text:
    Ahern v. Paving Improvement District No. 32 of Texarkana.
    Opinion delivered March 30, 1925.
    1. Municipal CORPORATIONS — paving assessments — presumption. —Even in a direct attack, under Crawford & Moses’ Dig., § 5668, on an assessment of 'benefits to property in a paving district, though tried de novo on the record made below, some deference must be given to the judgment of the assessors, which will be presumed correct until the contrary is proved.
    2. Municipal corporations — paving assessments — evidence.—In an attack, under Crawford & Moses’ Dig., § 5668, on the correctness of the assessment by a board of assessors of a paving district, claimed to be unjust and discriminatory, where the evidence was conflicting and largely depended on the judgment of witnesses, the decree of the chancellor sustaining the assessments as made by the board of assessors and approved by the city council will be affirmed.
    Appeal from Miller Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      Shaver, Shaver & Williams, for appellant.

      Gustavus G. Pope, for appellee.
   McCulloch, C. J.

Appellee is a paving district, organized in accordance with general statutes, and covers a territory of seventy-two lots in the city of Texarkana. Appellant is one of the commissioners of the district, and is the owner of twenty-seven of the lots in the district. The assessment of benefits was made by a hoard of assessors duly appointed, and the list was filed with the council and approved, and an ordinance passed levying taxes on the same for the cost of the improvement. Appellant instituted this action in the chancery court of Miller County, challenging the correctness of the assessment of benefits on his property, and, the suit having been filed within the time prescribed by the statute, it constitutes a direct attack on the assessments. Crawford & Moses’ Digest, § 5668.

Appellee filed an answer denying the charges of injustice and inequality in the assessment of appellant’s property, and the cause was heard by the court on oral téstimony, the trial resulting in a decree dismissing the complaint of appellant for want of equity.

It appears from the testimony that the property in question owned by appellant consists of vacant lots, and the principal basis of his contention is that the assessment should have been on a valuation basis, or at least that more effect should have been given to the difference in values. Other charges of inequality are founded on the claim that appellant’s property is broken and hilly, of very little value, and that most of it is subject to washing and inundation from surface water. There is testimony to the effect that the property is not level, but is hilly and slopes down to a gulch, through which the surface water is drawn. On the other hand, it is contended on the part of appellee, and the testimony of witnesses tends to show, that all the elements having any bearing upon the question of assessments of benefits to the property were taken into consideration, and that the assessments were fair and just. It is shown that the question of drainage will be taken care of by a plan to be executed by the city council in providing'a way for the water to flow.

While this is a direct attach on the correctness of the assessment, and the case is tried here de novo on the record made below, the same as in other chancery cases, yet we must give some deference to the judgment of the assessor, and indulge the presumption that the assessor was correct, until the attacking party proves to the contrary. Numerous witnesses testified in the case on each side, and there is a conflict as to the correctness of the assessment. It is largely a matter of judgment of the witnesses, and we are unable to say from the testimony adduced that the assessments have been shown to be unjust or lacking in uniformity with the assessments of other property in the district. In that state of the case it becomes our duty to leave the assessments undisturbed as made by the board of assessors and approved by the city council.

The decree is therefore affirmed.


source: Caselaw Access Project

author: Wood, J..

license: Public Domain

text:
    Weaver Cotton Company v. Batesville Compress Company.
    Opinion delivered March 30, 1925.
    1. Warehousemen — unindorsed receipt — bona fide purchaser.— Where a warehouse receipt for cotton stored which obligated the warehouseman to deliver the cotton “upon surrender of this receipt properly indorsed” was lost without toeing indorsed by the bailor, and his name was altered, and the indorsement of another name was forged thereon, a bona fide purchaser of the receipt for value acquired no rights, as the warehouseman was ■liable only according to the terms of the receipt as issued.
    2. Warehousemen — negligence.—A. warehouseman was not negligent in delivering cotton to the owner who had lost his receipts, as against a purchaser of the receipts not indorsed by the owner, although the warehouseman failed to exact of the owner an indemnifying bond, as provided by Crawford & Moses’ Dig., § 103B8.
    Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      Cole <& Poindexter, for appellant.

      Samuel M. Casey, for appellee.
   Wood, J..

On the first day of October, 1923, tbe appellant instituted an action against tbe appellee for the conversion of two bales of cotton. Tbe appellant alleged that on tbe 20th of November, 1922, tbe appellee received from one J. W. Black two bales of lint cotton, and .became tbe bailee, and warehouseman for said cotton and issued to said Black two receipts for same, which receipts were negotiable; that tbe appellant became tbe bolder of these receipts in due course for a .valuable consideration; that, in April, 1923, it made demand of tbe appellee for tbe cotton, and appellee failed and refused to deliver tbe same to tbe appellant; that tbe appellee thus wrongfully converted the .appellant’s cotton, of tbe value of $285.73. Tbe appellee denied liability to tbe appellant, and set up in defense that tbe appellant presented two receipts for tbe cotton which bad been altered since appellee issued them; that tbe receipts were originally issued by tbe appellee to one J. W. Blair; that, when presented to tbe appellee, tbe name bad been changed to J. W. Black, and tbe indorsement on tbe back of the receipts was J. W. Black; that, because of this' forgery, tbe appellee did not honor tbe receipts, and for the additional reason that they bad already turned over to J. W. Blair, tbe owner of the cotton, tbe two bales of cotton described in the tickets,, said Blair having reported to tbe appellee that be bad lost bis tickets.

The facts are substantially as follows: Tbe appellant was in tbe business of buying and selling cotton and tbe appellee was engaged in tbe business of warehouseman and bailee for hire, and handling compressing and storing cotton in tbe bale. Tbe appellant carried on its business in tbe following manner: If a man bad a bale of cotton for .sale, he generally had a receipt from the compress and a sample. Tbe appellant bought the cotton by an examination of tbe sample, and having tbe receipt transferred to it by an indorsement of tbe name of the holder of tbe ticket or receipt on tbe back thereof. The appellant purchased altogether on the compress numbers. It paid no attention to the names in the receipt. It bought often from people whom it did not know. They had the samples, and appellant took the samples and number that corresponded with the number on the ticket, and it did not have to have the names of the parties holding the tickets identified. ■ Appellant bought two bales of cotton which were represented by tickets, which tickets were introduced in evidence. The material part of the ticket was as follows: “Received o£ J. W. Black of Red Stripe, owner, one bale of cotton numbered and described as follows: Private mark— number — weight in 500 re-weight, to be stored and held, subject at all times to reasonable inspection by the owner, and delivered upon surrender of this receipt properly indorsed, and the payment of accured charges.” On the back of the receipt was the following: “For value received, I hereby transfer and assign the herein described cotton, representing the same to be my own property; that it is free from any lien and incumbrance whatever, and that I have a good right to sell, assign and transfer the same. (Signed) J. W. Black, owner.” There was also indorsed on the back of the receipts in rubber stamp, “Williamson, Inman & Strib-ling.” The two receipts, except as to the number and weight of the cotton, were precisely the same. There was a tag number on the inside of each sample which came off of the compress tag and corresponded with the number on the ticket. The appellee bought the cotton represented by the tickets on the first of March, 1923, and sold the cotton three or four days after that to Williamson, Inman & Stribling. The cotton was not delivered to the purchaser, and appellant refunded the money and took the tickets back. Appellant then made demand on appellee ,for the cotton. Appellee refused to deliver the cotton or to reimburse appellant, and appellant then brought this suit.

The cotton was worth $285. Appellant didn’t know the name of the man it bought the cotton from. The tickets were written with lead pencil. The man that represented Black claimed that his name was O. J. Baker. Appellant asked Baker to whom it should make the check in payment for the cotton, and made the check out to J. W. Black or O. J. Baker. Appellant stood on everything that comes on the cotton ticket, and the number of course. A holder may have altered the tickets, but appellant didn’t know anything about it. The tickets show that they were issued on the 20th of November, and appellant purchased them in March. It was not unusual for a man to hold the tickets that long. Appellant had purchased tickets that had been held a year. There was nothing unusual in buying that way. The number on one of the tickets was 50,522 on the other 50,523. The tickets didn’t appear to have been altered or changed.

Three witnesses who were cotton buyers in Bates-ville testified to the effect that they were familiar with the way that the appellees handled cotton stored with it for compress, and that the receipts issued by the appellee were for the cotton stored with it. The receipts in controversy were submitted to these witnesses, and they testified that, in their opinion, they were genuine receipts.

A witness for the appellee testified that he was the weigher for the appellee in November, 1922. The tickets introduced in evidence were exhibited to the witness and he was asked if he had issued anv such receipt as that, and answered that he didn’t think that he issued these receipts.- Witness actually weighed and received the cotton, but did not issue any receipt to J. W. Black. Witness had duplicates of the receipts he issued that day which he kept in'a book for that purpose. -He issued two tickets on the same number as that on the tickets in controversy, and on the same date, to J. W. Blair at Red Stripe. He examined the tickets and stated that the name “J. W. Black” had been written there, or the name changed since witness issued it. The initials are the same, but it seemed to witness that the name had been changed. Witness issued the tickets to the man who 'brought the cotton there for Mr. Blair. Witness didn’t remember his name. A man by the name of Blair came in a few days after the cotton was delivered to the appellee, and, after witness had written the receipts, and claimed that he didn’t have the receipts, and witness told him that he could make bond for the receipts and get his cotton in that way. Witness was informed that Blair made bond. It was the custom of the appellee that, when a man stored cotton in its warehouse, he would have to bring the receipts in order to get the cotton, and, if he could not produce the receipts, he was required by the warehouse company to indemnify it by giving a bond for any loss to the company sustained by delivery of the cotton to him. Witness located the receipts that he issued by the numbers on the tickets. It was the custom of the appellee fo locate the cotton and let it out and deliver it by the number on the receipts. These tickets were written in lead pencil and delivered to whoever brought the cotton. Witness had no way^ of knowing the party to whom the receipts were issued, so, in order to keep witness in the clear, he went by the numbers. He had a series of numbers running on the book. One of the witnesses stated that the receipts looked as though the last part of the name had been changed.

