author: Mehaeey, J.

text:
    Dearen v. State.
    Opinion delivered May 28, 1928.

      George W. Johnson, for appellant.

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

The appellant, who was the county clerk of Sebastian County, was indicted, charged with the crime of embezzlement of public funds of Sebastian County. He was granted a change of venue to Scott County, where he was tried and convicted, and his punishment fixed at imprisonment in the penitentiary for a period of five years. Motion for new trial was filed and overruled, exceptions saved, and appellant prosecutes this appeal to reverse the judgment.

Appellant’s first contention is that the court erred in admitting certain testimony. Mrs. Pettigrew, a witness, was asked this question:

“Q. I hand you an affidavit to an account for $435 purported to be signed by Vm. J. Dearen on the 12th day of October, 1925, and I will ask you if you recognize that account?” 'She answered: “I do not know whether I recognize the account, but I recognize the signature. Q. Whose signature is that? A. Mr. Dearen’s.”

The prosecuting attorney here asked to introduce the affidavit in evidence, and the attorney for appellant objected on the ground that it purported to be an original claim, and that it does not show that it has ever been filed in the county clerk’s office, and that it is inadmissible in evidence in any other court except the county court of Sebastian 'County, Fort Smith District, and further objects because it does not tend to show the defendant guilty of the offense charged. The paper introduced was as follows:

“Affidavit of county account, county of Sebastian, Fort Smith District:

To Wm. J. Dearen Dr.

To 498 claims v. county... 423.50

Insanity matters, 5 at $1.65. 8.25

431.75

“State of Arkansas, county of Sebastian, Fort Smith District.

“I,., do solemnly swear that the foregoing claim is just and correct, and that no part thereof has been paid previously, that the service charged for or material furnished, as the case may he, were actually rendered or furnished, and that the charge made therefor does not exceed the amount allowed by law, or customary charges, for similar services or material furnished, when estimated and paid in lawful money of the United States, and that such accounts, claims, demands of fee hill are not enlarged, enhanced or otherwise made greater in consequence of or by reason of any estimated, supposed or real depreciation in the value of county warrants. Wm. J. Dearen.

“Sworn to and subscribed 'before me this 12th day of August, 1925. Wm. J. Dearen, Clerk. By Leota C. Pettigrew, D. C.

“No. 499. $431.75. Claim for allowance: Co. Ct. Wm. J. Dearen v. Sebastian County, Fort Smith District. Filed on the...day of.192.Clerk. By..D. C. Examined and allowed Aug. 10, 1925. T. A. Norris, Judge.”

Several other accounts and affidavits similar to the above were introduced, and objection was made to all of them. The aggregate amount was several hundred dollars, and the accountant, 'Gilbertson, also testified to a shortage of something in excess of $4,000.

It is earnestly insisted that these affidavits of the appellant were erroneously admitted in evidence. These affidavits were signed and sworn to hy appellant, and they were therefore competent evidence if they tended to show his connection with the crime with which he was charged. It is always permissible to prove declarations and admissions against a person charged with an offense, if his declarations or admissions tend in any way to show his- connection with the crime charged or tend to prove his guilt.

“It is insisted that error was committed in permitting witnesses to detail conversations had with the defendant prior to the arrest of one and at the time of the arrest of the other, and subsequent to the robbery, because they were indicted as accessories before the fact. But any admission of a defendant, whenever made, which tends to show his connection with the crime charged in the indictment, is admissible against him.” Jenkins v. State, 131 Ark. 312, 198 S. W. 877; Crawford v. State, 130 Ark. 101, 197 S. W. 19; Stroud v. State, 167 Ark. 502, 268 S. W. 850; Dennis v. State, 169 Ark. 505, 275 S. W. 739.

Appellant contends, however, that this was an original claim, and inadmissible in evidence in any other court except the county eonrt of Sebastian 'County. It is admissible because it is a declaration of the appellant himself, and would be competent evidence in any court, whether it had ever been filed anywhere or whether it was intended to be filed. But it is said that it does not tend to show the defendant is guilty of the offense charged. This affidavit alone, of course, did not show him guilty of the offense charged, but all the evidence cannot be introduced at once. It is never possible to show by one statement or declaration all the elements of the crime. This evidence was admissible as tending to show the connection of the defendant with the crime charged, and it would make no difference, so far as the admissibility of this statement is concerned, where the claim or statement or affidavit came from.

It is also contended that the records were improperly introduced. Appellant urges that the county court records were not properly identified as coming from the defendant’s office. It is true that, at the time of the introduction of the records, the prosecuting attorney simply stated that they were the county court records of Sebastian County. The defendant objected, but did not state any specific objection, and witness Gilbertson, an accountant who had examined the county court records of the Fort Smith District of Sebastian County, identified the records sufficiently to authorize' their introduction, as there was no specific objection made to them. It was stated, when the records were introduced, that they were the records that were in the defendant’s office, and made by him. This is not disputed. The appellant simply objected to their introduction. If there was any question or doubt about their -admissibility because they were not the records kept by the appellant, he should have made this objection.

