author: Hárt, J.

text:
    Griffin v. Griffin.
    Opinion delivered October 27, 1924.
    1. ' Divorce-^corroboration of parties. — A wife’s cross-complaint for divorce was properly dismissed for want of equity where her testimony was not corroborated.
    •2. Divorce — premature decree.' — Contention of defendant in a divorce suit that .the chancellor granted a divorce to plaintiff before defendant finished taking testimony cannot be main- . tained where the record does not show that defendant thereafter ■ offered to introduce further testimony.
    3. Divorce — grounds.—The court cannot grant a divorce because the parties have become dissatisfied with their marriage.;
    4'. Divorce — indignities to person. — Constant abuse, studied neglect and humiliating insults and annoyances, .which indicate contempt and hatred by the offending party, amount to such indignities to the person as to render his or her condition in' life intolerable within the meaning of the statute. ’ •
    5. Divorce — sufficiency of evidence. — In a suit by a husband for divorce on the ground of such indignities offered by the wife to the person of the husband as rendered his condition intolerable, a finding of the chancellor in favor of the plaintiff held not •against the preponderance of the evidence.
    Appeal from Pulaski Chancery Court; John E. Martineau, Chancellor;
    affirmed.

      X. O. Pindall and Lewis Bhoton, for appellant.

      Sidney L. Graham, for appellee.
   Hárt, J.

Henry Griffin brought this suit in equity against Edith M. Griffin to'obtain a divorce on the stat.utory ground that she had offered such indignities to his person as to render his condition in -life intolerable.

The wife filed an answer denying the allegations of the complaint of her husband, and, by way of cr.oss-complaint, asked for a divorce from him on the same statutory ground.

The parties were married in July, 1920, and lived together in Pulaski County as husband and wife until the 6th day of December, 1922. The complaint in this cáse was filed on the 26th day of December, 1922. These parties had been granted a divorce in the same chancery court in 1912, and there had been a settlement of their property rights.

Mrs. H. H. Abanathy, of Houston, Texas, a daughter of the parties, twenty years of age, was a witness in behalf of the plaintiff. According to her testimony, she lived with them for about three months after their second marriage, and visited them two or three weeks at a time twice since that time. Her mother and father had' numerous quarrels during the time she lived with them, as well as the times she visited them, and most of .these quarrels were started by her mother. Her father was as devoted to her mother as the latter would permit him.

William H. Griffin, a son of the parties, twenty-nine years of age, was also a witness for the plaintiff. According to his testimony, he lived with his wife and children in the State of Michigan, and visited his parents for two weeks in July, 1922. He testified that his mother was very fussy, and constantly nagged at him and his father. His father is a man of good disposition, and was always kind to his mother.

Henry Griffin was a witness for himself. According to his testimony, soon after their remarriage. his wife had many imaginary grievances, and found fault with everything. She was continually nagging him, and would keep up a fuss day in and day out. After supper in the evenings his wife and one of her daughters would go to their room and entertain themselves and their company and leave him to himself. They did this regularly for months and months. Mrs. Griffin and her daughter occupied one room and he another in his house. His wife quarreled with him every day.

On cross-examination, the plaintiff admitted that he cursed his wife a short time before their separation, but said that he apologized to her for it. He stated that he had cause for using the curse words to her; but he felt ashamed of it, and so stated to her. He also admitted that he had pushed her out of a room to keep her from continually nagging him.

Mrs. Edith M. Griffin was a witness for herself. According to her testimony, she treated her husband kindly, and his ill treatment of her was the cause of their separation.

It was decreed that the cross-complaint of the defendant should be dismissed for want of equity, and that the plaintiff should be granted a decree of divorce.

The case is here on appeal. .

The testimony of the wife was not corroborated, and the chancellor was right in dismissing her cross-complaint for want of equity.

Counsel for the defendant claim that the court, during the progress of the trial, announced that he had granted tlje same parties a divorce once before; that there did not seem to be any chance of them living together in peace and harmony again, and that he might just as well grant them a divorce again. They claim that the chancellor then granted a divorce to the plaintiff before they had finished taking the testimony for the defendant. The record does not show that they objected to the remarks of the chancellor, or that they offered to introduce any further testimony in behalf of the defendant. Hence the case stands as if they had finished their testimony, and thé question here is whether or not the chancellor erred in granting a divorce to the plaintiff.

It is obvious that the court cannot grant a divorce because the parties have become dissatisfied with the marriage yoke.' In such cases the parties must, by mutual concessions, make the yoke lighter.

On the other hand, constant .abuse, studied neglect, and humiliating insults and annoyances which indicate contempt and hatred by the offending party, amount to such indignities to the person as to render his or her condition in life intolerable within the meaning of the statute.

'Tested by this rule, it cannot be said that the finding of the chancellor is against the preponderance of the evidence. The plaintiff testified that his wife constantly nagged him and fussed with him every day. As soon as supper was over she retired to her own room with one of her daughters, and refused to see him any more until the next day. She occupied a bedroom with her daughter, instead of her husband;

The testimony of the plaintiff is corroborated by that of the son .and daughter of the parties. Both the son and daughter testified that their mother had a very high temper and continually nagged and fussed at her husband.

This is their second appearance in the divorce court, and the testimony indicates that they can never live together in peace any more. Under the circumstances, the finding of the chancellor that the fault was with the wife is not against the preponderance of the evidence, and the decree will be affirmed.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Crawford v. Louisville Silo & Tank Company.
    Opinion delivered October 27, 1924.
    1. .Courts — conclusiveness of federal decision. — In determining whether a sale to a resident of the State for a foreign corporation is a transaction in interstate commerce, this court is , governed by the decisions of the Federal Supreme Court.
    2. COMMERCE — SALE TRANSACTION IN INTERSTATE COMMERCE WHEN. —Where defendant’s order for a granary was signed by defendant, subject to approval of plaintiff .corporation at its home office outside -of the State, and the granary, with others, .each marked with purchaser’s name, was shipped in the same car, and all were consigned to plaintiff’s agent, who delivered the granary to defendant, held that the transaction was one of interstate commerce, and not within Acts of 1907, p. 431, prescribing conditions to right of foreign corporations to sue.
    Appeal from Arkansas Circuit Court, Northern District; George W. Claris, Judge;
    'affirmed.

      Geo. C. Lewis, for appellant.

      M. F. Elms, for appellee.
   Hart, J.

The Louisville Silo & Tank Company brought this suit against John it. Crawford to recover on a promissory note for $1,OQO. By consent of the parties, the cause was heard before the circuit court sitting as a jury.

The court made the following findings of fact and declarations of law:

“This action is instituted by the plaintiff against the defendant to recover the sum of one thousand dollars on the promissory note offered in evidence. The defendant answered denying the right of the plaintiff to maintain this action because of the failure of the plaintiff to domesticate itself by compliance with the act of 1907. The plaintiff admitted such failure to comply with the laws of the State, Acts of 1907, but denied it was doing business within the purview of the act of 1907.
“The undisputed evidence shows that Earl Rhodes, agent for the plaintiff, solicited and obtained a written order from the defendant, which, together with other orders, was transmitted to the plaintiff company- and sales confirmed, and the granaries shipped in a car to Stuttgart, freight bill made to Barle Rhodes, Stuttgart, Ark., and car received and freight paid by Rhodes, and the granary in controversy was delivered to the defendant either from the car or platform of the common carrier, the railroad company. The shipment originated in the State of Ohio. These transactions occurred in 1918. In July, 1920, the president and - another representative of the plaintiff company called upon defendant, and, after some negotiations, reached an agreement by which an allowance was made defendant, and a note executed for the sum. of $1,000. The defendant had stored his rice crop there in 1919, and continued to store some rice there in 1920,1921 and 1922. Certain repairs were made, or attempted to be made, on the granary at the time the president of the company procured the note sued on. The court finds the fact to be that plaintiff was not doing business in the State at the time of the sale or delivery of the granary; that the transaction was one of commerce between citizens of different .States, and therefore the act of 1907 has no application. That the renewal note waived all defenses pleaded and relied upon by the defendant as to any bréach of warranty .and misrepresentations claimed to have been made in the sale of the granary, and it therefore follows that plaintiff is entitled to judgment for the .amount of the note, together with interest, as provided therein.”

The findings of facts made by the court are borne out by the evidence in the record, and, in addition thereto, it may be stated that, while the granaries were all shipped in the same car, each one was marked in the name of the purchaser.

The. defendant has appealed from a judgment against him in favor of the plaintiff.

The sole reliance for a reversal of the judgment is that the circuit court erred in holding that the sale was a transaction in interstate commerce, and beyond the regulatory power of the State.

Upon this question this court must be governed by the decisions of the Supreme Court of the United 'States. The contention of counsel for the defendant has been 'decided adversely to him in Rogers v. Arkansas, 227 U. S. 401. There, as here, the corporation had no permanent place of business in the State of Arkansas, and its agents solicited orders, to be approved by the home office outside of the State. Vehicles to fill, the orders, tagged with the names of the purchasers, were shipped in carload lots from their place of manufacture without the' State to a point in the State near where they were to be delivered. The vehicles were consigned to the company. They were delivered by the agents of the selling ■ company to the purchasers whose names appeared upon the tags attached to the vehicles. The court held that this was merely a matter of detail in the manner in which the business was conducted, and did not affect its character as interstate commerce.

In the instant case the order for the granary was signed by the defendant, subject to the approval of the plaintiff at its home office outside of the State. The granary, with others, each marked with the name of the purchaser, was shipped in the same car, and they all were consigned to the agent of the plaintiff. The granary was delivered to the defendant by the agent of the plaintiff. So it will be seen that the facts are in all essential respects the same as those in the Rogers case, and constitute a transaction in interstate commerce.

Our later cases on the subject sustain this view of the law.