The court gave the following instruction: “The undisputed proof in this case shows that the tickets bearing the same numbers were issued to J. W. Blair and the tickets themselves show on their face to be the same tickets except the difference in the name (J. W. Black). It is alleged in the defendant’s answer, and not denied, that the two bales of cotton covered by the original tickets have been delivered to J. W. Blair, the true owner of them, and, under that state of facts, there would be no liability on the part of the compress company for it, and it is your duty to return a verdict for the defendant.” The jury returned a verdict in favor of the appellee, and from the judgment in appellee’s favor is this appeal.

Section 10357 of C. & M. Digest is as follows: ‘ ‘ The ■ alteration of a receipt shall not excuse the warehouseman who issued it from any liability if such alteration was (a) immaterial; (b) authorized; or (c) made without fraudulent intent. * * * Material and fraudulent alteration of a receipt shall not excuse the warehouseman who issued it from liability to deliver, according to the terms of the receipt as originally issued, the goods for which it was issued, but shall excuse him from any other liability to the person who made the alteration and to any. person who took with notice of the alteration. Any purchaser of the receipt for value without notice of the alteration shall acquire the same rights ■ against the warehouseman which such purchaser would have acquired if the receipts had not been altered at the time of the purchase.”

Section 10349 provides: “A receipt in which it is stated that the goods received will be delivered to the bearer, or to the order of any person named in such receipt, is a negotiable receipt. No provision shall be inserted in a negotiable receipt that it is non-negotiable. Such provision, if inserted, shall be void.”

In Shaw v. Railway Co., 101 U. S. 557, the court had under consideration bills of lading which, under statutes, were made negotiable by indorsement and delivery. In distinguishing between such instruments and bills of exchange and promissory notes commercial paper circulating as evidence of money, the Supreme Court of the United States had this to say, at page 564, concerning negotiable bills of lading’: “It is not a-representative of money, used for tranmiSsion of money, or for the payment of debts or for purchases. It does not pass from hand to hand as banknotes or coin. It is a contract for the performance of a certain duty. True, it is a symbol of ownership of the goods covered by it — a representative of those goods. But, if the goods themselves be lost or stolen, no sale’ of them by the finder or thief, though to a bona ficle purchaser for value, will divest the ownership of the person who lost them, or from whom they were stolen.” See Citizens’ Bank v. Arkansas Compress and Warehouse Co., 80 Ark. 601-608.

The above language by the Supreme Court of the United States is apposite to warehouse receipts which are negotiable under our statute. While the indorsement by the original owner nr depositor in whose name such receipts are issued confers upon any subsequent innocent holder for value a right to demand a compliance with the terms of the statute, i. e., the delivery of the property to him by the warehouseman, yet the indorsement of such receipt by one who is not the original depositor or owner and in whose name the receipt was issued, does not confer upon a bona fide holder for value any such right. In other words, negotiable warehouse receipts in the form of these in controversy must first be indorsed by the person to whom delivery was promised by the terms of the receipt in order to confer any rights upon a subsequent holder for value. Subdiv. 3, § 10353, Crawford & Moses’ Digest.

The forging of an indorsement of the name of the original depositor or owner in whose name a negotiable receipt is issued by one who may have found a lost receipt or who may have stolen the same, can confer no rights upon a bona fide holder of such receipts for value, for the kea-son that the forged indorsement of such receipt is in law no indorsement at all. In Citizens’ Bank v. Arkansas Compress & Warehouse Co., supra, we said: “The compress receipt represents the property, and the transferring of the compress receipt by the owner transfers the title to the property. But a thief who finds a compress receipt can give no more title to a purchaser from him than he could to property which he had found or stolen * * * The finder of an unin-dorsed receipt, which on its face, shows the name of the true owner, can not, by selling or surrendering such receipt, transfer the title of the owner.” The receipts under review, by their express terms, only obligate the compress company to deliver the cotton upon the surrender of this receipt properly indorsed.

In case-note to National Union Bank v. Shearer, 17, Ann. Cas. 673, under the head of “Negotiability of Warehouse Receipts,” it is said: “But a transfer without indorsement will merely transfer the title of the transferor and will not afford the transferee the greater rights which are granted under the statute.” True, the receipts under consideration were indorsed “J. W. Black,” the name of the person designated in the receipts, but the undisputed testimony shows that the receipts were issued to J. W. Blair and that the name of Black had been substituted in the body of the receipts for “Blair,” and also that the name of “J. W. Black” indorsed on the receipts were forgeries. Since, as we have already seen, a forged indorsement was tantamount to no indorsement at all, it follows that the appellant had no title which would give it the right to compel the appel-lee to deliver to it the cotton, and to render appellee liable to appellant because of its failure to deliver the cotton.

Sections 10355 and 10357 of C. & M. Digest, upon which appellant relies to sustain its cause of action, clearly mean that, where a warehouseman has issued a “negotiable receipt, the negotiation of which would transfer the right to the possession of the goods,” then such warehouseman, unless he takes up and cancels the receipt, shall be liable to any one who purchases the same for value and in good faith, for failure to deliver the goods to the purchaser of the receipt. Where a negotiable warehouse receipt has been issued and properly indorsed and negotiated, that is, transferred to one who has in good faith paid value therefor without notice, then the warehouseman is liable to the one who holds such receipt if such owner offers to surrender the receipt with such indorsement as would be necessary for the negotiation of the receipt, and if the holder of the receipt is ready and willing to sign an acknowledgment when the goods have been delivered showing’ sneh delivery, if such signature is requested by the warehouseman. If such be the fact, the warehouseman would be liable, notwithstanding any material or fraudulent alteration of the receipt after its negotiation. A warehouseman is liable under the statute “according to the terms of the receipt as originally issued.” If the receipt when originally issued is a negotiable, receipt and negotiated by proper indorsement to one who, in good faith, has paid value therefor, any material or fraudulent alteration of such receipt would not excuse the warehouseman from liability to the innocent holder for value upon the failure to deliver to him the goods for which the receipt was issued. Such we believe to be meaning of §§ 10352, 10355 and 10357 of the warehouse receipt' act' contained in chapter 101 of C. & M. Digest.

Here, the undisputed testimony shows that, according to the terms of the receipts as originally issued, the appellee, warehouseman, was not to deliver the goods except “upon the surrender of the receipts properly indorsed.” The undisputed facts are that there was no proper indorsement and therefore no negotiation of the receipts which would transfer the title to the receipts and the right to the possession of the cotton to the appellant. The reason is, as before stated, that the indorsements of the receipts were forgeries.

Appellant further contends that the appellee was negligent in that it delivered the cotton to Blair without the production of the warehouse receipts, and that ih should be held liable to appellant under the doctrine that, as between two innocent parties, the loss must fall upon the one whose act contributed most to produce it. The complaint of appellant shows that it bottomed its cause of action upon the ground that it was the holder of the receipts “in due course for a valuable consideration.” "We find nothing in the pleadings or proof to justify a finding that the appellant had the legal title to the receipts and therefore the right to demand possession of the cotton of the appellee. Even if appellant’s contention here were within the issne raised in the court-below, there was no testimony to warrant a finding that' appellee should be held as a warehouseman for negligence in delivering the cotton to Blair, its true owner, rather than to the appellant, who had no legal title to the-receipt and therefore no right to demand possession of the cotton of the appellee. The appellee, as warehouseman, under § 10358, 0. & M. Digest, was not negligent because of the fact that it failed to exact an indemnifyr ing bond specified in such section. The appellant does not contend, and there is no proof, that the bond executed by Blair to the appellee was insufficient to .cover all damage to any person incurred by . reason of. the delivery of the cotton without the surrender of the receipts.

We find no error in the rulings of the court, and the judgment is therefore affirmed.


author: Hart, J.

text:
    Ogburn v. State.
    Opinion delivered March 30, 1925.
    1. Automobiles — unlawful possession. — Evidence held to warrant conviction under Crawford & Moses’ Dig., § 7437, of possessing an automobile, the motor and serial numbers of which had been mutilated, to the extent that the same could not be read.
    2. Automobiles — unlawful possession. — That defendant, charged with being in possession of an automobile whose motor and serial, , numbers had been mutilated, was Only temporarily in possession at the request of another who ran away on the approach of officers, was not a defense, under Crawford & Moses’ Dig., § 7437, though it might be considered in mitigation of punishment.
    3. Witnesses — impeachment on cross-examination. — In a prose- ■ cution for possessing an automobile whose motor and serial numbers had been mutilated, it was not error for the purpose of impeaching defendant to permit him to be asked on cross-examina-. tion as to whether he had not represented himself as a person ' of a different name, and had not stated that he had a car to sell, which afterwards proved to have been stolen.

      4. Witnesses — cross-examination.—Defendant, as ¡a witness in a criminal case, may fee cross-examined concerning his recent conduct and association, in matters involving moral delinquencies.
    5. CRIMINAL LAW — EVIDENCE—CONDUCT OP DEFENDANT. — In a prosecution for possessing an automobile whose motor and serial numbers had been mutilated, there was no. error in permitting the officer to testify that just prior to the arrest defendant tried to drive the automobile past him; that the officer pulled his car in front of the-car defendant was driving, ¡and that defendant struck the officer’s car.
    Appeal from Miller'Circuit Court; James II. McCol-lum, Judge;
    affirmed,

      II. W. Applegate, Attorney General and John L. Carter, Assistant, for 'appellee.
   Hart, J.

Joe Ogburn prosecutes this, appeal to reverse a judgment of conviction against Mm for violating § 7437 of Crawford & Moses’ Digest. Tliat part of the statute winch is material in this case makes it unlawful for any person to have in his possession an automobile, the motor and serial number of which has been mutilated to the extent that same can not be read.