It was stated, when the records were offered, that they were the records in the defendant’s office, and made there by him. And this statement was not disputed, and no objection was made by appellant because they were not the proper records, but just a general objection to their introduction. - If the appellant had made the objection that the records were not those kept by him, or not the records of the Fort Smith District of Sebastian County, or if there had been any dispute about them being the records kept by him, it would have been necessary to show these facts or to identify the records by other evidence. The purpose, however, of introducing the clerk who keeps the records to identify them is necessary only to show that they are the county court records kept by the proper officers, and we third?; the proof was sufficient in this case when the witness Gilbertson testified that he examined the records in the county clerk’s office. The statement was made in appellant’s presence that they were the records kept in his office by him, and no suggestion that they were not ini fact the records of the county court of Sebastian County. It is true that, in order to introduce any document or any record, it must appear that it is what it purports to be. Its authenticity and genuineness must be established, whether by evidence of witnesses or evidence appearing on its face, or by showing the custody from which it came. Appellant does not dispute the custody from which this record came, and does not dispute its correctness. Whenever a record is produced in court and identified by the custodian thereof, no further proof of its authenticity is required, as a general rule. Appellant himself, however, Avas the custodian in this case, and the identity of the record may be shown by any competent witness who knows the fact. The statement of the prosecuting attorney to the court was that these were the records kept by the defendant in his office. They are the same records testified about by the witness Gilbertson.

Moreover, witness Earl Dawson testified that he was county clerk of Sebastian County, and had charge and custody of the records of the Fort Smith District pertaining to the office of county clerk, and had in his care records K and L, and also the records of the scrip register of Sebastian County, and, referring to the records, witness was asked: “Those are the records that were in the office at that time ? ’ ’ The witness answered that they were, and that they were the records used by him since that time as the records of the county. He also testified to having in his possession certain pistol registration applications, and testified that he also had the fee-book E of the Fort Smith District of Sebastian County, and the county court docket and scrip stubs.

We therefore think that the records were sufficiently identified to authorize their introduction in evidence.

The appellant also contends that it was not proper to take the accounts filed against the county and the records to Scott County and introduce them in evidence, and that it was not shown that the accounts were filed in any court or in any office.

We have already stated that the affidavits and accounts signed by the appellant were properly introduced in evidence as statements made by him, and we think there was no error in admitting the other documentary evidence.

It is next contended by the appellant that the case should be reversed because the funds which it is charged that appellant embezzled were the funds of the Fort Smith District of Sebastian County, and not of Sebastian County. The defendant is charged with embezzling public funds of Sebastian County, and we think the proof is not at variance with the charge in the indictment. They were county funds, notwithstanding they might be for use in the Fort Smith District only. Chandler, who was for six years treasurer of Sebastian County, testified that, under the salary law based upon a fee system, the surplus fees earned by them over the salary were divided between the two districts in proportion to the fees earned in the respective districts. 'They were county funds, but divided in proportion to the fees earned in the respective districts.

Appellant calls attention to the case of Jewett v. Norris, 170 Ark. 71, 278 S. W. 652, and the court in that case said:

“It may be conceded that these districts are not counties within the ordinary meaning of the word; but we think, in view of the unique provision of the Constitution in. regard to 'Sebastian County, that the two districts thereof are to be treated as if they were in fact separate counties, so far as their fiscal affairs are concerned. ”

They are treated as if they were separate counties so far as their fiscal affairs were concerned, but this does not make them separate counties, and it in no way prevents the taxes collected in the county from being county taxes, although each district is apportioned its share of said county taxes. They are still county funds, just as the officers are county officers.

The indictment complies with the requirements of the' law, because it is direct and certain as to the party charged, the offense charged, the county in which the offense was committed, and the particular circumstances of the offense charged. And the funds, as we have already said, which appellant is charged with embezzling, were the funds of Sebastian County, and the fact that Sebastian County is divided into two districts is immaterial.

Appellant also insists that the court erred in the instructions given and refused, but we think the instructions as a whole correctly stated the law, and it would serve no useful purpose to set them out here.

We find no reversible error, and the judgment is therefore affirmed,


source: Caselaw Access Project

author: MgHaney, J.

license: Public Domain

text:
    Home Fire Insurance Company v. Wray.
    Opinion delivered May 28, 1928.

      Barber & Henry, Troy W. Lewis and Clayton Freeman, for appellant.
    J. F. Holtsendorff, for appellee.
   MgHaney, J.