In Hogan v. Intertype Corporation, 136 Ark. 52, a foreign corporation shipped into the State, to its own order, a type-setting machine which Hogan had agreed to purchase if a man would set it up and demonstrate that the machine would do the work represented. It will be noted in that case that the sale'was not completed until the demonstration was made to the satisfaction of the prospective purchaser. Therefore the transaction was held to be an intrastate one.

In Coblentz & Logsdon v. L. D. Powell Co., 148 Ark. 151, an order for books was accepted by a foreign corporation at its home office and the books delivered there to a transportation company for shipment to the purchaser in this State. The sale was complete in the foreign State, subject to the seller’s right to retake under the contract in case the purchaser failed to pay for the books in accordance with the condition -upon which they were purchased. The sale and purchase in this case was therefore held to be wholly a transaction in interstate commerce.

It follows from our own decisions, as well as those of the Supreme Court of the United States, that the facts as they appear in the record show the transaction in this case to be one in interstate commerce.

Therefore the judgment will be affirmed.


author: McCulloch, C. J.

text:
    Skipper v. Dermott-Collins Road Improvement District.
    Opinion delivered October 27, 1924.
    1. Highways — election, by landowners — exemption.—An election of “qualified electors” held under act 240 of Special Session of February, 1920, is not within the exemption in the general highway act' (Acts Sp. Session of October, 1923, p. 11) providing that in all road districts created since 1915, where no construction work has been done or contract let or bonds issued, there shall be a reference to a vote of the owners in number or value of lands in the district, but exempting those districts where the act creating them provided for petitions or an election of a majority of the property owners, or where actual construction work has begun, or contracts been made or bonds sold.
    2. Highways — curative act. — Special Act of October 20, 1923, relating to elections concerning putting road improvement districts into operation, is retroactive only and validates only those districts wherein elections had theretofore been held during 1923.
    3. Highways — election op landowners. — Where no election of landowners in a district created by a special statute since 1915 was held as required by the general highway act (Acts Special Session of Oct. 1923, p. 11) the commissioners will be restrained from further proceeding under the former act.
    Appeal from Cbicot Chancery Court; E. G. Hammock, Chancellor;
    reversed.

      Henry & Harris, for appellant.
    The court was in error in holding that the election held under the provisions of § 36 of the act creating the road improvement district, which was held on December 31, 1923, was sufficient to exempt said act from the provisions of § 25 of the general highway statute.. On the contrary, the act creating the district cannot become operative until an election has been held in accordance with the requirements of said § 25, which repealed and superseded § 36 of the special act. These cases,on which the trial court based its decision, 161 Ark. 269, and 163 Ark. 607, are readily distinguished on the facts from this case, and furnish no proper basis for the court’s holding.

      tJohn Baxter and Williamson S Williamson, for appellee. ■ .
    1. The election provided for -by § 36 of the act 240, creating the* district, brings the district within the class of districts which are excepted from the provision of § 25 of the general highway law, known as the Harelson act, by the last paragraph of that section, and the election held rendered the law creating the district operative. 161 Ark. 269, 274; 163 Ark.- 607, 613.
    2. The issue raised in this case has been rendered academic by the act No. 28 of the extraordinary session of the General Assembly, approved October 20, 1923, § 1. This act does not limit its operation to cases where the elections had been held in 1923 prior to the passage of the act, as contended by the appellant in the lower court. There is no such limitation expressed or implied.
   McCulloch, C. J.

The road improvement district involved.in this appeal was created by an act of the General Assembly at the extraordinary session held in February, 1920 (act No. 240, special session, Feb. 1920), and the statute creating the district contained a provision that it should not become effective “ until the same has been approved by a majority of the qualified electors residing within the district, voting at a special election to be called by the chancery judge of the Second Chancery District of the State of Arkansas.” There was also a provision in the same section of the statute in regard to giving notice and holding the election. An election, called by the chancellor of the district, was held, but it was premature, as decided by this court in litigation concerning the validity of the election. Gaster v. Dermott-Collins Road Imp. Dist., 156 Ark. 507. Another election was held, pursuant to the above provision, on December 31, 1923, and the returns showed that a . majority of the qualified electors voted in favor of the district.

Appellant is the owner of property in the district, and instituted this action in the chancery court to restrain the commissioners from further proceedings, on the ground that there had been no compliance with a section of the general highway statute (Acts Special Session, Oct. 1923, p. 11),, which provides, in substance, that, in- all road districts created by special statute since the year 1915, where no construction work has been done or contract let or bonds issued, there shall be a reference to a vote of the owners, in number or in value, of lands in the district, but contains an exemption from the operation of the statute, as follows:

“This section of this act shall not apply to improvement districts where the act creating the improvement district or amendments to it provides for petitions of any majority of property owners, or -an election to ascertain their will, or to those districts dvhere actual construction work has been begun or contracts therefor have been made, or bonds sold and delivered and are outstanding, before the passage of this act.”

The question presented in this -case is, whether or not the election provided for in the act creating the district here involved comes within the exemption specified in the general highway bill.

It will be observed that the act of 1920 creating the DermotNCollins Road Improvement District provides for an election by “the qualified electors residing within the district,” whereas the general highway bill exempts from its operation ‘ ‘ improvement districts where the act creating the improvement district or amendments to it provides for petitions of any majority of property owners, or an election to ascertain their will.” One statute provides for an election by the qualified electors, and the other exempts only districts where the will of the property owners is to he ascertained.

In the case of Rayder v. Highway District, 161 Ark. 269, which is relied on by counsel for appellee, we held that, where the statute creating the district provided for an election by the resident property owners, it came within the exemption of the general highway bill. In Bost v. Road Improvement District, 163 Ark. 607, also relied on by counsel for appellee, the statute creating the district provided for an election by the owners of property in the district, upon petition of a certain number of owners of property, but there was no petition and no election, and we held that this came within the exemption contained in the general highway bill. Neither of those cases, however, reached to the question presented in the present case, for here we have a case where the statute creating the district makes no provision for an election, by property owners. On the contrary, it provides for an election by the qualified electors of the district. It seems to us that, by no process of reasoning, can we stretch this language to necessarily embrace property owners or to limit it to property owners.. "We said in Rayder v. Highway District, supra, that the general highway bill did not undertake to specify the details of the election, but we did not mean .to hold that an election merely by qualified electors of the district would take the place of the election provided for in the general highway bill.

In framing the highway bill the lawmakers were dealing with the subject of local improvements to be constructed at the expense of the owners of adjoining property, and, while they had the power to place any condition upon the operation of the statute that they saw fit, it is not conceivable that, in providing for a referendum, they meant to leave it to the vote of qualified electors and not to the owners of property. Qualified electors are not necessarily owners of real property, and such owners are not necessarily qualified electors, hence the lawmakers, in passing the statute and specifying the exemptions in its terms, must have had in mind this distinction. Hodges v. Board of Improvements, 117 Ark. 266.

The statute creating the district not being within the exemption specified in the general highway bill, it was necessary, before proceeding further, to hold an election pursuant to the terms of the general highway bill.

It is also contended that the election was valid under a statute enacted at the extraordinary session and approved October 20, 1923, as follows:

“Section 1. Wherever an election has been held during the year 1923 in pursuance of any statute in this State for the purpose of determining whether a road improvement district should be put into operation, and the majority of those voting at the election have voted in favor of the district, such district is hereby created and declared valid and effectual, and to have all the powers and be subject to all the liabilities of a district created under the law by which the district was created. ’ ’

The language of this statute necessarily implies retroactive effect and not prospective operation. It cannot be construed to ratify an election to be held thereafter, and it was only intended to validate districts where elections had been theretofore held during the year 1923.

There having been no election as provided by statute, it follows that the chancery court erred in refusing to grant the relief asked for by appellant.

■ Eeversed, and remanded with directions to overrule I he demurrer to the complaint.


author: Smith, J.

text:
    Honaker v. State.
    Opinion delivered October 27, 1924.
    1. Intoxicating liquors — unlawful sale — evidence.—In a prosecution for the sale of intoxicating liquor, proof of finding a number of empty bottles of vanilla extract.a quarter of a mile from defendant’s home at a place where young men were accustomed to assemble for the purpose of gambling, was admissible to show that the extract was used as a beverage, it being also shown that defendant was the exclusive agent selling that brand in the county.
    2. Intoxicating liquors — sale op extract op vanilla. — Sale of vanilla extract which could be and was used as an intoxicating beverage was unlawful, though it was not manufactured for that purpose nor sold by defendant to be so used.
    3. Intoxicating liquor — sale op vanilla extract — instruction.— In a prosecution for sale of vanilla extract as an intoxicating beverage, the court erred in refusing to instruct that, if the extract contained only the necessary quantity of alcohol to compound and preserve it for domestic use, the sale is not unlawful because some one of abnormal taste or depraved habits buys it for use as a beverage.
    Appeal from Johnson Circuit Court; J. T. Bullock, Judge;
    reversed.

      Q. O. Patterson, for appellant.

      J. S. Utley, Attorney General, and Dar cien Moose, Assistant, for appellee.
   Smith, J.

Appellant was convicted on the testimony of Joe Logan on the charge of selling intoxicating liquors. Logan testified that he had been drinking-moonshine whiskey, when he ¡bought two bottles of vanilla extract from appellant, which he also drank, and that the extract made him drunk.

Appellant was the county agent for the Watkins Medical Company, and sold various preparations put up by that company. His stock of merchandise was transported over the county in a wagon, from which he made his sales.

A witness testified that he found a number of empty ■bottles of vanilla extract, having the label of the Watkins Medical Company on them, in the woods .about a quarter of a mile from appellant’s home, at a place where a number of young men were accustomed to assemble for the purpose of gambling. The admission of this testimony was objected to as incompetent, but we think it was competent to show that the extract was used as a beverage, and was drunk as such, it being also shown that appellant was the exclusive agent selling the Watkins preparations in that county.

Appellant requested an instruction numbered 1, which would have told the jury, in effect, that, if Logan represented-to appellant, at the time the extract was purchased, that he was buying it for his mother, who intended to use it in cooking, the defendant should be acquitted.

