author: McCulloch, C. J. Hart, J.,

text:
    Sanders v. Boone.
    Opinion delivered June 19, 1922.
    1. Injunction — trespass.—Equity will not restrain a mere trespass where there are no other elements of irreparable injury, unless the trespasser is insolvent.
    2. Quieting title — title of plaintiff. — In suits to quiet title the plaintiff must succeed upon the strength of his own title, and cannot rely on the weakness of his adversary’s.
    3. Quieting title — burden of proof. — Where defendant, in a suit to restrain trespass, claimed title in himself and asked affirmatively that his title be quieted, but did not show that his vendor was the owner of the land or had any interest therein, he failed to prove his title and was not in position to ask equitable relief, his remedy at law being adequate.
    Appeal from Cross Chancery Court, A. L. Hutchins Chancellor;
    reversed in part.

      J. G. Brookfield, for appellant.
    The decree should be reversed upon the showing • made by the cross-complaint. In suits to quiet title the plaintiff must prevail upon the strength of his own title. 95 Ark. 447; 90 Id. 154; 74' Id. 386; 87 Id. 211; 15 Cyc. 39, 40, and note 48.

      The answer and cross-cbmplaint were properly responded to by motion to strike. 15 Cyc. 112.
    Adverse possession is not only defensive, but bestows title which may be enforced by suit. 38 Ark. 181; 92 Id. 30; Medloch v. Jones, 152 Ark. 57; 39 Ark. 158; 47 Id. 301; 46 Id. 25.
    Equity has jurisdiction to restrain trespass. 22 Cyc. 825.

      Killough, Lines & Killough, for appellee.
    The unlawful detainer theory upon which, appellee proceeded eliminates and renders abstract the law relied on by appellant in regard to suits in ejectment. The results attained by the decree are correct, and it should be affirmed.
   McCulloch, C. J.

Appellant was the plaintiff below in the action in the chancery court of Cross County to enjoin appellee from trespassing upon a certain tract of land, to which appellant asserts title and possession. Appellant alleged in his complaint that he was the owner of the tract of land in question by adverse occupancy for more than seven years; that he was in possession of the land at the time of the commencement of the action, and that appellee had repeatedly committed trespass by coming upon the premises and erecting a fence thereon, which appellant had torn down as often as erected.

Appellee answered, denying that appellant was either the owner or in possession of the land, and presented a cross-complaint, in which he asserted title to the tract of land and asked that the title be quieted.

The court dismissed appellant’s, complaint for want of equity and entered a decree in favor of appellee, quieting appellee’s title to the land in controversy.

Appellant claims to have entered into possession of the land in controversy under an oral contract of purchase with the agent of a certain railroad company, which was the owner. The evidence is not sufficient to show either that the railroad company was the owner of the land or that the alleged agent had authority to sell it. Appellant’s testimony tends to show that he had been in possession for the statutory period of limitation, but there is a conflict in the testimony on this point, and we find it unnecessary to determine whether or not the title is complete by adverse possession for the statutory period of limitation/

Appellant shows in his testimony that appellee has, on several occasions, entered upon the land in controversy and erected a fence, and that appellants tore down the fence. The sole basis of his right of action is the threatened repetition of the trespass.

It is the settled doctrine of this court that equity will not restrain a mere trespass where there are no other elements of irreparable injury, unless the trespasser is insolvent. Meyers v. Hawkins, 67 Ark. 413; Hall v. Wellman Lbr. Co., 78 Ark. 408; Boswell v. Jordan, 112 Ark. 159.

The court was therefore correct in dismissing appellant’s complaint for want of equity, and that part of the decree is affirmed.

On the other branch of the case it is sufficient merely to invoke the principle, often announced by this court, that “in suits to quiet title the plaintiff must succeed, if at all, as in actions of ejectment, upon the strength of his own title, and cannot rely upon the weakness of his adversary’s title.” Bullock v. Duerson, 95 Ark. 447.

Appellee was the moving party by asking affirmative relief in the quieting of his title, but he failed to’ prove his title. He testified that he purchased the land from a certain individual and received a deed, but he did not show that his vendor was the owner of the land or had any interest therein. Nor is .there any evidence that appellee was in possession of the land at the time of the filing of the cross-complaint, and for this additional reason he is not in position to seek equitable relief, for his remedy at law is complete.

Whatever remedies either party to this suit may have are complete at law, and neither has shown any right to equitable relief.

The decree in appellee’s favor for the quieting of the title is therefore reversed, with directions to dismiss his cross-complaint for want of equity.

Hart and Smith, JJ., dissent.

Hart, J.,

(dissenting). I deem it proper to state briefly my reasons for dissenting in this -case.

The plaintiff purchased the land from the Rock Island Railroad and held adverse possession of it for sixteen years, thereby establishing his title. The defendant put a wire fence through the plaintiff’s field and claimed that part of the plaintiff’s field within the inclosure of the fence. The plaintiff removed the fence. The defendant caused his arrest for so doing, but he was not convicted. The defendant put up the fence a second time. The plaintiff removed it, and was arrested again. He then filed this suit.

The act of the defendant in erecting the fence and having the plaintiff arrested for tearing it down interfered materially with the plaintiff’s use of his land. In my opinion the continued occupation and threatened use of the plaintiff’s land to the extent and for the purpose thus indicated by the acts of the defendant is such an injury to the property rights of the plaintiff as a court of equity may properly restrain and prevent.

If courts of equity do not interfere in cases of this sort, there would be a great failure of justice and an encouragement for neighborhood brawls and lawsuits. The jurisdiction of equity to restrain continued or repeated trespasses rests on the ground of avoiding a repetition of similar actions. Very often the injury is irreparable because it is continuous or repeated, when it would not be, if temporary; and in such cases injunction will issue as a matter of course. 5 Pomeroy’s Equity Jurisprudence, sec. 496.

I think our own decisions are in accord with this rule. Ellsworth v. Hale, 33 Ark. 637, and Western Tie & Timber Co. v. Newport Land Co., 75 Ark. 286.

I do not think that onr timbering eases are in point. In the early days, our policy was to subdue the forests and to regard standing trees as an incumbrance and obstacle to the growth and development of agriculture as a pursuit. Pardee v. Camden Lumber Co., 70 W. Va. 68, 43 L. R. A. (N. S.) 262. Hence, where parties en-' tered the land for the purpose of cutting down the timber only, the courts held that the injury was not irreparable, and that courts of equity would not interfere. Timber having become scarce and of great value, the trend of modern authorities, as pointed out in the case last cited, is to restrict rather than to extend, the doctrine of the earlier cases. Where the defendant manifests by his continued acts an intention to take possession of a substantial part of another’s land and to prevent the owner from cultivating it, an entirely different case is presented. In such a case the defendant manifests a purpose to continue in his unlawful acts and the vexation? expense, and trouble of prosecuting actions at law make the legal remedy inadequate and justify a plaintiff in coming into equity for an injunction.

Judge Smith concurs in this dissent.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Hawkins v. Hudson.
    Opinion delivered June 19, 1922.
    1. Partition — collateral attack on sale. — The validity of a decree in partition for the sale of land cannot be attacked col- ' laterally, in an action on a note given in payment of the pur- ‘ chase price at sale thereunder, for failure of the record to show that the land could not be divided in kind, this being a mere error or irregularity which could be corrected only by appeal; the court having jurisdiction.
    2. Partition — collateral attack — error in distribution of proceeds. — Any error in distribution of the proceeds of a sale in partition does not, on collateral attack in an action to recover on a note given for the purchase price, affect the validity of such sale.

      Appeal from Lawrence Chancery Court, Eastern District; Lyman F. Reeder, Chancellor;
    affirmed.

      Smith & Gibson-, for appellant.
    The partition decree was void. Not only should the original complaint have affirmatively alleged that the lands could not be divided in kind, but that fact should have been found by the court to be true, before the chancery court had jurisdiction to order a sale; and if it liad no jurisdiction, its order was void and may be attacked in this proceeding. 77 Ark. 317; 91 S. W. 184; 81 Ark. 674.

      W. M. Ponder, for appellee.
    Appellant was one of the petitioners for the sale or partition, and sponsored every step in the proceedings. He cannot be heard to say that the sale was void, whether it was valid or not. The decree can now be attacked only for fraud, and none is shown. It is valid and binding, because rendered upon proof, and was never appealed from.
   McCulloch, C. J.

This is an action instituted by a commissioner of the chancery court of Lawrence County to recover on a note executed for the purchase of land which was sold by the commissioner under a decree of the court. It is sought to enforce a lien against the land for the payment of the amount of the note.

One of the defendants, W. M. Hawkins, was the purchaser of the land at the sale made by the commissioner, and the other two defendants, Covington and Schwegman, were the sureties on his note.