At common law a crime consisted of an unlawful act with evil intent, and in many statutory crimes both the intent and act may be required to ¡constitute the crime. Many statutes, however, which are in the nature of police regulations, impose penalties irrespective of any intent to violate them.

Motor vehicles have become frequent subjects of larceny, and the removal or change of the serial number is a convenient method for preventing, identification and recovery. Then, too, one committing a crime and escaping in an automobile would be more difficult of apprehension if the serial number or identification mark should be removed. Hence statutes of this sort have been held valid as a legitimate and proper exercise of the police power. People v. Fernow 286 Ill., 627, 122 N. E. 155; People v. Johnson, 288 Ill., 442, 123 N. E. 543; and State v. Randolph 192 Iowa, 636, 185 N. W. 141. This principle has also been recognized by the Supreme Court of the¡ United States as properly coming within the police power. Rae Brooks v. United States, 45 S. C., Rep. 345. Opinion by Taft, C. J., March 9, 1925.

Various statutes of this State prohibiting the doing of acts without requiring the allegation or piroof of criminal intent have been upheld as a valid exercise of the police power. For instance, in Wells Fargo & Co. Express v. State, 79 Ark. 349, it was held to be no defense to a statute making it unlawful to ship game beyond the limits of the State, that the express company and its agents had no knowledge that the package contained game.

Again, in Harper v. State, 91 Ark. 422, it was held that a sale by a licensed liquor dealer to a minor, though made in good faith and without reason to suspect that the purchaser was below age, was a violation of the statute prohibiting the sale of intoxicating liquors to minors.

We have also upheld our statute making it a felony for a person to keep an unregistered still, or still-worm in his possession regardless of intention as to its use. Earl v. State, 155 Ark. 286, and Hodgkiss v. State, 156 Ark. 340.

In Ring v. State, 154 Ark. 250, in construing the same statute, we held that, while the act of taking or holding possession of the still must be voluntary, the possession need not be permanent. ’ It has been well said that, if it was necessary to show a criminal intent in cases of this sort, the statute would soon become a dead letter.

The main reliance of the defendant for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict.

On the part of the State it was shown by a deputy sheriff of Miller County, Arkansas, that he arrested Joe Ogburn in that county while in the possession of a Ford car with a mutilated number. The arrest was made about sixty days before the trial of the case, which was on the 4th day of December, 1924. The deputy sheriff and another officer were in an automobile, and pulled over in front of the one driven by the defendant. The defendant speeded up his car, and hit the car of the deputy sheriff and hurst one of its casings. The deputy sheriff examined the car, and the original serial number had been mutilated or changed so that it could not he read. The officer asked the defendant who the car belonged to, and he said it belonged to a friend, but refused to give his name. Two other persons were in the car with the defendant, but the defendant told the officer, when he started to arrest them, that they had nothing at all to do with the car, and that it was in his possession. The car has been kept at the jail since the arrest of the defendant, and no one has come to claim it.

Under the principles of law decided above, this evidence, if believed by the jury, was sufficient to warrant a verdict of guilty under the statute.

On the part of the defendant, it was shown that the car belonged to a man named Smithers, and that he and his two companions were only riding in the car. When they saw a car approaching, which proved to be the one containing the officers, Smithers jumped out of the car' and told the defendant to drive it for him,. Smithers disappeared in the Woods, and the defendant drove the car on until he was captured by the officers as testified to by them. He claimed that he had no interest whatever in the car.

His evidence, if believed by the jury, did not constitute a defense under the principles of law above laid down. His possession of the car, while only temporary, was his voluntary act, and was not occasioned by any duress whatever. The facts testified to by him might be considered in mitigation of punishment, and doubtless was so considered by the jury, for it assessed his punishment at one year in the penitentiary, which was the lowest term imposed by the statute.

The next assignment of error of the defendant is that the court erred in permitting the prosecuting attorney to ask him if he had not represented to A. M. Stokes that his name was Jim Embree, and had not told him that he had a car to sell -which afterwards proved to be a stolen, car. .The witness answered no to the question. ...

There was no error in the action of the court in allowing, the question to he asked and answered. The court expressly told the jury that it could not consider the question and answer for anything except in passing on the credibility of the defendant as a witness, and that it could not be considered as evidence of his guilt of the charge under consideration. It has been repeatedly held by this court that, when a defendant becomes a witness' in his own behalf in a criminal case, he may be asked on cross-examination, concerning his recent conduct and association in matters involving moral delinquencies on his part. Hollingsworth v. State, 54 Ark. 387, and Noyes v. State, 161 Ark. 340, and cases cited, i Another assignment of error is that the court erred in permitting the officer, Bob Smith, to testify that the defendant was going to try to pass him.

On this point the officer testified that he could see the defendant was going to try to pass him, and that he pulled his own car over in front of the car driven by the defendant. The defendant then speeded up his car and struck the officer’s car, and burst one of its casings. The officer- then arrested the defendant. There was no error whatever in allowing this testimony to go to the jury.

It follows that the judgment must be affirmed.


author: Hart, J.,

text:
    Pierce Oil Corporation v. Parker
    Opinion delivered March 30, 1925.
    Highways — CONTRACTORS’ bond — liability for oil and gasoline.— Under Crawford & Moses’ Dig., § 5446, requiring road contractors . to give bond to pay for labor and materials used in the prosecution of the work, persons supplying oils or gasoline to be used in operating motor trucks engaged in hauling stone for the con- • struction of -an improved highway cannot be said to be supply•ing materials to he used in the prosecution of the work, and therefore are not within the protection of the bond.
    Appealed from Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.
    STATEMENT OE PACTS.
    Pierce Oil Corporation brought this suit against R. C. Parker, C. R. Lowery and Road Improvement District No. 1 of Logan County, Arkansas, to recover the sum of $1,000 alleged to he due for materials furnished the defendants in constructing a hard road.
    The record shows that Road Improvement District No. 1 was created under the'general laws of the State of Arkansas for constructing a hard road between Paris and Roseville in Logan County, Arkansas. The board of commissioners of said district entered into a written contract with R. C. Parker for the construction of said road, and Parker executed the bond required by law for the faithful performance of his contract. Parker assigned an interest in his contract to C. R. Lowery. Subsequently R. C. Parker and C. R. Lowery entered into a written contract with John B. Stephens to haul all of the crushed stone to be used on said road at a stipulated price per cubic yard. Stephens hauled a large amount of stone which was used in the construction of said road in motor trucks, and bought from plaintiff the oil and gasoline which was used in operating said motor trucks.
    According to the evidence of the plaintiff there was a balance due it by Stephens of $757 for oil and gasoline. According to the evidence for the defendants, Stephens only owed the plaintiff $577.
    The circuit court was of the opinion that the defendants were not liable to the plaintiff for the oil and gasoline furnished by it to Stephens. Judgment was accordingly rendered in favor of the defendants, and the plaintiff has duly prosecuted an appeal to this court.

      8am, T. & Tom Poe, and Evans & Evans, for appellant.

      White & White, and Carmichael <& Hendricks, for appellee.
   Hart, J.,

(after stating the facts). The Legislature of 1915 provided for the establishment of road improvement districts for the purpose of constructing improved roads, and § 5446 of Crawford & Moses’ Digest is a part of that act. The section provides that all contractors shall be required to give bond for the faithful performance of such contracts as may be awarded to them, with good and sufficient security, in an amount to be fixed by the board of commissioners, and that said bond shall contain an additional obligation that such contractor or contractors shall promptly make payment to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract.

When the contract was awarded to E. C. Parker and O. E. Lowery for the construction of said improved road, they gave bond as provided in the section of the Digest just referred to.

Counsel for the plaintiff insist that the case is controlled by Kotchtitzky v. Magnolia Petroleum Co., 161 Ark. 275. In it a similar section of the statute applying to drainage districts was construed. In that case the court held that one who undertakes to construct a drainage ditch impliedly contracts to pay for all labor done and materials furnished for that purpose, either to himself or to a subcontractor.

We do not regard that case as decisive of the present one. The facts in that case recited that the materials furnished were used in the construction of the improvement. The opinion does not state what the materials were, and the question under review in this case was not discussed or determined. The same thing may be said of the cases of Oliver Construction Co. v. Williams, 152 Ark. 414; Arkansas Road Construction Co. v. Evans, 153 Ark. 142; and Gage v. Road Improvement Dist. No. 3, 153 Ark. 321.

Ill Oliver Construction Co. v. Erbacher, 150 Ark. 549, it was held that, where a contractor agrees to he liable for all outstanding bills against a subcontractor “for work and labor and material, services done for and furnished to” the subcontractor, this did not bind the contractor to pay the meat bill of the subcontractor incurred in boarding employees.

Thus it will be seen that the question under consideration in this case has never been decided by this court. The general rule is that dynamite and other explosives used in breaking up earth which must be removed' in the construction of roadbeds and embankments, are materials used within the meaning of a statute providing a mechanic’s lien for the furnishing of such materials; In some of the cases it is said that, in a broad and practical sense, explosives so used might be said to partake of the nature of both materials and labor.

On the other hand there is a direct conflict in the authorities as to whether oil and coal used in operating road and dredging machinery and in trucks used in hauling earth and stone for constructing roads and levees ■are material within the meaning of the mechanics’ lien statutes of the kind under consideration in this case.

On the one hand, the Supreme Courts of Minnesota, California, and other States have held coal and gasoline used for the generation of power in excavating earth to be materials furnished and lienable under statutes of this sort.