Appellant also asked, and the court refused to give, an instruction which would have told the jury to acquit the defendant unless the extract was sold for use as a beverage.

Both of these instructions were refused, and prop erly so.

Our present statute on the subject of the sale' of intoxicants was thoroughly considered and recently construed in the case of Leslie v. State, 155 Ark. 526, and it would serve no useful purpose to repeat here what was there said. See also Sanders v. State, 164 Ark. 491.

The witness Logan admitted that he told appellant he was buying the .extract to be used by his mother in cooking; -but, under the law as announced in the cases cited, this was immaterial, if the article sold could be and was used as an intoxicating beverage, although it was not manufactured' for. that purpose and was not sold -by appellant to be so used.

Appellant requested, but the court refused to give, an instruction numbered 3, reading as follows: “If an extract containing only the necessary quantity of alcohol to compound and preserve it for domestic use is sold, then such sale is not unlawful because some one of abnormal taste, depraved habits or perverted habits buys such extract for use as a beverage.”

This instruction, or one to the same effect, should have been given as requested by appellant. The instruc.t-ion is copied substantially from the language appearing in the opinion in the Leslie case, supra, and. by the lan- . guage there used we meant to say that it was not unlawful to sell a medicine which contained no more alcohol than was necessary to compound and preserve it, and that the lawful act of compounding medicine with no more alcohol than was necessary to compound and preserve it ■was not rendered unlawful because some pervert drank the medicine.

A chemist is permitted to use such quantity of alcohol as is reasonably necessary for this purpose, without violating the law; if he uses a larger quantity, he does so at his peril, and in violation of the law. It is therefore a question of fact in such cases whether a greater quantity of alcohol was used than was reasonably necessary for the lawful purpose of compounding and preserving.

Appellant testified that the extract which he sold the witness Logan contained 33 1/3 per cent, of alcohol, but that the company had later reduced the quantity of alcohol to 24 per cent., but the extracts had not proved satisfactory to his customers, who were almost exclusively housewives, since the reduction in the percentage of alcohol.

A druggist who had followed that business for fourteen years testified that it was customary and necessary in compounding extracts to use from 30 to 60 per cent, of alcohol.

The jury might therefore have found that the extract contained no more .alcohol than was reasonably necessary to compound and preserve it, .and may have believed that it was the whiskey which made Logan drunk, and yet have convicted appellant because the extract did contain alcohol and was drunk by the witness.

The court, in instructions given, told the jury that it was unlawful to sell a compound containing intoxicants which might be used for beverage purposes, whether the seller intended that they should be so used or not. This, generally speaking, is the law; but this statement of the law is subject to the exception in instruction numbered 3 requested by appellant. •

Extracts are commonly regarded as foods, rather than as drugs, but § 5 of the Pure Food and Drug Act, which became § 4822 G. & M. Digest, defines the term “drug” as “all medicines 'and preparations recognized in the United States Pharmacopoeia or National Formulary for internal or external use, * * *” and extract of vanilla or tincture of vanilla is found in the 8th revision of the United States Pharmacopoeia, page 488, and also appears in all the prior revisions of the Pharmacopoeia, and is also found in the National Formulary.

We conclude therefore that the same rule is applicable alike to extracts or tinctures as is applicable to other drugs, that is, so much alcohol, and no more, may be used as is reasonably necessary to compound and preserve, and, if this quantity, and no more, is used for that purpose, the law is not violated, although some pervert drinks it.

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

Humphreys, J., dissents.


author: Humphreys, J.

text:
    Graves v. Jackson.
    Opinion delivered October 27, 1924.
    1. Dismissal and nonsuit — vacation after term. — The court lost control over a judgment of dismissal after final adjournment of the term, and could not vacate such judgment at a subsequent term, in the absence of a statutory ground therefor, regardless of a continuance until next term of a motion to reinstate tjie case.
    2. Dismissal and nonsuit — control of judgment after term.— The only way to retain control over a judgment of dismissal after term is to set it aside and continue the case.
    Appeal from Boone Circuit Court; J. M. Shinn, Judge;
    reversed.

      Shouse <& Rowland, Sam Williams 'and E. G. Mitchell, for appellants.
   Humphreys, J.

Appellee brought a replevin suit against appellants, in a magistrate’s court in Boone County, to recover a certain telephone line, boxes and switchboard, and, upon a trial of the cause, obtained a judgment for same. Appellants took an appeal from the judgment of the justice of the peace to the circuit court of said county, where there was a mistrial and a continuance of the cause to the January, 1923, term of the court. On April 2,1923, an adjourned day of the January term, appellants filed a motion to dismiss the case on the ground that the telephone line was real estate over which the justice of the peace had no jurisdiction and over which the circuit court could not obtain jurisdiction by appeal. The motion was conceded by appellee, whereupon the court dismissed the cause. On April 16, 1923, a later day in the same term of court, appellee filed a motion to set aside the judgment of dismissal and reinstate the case. It was alleged in the motion that appellee consented to a dismissal of the cause with the understanding that the parties would submit the issues involved to arbitration, but they had been unable to agree upon the arbitrators. By consent of the parties this motion was continued until the next regular term of court, which convened in July, 1923. The motion was heard during the July term, 1923, of court, and an order was made setting aside the judgment of dismissal and reinstating the case. The court then entertained and sustained a motion by appellee to dismiss appellants’ appeal from the judgment of the justice of the peace, and rendered judgment in favor of appellee on the appeal bond.

An appeal had been duly prosecuted to this court from the orders and judgment made and rendered by the trial court at the July, 1923, term thereof.

The question presented to this court for determination is whether the trial court had power to vacate the judgment rendered on April 2, 1923, dismissing the case, after the lapse of that term, except upon one of the statutory grounds. No statutory ground was assigned for setting the judgment of dismissal aside. The court therefore lost control over the judgment of dismissal with the final adjournment of the January, 1923, term of the court, and, having lost control over same, could not vacate the judgment of dismissal at a subsequent term of the court. The continuance of the motion to reinstate the case until the next term of the court did not .prevent the court from losing control over the judgment of dismissal after the lapse of the term. The only way to have retained control over the case after the lapse of the term would have been to set the judgment of dismissal aside and continue the cause. Incorporated Town of Corning v. Thompson, 113 Ark. 237; Spivey v. Taylor, 144 Ark. 301.

The order setting aside the judgment of dismissal is therefore reversed.


text:
    Globe & Rutgers Fire Insurance Company v. Hornor.
    Opinion delivered October 27, 1924.
    1. Insurance — award op appraisers. — Where, under the terms of a fire insurance policy, there was an arbitration, the award will not be set aside, unless the result of. fraud or mistake or of the misfeasance or malfeasance pf the arbitrators.
    2. Appeal and error — jury question. — The weight of testimony and credibility of witnesses is for the jury, and not for the court on appeal.
    Appeal from Phillips Circuit Court; E. D. Robertson, Judge;
    affirmed.

      J. A. Watkins, for appellant.

      Moore, Walker & Moore, and John C. Sheffield, for appellee.
   Humphreys, J.

Appellees instituted suit against appellant in the circuit court of Phillips County upon a fife insurance policy, to recover one-half the damages occasioned by fire to a building on lot 22, block 19, in West Helena, Arkansas. The property was insured against loss by fire in two companies, the policy in question having been issued by appellant. For this reason suit was brought against appellant for only one-half of the alleged loss. The policy contained a paragraph for the appraisement of the loss by arbitrators in case the parties could not agree between themselves. It provided that each party might choose an appraiser, and that the two chosen should1 select an umpire, and, if the appraisers could not agree upon an umpire, either party might apply to any court of record in the county .to obtain one. It was alleged in the complaint that the parties could not agree upon the amount of damage, and that appellant chose J. A. Sullivan and appellees F. O. Cannon as appraisers; that the appraisers failed to select an umpire, whereupon appellees applied to and procured the appointment of B. J. Bruen as umpire by the circuit court of said county; that, after proper notice to the parties, F. C. Cannon and B. J. Bruen made and estimated the entire damage to the building at $3,073.10.

The cause was submitted upon the pleadings, the testimony adduced, and the instructions of the court, which resulted in a verdict and judgment against appellant for $1,506.38, including interest, from which is this appeal.

Appellant contends for a reversal of the judgment upon the ground that the evidence is insufficient to support the amount of the verdict. We cannot agree with appellant in this contention, for two reasons.

In the first place, there was an arbitration and award conformable to the provisions contained in the policy, and the award exceeded in amount the verdict and judgment. An award will not be set aside unless the result of fraud or mistake, or of the misfeasance or malfeasance of the appraisers. Niagara Fire Ins. Co. v. Boone, 76 Ark. 153.

In the next place, E. C. Hornor testified positively that appellees were damaged in the amount of the award. It is argued that his testimony was impaired because, in his proof of loss dated January 23,' 1922, he fixed the entire amount of damage to the building at $2,123.05. Mr. Hornor explained that he based the proof of loss on an estimate made by H. H. Walters, and that afterwards he ascertained that Walters had omitted many items of damage which should have been included in the estimate. It is also argued that the estimates of damage to the building on account of fire made by E. P. Walker, in the sum of $752.19, and J. B. Lyle in the sum of $1,510.25, a short time after the fire, are proof conclusive that the verdict was exc.essive. Mr. Hornor testified that these estimates omitted many items of damage resulting from the fire.

The weight of the testimony and credibility of the witnesses were questions for the jury, and not for this court on appeal. There is evidence of a substantial nature in the record tending to support the verdict, so we will not disturb it.