The decree under which the sale was made was rendered in an ex parte proceeding instituted in the chancery court of Lawrence County asking for the partition or sale of a certain tract of land in that county. Hawkins was one of the parties to the petition, which was filed by the widow and children of the former deceased owner, and it concluded with a prayer that the land be divided, or that it be sold for partition if it be found that there could be no division without material injury to the rights of the parties.

The court rendered a decree for the sale of the land, which, as before stated, was made by the commissioners, and the land was purchased by Hawkins.

There was a demurrer to the complaint in the present action, which the court overruled, and defendant failing to plead further, final judgment was rendered against him.

The contention is that the original decree under which the sale was made is void for the reason that the record does not affirmatively show' that the land could have been divided in kind. Counsel for appellant cite Moore v. Willey, 77 Ark. 317, in support of their contention, but it will be observed in the case cited that there was a direct appeal from the decree, whereas, in the present instance, the attack on the validity of the original decree is collateral. In disposing óf the question in Moore v. Willey, supra, the court said: “We may admit that the court had jurisdiction, and that the order was not void, but this is a direct attack by appeal, and the question is, was there error in the proceedings?”

In a collateral attack on a decree directing the sale of property, mere errors or irregularities do not affect the validity of the sale. If the court had jurisdiction, errors could only be corrected by appeal from the decree itself, and a collateral attack on the decree is not available for the correction of the error.

It is also contended that the decree is void for the reason that it awards to the widow a child’s part in the land ordered sold, but that, too, was a mere error which could only be corrected by appeal.

The court had jurisdiction to order the sale for partition among the owners, it being conceded that all parties in interest were before the court. Any error of the court with respect to the distribution of the proceeds does not, on collateral .attack, affect the validity of the sale.

Decree affirmed.


author: Hart, J.

text:
    B. A. Collins & Company v. Gus Blass Company.
    Opinion delivered June 19, 1922.
    1. Sales — time of shipment. — In an action for the purchase price of goods ordered on February 3d, to be shipped in “March or at once as ready,” which were not shipped until April 30, held that the purchaser was justified in refusing to accept the shipment, as the language quoted meant that the shipment should be made in February or March, but not later.
    2. Contracts — construction.—A written contract should be construed to give effect to every part therein where it can be done.
    Appeal from Pulaski Circuit Court, Third Division; Archie F. House, Judge;
    affirmed.
    STATEMENT OP PACTS.
    The circuit court, sitting as a jury on appeal from-the municipal court of Little Rock, Ark., rendered judgment in favor of The Gus Blass Company in a suit against it by B. A. Collins-. & Company for the sum of $55.11 alleged to be due for merchandise. The defendant denied owing the plaintiff any amount whatever.
    On the 3rd day of February, 1920, The Gus Blass Company of Little Rock, Ark., signed an order for a bill of goods purchased by it from B. A. Collins & Company of Springfield, Mass. The order contained a direction of shipment as follows: “March or at once as ready.” The greater part of the goods contained in the order were shipped on March 31, 1920. The balance of the order, amounting to $55.11, was shipped on April 30, 1920. The defendant refused to accept this consignment on the ground that it was shipped too late, and the goods were returned to the plaintiff.
    The court found the issue in favor of the defendant, and from the judgment rendered dismissing its complaint, the plaintiff has duly prosecuted an appeal to this court.

      Rogers, Rarbér $ Henry, for appellant.
    The shipping instruction “March, or at once as ready,” can only have one meaning, and that was that the goods were to be shipped during March, or as soon as possible thereafter. “As soon as possible” and “at once” are synonymous and mean within a reasonable time. See Words and Phrases, 2nd series, Yol. 1 p. 286; 96 N. Y. Supp. 978, 110 App. Ddv. 525.

      Joe H. Thompson, for appellee.
    The plain meaning of the shipping instruction is that the goods might be shipped at once if ready, but as qualified by the word “March”, means that shipment must be made at some time not later than March 31st.
   Hart, J.

(after stating the facts). Counsel for the plaintiff seek to reverse the judgment upon the authority of Williams v. Gridley, 96 N. Y. Supp. 978. In that case the contract provided for the purchase of bicycles, and the shipping directions were, “all to be filled by April 1st, or as soon as possible.” The court held that this provision indicated that the order was to be filled by April 1st or as soon thereafter as possible. The court said that unless the phrase, “or as soon as possible,” related to a time subsequent, it was without force and may as well have been omitted from the contract.

We do not think that that case has any bearing on the present case, even if it be assumed that it was correctly decided. The shipping directions in the present case, when construed as a whole, do not show that the phrase, “March or at once as ready,” refers to a sub-, sequent time. If it did the word “March,” might just as well have been omitted. The words, “at once” are usually construed to mean within such reasonable time as shall be required under all the circumstances for doing the particular thing. Lucas v. Western Union Tel. Co., (Iowa) 6 L. R. A. (N. S.) 1016; and Georgia Agr. Works v. Price, (Ct. of Appeals, Ga.) 74 S. E. 718, and cases cited.

The order was dated February 3, 1920. The shipping directions were “March or at once as ready.” The date of the order and the shipping directions contained in it -would seem to indicate that it was the intention of the parties that the shipper might proceed with the shipment at once if ready to do so. In other words, the shipment might be made during the month of February. If the words, “or at once as ready,” are construed to mean a time subsequent to March instead of a time prior to it, it is plain that the word “March” need not have been used at all. If the word should be used to denote the time previous to March, effect may.be given to every word contained in the shipping directions. In construing a written instrument effect must be given to every part therein where it can be done.

It follows that the judgment will be affirmed.


text:
    Kelley v. State.
    Opinion delivered June 19, 1922.
    1. Homicide — insanity—evidence.—In a prosecution for murder, where defense was made that accused was partially insane at the time he committed the crime, evidence as to defendant’s conduct may be admitted as showing or failing to show general insanity, as an inquiry into one phase of insanity necessarily opens up an inquiry into others, even though such phases may be entirely distinct.
    2. Homicide — insanity—burden of proof. — In a prosecution for murder where the defense of insanity is set up, the burden is on the accused to establish his insanity by a preponderance of the evidence.
    Appeal from Logau 'Circuit Court, Southern District; James Cochran, Judge;
    affirmed.

      Jno. P. Roberts and Evmis & Evans, for appellee.

      J. 8. Utley, Attorney General; Elbert Godwin and W. T. HammocJc, Assistants, for appellee.
   McCulloch, C. J.

Appellant was indicted by the grand jury of Logan County (Southern District) for the crime of murder in the first degree, alleged to have been committed by killing one Abe Quinalty by shooting him with a pistol, and on the trial of the case appellant was convicted of murder in the second degree. On appeal to this court the judgment was reversed on account of an erroneous ruling of the court in admitting evidence concerning the character of the deceased, and also for errors in the court’s charge to the jury. 146 Ark. 509. On the remand of the cause, appellant was put on trial for murder in the second degree and was convicted of that degree of homicide.

On the trial below appellant claimed that he acted in self-defense, and it was also claimed in his behalf, as a matter of defense, that when he committed the homicide he was partially insane — that he was afflicted with paranoia or delusional insanity concerning improper relations between his wife and Quinalty. These issues were correctly submitted to the jury, and no error is assigned with respect to the court’s charge except as to one of the instructions which related to the question of burden of proof, and that instruction will be discussed later.

. The principal assignment of error relates to the ruling of the court in admitting certain testimony of Dr. Armstrong, a physician, who was introduced as an expert witness by appellant himself. There was propounded to Dr. Armstrong by appellant’s counsel a very lengthy hypothetical question, which detailed the previous conduct of appellant according to his counsel’s theory of the testimony, and stated as one of the facts to be considered by the expert that appellant “has a hereditary taint of insanity,” and the question concluded with the inquiry “whether or not the man with the hereditary taint of insanity was sane or insane at the time of the ldlling.” Dr. Armstrong answered as follows: “I would believe that the man was insane.” The prosecuting attorney was then permitted, on cross-examination of the witness, to elicit the statement, in substance, that the witness had been well acquainted with appellant for many years, and that from his observation of appellant’s conduct he had never considered the latter to be insane or that he did not know right from wrong, and that appellant had never shown any evidence of insanity.

The contention of appellant is that this testimony was incompetent because it related solely to the question of general insanity of appellant, whereas the claim made in his defense is that he was suffering only from partial insanity. Learned counsel for appellant cite in support of their contention many decisions of this court discussing the distinction between general and partial insanity, but the discussion in all of those cases relates to proper instructions to the jury in considering these questions. Bolling v. State, 54 Ark. 588; Taylor v. McClintock, 87 Ark. 243; Bell v. State, 120 Ark. 530; Hankins v. State, 133 Ark. 38; Woodall v. State, 149 Ark. 33.