In Associated Oil Co. v. Commary-Peterson Co., 32 Cal., app. 582, 163 Pac. 702, the Supreme Court of California held that, under its statute requiring contractors of public works to furnish bonds to pay for materials or supplies furnished, recovery may be had on the bonds for gasoline used in trucks to haul gravel, cement, etc., for road construction.

Iii Johnson v. Starrett 127 Minn. 138, 149 N. W. 6, L. R. A. 1915B, p. 708, under a similar statute, it Was held that there was a lien for coal used in generating the steam power for a machine used in excavating and for the gasoline used in motor trucks which carried the excavated earth away.

On the other hand, the Supreme Court of Massachusetts and the Court of Appeals of New York have decided the other way.

In Shultz v. C. H. Quereau Co., 210 N. Y. 257, 104 N. E. 621, L. R. A. 1915E, 986, it was held that coal sold to a highway contractor and used to generate steam to propel road rollers and traction engines used on the contract is not within the operation of a statute giving a lien to any person furnishing material to a contractor for “the construction of a public improvement,” upon the moneys due him by the State. To the same effect see Thomas v. Commonwealth, 215 Mass. 369, 102 N. E. 428.

It is worthy of note that these same courts held that there was a lien for dynamite employed directly to the earth which had to be removed. The reason was that it was an essential part of the construction to break up the earth, and dynamite used for that purpose entered primarily into the construction .of the improvement. On the other hand, coal and oil, while used as fuel for portable engines and machinery used in construction work, are merely an incident in the operation of the machinery and partake of the same characteristic as it does. In other words, they are at least one step- further removed from the actual work of construction 'and do not have any imlmediate connection with the structure at any time. In short, they are used in' operating the tools and machinery which in their turn act upon the structure. Courts must stop somewhere in the construction of these statutes. Otherwise repairs on the machinery used in the construction of the improvement and the diminished value of the machinery and tools used in such construction will 'be deemed to be lienable claims. If matters which are only remotely connected with the construction of the public improvement should be held to be lienable, the protection of the bond to the class intended by the statute would 'be greatly impaired. To the same effect see Alpena v. Title Guaranty & Surety Co., (Mich.) 123 N. W. 1126; Philadelphia v. Malone, 214 Pa. 90, 63 Atl. 539; and S. B. Luttrell & Co. v. Knoxville, L. & J. R. Co., 119 Tenn., 492, 105 S. W. 565.

It has also been held that lumber furnished for and used in making forms for a concrete structure as provided in the contract and specifications for its erection, aiid which is practically consumed and rendered value-’ less for such use is material, within the meaning .of a mechanics’ lien law, and of the provision of a bond given by a surety company that the contractor will “pay all the 'indebtedness incurred for labor and materials furnished and used in and about .'said contract work, or which might become the basis of a lien. ’ ’ Chicago Lbr. Co. v. Douglas, 89 Kan., 308, 131 Pac. 563, 44 L. R. A. (N. S.) 843; and Avery v. Woodruff, 144 Ky. 227, 137 S. W. 1088, 36 L. R. A. (N. S.) 866.

It is earnestly insisted by counsel for the plaintiff that this court should not follow the principles of law decided in the cases above cited and quoted from;- -but it should, for the sake of uniformity, at least, follow the decisions of the Supreme Court of the United States in construing a similar statute. We might adopt this course, but for the fact that this court has already taken a position in the construction of a similar statute of our own.

Sec. 5446 of Crawford & Moses’ Digest provides in effect that contractors constructing improved highways shall be required to give bond for the faithful performance of their contracts, and that said bond shall contain an additional obligation that such contractor or contractors “shall promptly make payment to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contracts.”

The Legislature of 1899 passed a statute providing that contractors and other designated persons, “who-shall do or perform any work or labor, .or cause to be done or performed any work or labor upon, or furnish any materials, machinery, fixtures or other things toward the building, construction or equipment of any railroad,” etc., shall have a lien on the railroad for such labor, materials, etc.' Acts 1899, p. 145. In construing this statute a lien wias denied for articles furnished by a hardware company consisting .of rope, block and tackle, chains, wheelbarrows, wedg'es, axes, blacksmith’s outfits, such as forges, anvils and tools and sundry steel and tools such as are usually used in quarrying stone. The court held in effect that these articles were equipment merely, and for that reason were not liena'ble. In other words, the court held that under the statute there was no lien for anything beyond that which entered into or became a part of the roadbed.

Again in St. L. I. M. & S. R. Co. v. Love, 74 Ark. 528, the court held that there was no lien, for the hiring of teams furnished by the claimant to a subcontractor for use in repairing the railroad. The reason again given wtets that the statute did not create a lien for anything beyond that which entered into and became a part of the railroad.

The object of statutes of the kind under consideration is to substitute the bond required for the security which the claimant might otherwise obtain under a mechanics’ lien statute. The giving of the bond under the statute adds nothing to the obligation of the contractor. His liability is fixed by the terms of the statute. The contractor has supervision of the work, and it is easy for him to see what labor and materials are actually used in the work. Oliver Construction Co. v. Williams, 152 Ark. 414.

The provision of the bond upon which the claim of the plaintiff is based is the promise of the contractor to pay all persons supplying him with labor and materials in the prosecution of the work provided in the contract. The lien statute relating to railroads above referred to gave the contractor, and other named persons who should do any wtork or furnish any materials or other thing's towards the construction of -the railroad, a lien. Therefore, it will be seen that the provisions of the two statutes are substantially the same.

It is to 'be presumed that the Legislature in passing •the later statute had in mind the provisions of the earlier statute and the construction placed upon it by this court. Thus it will be seen that we have ruled that our statute giving a lien upon railroads for materials furnished should be limited to materials that are furnished for and' used in the construction of the road, so as in a sense to become a part of it. Having regard then for the well-defined and established meaning ¡of a similar statute, we think that the fair meaning of the language used in the statute under consideration is only to give persons a lien who supply materials directly used in the prosecution of the work or materials substantially consumed in the prosecution of the work and which are practically useless after such use.

Therefore, we do not think that oil or other fuels used in operating motor trucks engaged in hauling stone for the construction of an improved, highway can fairly and justly be said to be supplying materials to be used in the prosecution of the work. As above stated, oil so used is only incidental to the operation of the motor trucks, and can be no more considered materials used in the prosecution of the work, than the motor trucks themselves or the repairs on them. The result of our views is that the judgment of the circuit .court was correct, and must therefore be affirmed.


author: Habt, J.,

text:
    Hunt v. Woods.
    Opinion delivered March 30, 1925.
    1. Mines and minerals — modification of drilling contract.— Where the original contract under which plaintiffs drilled a well •on defendants’ land was modified by a supplemental contract, whereby defendants took over the drilling outfit for the purpose of drilling a new well, in order that a proper test might he made for gas and oil, the original contract Was superseded by the supplemental contract to the extent that their terms were inconsistent, and to that extent performance under the first contract was waived.

      CONTRACTS — rescission.—-When a new contract is inconsistent with, -and render® performance -of a former one between the same parties impossible, the former is rescinded.
    Mines and minerals — cost op drilling well — evidence.— Evidence held to support the allowance made ¡by the court for the cost of drilling a well under a supplemental contract whereby the landowners took over a drilling outfit to drill a well at drillers’ expense, and to sustain the award to the drillers of the rent of the outfit and damages for detention, loss of parts, and weaar'and tear.
    Mines and minerals — rescission op contract — -damages.— Where the original contract under which -plaintiffs -agreed to drill a well on defendants’ land was modified by a supplemental contract u-nder which all disputes under the first contract were settled, the chancellor improperly allowed plaintiffs damages for delay as to work under the first contract.
    Appeal from Drew -Chancery Court; E. G. Hammock, Chancellor;
    judgment modified.
    STATEMENT OE PACTS.
    On the 6th day of May, 1922, G-. A. Woods and A. S. Woods, partners -as Woods ¡Bros., commenced this action in the circuit court ag'ainst B». T. Clark and T. D. Hunt to recover possession of a -drilling outfit and damages for the detention of the same.
    On the 5th day of September, 1922, the plaintiffs filed a supplemental complaint against the defendants in which they alleged that the defendants had returned to the plaintiffs the drilling outfit described in the original complaint, and that there remains nothing for adjudication between the parties, except -the indebtedness due by the defendants to the plaintiffs. It is alleged that the defendants on account of their negligence lost and damaged -many parts of -said drilling outfit. An account of the indebtedness between the parties under their various contracts is attached as an exhibit to the complaint.
    The prayer of the complaint is that the plaintiffs re-cover judgment against the defendants in the sum of $13,167.72, the balance alleged to be due after a statement of their accounts.
    On the 11th day of September, 1922, the case was 'by agreement transferred to equity. The defendants filed an answer in wlideli they denied all the allegations of the complaint and set np matters which entitled them to judgment against the plaintiffs in the sum of $40,000, or such sum as a master may find that the defendants ■ are entitled to recover of the plaintiffs after stating an account between them.
    On the 6th day of September, 1921, a written contract was entered into between R. T. Clark and T. D. Hunt as parties of the first part, and Gr. A. Woods and A. S. Woods, as parties of the second part. Under the agreement the parties of the second part agreed to drill a test well for oil and gas for the parties of the first part on the land described in the complaint to a depth of 2,500 feet, unless oil or gas was found in paying commercial quantities at a lesser depth. The parties of the second part agreed that, in case they failed, or conditions . were such that they could not complete said well to a depth of 2,500 feet, they would move the derrick to another location on said land and drill until they had reached the required depth.
    The agreement also provided that the parties of the second part should only be required to move the distance deemed necessary by them when they had to relocate and drill another hole in the case they failed to complete the well that they had attempted to drill. The parties of the first part agreed to furnish at the drilling site, all fuel, water, grease, oils, casing and derrick. They also agreed to pay the sum of $50 per month for a man to pump water during the drilling operations and to repair all breakage on the pump and engine.
    The parties of the second part agreed to furnish the parties of the first part a complete log of the well showing their daily operations, the structures that the drill might pass through, and the depth of all materials drilled through.
    The parties of the first part also agreed to pay the parties of the second part the sum of $15,000 for the completion of the well.