No error appearing, the judgment is affirmed.


text:
    Missouri Pacific Railroad Company v. Sears.
    Opinion delivered November 3, 1924.
    1. Highways — preliminary expenses of improvement district— repeal of statute.. — The remedy afforded by act No. 266 of extraordinary session of 1920 for enforcing claims for preliminary expenses incurred by commissioners of the road improvement district created by the act was not taken away by Special Acts of 1921, pp. 97, 1251, repealing such act No. 266.
    2. Highways — jurisdiction of equity to adjudicate claims.— Under Acts Extra Session 1920, No. 266, § 25, creating Fulton & Izard Road Improvement District No. 4, the chancery court of Fulton County had jurisdiction to adjudicate claims against such district for preliminary expenses, and to app’oint a receiver to collect such taxes, notwithstanding the district-was abolished by Sp. Acts 1921, pp. 97, 251.
    3. Judgment — decree against road improvement district — conclusiveness. — A decree in a suit against a road improvement district for expenses incurred by the commissioners is binding upon the property owners in such district, as they were represented by the district.

      4. Judgment — conclusiveness of consent decree. — The fact that in a suit against a road improvement district claims were allowed by agreement will not affect the decree on collateral attack.
    5. Highways — -preliminary expenses of improvement district-assessment. — Acts of Extra Session of 1920, No. 266, § 25, providing that preliminary expenses of the road improvement district, in case the project should be abandoned, should be raised by levy on the assessed valuation of property in the district, is valid.
    6. Highways — statute fixing assessment of expenses — validity. —Testimony as to the absence of benefit to one of the taxpayers in a highway improvement district held not sufficient to show that the act creating the district was unreasonable in fixing the assessed valuation for general taxation as the basis for apportioning the preliminary expenses of the district upon the abandonment of the project.
    7. Highways — nonpayment of assessment — penalty.—Nonpayment of the tax levied under § 25 of act No. 266 of Extra Session of 1920 to pay preliminary expenses upon abandonment of the project did not involve the payment of a penalty, that provided by § 14 relating only to assessments while the district is a going concern.
    Appeal from Izard -Chancery Court; Lyman F. Reeder, Chancellor;
    reversed in part.

      Thos. B. Pryor and Samp Jennings, for appellant.
    The chancery court of Fulton County was without authority in assuming jurisdiction of the case. 89 Ark. 160; 116 S. W. 199; 23 R. C. L. 43, § 44; 227 Penn. 354; 76 Atl. 67; 136 A. S. R. 884. Jurisdiction of the' subject-matter is necessary to make judgtaient by consent good. 15 R. C. L. 643, § 86. Jurisdiction of the court must be shown in some manner. 78 Ark. 246; 93 S. W. 978. A judgment may he attacked in collateral proceedings for error in .assuming jurisdiction. 15 R. C. L. 853, § 327. A stranger to a judgment, prejudiced by it when entered, may not however avoid it for mere error or irregularity. 15 R. C. L. 840, § 314; 59 Ohio St. 259; 69 A. S. R. 764; 12 Yt. 165; 36 Am; .Deo. 331; 2 Mete. 135; 35 Am. Dec. 393; 4 Cush. 27; 50 Am. Dec. 750; 18 Penn. St. 79; 55 Am. Dec. 592. Repeal of law conferring jurisdiction takes away the right to proceed' further in actions pending. 30 Ark. 278; 25 R. C. L. 936, § 189; 25 R. C. L. 939, § 191; 25 R. C. L. 940, § 183. There is no vested, right in a penalty. 25 R. C. L. 943, § 195. Section 9758, C. & M. Digest, refers only to criminal and penal statutes, and does not apply to this proceeding. 103 Ark. 151; 146 Ark. 485; 68 Ark. 433; 59 S. ÍW. 952. The court erred in admitting the testimony of R. E. Warden. 157 Ark. 304; 248 S. W. 563; 153 Ark. 5; 239 S. W. 722; 86 Ark. 1; 109 S. W. 526.

      H. A. Northcutt and G. T. Humphries, for appellee.
   McCulloch, C. J.

A road improvement district, known as Pulton and Izard Road Improvement District No. 4, was created by a special statute enacted by the General Assembly at the extraordinary session of 1920 (unpublished act No. 266), for the purpose of improving a public road or roads in Pulton and Izard counties, beginning at Calico Rock, in Izard County, and running in a northeasterly direction through Pineville, Cross Road, Wild Cherry, Bexar and Byron to Salem, in Pulton County,' and also a lateral beginning at Bexar and running- in an easterly direction to Union, and another lateral from Yiola to Salem. This statute contained numerous sections appointing commissioners and authorizing the formation of plans, the assessment of benefits on lands, and the construction of the improvement mentioned, and the collection of taxes. Sections 14 and 25 of that statute, bearing upon the present controversy, read as follows:

“Section 14. All taxes levied under the terms of this act shall be payable between the first Monday in January and the 10th day of April of each year, and, if any taxes levied by the board in pursuance of this act ■ are not paid at maturity, the collector shall not embrace such taxes in the taxes for which he shall sell the lands, but shall report such delinquencies to the board of commissioners of said district, who shall add to the amount of the tax a penalty of twenty-five per cent.; and said board of commissioners shall enforce the collection by chancery proceedings in the chancery court of ’ their respective counties, in the manner provided hy §§ 23 and 24 of act No. 279 of the General Assembly, of the State of Arkansas for the year 1909, entitled, ‘An act to provide for the creation of drainage districts in this' ■ State/' approved May 27, 1909; but the owner of property sold for taxes thereunder shall have the right to redeem it at any time within two years from the time when his lands have been stricken off by the commissioner making the sale.”
“Section 25. In case, for any reason, the improvement contemplated by this district is not made, the preliminary expenses shall be a first lien upon all the property in the district, and shall be paid by a levy of á fax upon the assessed value for county and State taxation, which levy shall be made by the chancery court of Pulton and Izard counties, and shall be collected by the receiver to be appointed by said court.”

Pursuant to the statute, the commissioners caused a survey to.be made of the road and formed plans for the construction of the work, thereby incurring certain preliminary expenses, but there was opposition to the construction of the road, and it was found to be impracticable to do so, and the project was abandoned. Certain creditors of the district for preliminary expenses commenced an action in the chancery court of Pulton County for the enforcement of their claims and the appointment óf a receiver to collect the taxes, pursuant to § 25 of the statute. This action was commenced on March 22, 1921, and, after service upon the commissioners of the- district, a large number of property owners appeared and were «made parties for the purpose of resisting the allowance of some of the claims. The claims were finally adjusted, the principal one, being for engineering expenses, was adjusted by agreement of all parties, and the chancery court entered a decree allowing the claims as agreed upon, and ascertaining the total amount to be collected, and appointed a receiver to collect the taxes; The order of court appointing the receiver was entered on April 13,1921, and the final decree allowing'the claims was entered on October 12, 1921. All of the landowners in the district paid their respective apportionment of the tax except appellant, Missouri Pacific Bailroad Company, and this action was 'instituted in the chancery court of Izard County, where that portion of appellant’s property which is taxed is situated, to recover its amount of the proportionate part of the preliminary expenses. On the hearing of the cause, the court rendered a decree against appellant for the recovery of the amount which was found to be its tax or proportionate part of the expenses, in accordance with § 25 of the statute creating the district, and also for a penalty of twenty-five per centum of the tax, in accordance with § 14 of the statute.

The G-eneral Assembly of 1921 enacted a statute amending the other statute (act No. 266, Feb. 1920) by changing the name of the district created thereby from the Fulton and Izard Boad Improvement District No. 4 to “Izard Boad Improvement District No. 4,” and eliminating from the district all of the lands in Fulton County and excluding that part of the improvement which lies in that county. Special Acts 1921, p. 97. The effect of that statute, while purporting merely to amend act No. 266, was to repeal the last mentioned statute and to create a new district composed entirely of lands in Izard County for the purpose of constructing an improvement ■situated entirely in that county. The statute simply cut off the road in Fulton County and eliminated all the lands in that county, leaving a road district situated in Izard County to construct the part of the road in that county. There was no emergency clause attached to the last mentioned statute; hence it did not go into effect until ninety days after the adjournment of the Legislature, which was .in June, 1921.

At the same session of the Legislature (1921) another statute was passed repealing- the other statute enacted at that session and adding certain lands contained therein to another district in Izard County, designated as Izard County Highway Improvement District No. 1. This statute did not contain the emergency clause, and therefore did not go into effect until ninety days after the adjournment of the session. Special Acts 1921, p. 1251.

The language of § 3 of the last mentioned statute is somewhat involved, owing to what appears to have been the desire of its framers to emphasize and reemphasize the fact that the original statute creating the Fulton and Izard Road Improvement District was not to be revived so as to recreate a road improvement district in Fulton County, but one thing is clearly expressed, and that is that the preceding statute of the same session creating the district in Izard County, known as the Izard County Improvement District No. 4, was repealed. That section concludes as follows:

“Fulton County shall be exempt from the provisions of act No. 266 of the Forty-second General Assembly of the .State of Arkansas, approved February 20, 1920, and no taxes shall be collected under the provisions of any of the above mentioned acts, except the necessary amounts to pay for the expenses already incurred previous to the passage of this act by reason of said act No. 266, and, in accordance with act 78 of the acts of 1921, from any lands or property lying within Fulton County, .also act No. 266 of the Acts of the General Assembly of the State of Arkansas in extra session, 1920, creating Fulton-Izard County Highway Improvement District No. 4, is hereby repealed.”