Nothing in any of those case justifies the conclusion that the fact that where one of the parties to the controversy claims that lie acted under an insane delusion the other party is absolutely cut off from all inquiry as to general sanity or insanity. We have recognized in our decisions that there is a distinction between the two phases of insanity and that one may exist without the other to such an extent as to relieve a person from responsibility for his conduct, yet we have never held that in determining the question of partial insanity as an issue of fact there may not be an inquiry concerning general insanity and its relation to the claim of partial insanity. In other words, the jury may consider the conduct of the party as showing, or failing to show, general insanity in order to determine whether or not he is laboring under a delusion. An inquiry into one phase of insanity necessarily opens up an inquiry into the others, even though such phases may be entirely distinct.

It will be noted also that the answer of the witness was broad enough to include general insanity, and for this reason, if no other, the prosecuting attorney was entitled to cross-examine him on that subject. We are of the opinion that no error was committed in that respect.

The court gave the following instruction over the objection of appellant:

“The defendant sets, np as one of his defenses that he was insane at the time he committed the offense. The law presumes that he was sane and to have intended the ordinary and natural consequence of his acts. The burden is upon him to prove by a preponderance of the evidence at the time of the -commission of the killing he was insane, but if he proves to- your satisfaction that he was insane at the time the offense was committed he should be acquitted on that ground. ’ ’

This instruction is, substantially, in accordance with the law as declared by this court in many cases. McKenzie v. State, 26 Ark. 334; Casat v. State, 30 Ark. 511; Coates v. State, 50 Ark. 330; Williams v. State, 50 Ark. 511; Bolling v. State, supra; Bell v. State, supra.

In the case last cited the court said: “The law presumes that every man is sane, and that he intends the natural consequences of his act. Therefore, when one is charged with murder in the first degree, and it is admitted that if sane he is guilty as charged, and the plea of insanity is interposed as his defense, in such cases the burden is upon the accused to establish his insanity by a preponderance of the evidence.”

The language of the instruction is inaccurate in using the term “to your satisfaction” but when construed as a whole the instruction merely declares that the burden was on the accused to prove insanity by a preponderance of the testimony.

Counsel ask us to overrule those cases and to hold with the line of decisions in certain other States to the effect that the question of sanity of the accused is a part of the State’s case and must be proved like all other material allegations. The rule which we have adopted has been long followed and is not only firmly established in our jurisprudence, but it seems to us to be the correct rule, for if there is a presumption of sanity it is not a part of the State’s case to prove it, and where the defense of insanity is set up the burden is upon the accused to prove it by a preponderance of the testimony.

These are the only assignments of error discussed by counsel, and are the only ones we deem it necessary to refer to in this opinion.

The record is free from error, and the verdict is abundantly sustained by the testimony.

Affirmed.


text:
    Ring v. State.
    Opinion delivered June 19, 1922.
    1. Indictment and information — following language of statute. — Indictment for keeping in possession a still without having registered the same with the proper United States officer held to charge the offense in substantially the language of the statute.
    2. Intoxicating liquors — sufficiency of evidence. — Evidence held sufficient to sustain a conviction of keeping in possession a still contrary to Acts 1921, p. 372.
    3. Intoxicating liquors — keeping still in possession. — Testimony tending to prove that defendant consented to a still being operated on his place and helped to put it up there, and furnished the fuel for its operation, and that he was receiving part of the product, constitutes keeping a still in his possession within the prohibition of Acts 1921, p. 372.
    4. Criminal law — admission of evidence harmless when. — Since defendant, on a charge of having in his possession an unregistered still, has the burden of shownig that the still was registered, any error in the admission of proof by the State to show that it was not registered was harmless.
    5. Intoxicating liquors — burden of proof. — One charged with keeping a still not registered with the proper United States officer contrary to Acts 1921, p. 372, has the burden of proof on the issue of registration.
    6. Intoxicating liquors — possession of still. — Under Acts 1921, p. 372, providing that no person shall keep in his possession any still without registering it with the proper United States officer, the act of taking or holding possession must be voluntary, but the possession need not be permanent.
    7. Criminal law — instructions.—While ordinarily either party is entitled to an instruction stating the converse of a given proposition, yet where in one instruction the court declared what acts were essential to constitute the offense under the statute, another requested instruction that certain other conditions would not constitute a violation thereof need not he given.
    Appeal from Conway Cirenit Court; A. B. Priddy, Judge;
    affirmed.

      W. P. Strait, for appellee.

      J. S. XJtley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   McCulloch, C. J.

Appellant was indicted and convicted under the statute which reads as follows:

“No person shall keep in his possession any still-worm or still without registering the same with the proper United States officer, and no person shall set up to be used as a distillery any still-worm or substitute therefor and a still or substitute therefor, such as a kettle, washpot, metal tank, or any other vessel of any kind for the purpose of using same, or which, after being so set up, may be used for the production of distilled spirits.” Acts of 1921, p. 372.

The language of the charging part of the indictment is that the accused “did wilfully, unlawfully and feloniously keep and possess a certain stillworm and still to be used for the production of ardent, vinous, malt, spirituous and fermented liquors and alcoholic and distilled spirits; the said Nick Ring not having registered the same stillworm and still with the proper United States officers,” etc.

There was a demurrer to the indictment, which the court overruled, and there is an assignment of error with respect to that ruling, but no argument is made here in support of the contention, and we are unable to discover any reason for holding that the indictment failed to charge an offense under the statute. The indictment may not be in the precise language of the statute, but it was sufficient to charge the acts constituting the offense substantially in the language of the statute.

It is contended that -the evidence is insufficient to sustain the verdict, of the jury, and that, according to the undisputed evidence, appellant was not guilty of the offense with which he is charged.

The State introduced as a witness one Neal, who was confessedly an accomplice of appellant, if the latter was guilty of the offense at all. Neal testified that he had been operating the still for about a month at or near a place called Sandtown, and that, he frequently talked with appellant about operating the still; that the latter knew about it and was getting some of the product of the still. He testified that he found it necessary to move the still, and obtained permission of appellant to use the latter’s wagon and team in hauling it; that he got appellant’s wagon and team in the latter’s absence and went down and got the still and hauled it up to appellant’s house at night and put it in the barn-yard, the still being covered with hay in the bed of the wagon; that next morning he and appellant drove the wagon down to a thicket on appellant’s place, unloaded it, and that it was set up and put into operation at that place. He testified that appellant helped put up the still and furnished the fuel for its operation.

Another witness, Gordon by name, testified that he lived near appellant’s farm, and that Neal, in appellant’s presence, pushed aside the covering of hay and showed him the still.

The two officers who arrested appellant testified that they found the still in full operation in a thicket on appellant’s farm, a short distance from the end of the rows where appellant was plowing. They testified that they could smell fumes from the still, and that when the wind was right a person could see the smoke and smell the fumes from the still at the place where appellant was plowing.

Appellant denied that he lent the team to Neal, and said that he refused to have anything to do with the still, and that Neal took his [appellant’s) team during his absence and hauled the still at night. He testified that he refused to have anything to do .with the same, and he explained the fact of the still 'being hanled away next morning by saying that he was going down to the field to work and he merely consented for Neal to drive the team down there so as to get away from the house, and to get his team down there in the field where he could use them at work. He denied that, he consented for the still to be erected or operated on his place, and said he did not know it was there until he was arrested. -

The evidence was, we think, sufficient to sustain the conviction. It is true that the testimony came principally from Neal, who was an'accomplice, but there is abundant corroboration in the fact that the still was being operated on appellant’s farm, at a place where he was bound to have known that it was being operated.

It is undisputed that the still was carried to appellant’s place and kept over night in his barn-yard, and then taken to the thicket where it was set up and put into operation. It is also undisputed that he saw the still in the wagon, and that he consented for it to be hauled to the thicket in his wagon. The only question, therefore, is whether or not his connection with the transaction was voluntary, or whether it was forced upon him, as lie claims, by the conduct of Neal.

There is evidence tending to show that appellant consented for Neal to use his team to haul the still from Sandtown, and that he drove the wagon in which the still was hauled next morning from his barn-yard down to the thicket. There are also circumstances in the case which warrant the conclusion that appellant knew of the presence of the still and that he was interested in operating it there on his farm. This constituted keeping a still in his possession within the meaning of the statute.

Appellant also has an assignment of error with reference to the method of proof of the fact that the still was not registered, but since the burden was on appellant himself to make an affirmative showing that the still was registered, and no such proof was made, it was unimportant whether the State introduced the right kind of certificate or not. Moore v. State, ante p. 13.

Appellant assigns as error the refusal of the court to give an instruction telling the jury that it devolved upon the State to prove beyond a reasonable doubt that the still was not registered. This instruction was properly refused, for, as .before stated, the burden was not on the State, but it was on appellant, to prove that the still was registered.