      Other matters set up in the written contract will be stated or referred to in the opinion.
    After the test well was dug to the depth of from 1,538 to 1,565 feet, the parties had a dispute as to whether the contract had been complied with in making* a test for gas and oil as the work of drilling the well progressed. This led to the making of a supplemental contract on the 12th day of November, 1921, which was also in writing.
    This contract provides that it shall be known as a supplemental agreement to the original contract, dated September 6, 1921. It recites that, if the parties of the second part have failed to comply with the terms of their original contract for the testing of the structures called for in drilling the well, they agree to allow the parties of the first part to take over the drilling machinery and equipment for the purpose of drilling a new Well and making a complete test at a depth of approximately 1,550 feet.
    The contract further provides that the parties of the first part shall have full possession of the equipment, shall hire all labor, shall remove the derrick and machinery, and that the cost of moving and drilling the new well shall be charged to the parties of the second part. The contract also provides that, should the well be ruined and another test be necessary, then the money due shall be paid at once to the parties of the second part, and the original contract completed.
    The contract also provides that the parties of the first part shall keep the machinery in good repair, less the usual wear and tear of it.
    It also provided that the party of the first part shall pay the parties of the second part all moneys which may be due them under their original contract after the cost of the second well has 'been deducted.
    On the 12th of November, 1921, said parties also entered into another contract in writing whereby the parties of the first part rented from the parties of the second part their drilling rig and all its equipment for the purpose of drilling a test well for oil and gas below a depth of 2,400 feet. The parties of the first part agreed to pay to the parties of the second part $25 per day for the use of said equipment. The parties of the first part agreed to keep the drilling machinery in good repair and deliver it back in as good condition as it was when, they received it.
    Other evidence will he stated or referred to in the opinion.
    The chancellor found the issues in favor of the plaintiffs and delivered a written opinion giving his reasons for so doing.
    The chancellor restated the accounts between the parties as follows:
    “To contract price well, contract A.$15,000.00
    Service water pumper. 100.00
    16 days delay 1st test. 1,200.00
    Rent of rig, contract C. 1,350.00
    Lost articles and damage to equipment .:. 1,725.35
    Yalue of rig detained. 1,950.00
    $21,325.35
    By amount paid by
    defendants .$9,402.00
    Labor at second well. 2,000.00 $11,402.00
    “$9,923.35”
    A decree was entered in accordance with the findings of the chancellor, and to reverse that decree the defendants have duly prosecuted this appeal.

      Henry & Harris, and L. C. Going, for appellant.

      J. G. Williamson, Lamar Williamson and Adria/n Williamson, for appellee.
   Habt, J.,

(after stating the facts). When the plaintiffs had drilled the first well under the original contract to a depth of 1,538 feet, the log kept by them contained this notation, “well is showing oil and gas very heavy.” According to the evidence for the plaintiffs, they reported this fact to a representative of the defendant, who was on the ground, and received orders to shut down and wait for the casing which was to be furnished by the defendants in making a test for- oil and gas. The log shows that the plaintiffs next began to' drill on October 10, 1921. They say that the defendants failed and refused to furnish the casing with which to make the test.

On the other hand, according to the evidence, for the defendants, the failure to make the test was due to the action of the plaintiffs.

The view we have taken of the matter renders- it unnecessary for us to decide this question. The parties compromised their differences in this respect by the execution of the supplemental agreement of November 12, 1921. This agreement expressly recites that it is a part of the original contract dated the 6th day of September, 1921. It also recites that the nature of the agreement is such that the parties of the second part of the original agreement have failed to comply with the terms of their contract for the testing of the structures as called for in their 'Contract for the drilling of the well, and that they agree- to allow the parties of the first part to take over their drilling machinery and equipment for the purpose of drilling a new well and making a complete test at the depth of approximately 1,550' feet.- ■

'The contract further provides that the parties of the first part -shall have full possession of the equipment and shall move the derrick and machinery and charge the cost of moving it to the parties of the second part.

Thus it will be seen that the supplemental agreement by its express terms modifies the original agreement. In - it the parties of the second part recognize that they have failed to make the test required in drilling the first, well and agree to turn .over their drilling machinery and equipment to the parties of the first part to drill a new well in order that proper tests may 'be made for oil and . gas as the drilling progresses.

The new well was to be drilled by the parties of the first part of-the depth of 1,550 feet. This showed that the new well was to be tested at this depth by the parties of the first part for oil and gas. The supplemental agreement imposed new conditions upon the parties to the original agreement, and modified it to the extent that the provisions of the original agreement were changed by those of the supplemental agreement.

The contract when changed by the mutual consent of the parties became a new contract and took the place of the old one in so far as the terms are. inconsistent. In other words, the new contract supersedes or modifies the old one to the extent that their terms are inconsistent. Ozark & Cherokee Cent. Ry. Co. v. Ferguson, 92 Ark. 254; Murray v. Miller, 112 Ark. 227, Weaver v. Emerson-Brantingham Imp. Co., 146 Ark. 379.

It follows that the defendants by making the supplemental agreement with the plaintiffs lost all right to rely upon the first contract either to enforce it as a contract, or to rely upon it in a suit for damages for a breach thereof to the extent that the first contract was changed or modified by the supplemental contract. It has been well said that when a new contract is inconsistent with and renders the performance of a former one between the same parties impossible, the former is rescinded upon the same principle that a subsequent act of the Legislature repeals a former act, when the two are inconsistent. Paul v. Meservey, 58 Me. 419.

It follows that a waiver of performance under the first contract arose when the supplemental contract was entered into in so far as the test provided for in drilling the first well is concerned.

This brings us to a consideration of the statement of the accounts between the parties. The supplemental contract of November 12, Í921, provides that the parties of the first part shall pay the parties of the second part all moneys which may be due them under their original contract after the cost of the second well has been deducted.

Under the terms of the original contract the parties of the first part agreed to pay the parties of the second part the sum of $50 per month, for the time the drilling crew was in operation, for a man to pump water. This service was performed for about two months, and the chancellor properly allowed the plaintiffs one hundred dollars for the services of a water pumper. The contract price of the well under the original contract was $15,000, and the chancellor’ properly allowed this sum, less the ' cost of drilling the second well. The chancellor allowed the- defendants $2,000 for drilling the second well.

G-. A. Woods and A. S. Woods both testified that this was a reasonable sum' for the cost ■ of the second well. They were corroborated by the testimony of three disinterested drilling contractors, who testified that the well could have been drilled in from ten to twenty days at most, and that $2,000 was a reasonable sum for the cost of drilling it.

According to the testimony of J. W. Jolly, who was in complete charge of drilling the second well, he did not commence it until after January 6, 1922, and completed it by the second day of February, 1922.

While the defendants submitted an expense account much larger than the sum of $2,000, we think that the decision of the chancellor was correct ini only allowing that sum. It must be remembered that'the defendants were not to receive any profit for drilling the second well, but were only allowed the cost of drilling it. The ' drilling outfit belonged to the plaintiffs, and the wear and tear on it was very great. Hence drilling contractors were usually allowed a large profit for drilling wells when they supplied their own drilling machinery and equipment. In fixing the price to be paid the plaintffs for drilling the first well, the profits were included. In determining what the profits were, of course their services, the rental value of the drilling outfit, and the wear and tear on the machinery would all be estimated.

We are of the opinion that, when all the testimony is considered, the chancellor did not err in finding that $2,000 was the actual cost of drilling the second well to the depth of 1,550 feet.'

The chancellor also allowed the plaintiffs the sum of $1,350 for the rent of their drilling outfit in order to enable the defendants to drill the well deeper than provided for in the first contract.

When the two contracts of the elate of November 12, 1921, were executed one of them provided that the defendants had rented from, the plaintiffs their complete drilling outfit for the purpose of drilling a test well for oil and gas below the depth provided in the first contract, and as rent they agreed to pay $25 per day for the drilling outfit. The defendants took charge of the drilling outfit of the plaintiffs when this contract was executed on the 12th day of November, 1921, and used it in drilling the first well deeper until the 6th day of January, 1922. Therefore, the chancellor properly allowed the sum of $1,350 for the rent of the drilling outfit under this contract.

The chancellor also allowed the plaintiffs $1,950 for damages on account of the defendants unlawfully detaining their drilling equipment, under the supplemental contract. The drilling of the second well was completed on the 26th day of April, 1922. There was no showing of oil or gas at the depth drilled. On the 5th day of-May, 192'2, the plaintiffs made a demand in writing .of the 'defendants for the immediate possession of their drilling outfit. On the 6th day of May, 1922, the original com-, plaint in this case was filed. As we have already seen, the suit was commenced in the circuit court for the purpose of obtaining possession of the drilling outfit and damages for the unlawful detention of the same. The drilling outfit was not returned by the defendants to the plaintiffs until the first day of July, 1922.

The plaintiffs introduced evidence tending to show that the rental value of their drilling outfit was not less than $50 per day. The defendants introduced evidence tending to show that its rental value was a very much smaller sum.

The court allowed the plaintiffs $30 per day for the wrongful detention of their drilling outfit, and, after a careful consideration of the evidence on this point, we are of the opinion that the finding of the chancellor is not against the weight of the evidence. Therefore it will he allowed to stand.

The plaintiffs also made claim for lost articles and damage to their equipment in the sum of $2,982.07, and the court allowed them $1,725.35. Here again we find the testimony in direct conflict. The chief item on this list was 1,650 feet of drill stem estimated 'by the plaintiffs to he worth $1,497.38.. This was the cost of the lost drill stem'. On the part of the defendants it was shown that there was only 1,300 feet of drill stem lost, and that it had been badly damaged.