It is earnestly contended, in the first place, that the chancery court of Fulton County had no jurisdiction to adjudicate the claims against the district and appoint a receiver to collect the taxes. The argument is that the first of the statutes of 1921, mentioned above, transferred the jurisdiction from the chancery court of Fulton County to the chancery court of Izard County. We do not agree with counsel in this contention, for, as before stated, the effect of the act of 1921, supra, was to abolish the old district without repealing the statute in toto, and to create a new district, composed of lands situated in Izard 'County, and for the purpose of constructing an improvement in that county. There was ho express repeal of the act creating the old district, and, as the preliminary expenses had been incurred, thereby creating obligations pursuant to § 25 of the statute — obligations which could not be impaired by subsequent legislation— no presumption is to be indulged that the Legislature intended to take away the only remedy afforded by the statute for enforcing those obligations. The new statute was, in other words, merely prospective in its operation, and had no effect upon obligations already incurred and the remedy provided in the old statute for .their enforcement. The preliminary expenses were incurred by the old district as a whole, and all of the lands in the district were subject to taxation, under the statute, for' the purpose of paying those expenses. The elimination of the Pulton County lands from the district manifested no intention on the part of the lawmakers to exempt those lands from'the obligations incurred for preliminary expenses. Nor did the statute later enacted in the session of 1921 have the effect of repealing § 25 of the original statute so as to cut off the remedy for the enforcement of obligation for preliminary expenses. -■ It is true the concluding clause of § 3 of the statute declares the repeal of act No. 266, creating the Pulton and Izard County Highway Improvement District No.' 4, but that is coupled with the express declaration that “no taxes shall be collected under the provisions of any of the above mentioned acts, except the necessary' amounts to pay for the expenses already incurred previous to the passage of this act.”

Our conclusion is that the Pulton Chancery Court had jurisdiction under the original statute, which was not repealed as to the section conferring jurisdiction on the Pulton Chancery Court.

It is further contended that, as appellant was not ■a party to the suit in the Pulton Chancery Court, where the amount of the claims was adjusted and a receiver appointed, it is not bound by that decree, but has a right, in the present suit in the Izard Chancery' Court, to attack the validity of the claims against the district. There was no effort at the trial to show that the claims against the district were unjust, appellant contenting itself with the argument that the court whs without jurisdiction and that no one was bound by the decree except those who were parties. We have already seen that the court had jurisdiction, and it was therefore unnecessary for the property owners to he made parties in order to hind them. They were not necessary parties, as they were represented by the district itself, which was sued. Appellant could have had itself made a. party, as did many other property owners, but, having failed to do so, it cannot question the correctness of the court’s decree. The fact that the claims were allowed without proof adduced by the court, other than the agreement as to the amounts, does not affect the decree on collateral attack.

Appellant also attempted to show that the tax against its property was arbitrary and unjust. It will be observed that § 25 of the original statute provides that the preliminary expenses, in case of abandonment of the project, should be paid “by a levy of a tax upon the assessed value for county and State taxation.” This constituted a legislative determination of the justice of this method of taxation, and such legislation has been upheld by this court as the proper exercise of legislative power. Netterer v. Dickinson & Watkins, 153 Ark. 5. The only attempt made by appellant to break down the statute as arbitrary was to show, by the opinion of one witness, that the railroad’s property would not have been benefited at all, for the reason, in the language of the witness, that “the Interstate Commerce Commission fixes the rate for transportation, and, when the business will net the railroad over five and a half per cent., the Government takes the amount earned in excess of that. It is kept in a different fund, and the railroad does not need new roads, and settling up and civilizing a new road would not add anything to the physical value of the railroad or the railroad’s property.” This testimony was not sufficient to show that the statute was arbitrary and unreasonable in fixing the assessment of values for State and county taxation as the basis of apportionment of the preliminary expenses of the district.

Finally, it is' contended that the ,court erred in decreeing a penalty in accordance with § 14 of the original statute, and in this contention we fully agree with appellant. Section 14 relates only to the collections of assessments, while the district is a going concern, for the purpose of constructing the improvement. Section 25 is the only provision which has reference to the winding up of the district and collecting taxes for the purpose of' paying the preliminary expenses. The two sections contain altogether different provisions with reference to the method of collecting the taxes. One provides for an actual assessment of benefits and the collection thereof in annual installments by the tax collector of the county; and the other provision is for a horizontal assessment on the valuations fixed for State and county taxation, and the collection thereof by a receiver appointed by the court. As the section with reference to the collection of taxes to pay preliminary expenses contains no provision for a penalty, the court is without authority to declare one.

The decree of the chancery court is therefore modified by striking out the penalty, and the cause is remanded with directions to enforce the lien for the amount of taxes, without penalty.


text:
    Nicholson v. Hayes.
    Opinion delivered November 3, 1924.
    1. Reformation of instruments — mistake and fraud. — To justify reformation of a written lease, there must have been a mutual mistake, or- a mistake by one party coupled with fraud of the other.
    2. Reformation of instruments — sufficiency of evidence.— Parol evidence to support a decree reforming a written instrument must be clear, unequivocal and decisive.
    3. Reformation of instruments — sufficiency of evidence.--In an action by lessees- for breach of the contract of lease, in which the defendants asked for reformation of the lease sued on upon the ground of mistake and fraud, evidence held to warrant a decree for reformation.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.

      Rogers, Barber & Henry, for appellants.
    Where the means of information are open to both parties alike, a court of equity will not undertake to relieve a party from the circumstances of his own inattention and carelessness. 89 Ark. 315; 45 L. R. A. 392; 18 C. J. 229; 47 Ark. 335; 14 Ency. of Evidence, 78. Parol evidence should not be admitted to vary the terms of a written contract. 89 Ark. 315; 25 A. L. R. 7i37. To justify or authorize the reformation of a written instrument the proof must be clear, unequivocal and decisive. 84 Ark. 349.

      Pat McNalley, for appellee.
    The finding’s of a chancellor will not be set aside unless clearly contrary to the weight of the evidence. 129 Ark. 197; 129 Ark. 120; 129 Ark. 583; 136 Ark. 624. Where fraud is alleged in a contract, parol evidence may be admitted to reflect the true agreements of the parties. 43 Ark. 439; 38 Ark. 334; 26 Ark. 41; 32 Ark. 454; 139 Ark. 447 ; 99 Ark. 45. Inadequacy of consideration may be a circumstance tending to establish fraud and will afford grounds for setting aside the contract. 78 Ark. 47; 77 Ark. 261. In equity, fraud may be inferred from facts and circumstances. 119 Ark. 578; 92 Ark. 509; 33 Ark. 425. Where the relation of confidence and trust exists, facts merely sufficient to cause an ordinarily prudent person to inquire are no defense. 86 Ark. 600; 43 Ark. 454.
   Hart, J.

James Nicholson and S. J. Tanner instituted this action in the circuit court against O. C. Hayes and Ida Bell to recover damages for the breach of a lease contract of two town, lots for the term of five years.

The defendants denied any breach of the contract on their part, and set up facts entitling them to a reformation of the contract. On their motion the case was transferred to the chancery court and tried there.

The record shows that, on the first day of January, 19'23, O. C. Hayes and Mrs. Ida Bell leased to James Nicholson and S. J. Tanner lots one and two, in block three, in the town of Norphlet, in Union County, Arkansas, for the period of five years, for the consideration of $50 per month. The lease was signed by the grantors and duly acknowledged by them on the same day. • On the 8th day of March, 1923, the lease was duly filed for record.

It was the contention of O. C. Hayes and Mrs. Ida Bell that they leased to Nicholson and Tanner only 30 feet on the back end of the lots in question; that, by mistake on their part and fraud on the part of the lessees, the whole of said lots was described in the lease. They introduced testimony to support their claim, which will be stated in the opinion.

On the other hand, the evidence for Nicholson and Tanner tends to show that the description in the lease was correct.

The chancellor found the issues in favor of the defendants, and it was decreed that the complaint of the plaintiffs should be dismissed for want of equity, and that the defendants should have a reformation of the lease so as to recover only 30' feet off of and across the west end of the lots in question, and that said lease should be canceled as to the remaining portion of said lots. The case is here on appeal.

The rule in this State is that, to justify a reformation of a written instrument, there must have been a mutual mistake, or a mistake on the part of one party coupled with fraud on the part of the other, and that, if parol evidence is relied upon to establish the ground of reformation, it must be clear, unequivocal and decisive. Welch v. Welch, 132 Ark. 227, and Cain v. Collier, 135 Ark. 293.

'The lease in question was signed by O. C. Hayes and Mrs'. Ida Bell on the first day of January, 1923, and was duly acknowledged by them on the same day.

According to the testimony of James Nicholson and S. J. Tanner, the lease correctly expressed the agreement of the parties. They expressly denied having leased only a portion of the lots, and denied having told any one that they had done so. They exhibited several receipts for the rent, and these receipts recited that it was the monthly rental for lots one and two, in block three, in the town of Norphlet. They demanded possession of all of said lots, and, upon the refusal of the defendants to give them possession, they brought suit to recover the amount of rent which they had already paid and for damages for a breach of the lease contract by the lessors. . '

O. C. Hayes was the principal witness for the defendants. According to his testimony, he only agreed to rent to the plaintiffs 30 feet off of the west end of the lots in question. The front or east end of the lots was already occupied by tenants of thé lessors. The lot of Hayes had a frame building on the front part of it, in which Charley Morrison conducted a grocery store, and dry goods and gents’ furnishing business. Morrison had been conducting the business in this, store for several years, and occupied it at the time the lease in question was executed. He paid rent in the sum of $75 per month. On another part of the same lot was a little restaurant, and Hayes was receiving $35 per month for it at the time the lease in question was executed.

Mrs. Bell had two business houses on the front end of her lot. She received $75 per month for the larger house and $12.50 for the smaller. Both of these houses were occupied by their respective tenants at the time the lease contract was made. There was no building on the part of the lots rented to the plaintiffs. The plaintiffs told Hayes that they contemplated building on the back end of the two lots. There was an oil boom in the town of Norphlet at the time. It was agreed that there should be an alley left between the buildings which the plaintiffs contemplated erecting and those already erected on the front part of the lots. This alley was to be left so that occupants of the buildings might have a place to unload wagons hauling goods to their stores, or business houses.

The lease was written by the plaintiff, James Nicholson, and Hayes did not read it over, because Nicholson told him that it only covered 30 feet off of the end of the lots which was vacant, ánd Hayes relied on this statement, because he had been a party to lease contracts with Nicholson before, and Nicholson had written them according to agreement.