Appellant requested the court to give an instruction telling the jury that “temporary possession of the still in question or hauling for another the still in question from one place to another” did not constitute the keeping of a still within the meaning of the statute. The instruction was incorrect, and the court properly refused it, because the statute does not limit the offense to permanent possession. The act of taldng or holding possession must be voluntary, but it will not.be permanent. To hold otherwise would be to read something into the statute which is not found in the language of the lawmakers. The court gave an interpretation of the meaning of the statute in the following instruction, which, we think, is correct:

“You are instructed that the defendant in this case is indicted for keeping in his possession the still in question, without having same registered as required by law. The language ‘keep in his possession,’ as used in the statute, means the possession, control and management, either alone or jointly with Neal, by defendant, of the still, and the exercise in some way of control or dominion thereof.”

This instruction is a literal copy of instruction No. 9, requested by appellant, except that appellant’s instruction contained the statement that the possession must be permanent.

Appellant requested the following instruction, and the refusal to give it is assigned as error;

“If you find or believe that tbe still in question belonged to Vestal Neal, and that be had the exclusive control and possession and disposition thereof, to the exclusion of the defendant, Ring, then the defendant would not be guilty of keeping in his control or possession the still within the meaning of the law.”

This instruction is correct, but we think the substance of it was sufficiently covered in instruction No. 8, quoted above, and which the court gave. Ordinarily, either party is entitled to an instruction stating the converse of a given proposition, but instruction No. 8 in effect states both sides of the question by correctly defining what the language of the charge means. It is not an instance where the court stated facts which would constitute guilt of the charge and then refused to give the converse, but it is an instance where the court in one instruction correctly declared what acts were essential to constitute the offense under the statute.

There are other refused instructions, which we deem it unnecessary to discuss, for we are of the opinion that the court’s charge covered every phase of the case, and the court was not bound to give the requested instructions which singled out facts and submitted them separately to the jury.

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


text:
    Grady v. Dierks Lumber & Coal Company.
    Opinion delivered June 19, 1922.
    1. Corporations — abstract instruction. — In an action on an oral agreement to pay plaintiff for supplies furnished persons having a logging contract with defendant lumber company where the contract relied on was made by defendant’s woods foreman, whose authority to make it was denied, refusal to submit the question of ratification' by defendant was not error, in the absence of. any proof that defendant or its authorized officers or agents knew of such contract.

      2. Frauds, statute of — collateral undertaking — instruction.— In an action on an oral agreement to pay plaintiff for supplies furnished persons having a logging contract with defendant, it was not error to refuse to instruct to the effect that, if defendant’s promise to pay was the sole and inducing cause of the sale, it would be an original undertaking and not within the statute, since, if the contract was collateral, the statute applies, even though it was the sole and inducing cause.
    3. Frauds, statute of — collateral undertaking. — The fact that defendant’s agent only promised to stand for the account of a third person, or to see the account paid, is not conclusive that such promise is collateral, but in determining whether or not said contract was original or collateral the jury should not only take into consideration the words of the promise, but should consider the intention of the parties at the time the contract was made, the situation of the parties and all other facts and circumstances surrounding the transaction.
    4. Frauds, statute of — collateral agreement. — A contract to “stand for” the debt of another, without anything else being shown from which a different meaning may be inferred, makes the contract collateral in form and within the statute.
    Appeal from Sevier Circuit Court; James S. Steel, Judge;
    affirmed.

      Johnson S Shaver, for appellant.
    The issues raised by the evidence were (1) the terms of the contract, (2) whether or not McCurry had authority to make it, and (3) if he did not, whether or not defendant by its acts ánd conduct ratified it.
    Instructions 2-A, 3-A and 12, requested by the appellant, submitted the main issues in the case and should have been given as well as instruction 4-A, which latter instruction was intended only to give a definition of the statute of frauds as construed by this court on former appeal. - 232 S. W. (Ark.) 23. Appellee’s requested instruction No. 5 is in direct conflict therewith, and therefore erroneous. 215 S. W. (Ark.) 651.
    The court erred in refusing to submit the question of ratification. 96 Ark. 505.
    It was palpable error to instruct the jury, as in instruction three given for defendant, that “the mere fact that defendant paid plaintiff on the accounts of Sanders & McWhorter would not amount to a ratification, as proof of such payments made a question for the jury to decide as to whether or not they amounted to ratification. 96 Ark. 505; Art. 7, § 23, Const. 1874. Instructions upon the weight of the evidence are erroneous. 43 Ark. 289; 45 Id. 165; Id. 292; 49 Id. 165; 53 Id. 381; 58 Id. 504.
    Defendant’s instruction is both incorrect as a declaration of law, and argumentative. 216 S. W. (Ark.) 18; Id. 1054; 82 Ark. 425; Id. 499; 120 Id. 1; 87 Id. 243; 124 Id. 588; 194 S. W. 873; Id. 510.

      Lake & Lake and Abe Collins, for appellee.
    The instruction 2-A requested by plaintiff was not only erroneous in assuming that McCurry was authorized to make the contract, but also in telling the jury that the alleged promise would be. an original undertaking on defendant’s part if its promise to pay for the goods was the sole and inducing cause of plaintiff’s lending credit to the parties. 12 Ark’. 174; 88 Id. 592; 102 Id. 435; 125 Id. 240. Requested instructions which do not correctly state the law are properly refused. 19 Ark. 346; 20 Id. 583; 87 Id. 528; 92 Id. 6; 94 Id. 511. Instructions 3-A and 4 were defective in the same way. The issue is not what induced the sale, but to whom was the credit extended.
    McCurry Was a special agent with limited authority. Instruction 4 ignored that fact and erred in assuming that he was a general agent of appellee. Persons dealing with him were bound to take notice of the limitations in his authority, and to ascertain what his real authority was*, 140 Ark. 306.
    Instructions requested by appellant on the question of ratification were properly refused, not only because they were abstract, but also because there was no proof showing, or tending to show, any knowledge on the part of appellee of the alleged contract between McCurry and appellant. Authority of an agent either to make or ratify a contract so as to bind his principal will not be presumed, but must be proved. 132 Ark. 155; 14-A C. J. 375, 376. Instruction 5 requested by appellee was a correct declaration of tbe law, for McCurry’s agreement that appellee would stand for tbe men who made tbe accounts or would pay said accounts if the men did hot, even if made, was within the statute of frauds. 125 Ark. 240; 113 Id. 542.
   McCulloch, C. J.

This is an action on account for merchandise sold and delivered, instituted by appellant Grady, as the successor of the firm of Holcomb & Grady, against appellee. The contention of appellant in the trial below was that the goods sold were delivered to Cheshire, Sanders & McWhorter, but that the credit was extended solely to appellee.

Appellee was engaged in the manufacture of lumber, and employed Cheshire, Sanders & McWhorter to haul logs from lands situated near the place of business of Holcomb & Grady.

McCurry was appellee’s woods foreman, having supervision of the cutting and removal of timber, and appellant testified that McCurry, as agent for appellee, entered into an agreement with Holcomb & Grady to furnish supplies to the parties named on the credit of appellee, and the goods were to be charged to the parties to whom they were to be delivered, but bills were' to be made out and presented to appellee periodically at its office and paid by appellee. This course of business was pursued for several months; the goods were charged to the parties to whom they were delivered, and later Holcomb & Grady made out bills showing the amount of merchandise furnished each party, and these bills were presented from time to time at appellee’s office and checks given for the amount," payment being made out of sums due by appellee to the parties named.

Appellee denied that McCurry had any authority to enter into contract for the purchase of merchandise for the employees of the company, or for any one else, and also denied that McCurry made ¿ny such agreement to pay for the goods so furnished.

Appellee also pleaded that, if there was any contract made at all, it was within the statute of frauds, being a collateral undertaking to answer for the default of the parties named, and was not in writing.

The former trial of the case resulted in a verdict in favor of appellee, directed b.y the court, and on appeal to this court it was found that there was sufficient evidence to justify a submission of the issues to the jury, and the judgment was reversed and the cause remanded for a new trial. Iá9 Ark. 306. The case was tried again on remand to the lower court, the issues were submitted and the verdict was again in favor of appellee.

There was testimony, as in the former trial, sufficient to support a finding that McCurry, appellee’s agent, entered into a contract with appellant’s firm, as contended by him, for the sale of the goods on appellee’s credit and delivery to Cheshire, Sanders & McWhorter.

Appellant requested several instructions submitting’ to the jury the question of McCurry’s authority to bind appellee by such a contract, but all of those instructions were refused by the court except one, which was given. Several of the instructions given at the instance of appellee also submitted the issue of McCurry’s authority. The instructions are numerous, and it is unnecessary to set them out, as we deem it sufficient to say that this issue was submitted in the instructions given, and there was no error in refusing appellant’s instructions on that subject.