The next item was twenty Hickman tool joints at $30 each, of the total value of $600. According to the testimony for the defendants, these tool joints were very badly damaged.

■ The next largest item was $500 estimated to be the damage to the entire outfit above its ordinary wear and tear. The other items on the list were from eleven to seventy-five dollars each for lost tools. We do not think the plaintiffs sustained the loss of the item of $500 for damages to the entire outfit above ordinary wear and tear. While drilling machinery wears out very quickly and is very expensive, as we have already seen, these matters are taken into consideration in fixing the profits to be received by their owner in making drilling contracts. After due consideration of the items on this list, we cannot say that the finding of the chancellor in this respect is contrary to the weight of'the evidence, and his finding on it will be allowed to stand.

The chancellor allowed the plaintiffs' the sum of $1,200 damages for sixteen days’ delay in making the first test. The original contract provided that the defendants should have the right to delay drilling the well by notifying'the plaintiffs to stop drilling, and that for such delay the defendants should pay the plaintiffs the sum of $75 per day. It is claimed by the plaintiffs that this sixteen'days ’ delay before the first test was occasioned by the defendants telling them to shut down in order to set an eight-inch casing for the purpose of making the test.

The claim of the plaintiffs for damages in this respect was settled by the supplemental contract of November 12, 1921. As we have already seen, the original contract was modified by it, and its provisions were substituted in part for the provisions of the original contract. It appears both from the terms of the supplemental contract and from the testimony in the case that it was the intention of the parties to adjust all their differences under the first contract by the execution of the two contracts of the date of November 12, 1921. Hence, for the reasons given in the beginning of the opinion where this phase of the case was discussed, we are of the opinion that the chancellor erred in allowing the plaintiffs the $1,200 item for the sixteen days’ delay in making the first test.

The plaintiffs have taken a cross-appeal, and they insist that the chancellor erred in not allowing them $461.10 for the delay in furnishing waiter under the original contract. For the reasons given above, the claim of the plaintiffs for damages in this respect was also settled under the supplemental contract of November 12, 1921.

There are several other smaller items argued in the brief on the cross-appeal, but we do not d°em it necessary to give them a separate discussion. We are of the opinion, after a careful consideration of the testimony, that the finding of facts made by the chancellor was correct, except as to the $1,200 item above stated.

Several other matters are argued at length in the respective briefs of the attorneys on both sides; but the conclusions of law which we have reached and announced above renders it unnecessary to set out or discuss these matters.

If we are correct in hoi dina: that the purnose of executing the supplemental contract of November 12, 1921, was to modify the original contract and to adjust all prior differences and claims of damages of the parties under that contract, it follows that the chancellor was right in his statement of the accounts between the parties, except as above indicated.

The result of our views is that the chancellor should have rendered judgment in favor of the plaintiffs against the defendants for the sum of $8,723.35, instead of $9,923.-35. Therefore it will bo ordered that judgment be rendered here in favor of the plaintiffs against the defendants for the sum of $8,723.35 with six per cent, interest thereon from the 31st day of October, 1923, the date of the decree in the chancery court, until paid.

It is ordered that the decree of the chancery court be modified as indicated in the opinion, and as modified that it be affirmed.


author: Smith, J.

text:
    Fisk Rubber Company, Inc., v. Hinson Auto Company.
    Opinion delivered March 30, 1925.
    Fraudulent conveyances — bulk sales law — automobile repair shop. — Where a business alleged to have been sold in violation oí the Bulk Sales Law (Crawford & Moses’ Dig., § 4870) was an automobile repair shop, in which various accessories were kept for the purpose of repairing oars, the -sale of such accessories apart from making repairs constituting an inconsequential part of the business, held that the chancellor properly found that such business was not a mercantile business n-o-r the accessories a “stock of merchandise,” within the meaning of the bulk sales law.
    Appeal from Union Chancery Court, Second Division; George M. LeCroy, Chancellor;
    affirmed.

      Zeb. A. Stewart amd T. P. Oliver, for appellant.

      Mahony, Yocum áb Saye, for appellees.
   Smith, J.

Appellant brought suit in the chancery court of Union County against W. G-. and G-eorge Bash, who had been engaged in business as the Beliable Auto Company, for an amount due on open account, and against E. W. Hinson, trading as the Hinson Auto Company, to charge him, as a receiver of goods, wares and merchandise purchased by him from the Reliable Auto Company. It was alleged in the complaint that Hinson purchased the stock of merchandise owned by the Reliable Auto Company in .bulk, without complying with §§ 4870 to 4872, inclusive, C. & M. Digest, commonly known as the ‘bulk sales law.

No answer was filed 'by the Rashs, and judgment was rendered against them for the want of an answer. Hinson filed a separate answer denying the material allegations of the complaint. No attempt was made to show that the provisions of the bulk sales law were complied with; on the contrary, it was alleged in the answer that the sale was not within the provisions of that statute, for the reason that the business sold was a repair business and not a stock of merchandise.

The complaint was dismissed as being without equity as against the Hinson Auto Company, and the question involved on the appeal is the one of fact whether the business sold was a mercantile business within the meaning of the bulk sales statute.

In support of the allegations of the complaint, Howard Lyon was first called as a witness. He testified that he was a salesman for the plaintiff, and, during the years 1921 and 1922, sold various automobile supplies to the Reliable Auto Company, amounting, in the aggregate, to $489.57, and this suit was brought to collect this amount. Lyon testified that the Reliable Auto Company had a garage, in which they made repairs on automobiles and carried a stock consisting of spark plugs, wires, tires, and other articles of that character; that they also kept service cars, and sold tires, casings, and other automobile accessories to the public. He did not know just what articles were embraced in the sale, but he was in the garage after the sale, and it looked as it had before. This witness further testified that he saw a sale by the Reliable Auto Company of four cord tires, which were nut on a car by the purchaser at the time of the sale. He further testified that the Reliable Auto Company kept service cars, and sold tires,. casings and other automobile accessories.;to. the public.

The letterhead of the Reliable Auto Company was introduced in evidence as indicating’ the business of that concern,'and it reads as follows: “Painting, Accessories, Reliable Auto Company, Upholstering, Fisk Tires, 312 West Main Street, Telephone No. 888. Road Service — Anywhere—Any Time. Cars Washed, Polished and Greased. Open Day and Night. ” It appears, however, that this .was a letterhead furnished by the plaintiff, and -that it was the custom of plaintiff to furnish such advertising mbtter to its customers.

A witness named Evans testified That he was in the place of business of the Reliable Auto Company, and was told by the person in charge that various automobile parts and accessories were kept for sale, although he made no purchase of any kind himself.

The third and last witness called by the plaintiff was J. T. Jones, who testified that he had been employed as a mechanic b'oth by the Reliable Auto Company before the sale and by the Hinson Auto .Company afterwards, and that the business was conducted in the same manner after the sale as it had been before. He testified, however, that the business was a repair shop, operated in connection with a sales agency for a standard automobile, and that the business carried on, besides the sale of cars, was the general repair of automobiles, special repair of casings, and vulcanizing, and storing cars. The vulcanizing was carried on in the front part of the place of business, and the business was run by him and another mechanic and two negro helpers, in the back end of the shop, together with four boys, and that Mr. Rash stayed out in front. Jones further testified that the parts and accessories kept on hand were kept to be used in connection with the. repair business carried on, and, according to this witness, if there were any Articles of merchandise or auto parts sold he did not know it, and the business was just a repair shop, and if anything was sold it was adjusted to the car at the time of the sale as a part of the repair of the car.

By § 4870, C. & M. Digest, it is provided that “the sale, transfer or assignment, in bulk, of any part of or the whole of a stock of merchandise, or merchandise and the fixtures pertaining to the conduct •of any such business, otherwise than in the ordinary course of trade and in the regular prosecution of the business of the seller, * * * shall 'be void as against the creditors of the seller * *

Here there was a sale of the entire business, but the question is whether there was a stock of merchandise within the meaning of the statute. A stock of merchandise might, of course, consist solely or largely of Automobile parts and accessories, but we have concluded that the finding of the court below that there was no' sale óf a stock of merchandise is not clearly against the preponderance of the evidence. The business sold was primarily and essentially a repair shop, including an agency for the sale of cars, but it is not contended that any automobiles were included in the sale. To carry on this business it was essential that various parts be kept in stock, but such parts were kept ordinarily for use in repairing ears, and the articles were usually adjusted to the cars of the purchaser.

The case of Fisk Rubber Co. v. Hayes, 131 Ark. 248, is relied upon by plaintiff as sustaining its contention that the sale was in violation of the hulk sales law. In that case we said the bulk sales law was passed by the Legislature to protect the rights of creditors from fraudulent sales of property upon which credit had been extended, but we refused to hold the purchaser in that case liable under the provisions of the bulk sales law because the portion of the stock sold was inconsequential when compared with the amount and value of the entire stock.

Here there was a sale of the entire business, but we think the court was warranted in finding that the Reliable Auto Company did not carry a stock of merchandise within the meaning of the ¡bulk sales law, and that the principal business of that company was repair work, and that such supplies as it carried were carried as an incident to that business, and such sales as were made constituted an inconsequential part of the principal business. .

A merchant ordinarily sells his stock of goods in substantially the same condition as he receives them, and the value of his stock is not ordinarily enhanced by any act of the merchant while the goods are in Ms possession ; while here it was contemplated that some service should be rendered the purchaser of any part of what is called the stock on hand.