Mrs. Ida Bell was also a witness for the defendants. According to her testimony, the contract was made by Hayes, and she did not read it over because she was told that it only covered 30 feet on the west end of the lots, and that it did not include the buildings on the front end. She had confidence in the statement to her in this respect, and, on that account, did not read the lease. Her daughter was present when she executed the lease, and corroborated her testimony in every respect.

The justice of the peace who took the acknowledgments of O. C. Hayes and Mrs. Ida Bell to the lease testified that the plaintiffs distinctly stated that the lease only covered 30 feet off of the west end of the lots, and that the plaintiffs, relying on this statement, did not read the lease.

According to the testimony of Charley Morrison, he conducted a grocery, dry goods and men’s furnishing business in a frame building on the east end of the lot in question owned by O. C. Hayes, and that he had possession of such building at the time the lease in question was executed. He paid $75 per month rent. James Nicholson told him at one time.that he had leased the back part of the lots belonging to O. C. Hayes and Mrs. Ida Bell, and that he contemplated building on the leased ground.

Tom Foster, who also was a tenant on the front end of said lots, stated that he paid $35 per month for the building occupied by him, and that James Nicholson had told him that he had leased 30 feet back of the stores on the two lots in question.

This testimony makes a clear and convincing case in favor of • Hayes and Mrs. Bell. It is true that the testimony of these parties is contradicted by that of Nicholson and Tanner- but their testimony - is corroborated, not only by four other witnesses, but by the attendant circumstances. The undisputed testimony shows that the front end of the lots was occupied by buildings which were rented in the aggregate for $192 per month. These stores wére occupied by their respective tenants at the time the lease was 'executed. The lessees paid the rent for three months without attempting to oust these tenants, or to in any manner question their right to occupy the buildings as tenants of the lessors. The rent paid by them amounted to nearly four times as much as the rent specified in the lease. These are very strong circumstances tending to show that there was no intention on the part of the lessors to lease the whole of the lots in question.

The justice of the peace who took the acknowledgments corroborated in every respect the testimony of Hayes and Mrs. Bell, to the effect that they only .leased to the plaintiffs 30 feet on the west end of the lots, and that it was expressly understood between the parties that there should be an alley left between this 30 feet and the buildings on the front end of the lots, so that the tenants might have a place Oto unload merchandise 'for their respective business houses.

A daughter of Mr.s. Bell also testified that she was present when her mother signed the lease, and that Nicholson expressly stated that it only covered 30 feet of the vacant end of the lots, and for this reason her mother signed the lease without reading it. Two tenants of Hayes and Mrs. Bell testified that Nicholson told them, after the lease was executed, that it only covered 30 feet on the vacant end of the lots.

It follows that the decree will be affirmed.


author: Hart, J.,

text:
    Oliver v. Deffenbaugh.
    Opinion delivered November 3, 1924.
    1. Mortgages — rights of purchaser at foreclosure sale. — A pur- - chaser at -a mortgage foreclosure sale is entitled to possession ■and rents and profits, including ungathered crops, after notice to quit and demand for rents and profits.
    2. Mortgages — notice of issuance of writ of assistance.— Notice that a writ of assistance to place the purchaser at foreclosure sale in possession is in the sheriff’s hands for execution is equivalent to a notice to quit and demand for rents and profits.
    3. Mortgages — right to redeem from mortgage foreclosure.— Under Crawford & Moses’ Dig., § 7411, authorizing a mortgagor to redeem property sold at foreclosure sale within a year, where the mortgagor exercises this right, he is entitled to an accounting for rents and profits received by the purchaser or her grantee during such period of redemption.
    Appeal from Crawford Circuit Court; James Cocieran, Judge;
    reversed.
    STATEMENT OF FACTS.
    E. E. Deffenbaugh and others brought this suit against Mrs. V. C. Irvin and R. F. Oliver to recover damages for the wrongful taking of certain crops of corn, cotton and hay claimed by the plaintiffs.
    The defendants claimed the crops by virtue of the purchase of the land on which it was grown at a mortgage foreclosure sale.
    The record shows that E. E. Deffenbaugh and LulaDeffenbaugth, his wife, executed a mortgage to Y. C. Irvin on 265 acres of land situated in Crawford County, Arkansas, to secure an indebtedness in the sum of $1,200, evidenced by a promissory note, dated February 1, 1920, and payable December 1, 1920, with interest at the rate of 10 per cent, per annum from date until paid. E. E. Deffenbaugh made default in the principal and interest on said note when it became due, and V. C. Irvin brought suit in equity to foreclose her mortgage.
    The case was heard1 and determined in the Crawford Chancery Court on the first day of May, 1922. The court rendered judgment in favor of V. O. Irvin against E. E. Deffenbaugh for the amount of the note and the accrued interest,, and provided that, upon default in the payment of the amount found due, the mortgaged premises should be sold by a commissioner appointed by the court in satisfaction of the mortgage. Default was made by E. E. Deffenbaugh in the payment of the judgment, and the land was sold by the commissioner and’ bid in by Y. C. Irvin for the sum of $1,523.57. The commissioner made a report of his proceedings to the chancery court, and was ordered to execute a deed to the purchaser. Pursuant to the directions of the chancery court, the commissioner duly executed a deed1 to said land to V. C. Irvin. The report of the commissioner was approved by the court, and the deed was examined and approved by the court on the same day, and the acknowledgment of the commissioner to the deed was taken in open court on the 19th day of June, 1922.
    On the 26th day of July, 1922, the clerk, in obedience to an order of the Crawford Chancery Court, issued a writ of assistance to y. C. Irvin, and the sheriff of Crawford County was ordered- by it to remove E. E. Deffenbaugh and Lula Deffenbaugh from said premises and to place V. C. Irvin in possession thereof. This writ was duly delivered to the sheriff, and E. E. Deffenbaugh and his wife were notified that it was in the hand's of the sheriff for- service, on -or about the first of August, 1922. They were not actually dispossessed by the sheriff, however, until the -6th -day of October, 1922.
    According to the evidence in behalf of the plaintiffs, there was at that time on said premises more than 6,000 pounds of cotton which had not been picked, and also a small amount of corn that had not -been harvested. Mrs. y. C. Irwin sold the land to R. F. Oliver, ■after she had purchased it at the foreclosure sale.
    According to the testimony of Oliver, he took possession of the premises after E. E. Deffenbaugh and his wife had been dispossessed, and gathered the crops standing on the land. He picked about 3,000 pounds of cotton and harvested a small amount of corn and hay, .and kept the same, or the proceeds thereof.
    The uourt told the jury as a matter of law that the plaintiffs were entitled to recover the value of the ungathered crops on said premises at the time they were dispossessed.- The only .question' submitted to the jury was as to the value of these crops.
    The jury returned a verdict in favor of the plaintiffs for the sum of $426.98, and from the judgment rendered the defendant, R. F. Oliver, has duly prosecuted an appeal to this court.

      G. M. Wofford, for appellant.
    The court erred in holding that the purchaser at the mortgage sale was not entitled to possession of the purchased lands nor to the rents and profits of the same during the period of redemption. 65 Ark. 129; 66 Ark. 572; 123 Ark. 18. The court erred in holding that the mortgagor was not bound jby the decree of the chancery court confirming the sale to the mortgagee until the writ of assistance was actually executed. 8 R. C. L. 360; 8 R. C. L. 361.

      E. D. Chastain, for appellee.
   Hart, J.,

.(after stating the facts). Under the facts stated, the court erred in instructing the jury that the plaintiffs were entitled to the ungathered crops on the mortgaged premises at the time they were dispossessed. The law is that the mortgagee, having purchased the mortgaged premises at a foreclosure sale, is entitled to the possession of the same and to the rents and profits, after notice to quit and a demand for the rents and profits has been made. A purchaser from the mortgagee during the period of redemption has the same rights as the mortgagee. North American Trust Co. v. Burrow, 68 Ark. 584, and Tallman v. Heuck, 152 Ark. 438.

The record shows that the mortgagee, Mrs. V. C. Irvin, purchased1 the mortgaged premises at the foreclosure sale, and that .the sale was duly confirmed by the court. A deed to the mortgaged premises was also executed to her, which was approved by the court, and possession was awarded her.

Pursuant to this direction of the chancery court, a writ of assistance was issued by the clerk of the court on the 26th day of July, 1922. The writ of assistance was placed in the hands of the sheriff, and notice of its issuance was given to E. E. Deffenbaugh. It is true that the writ was not executed until the 6th day of October, 1922; but the issuance of the writ and notice to Deffenbaugh that it had been placed in the hands of the sheriff for execution was equivalent to a notice to quit and a demand for the rents and profits.

The record shows that Deffenbaugh had notice that the writ had been placed in the hands of the sheriff for execution about the first day of August, 1922. Therefore Mrs. Y. C. Irvin and Oliver, her grantee, were entitled to the rents after this date. At that time the confirmation of the sale had 'been obtained.

In Gailey v. Ricketts, 123 Ark. 18, it was held that the purchaser of land at a commissioner’s sale, in the absence of a reservation of rents or the right to growing crops, acquires, upon confirmation of the sale, a right to the same.

It necessarily follows that the court erred in telling the jury that the plaintiffs were entitled to the ungath-ered crops when they were dispossessed of the land.

The mortgagor had the right to redeem the property sold at the foreclosure sale at any time within a year from the date of the sale. Crawford & Moses’ Digest, § 7411. Of course if he should exercise this right, Deffenbaugh would be entitled to an accounting for the rents and profits received by Mrs. Y. C. Irvin and her grantee during the statutory period of redemption.