It is contended that the court erred in refusing to submit to the jury the question of ratification by appellee of McCurry’s act in making the contract. We think that the court was correct, for the reason that there was no evidence of ratification. It is not shown that it was ever brought to the knowledge of any of appellee’s authorized officers or agents that McCurry had entered into a contract in appellee’s name for the purchase of merchandise. The most that is shown is that appellee paid the bills of Cheshire, Sanders & McWhorter out of their own earnings as the bills were presented from time to time by appellant. According to the undisputed evidence, the goods were charged on the books of Holcomb & Grady to the parties to whom they were delivered, and generally the bills were approved by those parties before being presented at appellee’s office for payment. In the absence of proof of knowledge on appellee’s part of McCurry’s act in making the contract, all that it did was to pay the debts of Cheshire, Sanders & McWhorter out of their own earnings, and this did not constitute ratification of McCurry’s unauthorized contract. It is elemental law that there is no ratification without knowledge of the facts, or such information as would lead to knowledge on the subject.

Since the jury found, or may have found under proper instructions, that McCurry had no authority to make the contract, it was not error for the court to refuse to submit the question of ratification, because, as before stated, there was no evidence of ratification if McCurry had no authority originally to bind appellee by such a contract.

The testimony adduced by appellee tended to show that McCurry was simply a woods foreman, with authority to direct the work' of the men engaged in hauling, and that he had no authority to make contracts in appellee’s name.

There are numerous other assignments of error with respect to rulings of the court in giving and refusing instructions concerning the effect of the contract between McCurry and Holcomb & Grady — whether it was an original undertaking to pay for the goods, or whether it was a collateral undertaking within the statute of frauds.

One of the instructions refused by the court, and which is the basis of counsel’s argument for reversal, contains a statement of the law to the effect that if appellee’s agent directed Holcomb & Grady to sell the goods in controversy “and that defendant’s promise, if any, to pay for the goods, was the sole and inducing cause of plaintiff lending credit to the parties, then this would be an original undertaking on the part of the Dierks Lumber & Coal Company,” and would not be within the statute of frauds.

This statement was incorrect, and the court properly refused to make it in the instruction. If the undertaking was, in fact, a collateral one, the answer for the default of the parties who purchased the goods, the fact that the promise was the “sole and inducing cause” did not transform the contract into an original undertaking.

Appellant requested the court to give the following instruction, which the court modified by striking out the portion italicized and giving the remainder:

“The court instructs the jury that the mere fact, if you find it to be a fact, that defendant’s agent, McCurry, only promised to. stand for the accounts or to see the accounts paid, is not conclusive that such promise is collateral, but in determining whether or not said contract was original or collateral you should not only take into consideration the words of the promise, but you should consider the intention of the parties at the time the contract was made, the situation of the parties and all other facts and circumstances attending the transaction; and if you determine from the evidence that defendant’s promise, if any, was the sole and inducing cause of the sale, then the contract would be an original one and not collateral, and this is true notiuithstanding you ma/if find the actual words were that they would stand for the accounts or see the accounts paid.”

It will be observed that this instruction as given by the court, inferentially at least, submitted the question of McCurry’s authority, and it also correctly submitted the issues as to the character of the undertaking in accordance with the decision of this court on the former appeal. In fact, the instruction is almost identical with the language used in that opinion. There was no error in the modification, for the reason, already stated, that it expressed to the jury the idea that the reliance upon the promise as the sole and inducing cause was the tost in determining the character of the undertaking, whether collateral or original.

It is contended that the court erred in giving the following instruction at the request of appellee:

“You are instructed that, even though you may believe and find from the evidence that John McCurry, acting within the scope of his authority, agreed with the firm of Holcomb & Grady, or either of them, that the Dierks Lumber & Coal Company would stand for the men who made the accounts sued on or would pay said accounts if the men did not, your verdict must be for the defendant, for such contract would be within the statute of frauds and must be in writing and signed by some one authorized to sign by the defendant, before the defendant can be held bound thereby.”

It is insisted that this instruction is in conflict with the other instruction just quoted and given at the instance of appellant. We do not think that there is any conflict between the two instructions, that they can be read together in perfect harmony, and when so read they declare the whole of the law on this phase of the case.

There is evidence from which the jury might have found that the only agreement made by McCurry was to “stand for” the persons who were purchasing goods, from Holcomb & Grady. Now the use of this term, without anything else being shown from which a different meaning may be inferred, malíes the contract collateral in form, and if nothing else is shown to warrant a different interpretation it is a collateral and not an original undertaking. It was so held by this court in Millsaps v. Nixon, 102 Ark. 435. The case of Pake v. Wilson, 127 Ala. 240, is another case directly in point on that subject, and holds that the use of such a term is collateral in form, and in the absence of other attending circumstances it constitutes a collateral contract.

We are of the opinion that all of the issues properly went to the jury and that the evidence was sufficient to sustain the verdict.

Judgment affirmed;


author: Wood, J.

text:
    American Railway Express Company v. Hammock.
    Opinion delivered June 19, 1922.
    1. Appeal and error — insufficiency of abstract. — Under Rule' 9 requiring appellant to file an abstract setting forth the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all questions presented, where the abstract .does not show that exceptions were taken to the overruling of demurrers, to the admission of certain evidence and to the exclusion of other evidence, and to the giving of certain instructions, such questions will not be considered on appeal.
    2. Appeal and error — insufficiency of abstract. — Where alleged leading questions complained of were omitted from appellant’s abstract, they will not be reviewed.
    3. Appeal and error — necessity of exceptions. — Where the abstract does not show that exceptions were taken to instructions given by the court, errors in giving them will not be considered.
    4. Appeal and error — insufficiency of abstract. — On appeal where the abstract does not show that there was no testimony to sustain the verdict, the ruling of the court in sustaining the verdict will be presumed to be correct.
    5. Appeal and error — insufficiency of abstract. — In the absence of an abstract complying with Rule 9, the judgment of the lower court will be presumed correct.
    Appeal from Cleburne Circuit Court; J. M. Shinn, Judge;
    affirmed.

      Wm. T. Hammock, for appellant.

      M. E. Vinson, for appellee.
   Wood, J.

Tbe appellees (plaintiffs below) filed their respective complaints in the Cleburne Circuit Court against the appellant (defendant below) to recover the following sums:

E. Hammock, for value of carpenter tools and container................................................ $ 90.00
Also damages for alleged delay in transit .........................................................................— 214.69
Aggregating ....................................:.................... $304.69
M. H. Spurlin, for value of carpenter tools and container.............................................$ 60.00
Alan damages for alleged delay in transit ---------------------------- $152.13
Aggregating...................... $212.13
Allen Patchell, for value of carpenter tools and container.____________________________________________$ 85.00
Also damages for alleged delay in transit ________:...................................................................... $152.43
Aggregating........................................................ $237.43

To each of these complaints the defendant filed separate demurrers, and the same were overruled. The defendant then filed separate answers in denial and alleging delivery of the tools and containers sued for. The causes were consolidated and tried before a jury on September 21, 1921, oh the testimony of the plaintiffs in their own behalf and of Gr. W. Mustek in behalf of the defendant, and resulted in verdicts and judgments in favor of R. Hammock in the sum of $200, M. H. Spurlin in the sum of $150, and Allen Patchell in the sum of $150. On the following day, September 23rd, .the defendant filed its motion for a new trial, which was overruled, exceptions saved ¡and noted. Defendant was granted an appeal and given ninety days in which to file a bill of exceptions. The bill of exceptions was filed in due time in the court below, and also a transcript lodged in due time in this court.

Upon the above meagre abstract the appellant contends that the judgments should be reversed for the following errors:

1. That the court erred in overruling the demurrers to the complaint.

2. That the court erred in permitting the plaintiffs, Hammock, Spurlin and Patchell, over objections of defendant, to testify as to special and consequential damages in expense of travel, board and loss of time incurred by alleged delay in transit of tools.

3. That the court erred in overruling defendant’s motion to exclude from consideration of the jury all testimony of the plaintiffs, pertaining to such expenses of travel and board and damage for alleged loss of time consequent upon the delay complained of.

4. That the court erred in permitting plaintiffs’ attorneys to lead, over the objection of the defendant, the witness E. Hammock testifying in behalf of himself and other plaintiffs.

5. That the court erred in giving to the jury, over objection of the defendant, plaintiffs’ instructions Nos. 1 and 2.

6. That the verdicts are contrary to the law and the evidence, and that the court erred in refusing to set same aside and grant a new trial.

We will dispose of these assignments of error in the order presented.

The appellees contend that none of the alleged assignments of error can avail the appellant, for the reason that the appellant has not complied with rule 9 of this court. The appellees are correct in this contention.