In the case of Swift & Co. v. Tempelos, 101 S. E. 8, 7 A. L. R. 1581, the Supreme Court of North Carolina, in construing a statute of that State substantially similar to our own, said that the-word “merchandise” is usually, if not almost invariably, limited to things which are ordinarily bought and sold in the way of merchants, and as the subjects of commerce and traffic, and held that the goods and fixtures used in a restaurant conducted on the ordinary plan are not a stock of merchandise within the meaning of the bulk sales law. There is an extended annotator’s note to the case distinguishing sales which are or are not within the provisions of the bulk sales law.

In the case of Swanson v. DeVine, 49 Utah, 1, 160 Pac. 872, a business operated under the name of Goodyear Shoe Eepair Factory was sold. The business consisted of machinery, tools of trade, heel plates and cushions, laces, spools of thread, shoe soles, leather polish, brushes, etc., the same being used in the repair of shoes, items of which were displayed in a showcase and were sometimes sold at retail. The Supreme Court of Utah held that the owners of this business, who sold it in bulk, were not merchants within the meaning of the bulk sales law of that State. In the opinion the. court said: “¡We think the words ‘trade’ and ‘business’ are there (the statute of that State) used in the sense of a trade in or business relating to merchandise or a stock of goods — carrying-on a business or trade in merchandise — and1 not in the sense of an occupation, handicraft, or a business distinct from merchandise.”

It might appear from the very size of the plaintiff’s account that the Reliable Auto Company carried a considerable stock, but it will be remembered that this account covered sales to the plaintiff extending over a period of two years, and there is no definite- showing how much, if any, of these supplies were included in the sale.

So here we conclude that the business sold was not a mercantile business within the meaning of our bulk sales law, and the decree of the court 'below is affirmed.


text:
    Green v. Jones.
    Opinion delivered March 30, 1925.
    1. Bill and notes — •■validity op note for patent. — Crawford & Moses’ Dig., § 7956, providing that a note given for the sale of a patented article, which does not show on its face that it was executed in consideration of a patented article, is void, and § 7958, providing that any vendor of any patented thing who shall violate § 7956 “shall, upon conviction, he punished by a fine of not more than three hundred dollars,” are penal and criminal statutes, and must be strictly construed.
    2. Bills and notes — lease op patented article. — Under Crawford & Moses’ Dig., § 7966 requiring a note given for the sale of a patented article to show on its face that it was executed for a patented article, does not apply to a lease of a patented article.
    Appeal from Logan Circuit Court, Southern District; James Goehr mi, Judge;
    reversed.

      Evcms •& Evans, for appellant.

      Kincannon & Kincannon, and White & White, for appellee.
   Smith, J.

Appellant, who was the plaintiff below, brought this suit to recover on a promissory note exe--cuted by appellees, the defendants below, to the order of me tanners’ Uompress Trust (Jompaay, of Milwaukee, Wisconsin, for the sum of $1,200. Plain till testified that fie acquired tfie note as an innocent purchaser for value on tfie day of its execution.

Tfie defense made by tfie makers of the note was that it was executed in payment of a patented article, a fact not recited in tfie face of tfie note, as required by § 7956, C. & M„ Digest; and it was also denied that the plaintiff was an innocent purchaser thereof.

Tfie note in suit constituted tfie consideration for an agreement of even date with tfie note, made between the maker and tfie payee of tfie note, and which reads as follows:

“This agreement, made and entered into this 17tfi day of February, 1922, by and between tfie G-inners’ Compress Trust Company, of Milwaukee, Wisconsin, hereinafter called tfie lessor, and tfie Magazine Gin Company, Magazine, Arkansas, herein called tfie lessee,
“Witnessetfi: Whereas, tfie lessor has this day agreed to and does hereby lease and deliver to lessee, and installed ready for operation on or before tfie beginning of the ginning season of 1922, upon tfie condition herein set forth, tfie following personal property, to-wit:
“One complete system for baling cotton into cylinder bales, as per specifications and drawings shown in pamphlet called ‘Prodigy on Baling Cotton.’
“The lessee does hereby agree to receive said property and operate same at their gin plant, a public toll gin, baling cotton into cylinder bales at tfie option of the cotton owner.
“Whereas, tfie lessee, as a guaranty of g’ood faith, does give his promissory note for twelve hundred ('ll,200) dollars to lessor.
“The lessee agrees to operate this system for a term of not less than three years, and to use their best energy to make it a success, and to accommodate tfie ginning public. Said lessee further agrees to pay tfie lessor a rental of 20 cents per hundred pounds for all cotton baled in said system, -which the lessee is to charge and collect as a toll for compressing the cotton at the gin and deposit the same at the eiid of each month to the order of the lessor, less the amount hereinafter stipulated.
“'It is further agreed by the lessee that he will keep a correct account of all cotton baled on said system, giving the number of bales and weight of same. A settlement of all amounts due under this lease during any one year shall be computed on or before the first day of January of each year while this lease is in effect. The lessee to deduct all the tolls collected up to twelve hundred dollars as the return of his money advanced on installing the system. This amount to be credited on the twelve hundred dollar note until paid.
“It is understood that the title of the above described property shall remain in the name of the lessor, who is the owner.
“This agreement in no way transfers or incumbers the title other than herein set forth, and the lessor shall have the right to enter the premises of the lessee at any time and take possession and remove, without cost to lessee, said system from his premises, provided if any term of this lease is or shall be violated.
£ ‘ The lessee is not to interfere or in any way hinder the removal of the machine, nor is the lessor to be held responsible for any damage from same.
“Further, the lessor reserves the right to remove the system between ginning seasons provided said system does not outturn two thousand bales under ordinary season conditions, without expense to lessee. The lessee is to do all necessary carpenter work at his own expense.
“The lessor guarantees the system to make a perfect, merchantable bale of cotton and a continuous operation, and guarantees to keep said machine in good repair.
“The lessor also guarantees a market for the product of all cotton outturned, bidding for same in the open market at the usual premium of round over square, and will furnish the lessee, or whom he may designate, with a limit each day for the purchase of all cotton out-turned offered for sale.
‘ ‘ The lessor reserves the right to furnish an operator at his own expense, who will operate and care for the plant when so desired.
“The lessor guarantees not to install another system where it will directly interfere with the patronage of the lessee system for a period of seven years, provided the lessee meets the demands of the ginning public.
“Witness our hands this the 17th day of February, 1922.” ■' !

There was testimony that the cotton press to be installed under the agreement was covered by patents, and, in submitting the case to the jury, the court gave the following instructions: “You will find for the plaintiff, Mr. Green, the full value of this note, unless you find that the note was given for the purchase or lease of a patented machine, instrument or thing. If you find that it was given for a patented machine, instrument or thing, then you will find for the defendants.”

After reading § 7956, C. & M. Digest, the court further instructed the jury as follows: “Therefore, if you find from a preponderance of the testimony that this note was given for the purchase of a patented thing, or a. lease for a patented machine, instrument or thing, it is absolutely void, and your verdict will be for the defendants.”

The' jury found for the defendants under the instructions given, and there was a judgment accordingly. and the plaintiff has appealed.

For the reversal of the judgment it is contended by appellant that the agreement set out above contemplated a lease of a patented article, and not a sale thereof, and that the provisions of § 7956, 0. & M. Digest, do not aoply +o leases of patented articles, but only to sales thereof.

The section of the statute mentioned reads as follows: “Section 79'56. Any vendor of any patented machine, implement, substance, or instrument of any kind or character whatever, when the said vendor of the same effects the sale of the same to any citizen of this-State on a credit, and takes any character of negotiable instrument in payment of the same, the said negotiable instrument shall be executed on a printed form, and show upon its face that it was executed in consideration of a patented machine, implement, substance or instrument, as the case may be, and no person shall be considered an innocent holder of the same, though he may have given value for the same before maturity, and the maker thereof may make defense to the collection of the same in the hands of any holder of said negotiable instrument, and all such notes not showing' on their face for what they were given shall be absolutely void. ’ ’

We think counsel for appellant are correct in their contention that the contract set out was a lease and not a sale, and that the statute does not apply to leases of patented articles.

The statute is both penal and criminal. For its violation the penalty of the forfeiture of the agreed purchase price of the article sold is imposed, and the note or notes executed for the purchase price which do not conform to the requirements of the statute are rendered void in the hands of an innocent purchaser, and, in addition, a fine of $300 may be imposed for a violation of the statute. As the statute is penal and criminal, it must, for both reasons, be strictly construed..

In Black on Interpretation of Laws, § 114, page 286, it is said: “It is a familiar and well-settled rule that penal statutes are to be construed strictly, and not extended by implications, intendments, analogies, or equitable considerations. Thus, an offense cannot be created or inferred by vague implications. And á court cannot create a penalty by construction, but must avoid it by construction unless it is brought within the letter and the necessary meaning of the act creating, it. And where a statute may be s,o construed as to give a penalty, and also, and as well, so- as to withhold the- penalty, it will be given the latter construction. A penal statute-will, not be extended by implication -or construction to cases which may be within the mischief which the statute was designated to cure, if they are not at the same time within the terms .of the act fairly and reasonably interpreted. Hence an act not expressly prohibited by-such a statute cannot be reached by it merely because it resembles the offenses provided against, or may be equally and in the same way demoralizing or injurious. ‘In construing such laws, we should be careful to distinguish between what may have been desirable in the enactment in order that it should effectually accomplish ¡its purpose, and what has been really prohibited or commanded by it. Before conduct hitherto innocent can be adjudged to have.been criminal, the Legislature must have defined the crime, and ithe act in question must clearly appear to be within the prohibitions or requirements of the statute, that being reasonably, construed for ‘the purpose of arriving at the legislative intention as it has been declared. It is not enough that the case may be within the apparent reason and policy ■of the ¡legislation- upon the subject, if the Legislature has omitted to include it within the terms of its enact-' ment. What the Legislature has, fr-o-m inadvertence or otherwise, -omitted to include -within the express provisions of a penal law, reasonably construed, the' courts cannot supply.’ Further, in its application to á case which clearly comes within its terms, such a-law must1 be strictly construed. ” : ■

This court has made numerous applications of the-principles thus announced in the construction of such statutes, several of which cases are cited in the brief of counsel for appellant.