It follows that the judgment must be reversed, and the cause will be remanded for a new trial.


text:
    Western Union Telegraph Company v. Pope.
    Opinion delivered November 3, 1924.
    1. Telegraphs and telephones — nondelivery op telegram— damages. — A telegraph company is not liable for negligent failure to deliver a telegram announcing the illness of the addressee’s wife if he reached home as soon as he could have arrived, had the message been delivered, and it was error to refuse to so instruct.
    2. Telegraphs and telephones — nondelivery of telegram— evidence. — In an action against a telegraph company for nondelivery of a telegram resulting in plaintiff-addressee’s absence from his wife’s death-bed, evidence that friends would have gone after him if the sender had been notified of nondelivery of the telegram is competent as tending to show that injury would have 'been avoided if notice had been given.
    3. Telegraphs and telephones — validity of delivery rule.— A regulation of a telegraph company that messages are accepted for free delivery only within half a mile of its office, and that it will not deliver beyond such limit unless cost of so doing is paid, is a valid rule.
    4. Telegraphs and telephones — delivery of messages — diligence. — Where free delivery limits are fixed by a telegraph company’s regulations, it must use reasonable diligence within those limits to deliver telegrams.
    5. Telegraphs and telephones — diligence—jury question.— Whether a telegraph company used treasonable diligence to deliver a telegram within its free delivery limit, held under the evidence to be a jury question.
    6. Telegraphs and telephones — insufficient address.' — In an action against a telegraph company for nondelivery of a telegram, it is no defense that no sufficient address was furnished, unless such insufficiency contributed to the failure to deliver.
    7. Telegraphs and telephones — nondelivery of telegram— evidence. — In an action for failure to deliver a telegram, evidence that the delivery of another telegram to a third party, relating to the same subject-matter, sent to the same telegraph office, addressed to a well-known .place of business 100 yards from the telegraph office, was delayed six or seven hours, held to tend to show want of special effort to deliver the telegram in question.
    Appeal from Clark Circuit Court; James H. McCollum, Judge;
    reversed.

      Francis R. Stark, Rose,. Hemingway, Cantrell & Loughborough, and J. H. é D. H. Crawford, for appellant.
    The verdict is contrary to the evidence. There was no obligation on the part of the telegraph company to deliver the message beyond the free delivery limits, except upon agreement, at the sender’s request, and upon the payment of the expense thereof, and, in that case, without liability on.the part of the company. 161 S. W. 369; 89 Ark. 402. It may be conceded that Bandy went to Smackover frequently, and that he was well known, particularly to a certain 'grocery firm there. There was no proof that he was there on December 7. 85 So. 349. The telegraph company is not required to insure delivery, nor to search out every conceivable place in a community in order to deliver a. message. 74 S. W. 922; 148 S. W. 157. The mailing of the message, properly addressed, is a' good and sufficient delivery. 91 S. W. 257; 90 So. 793. In this case it was not known by the contracting parties that the sendee lived beyond the free delivery limits, and no custom to deliver beyond the limits was in evidence. The telegraph company was justified in acting upon the assumption that the sendee, or Bandy, could be found within the free delivery limits of the office at 'Smackover, and it cannot reasonably be contended that the parties had contracted for a delivery elsewhere. 189 S. W. 1008; Jones on Telegraph & Telephone Companies, 2d ed. 423, § 302, and note 203; 89 Ala. 510, 18 Am. St. Rep. 148 et seq.; 144 Ala. 618, 113 Am. St. Rep. 66.
    J. O. A. Bush, for appellee.
    If the defendant was unable to deliver the message, for any cause, it was its duty to notify the sender that the message could not be delivered. 100 Ark. 6; 91 Ark. 602; 16 L. R. A. (N. S.) 871, note; 61 S. E. 653; 139 N. C. 369, 52 S. E. 50.
    When it was shown that the telegram was delivered to appellant on the morning of December 7, and paid for. and that it was never delivered, the burden was cast upon the appellant of proving that it was not its fault. 100 Ark. '296; 110 Ark. 180.
   Smith, J.

Appellee sued for damages to compensate the mental pain and anguish suffered by him on account of the alleged negligent-failure of the appellant telegraph company, hereinafter referred to as the company, to deliver to him a telegram advising him of the illness of his wife,,it being alleged that this negligence was the proximate cause of his failure to be present during the last illness of his wife. He recovered judgment, and the company has appealed.

There was an amended complaint in which it was alleged that the company had received for transmission three messages, and that there was a negligent failure to deliver each of them.

Appellee was employed as a laborer by Kimball & King, who were engaged in drilling an oil well two or three miles from Smaekover, and, during this employment, he boarded at a boarding house kept by a man named Bandy, who had altogether about a hundred boarders.

Appellee’s home was in Okolona, Arkansas, where he left his wife in good health when he went to Smack-over to secure employment. His wife became ill, and grew rapidly worse, and the attending physician announced to the family that Ms patient would die, and her husband should be notified at once. At the request of the family, Dr. Alford, the attending physician, delivered to the company’s agent at Okolona the following message: “Okolona, Dec. 7, 1922. Mr. Ed Pope, c/o ‘Bandy,’ Smaekover, Ark. Come home at once; your wife is very sick. Dr. J. E. Alford.”

The message was carried to the company’s agent by a boy named Chester Killingsworth, Avho was unable to furnish a more definite address, and the agent and the doctor had a conversation over the telephone in regard to this message.

The customary charge was paid bv the doctor, and there is a conflict in the testimony between the doctor and the agent as to what was said by the agent concerning the sufficiency of the address. The agent testified that he called the doctor on the telephone and advised him that the address was insufficient, and that the message would probably not be delivered unless a more definite address was given, and that, when the doctor stated that he could not furnish a more definite address, he (the agent of the company) wrote on the message before sending it that it was “Accepted sender’s risk account insufficient address.” The doctor’s testimony is in conflict with this statement.

This message was received for transmission at 11:25 a. m. December 7, and was promptly transmitted to Smackover. The company’s agent at the last-named place testified that he saw, when he read the message, that the address was indefinite, so he made two copies of it. He gave one copy to the delivery boy and took the other himself. He detailed the inquiry he made to find the addressee of the telegram, and it is contended by the company that the agent made even greater efforts to deliver the message than ordinary diligence would have required him to make. The agent at Smackover testified that, when he failed to locate the addressee, he mailed the telegram, placing the address on the letter given ■ in the telegram. The letter 'containing the telegram was not delivered, but was returned to the agent at Smackover, who introduced it in evidence. It is contended by the company that the postmark on the envelope shows that the letter was mailed December 7. The agent at Smackover admitted that he did not send a service telegram to the Okolona office until December 9, advising that the message had not been delivered.

The undisputed testimony shows that, on account of the discovery of oil, Smackover grew in a few months from a little village of about a hundred population to a busy bustling city of twenty-five to thirty thousand, and that, on account of the enormous traffic incident to this growth and the development of the oil fields, the streets in the city and the roads in the country had been rendered almost impassable, yet it was also shown that “Bandy,” with whom appellee boarded, came to Smack-over daily, and was in that city on December 7, 8 and 9, and on each day went to the postoffice and received mail, and the letter said to have been addressed in his care was not delivered to him by the postmaster. It is contended by appellee that the envelope offered in evidence by the company’s agent at Smackover shows an erasure before the figure 7, under the abbreviation “Dec.,” and .that the letter was not in fact mailed until December 27, which was the day after the institution of this suit,

Jesse Pope, a sixteen-year-old son of appellee, testified' that he had been at work with his father at Smaek: over, and that he left there on the 8th to return home, where he arrived on the 9th. His home was about a mile and a half from Okolona, and, upon arriving there, he found his mother desperately ill, and, knowing that the telegram to his father from the doctor had not been delivered, he proceeded to send another, and this one was sent between eleven and twelve a. m. on December 9. This witness testified that he did not know any one in Smackover who knew his father in whose care the message could be sent, but he told the agent at Okolona that his father was working for Kimball & King, who were drilling an oil well about two miles from Smackover, and he offered to pay any expense incident to the delivery of the message up to $20, but the agent told him there would be no charge except that for sending the message, and this the witness paid.

This message sent by'appellee’s son was never delivered, and, as has been said, it is alleged there' was actionable negligence in the failure to deliver this message.

. In regard to this message the company asked, but the court refused to give, an instruction numbered 15, which reads as follows: “If you find that the plaintiff, Ed Pope, left Smackover, Arkansas, for his home on the 9th of December, 1922, taking a railroad train that left there, and arrived at his residence at or near Okolona. Arkansas, by jitney from Gfurdon, Arkansas, as expeditiously as he could have arrived there if the message of December 9, 1922, signed by Jesse Pope, had been delivered to him on that day, then your verdict should be for the defendant, as to said message sent by Jesse Pope on December 9, 1922.”

In our opinion it was error to refuse this instruction, for the reason that the jury might have found that the delivery of this message, without actionable 'delay in so doing, would not have brought appellee to the bedside of his wife until after her death, and but little, if any, earlier than he did in fact arrive. He left Smackover at 3:15 on the afternoon of the 9th, and, upon arriving at Gurdon by train, which is 52'miles from Smackover, he learned that some member of his family was sick. He then hired an automobile, and arrived at his home near Okolona between four and five a. mv only then to learn that his wife had died at nine p. m. on the night of December 9, and, if appellee could not and would not have arrived home earlier had there been no actionable negligence in delivering this telegram, then the failure to deliver without such delay was not.the proximate cause of his suffering, and the instruction should have been given.

The testimony shows that the friends and members of appellee’s family awaited anxiously his arrival home the night of the 7th and during the 8th, and that a friend proposed to go after him in an automobile, but this was not done after it was learned that the telegram had been sent.

This testimony was objected to. But we think it was competent as tending to show that appellee could and would have been advised of his wife’s illness and brought to her bedside before her death had the agent at Smack-over advised the agent at Okolona of the nondelivery of the message. Western Union Tel. Co. v. Bickerstaff, 100 Ark. 1.

It was shown that the message was accepted for free delivery only within half a mile of the company’s office in Smackover, and that the addressee lived more than two miles from the office. The validity of this regulation has been several times recognized by this court. West. Union Tel. Co. v. Littlefield, 110 Ark. 602; West. Union Tel. Co. v. Archer, 96 Ark. 213.