First. Eule 9 of this court requires that appellant shall file an abstract or abridgment of the transcript setting forth the material parts of the pleadings, proceedings, facts, and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of all questions presented to the court for decision. Jett v. Crittenden, 89 Ark. 349. The abstract does not show that appellant excepted to the ruling of the court in overruling its demurrers.

Second. The appellant next contends that the court erred in permitting appellees to testify as to special and ■consequential damages, but there is nothing in the appellant’s abstract to show that' the appellant at the time excepted' to the ruling of. the 'court in permitting the introduction of such testimony. Meisenheimer v. State, 73 Ark. 407; Commercial Fire Ins. Co. v. Belk, 88 Ark. 506; American Ins. Co. v. Haynie, 91 Ark. 43.

Third. The appellant also urges that the court erred in overruling appellant’s motion to exclude from the jury the testimony of appellees pertaining to expenses of travel, hoard and damages for alleged loss of time consequent upon the delay complained of. But appellant’s abstract fails to show that the appellant excepted to such ruling of the court.

Fourth. The appellant insists that the court erred in permitting plaintiff’s attorney to propound leading questions to plaintiff Hammock. We do not discover in appellant’s abstract any alleged leading questions propounded by appellee’s attorney to the appellee Hammock. There is nothing, therefore, in this assignment that we can review.

Fifth. The appellant predicates error upon the ruling of the court in granting appellees’ prayers for instructions Nos. 1 and 2. These prayers are set forth in appellant’s brief, which is a sufficient compliance with rule 9 of this court as to the setting forth of these instructions, and the statement that these instructions were given over objection of defendant would also be sufficient to show appellant’s objection to the instructions. But neither in appellant’s abstract, nor brief, does it appear that the appellant excepted to the ruling of the court in giving the above instructions. . If the court erred in granting these prayers for instructions, the error was waived by failure of appellant to save its exceptions thereto. Plumlee v. St. L. S. W. Ry. Co., 85 Ark. 488-495.

Sixth. In the last place, appellant urges that the verdict and judgments were contrary to the law and the evidence. Learned counsel for the appellant says ‘that the verdicts resulted from the error of the trial court in admitting evidence of the special damages with''óút foundation and over objection of the defendant; and-by the court’s further error in overruling defendant’s mo-. tion to exclude such evidence from consideration of the jury.” But, as we have already shown, if the court erred in these respects, the appellant does not set forth that it excepted at the time to the rulings of the court in admitting this testimony, or in overruling its motion to exclude the same. Assuming, therefore, as we must, that the appellant waived or abandoned any exceptions to the ruling of the court in admission of testimony tending to show special damages, and, in the absence of any abstract showing that there was no testimony to sustain the verdicts, or that same were excessive, we must presume in favor of the ruling of the trial court that there was testimony to sustain the verdicts.

In conclusion, we are not able to determine from the abstract of appellant, without exploring the record, what were the real issues submitted and determined by the trial court. In the absence of an abstract complying with rule 9 of this court presenting the error for review, we must indulge the presumption that the judgments are in all things correct. St. L. I. M. & S. R. Co. v. Evans, 80 Ark. 19; Eddy Hotel Co. v. Ford, 90 Ark. 393; see also Dobbins v. L. R. Ry. & Elec. Co., 79 Ark. 85; Keller v. Sawyer, 104 Ark. 375, and other cases cited in appellees’ brief.

The judgments are affirmed.

Hart, J., dissents.


text:
    Keating v. Michael.
    Opinion delivered June 19, 1922.
    1. Landlord and tenant — definiteness of lease. — Lease contracts upon real estate must be definite in their terms, in order to bind the parties.
    2. Landlord and tenant — covenant to renew lease. — A general covenant to renew a lease is sufficiently certain, because it imports a new lease upon the same terms and conditions as the old one.

      3. Landlord and tenant — covenant to renew lease. — A covenant to renew a lease upon such terms as may be agreed upon is void for uncertainty.
    4. Landlord and tenant — tenant holding over. — Where a contract between lessor and lessee to renew the lease was void for uncertainty, a. lessee, in holding over after termination of the lease, was liable to the lessee for rental value of the premises.
    Appeal from Union Circuit Court; Charles W. Smith, Judge;
    affirmed.
    STATEMENT OP PACTS.
    This is an action for damages on a ¡breach of covenant for an agreement to give a lease at the suit of the lessee against the lessor. The suit was defended on the ground that the terms of the contract were, too uncertain to be enforced.
    A. Michael also filed a cross-complaint in which he asked to recover damages for the unlawful holding over by Keating of the west half of said lot after the expiration of his lease.
    It appears from the record that on the 8th day of September, 1920, A. Michael and Edna Michael, his wife, executed a lease to G. S. Keating to the west half of a certain lot in El Dorado, Ark., for a term from October 1, 1920, to August 1, 1921, for a monthly rental of $125. The lease contained a clause as follows:
    “It is agreed that at the end and termination of this lease and of the lease to the front or east end of said entire lot which is now leased to A. Gr. Griffin, that said G. S. Keating shall have the refusal of a lease on the entire or any part of said property, if he shall pay or agree to pay the same price therefor as is now being paid therefor under the terms of said lease to A. G. Griffin.”
    On the 30th day of June, 1920, A. Michael and Edna Michael, his wife, executed a lease to A. G. Griffin to the east part of said lot for the term of' one year, commencing on the 1st day of August, 1920, and ending on the 1st day of August, 1921. Griffin agreed to pay rent at the rate of $125 per month in advance.

      The lease also contained a clause as follows: “It is agreed and understood that the said A. Michael and Edna Michael reserve for themselves the west oner-half of said lot of land, and, upon their moving out and vacating said part, then the said A. G. Griffin is to have the refusal of renting said lot at whatever figure they can agree upon.”
    On the 23rd day of June, 1921, Keating gave a written notice to A. Michael and all tenants occupying any part of the lot above described, that under and by authority of the lease executed to him by A. Michael and Edna Michael, dated September 8, 1920, he, “G. S. Keating, will elect to continue his lease, or to exercise his rights conveyed in said lease to the entire property under the terms and conditions of said lease, paying thérefor the contract rentals as agreed upon in said lease.”
    The notice concludes with the following: “He therefore demands that he be given and delivered full possession of said property on August 1, 1921, which includes the entire lot known as the Michael lot, and brick house wherein the Salley Brothers are conducting their meat market at this time.”
    A. Michael and his tenants refused to recognize that G. S. Keating had any rights in the premises after the expiration of his lease on August 1, 1921. G. S. Keating continued in the possession of the west half of the lot under his original lease. It was agreed between the parties that if there should be a recovery upon the cross-complaint, the rental value of the west half of said lot should be fixed at $75 per month payable in advance.
    Other facts will be stated or referred to in the opinion.
    A jury trial was waived by the parties. The circuit court found that the option to give a lease to G. S. Keating, executed by A. Michael and his wife, was too indefinite and uncertain to be enforced. Judgment was therefore entered dismissing the complaint of the plaintiff, Keating.
    On the cross-complaint of A. Michael, judgment was rendered in his favor against G. S. Keating for the rental value of the west half of the lot in the amount agreed upon by the parties.
    Judgment for the possession of the west half of the lot was also rendered in favor of Michael against Keating, and the latter has appealed.

      W. 8. Goodwin and George M. Le Croy, for appellant.
    The circuit court erred in holding the contract void for indefiniteness and uncertainty. The identical question was decided in Bankers’ Trust Co. v. Hudson, 149 Ark. 472, and controls this case.

      Jesse B. Moore, for appellee; Mahony & Yocum, of counsel.
    The case cited by appellant is not in point, as that was a suit on an executed contract, whereas there is only an executory contract at most in the present case.
    The essential element of an agreement as to the price to be paid is lacking, and is left to future agreement. The writing is only an option for a lease, term unspecified, and is void for uncertainty. See 36 Cyc. 543 A-3; Id. p. 587-8, citing 23 Ark. 704; Id. p. 598; 24 Cyc. p. 991-2 0-2; Id. 999 C; Id. 1007, 3'b; 94 Ark. 130. The writing itself must be accepted as the sole evidence of the agreement, which cannot be varied by parol testimony. 102 Ark. 575; 112 Ark. 1; 120 Ark. 366.
    An executory contract cannot be made the basis of an action at' law. 24 Cyc. 1005, c, f.
   Hart, J.

(after stating the facts). Generally speaking it may be said that lease contracts upon real estate must be definite in their terms in order to bind the parties, and that a general covenant to renew a lease is ' sufficiently certain because it imports a new lease like the old one upon the same terms and conditions. Nakdi men v. Atkinson Imp. Co., 149 Ark. 448, and Felder v. Hall Bros. Co., 151 Ark. 182, 235 S. W. 789.