The subject-matter of the contract between the parties and the note sued on was the lease of a patented article, and not a sale thereof, and, as the .statute quoted applies only to sales of patented articles, the court was in error in instructing* the jury that a note given for the lease or the purchase of such an article was void.

, Appellee insists that, in the interpretation of § 7956, O. & M. Digest, that section should be read in connection with § 7957 and § ¡7958, 'C. & M. Digest, and, when so read, the statute should be interpreted as including, not only the sale of a patented article, hut the sale of the right to use a patented article.

The last numbered sections read as follows:

“Section 7957. The foregoing* section shall also apply to vendors of patent rights, and family rights to use any patented thing of any character whatever.
“Section 7958. Any vendor of any patented thing of any character, -or any vendor of any patent right or family right to use any patented thing of any character whatsoever, who shall violate the provisions of § 7956 shall, upon conviction, be punished by a fine of not more than three hundred dollars.”

We do not think that the Dinners’ Compress Trust Company, the lessor in the agreement set out above, comes within the provisions of § 7957 or § 7958, C. & M. Digest. The Dinners’ Compress Trust Company was not the vendor of any patented thing, nor was it the vendor of any family right to use any patented thing.

What we have said disposes of the only question considered by the court below or submitted to the jury, and, for the error in giving .the instruction set out above, the judgment of the court below will be reversed, and the cause remanded for a new trial.

        Brooks v. Western Union Tel. Co., 56 Ark., 224, Simmons v. American Ry. Express Co., 147 Ark., 339, and Gillam v. State, 47 Ark. 555 — -are cited in appellant’s brief (Reporter). , , ,


text:
    Missouri Pacific Railroad Company v. Crawford.
    Opinion delivered March 30, 1925.
    1. Trial — remark op court — withdrawal op question prom jury. —A remiaxk of the court that he thought that the defense had not shown any contributory negligence held to justify the assumption on defendant’s part that the question of contributory negligence was withdrawn from the jury, and that the court declined to instruct further on that question and had eliminated the question from the instruction already given.
    2. Carriers — contributory negligence op passenger in alighting. —Evidence, in an action for injury to a passenger in alighting from a passenger car at night, which would have justified a finding that, had the passenger waited a moment, she could have had the assistance of a brakeman or a finding that had she been in the exercise of due care she might have alighted in safety, held to call for submission of the issue of contributory negligence.
    Appeal from Conway Circuit Court; J. T. Bulloch, Judge;
    reversed.

      Thomas B. Pryor and Vincent-M. Miles, for appellant.

      Edward Gordon, for appellee.
   Smith, J.

Appellee recovered judgment to compensate an injury which she alleged was sustained while a passenger on one of appellant’s trains. She testified that, on the night of either the 2d or the 9th of December, 1922, she had purchased a ticket from Morrilton'for Kenwood, a flag station, and that the train arrived at Kenwood about midnight, 'several hours late. There was no agent at Kenwood, and no lights about the station, and the train did not stop opposite the platform provided for the use of passengers entering or debarking from the train. No step was provided for her to step down on, and no one .assisted her off the train, and the step of the train was so high from the ground that, in stepping down to the ground, her foot rested on a rock between the ties, which was wet on account of a recent rain, and her foot turned, and her knee was severely sprained.

. Among other defenses interposed by the railroad company was the one that the train was not late on the night of either the '2d or the 9th of December, and that there was nothing nnnsnal about the stop 'made at Ken-wood on either of those dates which wonld have caused injury to any one.

This question of fact was submitted to the jury, and the jury’s verdict is conclusive of that question.

Appellee testified that she had bought at Morrilton, where she took passage on the train, a dollar’s worth of coffee and of sugar, and she had these packages in her hand as she stepped from the train, and that she had to swing down from the step in getting off. She testified that she got up immediately from her seat when the train stopped, and that, just as she got off, a brakeman came out of the door and called to her, “Look out, lady, you will get hurt, ’ ’ but she had just stepped to the ground as the remark was made, and she replied to the brakeman, “You should have assisted me or placed a stool for me.”

In an instruction given, the court told the jury that it was the duty of the railroad company to furnish plaintiff a reasonably safe place to alight from the train, and, if the company failed in this duty, and this failure was the proximate cause of the injury, to find for the plaintiff. In an instruction numbered 8 the court told the jury to find for the plaintiff if she was injured without fault on her part; and, in instruction numbered 9, the court declared the law of comparative negligence if the jury found plaintiff was guilty of contributory negligence.

After thus instructing the jury, the court made a remark which appears in the transcript as instruction numbered 12 as follows: “12. I really think that, under the testimony of this case, the defense has not shown any contributory negligence.” The record recites that the attorney for the defendant company objected aud excepted to the statement of the court made before the jury, whereupon the judge remarked: “All right, your exceptions are saved. I don’t think there is any testimony showing contributory negligence on the part of the plaintiff. Defendant saves exceptions.”

It is insisted by appellee- that the record does not show that-the question of contributory negligence was withdrawn: -from the jury; that it is shown only that the court expressed the opinion to the attorney for the defendant that there was no question of contributory negligence for the jury to consider. We do not, however, so understand the record. ■ In view of the recitals set out above, counsel for the defendant was justified '.in assuming that the question had been withdrawn from the jury, and that the court had declined to instruct further on the question of contributory negligence and had eliminated that question from the instructions already given.

Appellee insists that there was' no question of contributory negligence for the jury. It may be said that, under the facts stated, the jury might well have found that appellee was not guilty of contributory negligence; but that is not the question. The question rather is, must it 'be said, as a matter of law, that the jury could not have found otherwise?

. Appellee had the right to assume that the train had stopped at the platform where she could alight in safety, and that, if this had not been done, she would be provided with a step or necessary assistance to alight in safety. But she 'testified that, while the night was dark, there was light-from some source; that “there was the reflection of some light,” but the light was not sufficient for her. to see just where she stepped, When asked if the train pulled up to the little station, appellee answered: “No sir, it was not quite to the station, as well as I could tell. ”

■ Prom- appellee’s own testimony it appears that, h'ad she waited a second or two, a brakeman would have been present who could have assisted her in alighting, and we are unwilling to say, as a matter of law, that she should not have looked about to see if any one was present to render this assistance. Moreover, we are unwilling to sav. as a matter of law, that atrnelW might nnf, have alighted from the train, even though she was offered no assistance, had she exercised proper, care in doing so, as she testified that the ground was only about two feet from the step.

Under these circumstances we think the question of contributory negligence should not have been withdrawn from the jury, and, on that account, the judgment will be reversed, and the cause remanded for a new trial. '


author: Humphreys, J.

text:
    Brown v. State.
    Opinion delivered March 30, 1925.
    1'. Criminal law — repetition of instructions. — Refusal o-f a requested instruction was not error where the subject was covered by instructions given.
    2. Witnesses — impeachment by purported testimony before grand JURY. — Where a State’s witness in a murder case testified ■that deceased .fired the first shot, and denied that he testified otherwise before the grand jury, admission of an unsigned and unidentified writing purporting to contain his testimony before the grand jury to impeach him was error, in the absence of any proof that such writing was a correct transcript of such testimony.
    Appeal from Phillips Circuit Court; E. I). Robertson, Judge;
    reversed.

      Sheffield & Coates, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, for appelleee.
   Humphreys, J.

Appellant was indicted and tried for murder in the first degree in the circuit court of Phillips County, convicted of • murder in the second degree, and. adjudged to serve a term of ten years in the State Penitentiary as punishment therefor. Prom the judgment of conviction he has duly prosecuted an appeal to this court.

The testimony introduced by the State tended to show that appellant shot and killed Lewis Hollinshed on the 8th day of. June, 1924, without any justification.

The testimony introduced by appellant tended to show that be shot and killed Lewis Hollinshed in necessary self-defense.

One of the assignments of error insisted upon for a reversal of tbe judgment was the refusal of the trial court to give instructions Nos. 1 and 3 requested by appellant. It is contended that the refusal of the court to give these instructions deprived appellant of the benefit of the question of reasonable doubt as to whether or not he was assaulted. It appears from an examination of the other instructions that every phase of the doctrine of reasonable doubt was covered, and, for that reason, error was not committed in refusing to give the requested instructions.

The last assignment of error insisted upon for a reversal of the judgment was the admission in evidence of an unsigned and unidentified paper purporting to be the testimony of Jim Spencer, a State witness, given before the grand jury, different in a material part from the testimony given by the witness in the trial. The testimony was introduced for the purpose of contradicting the witness, under the rule that prior testimony given before the grand jury may be introduced for the purpose of contradicting the witness who testifies to conflicting. statements given by the witness at the trial of the case. Davidson v. State, 108 Ark. 191; Carlton v. State, 109 Ark. 516. The witness, however, denied that he had testified differently when before the grand jury from the testimony then being given by him. His testimony in the trial was to the effect that the deceased fired the first shot at appellant, and that appellant returned the fire, whereas his purported testimony before the grand jury was to the effect that appellant was the aggressor and fired both shots. It was improper to admit the purported evidence of the witness before the grand jury for the purpose of impeaching him without first making proof that the testimony offered was the correct testimony of the witness before the grand jury. As stated above, the record reflects that the witness denied a material part of tlie testimony read to Mm as 'being the correct statement of his testimony before the grand jury. Some one should have been introduced as a witness who could vouch for the correctness of the statement made by Jim Spencer before the grand jury in order to use same for the purpose of impeaching him.

On account of the errors indicated the judgment is reversed, and the cause remanded for a new trial.