as surety. There are several decisions of the Supreme Court of Washington, beginning with the case of State v. Seattle Taxicab & Transfer Co., 90 Wash. 416, 156 S. W. 837, which uphold a regulation identical with the one now under consideration. Other authorities are to the same effect. Lutz v. New Orleans, 235 Fed. 978; New Orleans v. LeBlanc, 139 La. 113, 71 So. 248; and Ex parte Sullivan, 77 Texas Cr. App. 72, 178 S. W. 537. In Packard v. Banton, 264 U. S. 140,. the court had under consideration the validity of a New York statute requiring persons engaged in the business of carrying passengers for hire in motor vehicles to file with the State Tax Commission either a bond with personal sureties or one of a surety company for the payment of any judgment recovered against such persons. It was alleged in the case that the rate fixed by surety companies for such a bond was $960, that the net income of the applicant’s business in operating the vehicle was only thirty-five dollars a week, and that the regulation was oppressive and void. The court, in upholding the validity of the regulation, said: “The operator, under the statute, however, is not confined to this method of security, but instead may file either a personal bond with two approved sureties, or a corporate surety bond. Appellant says that he cannot procure a personal bond, but it does not appear that he might not procure the corporate surety bond at a less cost.” Counsel for appellants quote this language in support of their contention, but such is not, we think, the effect of the language used. That was merely an argument used by the court in upholding that particular regulation, and it is not an authority in support of appellant’s contention that the regulation now under consideration is void because the bond must be executed by a surety company. The concluding language in that opinion goes very far in support of the present regulation, and it reads as follows: “The fact that, because of circumstances peculiar to him, appellant may be unable to comply with the requirement as to security without assuming a burden greater than that generally borne, or excessive in itself, does not militate against the constitutionality of the statute. Moreover, a distinction must be observed between the regulation of an activity which may ■ be engaged in as a matter of right and one carried on by Government sufferance or permission. In the latter case the power to exclude altogether generally includes the lesser power to condition, and may justify a degree of regulation not admissible in the former.”

Our conclusion therefore is that the regulation. is valid, and that the circuit court was correct in so holding.

Judgment affirmed.

Hart, J., dissents.