That rule, however, has no application under the facts of the present case. In the case last cited the ■court quoted with approval the definition of the word “renew,” in Cunningham v. Pattee, 99 Mass. 248. It was there said that it imports the giving of a new lease like the old one, with the same terms and stipulations and at the same rent, and with all the essential covenants.

It is manifest that the clause relied upon by the plaintiff as the foundation of his action is not a covenant to renew his original lease. The covenant in question is copied in our statement of facts, and only its substance need be repeated here. Michael had leased the west half of the lot to Keating and the east part thereof to Griffin. The term of each lease was to August 1, 1921. The lease to Keating provided that he should have the refusal of a lease on the entire, or any part of said lot, if he should pay or agree to pay the same price therefor as is now being paid therefor under the terms of said lease to Griffin.

This clause evidently contemplated that a new lease should be executed. This is so because Keating only had a lease on the west half of the lot, and the clause in question provided that .he should have a refusal of a lease on the entire or any part of the lot. This provision then was not for the renewal of the old lease, because it contemplated that additional property might be in the new lease and that new terms should be imposed. It will be noted that the provision is that Keating shall have the refusal of a lease of the entire, or any part of the lot, if he should pay the same price therefor as is now being paid under the terms of the lease to Griffin. The clause of the Griffin lease referred to is also copied in our statement .of facts. It will be observed that the provision in question in it shows that' Michael had reserved the west half of- the lot and that Griffin was to have the refusal of renting the whole of said lot on whatever figure the parties might agree upon. This is the provision that must govern as to the amount of rent in the lease contract sued on. The parties having adopted the terms of the lease between Michael and Griffin, must be governed thereby.

A covenant to renew upon such terms as may be agreed upon is void for uncertainty. Tracy v. Albany Exchange Co., 7 N. Y. (3 Selden) 472, 57 Am. Dec. 538 and eases cited. There is nothing in the contract to bring the case within the maxim that “a thing is certain which is capable of being certain”, as was the case in Nakdimen v. Atkinson Imp. Co., 149 Ark. 448. There the parties provided that a board of arbitrators should fix the rental value and by that means rendered the terms of the •contract certain. Here no provision was fixed in the contract except such rental value as the parties might agree upon. They might never agree, and so the case falls squarely ydthin the general rule announced above, and the contract is too uncertain and indefinite to be enforced.

Keating in the notice given demanded possession of- the entire lot, and thus evinced his intention to treat the agreement to give him a lease on the entire lot or any part thereof at his option as an entire contract and not a severable one. Therefore we need not consider the question of whether or not. he might have elected to have taken a new lease on that part of the lot occupied by Griffin because the rent was fixed thereon. Having elected to treat the contract as an entire one, he is bound thereby, and the court was right in not allowing him damages for the alleged breach of a contract which was too uncertain to be enforced.

There was practically no dispute between the parties as to the issue arising upon the cross-complaint. If the agreement to give a new lease to Keating was void because it was too uncertain to be capable of enforcement, Keating had no right to hold over after the termination of Ms lease, and was liable in damages to Michael on this account. The parties having agreed upon the amount that Michael should recover on his cross-complaint, no further discussion of tMs branch of the case is necessary.

It follows that the judgment must be affirmed.


text:
    Morgan v. State.
    Opinion delivered June 19, 1922.
    1. Bankruptcy — injunction against filing petition in bankruptcy. — The bankruptcy laws of the United States being paramount and exclusive, a State court, having jurisdiction over a corporation alleged to be insolvent and having appointed a receiver to wind it up, has no jurisdiction to enjoin the directors from filing a petition in bankruptcy.
    2. Injunction — void order — punishment. — Where the chancery court had no jurisdiction to issue an injunction, it had no authority to punish the disobedience thereof as for a contempt.

      Certiorari to Jefferson Chancery Court; John M. Elliott, Chancellor;
    judgment quashed.
    STATEMENT OE EACTS.
    S. B. Morgan, M. B. Morgan and E. E. Mclndoo filed a petition for certiorari in this court to review the action of the Jefferson Chancery Court in the case of Security Bank & Trust Company and G. E. Both, plaintiffs, v. Consumers’ Ice S Coal Compa/ny et al., defendants, wherein they were adjudged guilty of contempt of court, and the punishment of each one was fixed at a fine of $500 and a term of thirty days in jail.
    It appears from the record that the Security Bank & Trust Company, a corporation organized and doing business under the laws of the State of Tennessee, and G-. L. Both brought suit' in the chancery court of Jefferson County against the Consumer’ Ice & Coal Company of Pine Bluff, Ark., a corporation organized and existing under the laws of the State of Arkansas, and other parties, for the purpose of having a receiver appointed to take charge of the assets and affairs of the Consumers’ Ice & Coal Company.
    The complaint alleges that the plaintiffs brought this suit as stockholders for the benefit of the creditors of the Consumers’ Ice & Coal Company and for the benefit of all other stockholders of said company.
    The complaint also alleges that the Consumers’ Ice & Coal Company was organized for the purpose of furnishing ice to consumers from its place of business in Pine Bluff, Ark.; that in the year 1919 S. R. Morgan purchased nearly all of the stock in said corporation; that subsequently other stockholders acquired a substantial amount of stock in said corporation and asked for an accounting of the assets and. affairs of the corporation; that S. R. Morgan, M. B. Morgan and E. E. Mclndoo were all directors of said corporation; that E. E. Mclndoo was its manager and S. R. Morgan was its president; that S. R. Morgan is insolvent and is not the proper person to be in charge of said corporation, and that the directors are insolvent and are employees of S. R. Morgan; that said directors are handling all the money of said corporation, and unless restrained will hold a meeting of the stockholders of said corporation on March 14, 1922, in Pine Bluff, Ark., for the purpose of re-electing themselves as directors of said company.
    The plaintiffs further allege that there are now judgments against said corporation, and that, unless something is done to conserve the assets and to prevent their further dissipation through the mismanagement of said officers, the said creditors and stockholders of the said corporation will become greatly involved and the corporation will become insolvent. Other acts of mismanagement on the part of the directors were alleged in the complaint.
    The prayer of the complaint was for the appointment of a receiver, and that if, upon proper investigation by the receiver, the .court finds that the Consumers ’ Ice & Coal. Company is insolvent, its . affairs be settled under our statutes relating to insolvent corporations. Crawford & Moses’ Digest, secs. 1798-1800.
    The plaintiffs further prayed for an accounting between the officers of said corporation and the plaintiffs, and that if, upon final hearing, said corporation was insolvent, a decree of dissolution should be made and its assets sold and divided among the creditors and stockholders in accordance with law.
    On March 4, 1922, Joe Nichol was duly appointed receiver by the court and a restraining order was issued as follows:
    “It is therefore considered, ordered and adjudged' and decreed that the said officers, S. R. Morgan, and each and every one of the directors of the Consumers’ Ice & Coal Company, and employees, attorneys and agents, are enjoined and restrained from attempting to control or have anything to do with the assets and management of the Consumers ’ Ice & Coal Company, or calling any meeting for any purpose, either as directors or as a board of directors, or as stockholders, or a stockholders’ meeting, and they shall desist from doing anything relative to the affairs of the Consumers’ Ice & Coal Company, except under orders of this court.”
    On the same day Joe Nichol duly qualified as receiver and took charge of the assets of said corporation. Said order appointing a receiver and restraining the defendants in the matters above stated was issued by the court without notice or service of summons upon any of the defendants. The defendants, however, were informed of the proceedings of the court, and at a directors’ meeting of said corporation held in the city of Little Rock later in the day on March 4, 1922, the following resolution was passed:
    “A motion was duly made and seconded that, on account of financial embarrassment of the company and its inability to meet obligations, and on account of the fact that some of the stockholders have filed a petition for receiver, that the president be authorized to take such steps as may be necessary to immediately place the company in voluntary bankruptcy. The said motion was duly carried and adopted, and the president was authorized, empowered and directed to immediately take such steps.”
    S. E. Morgan and M. B. Morgan were.present and secured the passage of the resolution. Pursuant to its terms, S. E. Morgan late Saturday afternoon directed his attorney to file a petition in bankruptcy in the Federal court for the Consumers’ Ice & Coal Company. Gr. B. Grarner, his attorney, filed such petition on March 6, 1922, at fen o’clock in the morning, which was a short time before the injunction above referred to was served upon S. E. Morgan and the other petitioners.
    Because of the resolution of the directors, S. E. Morgan caused a voluntary petition in bankruptcy to be filed in the Federal court asking that the Consumers’ Ice & Coal Company be adjudged a bankrupt, and on this account the chancery court of Jefferson County issued a citation for contempt against S. E. Morgan, M. B. Morgan and E. E. Mclndoo in the case above referred to, in which a receiver was appointed to take charge of the assets of said corporation, and said petitioners were enjoined from having anything to do with the assets of said corporation or calling a meeting for any purpose of its directors and stockholders.
    On hearing the citation for contempt, the chancery court adjudged that .S. E. Morgan, M. B. Morgan and E. E. Mclndoo be adjudged guilty of contempt, and the punishment of each one was fixed at a term of thirty days in the county jail and a fine of $500.
    Other facts are set out in the transcript, but the above facts, we think, are sufficient to present the issue raised by the writ of certiorari and upon which our opinion and decision will be based.