But the company’s rules, which were offered in evidence, and which show that a radius of half a mile constituted the free delivery area, also show that the receiving agent was required to notify the sending office of the nondelivery of a message, and, if the services of a special messenger were required, that the sending* office should be notified of that fact, together with the cost of such delivery, and, if a satisfactory reply was not received from the sending office, a copy of the telegram should be mailed to the addressee under the address given in the message.

As we have said, it is settled that the company is not required to make delivery beyond the free delivery limit unless the cost of doing so is paid, but it is the company’s duty to use reasonable diligence within this free delivery limit to make the delivery. West. Union Tel. Co. v. Evans, 108 Ark. 39; King v. Western Union Tel. Co., 89 Ark. 402; Ark. & La. Ry. Co. v. Stroude, 82 Ark. 117; Postal Tel. & Cable Co. v. Kelley, 103 Ark. 442; West. Union Tel. Co. v. McMullin, 98 Ark. 347.

The service message from Smackover to the agent at Okolona, advising that the message had not been delivered, was not sent until December 9, and the testimony is not undisputed that the telegram was mailed to the addressee on the 7th. Both these things could have been done within the free delivery limit.

We are of the opinion therefore that the court did not err in refusing to direct a verdict in favor of the company, for the reason that a jury might find that the exercise of reasonable diligence in an effort to deliver the telegram would have required the agent at Smack-over both to send a service message more promptly than was done, advising that the message had not been delivered, and to have mailed a copy of the telegram to the addressee on the 7th, as the agent testified he did do. There was also some testimony tending to show that, by a reasonably diligent inquiry within the free delivery radius, a delivery of the message without this limit might have been made.

The company pleaded contributory negligence of the sender in failing to give a more definite address, and insists that a verdict should have been directed in its favor on that account. But the insufficient address of appellee would not avail the company as a defense unless the failure to deliver the telegram to appellee was caused by such defect, or unless such mistake contributed to the failure to deliver. This was a proper question for the jury. Ark. & La. Ry. Co. v. Stroude, 82 Ark. 117; West. Union Tel. Co. v. Lewis, 89 Ark. 375.

The message sent; by appellee’s son read as follows: “Okolona, 12-9-Í922. To Ed Pope, c/o Kimball & King, Contractors, Smackover, Ark. Come at once; mother dying. Jesse Pope.”

It is insisted that this address was so insufficient as to constitute contributory negligence. But, as we said in regard to the first message, this was a question for the jury.

The other telegram referred to above was sent by the postmaster at Okolona, who was a friend of appellee, to Howard East, the assistant cashier of a bank in Smack-over. This message was sent about 8 or 9 a. m. on December 9, and was delivered to the addressee there named. Of course the company was not liable for any failure on the part of East to deliver a message to appellee, as the telegram to East requested him to do, and it would be without value as evidence but for the fact that the message related to the same subject-matter as the other telegrams. This last-mentioned telegram contained a full and sufficient address, and the addressee bad a well-known place of business only about a hundred yards distance from the telegraph office: yet it was not delivered for six or seven hours, and this testimony has some probative value to show .that no special effort had been made to deliver the other messages.

For the error in the refusal to give the instruction set out above the judgment ■ of the court must be reversed, and it is so ordered.


text:
    Carp v. Priess.
    Opinion delivered November 3, 1924.
    1. Appeal and error — conclusiveness op verdict". — A verdict on conflicting .evidence is conclusive on - appeal.
    2. Principal and agent — apparent scope op authority — In an ; . action on a contract of employment entered into by a son of the employer, evidence held sufficient to support a finding that the son acted within the apparent scope of his authority as agent, or, if not, that his unauthorized act„was ratified by his father.
    3. Principal and agent — instruction as to authority op agent.— In an action on a contract of employment, refusal of an instruction correctly defining the difference between a general and special agent, and declaring that, if the person who signed the contract was only an agent as salesman for defendant, then the contract was made without authority and the finding should be for defendant, held proper as not taking into account the question of ratification nor of the apparent scope of the agent’s authority.
    4. Principal and agent — instruction as to authority of agent.— In an action on a contract of employment, an instruction that if this contract was signed by defendant’s son without defendant’s knowledge or consent, but defendant allowed plaintiff to work by agreement for two weeks after disaffirmance, plaintiff could recover only for work done within that time as under a new contract, was properly refused, as disregarding the questions of ápparent authority and waiver of damages by plaintiff.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed. • • -

      Ben F. Remberger, for appellant.
    The evidence was not legally sufficient to show that B. Carp had any authority to sign the contract in the absence of defendant. The mere • statement on the part .of the plaintiff that some one was a manager is not suffident in law to make him an agent. 124 Ark. 539. A person dealing with an agent is bound to ascertain the nature and extent of his .authority. 55 Ark. 627; 92 Ark. 315; 94 Ark. 301; 53 Ark. 208. The authority of an agent cannot be established by his own declaration. 85 Ark. .252; 90 Ark. 104; 105 Ark. 446.

      Longstreth & Longstreth, for appellee.
   Smith, J.

Appellee sued and recovered damages for breach of the following contract of employment:

“North Little Rock, Arkansas, October 25, 1922.
“We hereby employ Mr. Priess for a period of three months from date as sales manager, at a salary of $100 per week and 1 per cent, of the gross sales. He is to get the same salary plus any railroad fare to put on a sale at gny place we might say.
“M. Carp,
. : , . “B. C.
“John Priess.”

The defense to the suit was that B. Carp, who signed the name of M. Carp, liis father, did so without authority. On behalf of Priess, the plaintiff below, it was insisted that B. Carp had the authority to make the contract, and that, if he did not have the express authority, it was within the apparent scope of his authority; and, finally, that the .contract was ratified .by M. Carp.

Priess testified in his own behalf that th.e defendant, M. Carp, owned stores in Little Rock and North Little Rock, and one in Pine Bluff, and that Carp had employed him a.s .a special sales manager to put on a sale at Pine Bluff,, and that this sale had been successful and was satisfactory to all parties, and that he was accustomed to charge for such services, depending on the character of the sale, as much as $500 per week. Priess’ home was in Kansas City, and he received a letter from M. Carp advising that" Carp wished him to put bn a sale in Little Rock.' There' was nothing in this letter about the terms of the" employment, but it was answered by Priess, and a reply to this answer was written bv B. Carp. In response to this last letter, Priess wired that lie was unwilling to go to Little Rock unless M. Carp was there to talk terms. An answer to this telegram was forwarded to Priess at Greenwood, South Carolina, where he then was, from B. Carp, stating that he had full authority to close the deal, and for Priess to ■ hurry to Little Rock, and that, in response to this telegram, he came to Little Rock, and there entered into the contract set out above. That he proceeded to work under this contract, and was employed for four weeks and four days, during which time he put on a highly successful sale, and that, at- its conclusion, he was discharged without cause. He detailed the employment he had been able to secure during the remainder of the time -covered by the contract, and this alone appears to have been taken into account by the jury, as no compensation was allowed by way of commission on sales, but there was no cross-appeal.

Priess further testified that M. Carp had a store in Little Rock, and another in North Little Rock, and that the father ran one and the son the other.

M. Carp, his son, B. Carp, and a daughter of M. Carp, who worked in the store with her brother, all testified that B. Carp had no authority to employ or to discharge an employee, and that M. Carp alone had this right. M. Carp also testified that he did not know Priess had been employed until October 31, and on November 4 he advised him that his son had no authority to employ him, and that he. could not and would not ’pay the salary called for in the contract, but he did agree, by way of a compromise or settlement of the controversv which then arose, to allow Priess to work two more weeks under the contract, and he tendered the balance due for that period of time.

The conflicting testimony of the witnesses cannot be reconciled, and the jury’s verdict is conclusive of this conflict, and we think the testimony of Priess is legally sufficient to support the finding by the jury that the son acted within the apparent scope of his authoritv, or, if not, that his unauthorized act-was ratified by M. Carp.

Appellant then asked an instruction correctly defining the difference between a special agent and a general agent, and, after so doing, concluded with the declaration that “if you find from the evidence that the person who signed the contract was only an agent as a salesman for the defendant, then the contract made by the agent was without authority, and you will find for the defendant.” This instruction was properly refused, as it left out of account the question of ratification. Neither did it take into account the question of the apparent scope of the agent’s authority.

Other instructions requested by appellant also left out of account either the question of the apparent authority of the agent'or the question of the principal’s ratification of the agent’s unauthorized act.

. Appellant requested, but the court refused to give, an instruction numbered 6, which reads as follows: “The court instructs the jury that, if you find from the evidence that a contract was signed by Ben Carp without the knowledge and consent of the defendant, and that the plaintiff entered into the employment of the defendant under said contract, and that, after notice came to the defendant that said plaintiff had a contract that was not authorized by him, and disaffirmed the contract with the plaintiff, but allowed the plaintiff to work for the defendant by agreement for two weeks after said disaffirmance of the contract, then the plaintiff can only recover from the defendant the amount due for work done within the two weeks under said new contract.”

This instruction was properly refused. It assumes that there was no right of recoverv if B. Carp signed the contract without the knowledge and consent of his father, the defendant, M. Carp, and defendant disaffirmed upon being advised of it, and thus leaves out of account the question of the apparent scope of the agent’s authority.

It further tells the jurv that, if defendant disaffirmed the contract, yet allowed Priess to work for two weeks after doing so, there could be no recovery escept for the two weeks’ work. The instruction does not require the ■jury to. find that Priess agreed to waive the damages for the breach of the contract if permitted to work the two weeks, hut bars any other recovery except-for the two Weeks •'after the breach of the contract if defendant ’allowed him to'work two weeks after the disaffirmance. If Priess is correct in his contention (and the 'jury so found), he had'the right' and was under the duty to render service, riot orily for the two weeks, hut for all tlié unexpired timé covered by the contract, and, if Priess did riot waive his' damages or agree that the contract should be annulled, he did not, by his continued performance of the Contract for two weeks, lose his right to sué for itsb'reach. ■ The’instruction was'therefore properly refused.

‘ 'No error appears, and the judgment is affirmed.