      G. E. Garner and Danaher & Danaher for appellants.
    The court was without jurisdiction to issue the order of injunction on account of lack of service. 13 C. J. 13-14, sec. 14; 91 Ark. 533; 81 Ark. 462; 55 Ark. 205; Id. 565; 93 ü. S. 274.
    The court was without jurisdiction of the subject matter. Sec. 579i8 C. & M. Dig.
    A State court cannot enjoin a person from applying to a court of bankruptcy to 'be adjudged a bankrupt. 7 C. J. 42; 49 Ga. 384.

      J. 8. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants.
    Secs. 1484-1485 O. & M. Digest give the chancery court the power to punish for contempt. The court has jurisdiction. 123 Ark. 341.
    After the appointment of a receiver by a State court, the directors of a corporation are without power to authorize the filing of a petition in voluntary bankruptcy and the surrender of its property to the bankrupt court. 271 Fed. 788.
   Hart, J.

(after stating the facts). It will be observed from the statement of facts that at the time the chancery court of J efferson County appointed a receiver of the assets of the Consumers’ Ice & Coal Company, a domestic corporation, in the suit of some of its stockholders, the directors of said corporation were enjoined from calling a meeting for any purpose and from doing anything relative to the affairs of the corporation, except under the orders of the court. S. E. Morgan and the other directors were not served with notice of the application for the appointment of the receiver, but were informed by friends of the proceedings in the chancery court. Later on in the day a meeting of the directors of the corporation was called at.Little Eock, Ark., and a resolution was passed authorizing the president to take the necessary steps to place the corporation in voluntary bankruptcy. The resolution recites that this was done on account of the inability of the corporation to meet its obligations and of the further fact that some of the stockholders had filed a petition in a State chancery court for the appointment of a receiver.

Pursuant to the terms of said resolution, S. R. Morgan directed his attorney to take the necessary steps to have said corporation adjudged a voluntary bankrupt, and a petition was duly filed in the Federal court in bankruptcy for the purpose.

The chancery court duly cited S. R. Morgan and other petitioners for contempt on account of their action. Upon a hearing in the chancery court they were adjudged to be guilty of contempt in violating the injunction order of the -chancery court wherein they were restrained from calling any meeting as directors, or from doing anything relative to the affairs of the Consumers ’ Ice & Coal Company except under orders of the chancery court. This raises the question of whether the chancery court had the right to make any such order.

The allegations of the complaint in the case wherein the receiver was appointed and the injunction restraining S. R. Morgan and the other directors of the corporation as aforesaid issued were to the effect that the officers and directors of the corporation were mismanaging its assets. The complaint also contained a prayer for an accounting, and that, if the corporation be found to be insolvent, it be wound up under the statutes of the State relating to insolvent corporations.

Art, 1, sec. 8, of the Constitution of thé United States provides that Congress shall have power to pass uniform laws on the subject of bankruptcies throughout the United States. Congress has exercised this power and enacted a general bankrupt law for the United States, and business corporations like the Consumers Ice & Coal Company may become voluntary bankrupts under its provisions. See Barnes’ Federal Code, 1919, sec. 9089.

In construing this act in the case of In re Watts and Sachs, petitioners, 190 U. S. p. 1, the court held that the operation of the bankruptcy laws of the United States cannot be defeated by insolvent corporations applying to be wound up under State statutes. The court said the bankruptcy law is paramount and the jurisdiction of the Federal courts in bankruptcy, when properly invoked in the administration of the affairs of insolvent persons and corporations, is essentially exclusive.

In Hickman v. Parlin-Orendorff Co., 88 Ark. 519, this court held that our State insolvency act has been superseded by the bankruptcy act of Congress, in so far as they relate to the same subject-matter and affect the same persons. So, too, in Roberts Cotton Oil Company v. F. E. Morse & Company, 97 Ark. 513, this court held that the Federal bankruptcy act does not repeal or abrogate a State law in conflict with it, but supersedes and suspends its operation for the time being upon persons or cases within the purview of its provisions. All these cases and many others bearing on the subject are cited by Judge Trieber in the case of In re Weedman Stave Co., 199 Fed. 948.

In that case it was held that our statute authorizing a chancery court of the State to take possession of the assets of an insolvent corporation and distribute the same through its receiver pro rata, among its creditors, after payment of wages and salaries, which constitute preferred claims, requiring all creditors to prove their claims within a stated time or be barred, and dissolving all preferences obtained within ninety days, constitute a State insolvency act which was suspended by the bankruptcy act of 'Congress.

It was further held that the appointment of a receiver for a corporation thereunder is absolutely void for want of jurisdiction, and that such a receiver may be required to turn over the assets of the corporation to a receiver or trustee appointed by the bankruptcy court at any time thereafter, whether in four months or not.

The Attorney General raises the point that these decisions do not apply because it is claimed that the appointment of a receiver by the. chancery court of Jefferson County, Ark.,, was madTe. upon the allegations of mismanagement by the directors of the corporation and not upon the ground of insolvency.

The Attorney General relies upon the case of In re Associated Oil Co. Inc., 271 Fed. 788. In that case it was held that after a receiver has been appointed for a corporation ¡by a State court, under authority of the laws of the State, with power to take possession of and hold the property of the corporation, its directors are without power to authorize the filing of a petition in voluntary bankruptcy and the surrender of its property to the bankruptcy court.

It is true that in that case, as in the present one, the petition in bankruptcy was filed pursuant to a resolution of the board of directors of the corporation, declaring that the affairs of the corporation were in a precarious state, owing to the pendency of a suit in the State court for a receiver; but there the analogy ends. The State court in that case did not enjoin the directors from filing a petition in bankruptcy and did not attempt to punish them for contempt in so doing. The receiver appointed by the State court appeared in the bankruptcy court and contested the right of the directors to file a voluntary petition in bankruptcy. The bankruptcy court was of the opinion that the appointment of a receiver by the State court took the control of the assets out of the corporation, so that there was nothing to surrender to a trustee in bankruptcy. Furthermore, in the exercise of discretion the bankruptcy court declined to interfere with the State court in the matter. The reasoning was that to allow an adjudication in bankruptcy would undo all that had been accomplished in the State court to prevent the mismanagement of the affairs of the corporation.

This was a decision of the Federal bankruptcy court which has, as we have already seen; exclusive jurisdiction in bankruptcy' matters. It is one thing for a bankruptcy court to declare under what circumstances it will éxereise its ’ discretion in matters relating to the bankruptcy law and quite a different thing to say that this discretion may be exercised by State courts. To hold that State courts have any jurisdiction to adjudicate under what circumstances a person or corporation entitled to the benefit of the bankrupt laws may file a voluntary petition in bankruptcy would be to oust the Federal bankruptcy courts of that exclusive jurisdiction vested in them by the Constitution of the United States and declared by the Supreme Court of the United States.

To say that a State court may enjoin a person from filing a petition in bankruptcy for any reason is to that extent to take away the exclusive jurisdiction of the bankruptcy court in the matter. In other words, it was a question for the Federal court in bankruptcy and not for the chancery court to declare under what circumstances the corporation was entitled to be adjudged a bankrupt, or whether it was entitled at all to be declared a bankrupt.

Again, it may be said that the complaint in 'the suit in the chancery court of Jefferson County by the stockholders of the corporation asks for an accounting on the part of the directors of 'the corporation. M. B. Morgan and other directors were made defendants to the action. There was a direct prayer that, if the 'Corporation be found to be insolvent upon such accounting, its affairs be wound up under secs. 1798-1800 of Crawford & Moses’ Digest relating to winding up the affairs of insolvent corporations.

This allegation brings the case squarely within the decisions of the Supreme Court of the United States and of this court cited above. The order of the chancery court, in so far as it enjoins S. R. Morgan, M. B. Morgan and E. E. Mclndoo from holding a directors’ meeting for the purpose of filing a voluntary petition in bankruptcy in the Federal court, was void. The chancery court had no jurisdiction to make such order, and therefore no jurisdiction to punish the disobedience thereof as for contempt of court.

It follows that the decree of the Jefferson Chancery Conrt holding S. R. Morgan, M. B. Morgan and E. E. Melndoo guilty of contempt of court was error, and the decree adjudging them guilty of contempt will be set aside and quashed.