This action of replevin was originally brought hy Jennings. Motor Company against the appel-lees for the recovery of a model 70 Chrysler coach automobile, which it claimed hy virtue of a contract or note of appellee, J. E. Newton, for the balance of the purchase price thereof, in which it retained title to said car. The Home Fire Insurance Company paid the Jennings Motor Company the amount due it under a policy of conversion insurance, took an assignment of Jennings’ interest in the cause of action, and was substituted as plaintiff. The suit was subsequently prosecuted in its name. The facts, briefly stated, are as follows:

Two representatives of Jennings Motor Company, Chrysler dealers, on September 24, 1926, sold to J. E. Newton, in Dumas, Arkansas, the car in controversy, for the price of $1,248, payable $200 cash, for which Newton delivered his cheek at the time, which was worthless, and one Ford car of the agreed value of $225. This left a balance of $823, for which, according to the two Chrysler salesmen, a title-retaining note was taken, payable four days later, which, was to be refinanced through title notes to some credit or finance company, which the Jennings Company would make out and send to Newton from Little Rock, and such a note was produced at the trial.

According- to Ragsdale, a witness for appellee, nothing was said about title-retaining notes, and that Newton did not sign such a note at the time of the sale, but notes were to be sent from Little Rock for him to execute and return. A few days later, Newton sold the Chrysler coach to appellee in Hazen, Arkansas, and gave him a bill of sale therefor. He never did execute and deliver the credit company notes, but, shortly after making the sale to appellee, he left for parts unknown.

The court, over appellant’s objections, instructed the jury, at appellee’s request, as follows:

“No. 1. The defendant .contends that, at the time the salé of this car was made, the representative of the Jennings Motor Company stated to Newton that he would take his check in the sum of $200 and his Ford car as part payment on the Chrysler car, and that, at a later date, title-retaining notes would be sent to Newton for him to sign and return to them, and, before said title-retaining note was executed by Newton and returned to the Jennings Motor Company, Newton sold said car to the defendant Wray. If you find this to be a fact by a preponderance of the testimony, then you will find for the defendant Wray.

“No. 2. You are instructed that, if you find that a representative of Jennings Motor Company made a trade with Newton in which they sold him a Chrysler oar and received a check for $200 and a Ford touring car as part payment on the Chrysler, and at a later date were to send Newton their notes, which they claim are title-retaining notes, and that Newton was to sign these .notes, and that Newton signed these notes- and returned them to Jennings Motor Company, and then came to Hazen and sold the car to Mr. Wray, then under the law the plaintiff cannot recover possession of the car. If you find that to be a fact, then you will find for the defendant. ”

The court refused to instruct the jury, at appellant’s request, to return a verdict for the possession of the car and whatever damages had been sustained for the wrongful detention thereof as shown by the evidence, or, in the alternative, the value of the car at the time demand was made for it, as shown by the evidence.

The jury returned a verdict for appellee.

This case was. defended by appellee on the theory that, although a conditional sale of the Chrysler coach was made to Newton by which title was to be retained by notes thereafter to be executed, such a reservation of title could not be made by parol, but must be in writing; and the sale to appellee, having been made at a time before the execution of any such notes by Newton, passed the title to appellee. The trial court adopted appellee’s theory of the law of the case, and gave instructions 1 and 2 heretofore set out. This was error. Jones v. Bank of Commerce, 131 Ark. 362, 199 S. W. 103; Estes v. Lamb & Co., 149 Ark. 369, 233 S. W. 99; Sternberg v. City National Bank, 149 Ark. 432, 233 S. W. 691. The holding in all these cases is to the effect that the vendor of a chattel may deliver possession to the vendee on condition that the title shall remain in the vendor until the whole purchase price shall have been paid, and that even a subsequent purchaser thereof, without notice of such reservation, acquires no title as against the original vendor; and that such a contract need not be in writing, but may rest wholly in parol.

Conceding, as the jury has apparently found, that the representatives of Jennings Motor Company did not take a title note to the car at the time of its sale and delivery to Newton, as they testify positively they did, still appellee concedes in his instruction No. 1, given at his request, “that at a later date title-retaining notes would be sent to Newton for him to sign and return to them.” This shows conclusively that the title to the car was not to pass, but would be retained in the seller until the purchase price was paid in full, and, though verbal, was valid and binding on appellee, an innocent purchaser.

It necessarily follows from what we have said that the only question that should have been submitted to the jury was the question of damages for the wrongful detention of the car, or, in the alternative, the fair market value of the car at the time demanded.

Reversed, and remanded for a new trial.


author: McHaNey, J.

text:
    Cashion v. Parr.
    Opinion delivered May 28, 1928.

      W. W. Grubbs, for appellant.

      William West and Streett &' Burnside, for appellee.
   McHaNey, J.

Appellant, E. T. Cashion, is the administrator o,f the estate of J. M. Basket, deceased, who died testate in Chicot County, Arkansas, on November 30, 1926, and the other appellants, Snsie Martin and Clementine Webb, are the sole legatees, under Basket’s will. Appellees are husband and wife.

In the year 1905, Dr. Parr, then a young physician, located in Eudora for the practice of his profession, and roomed and boarded with said Basket and his wife until the death of Mrs. Basket, in 1906. They continued to live together in Basket’s home, sharing the expenses equally, until Dr. Parr’s marriage. After Dr. and Mrs. Parr were married, they bought Basket’s home, and paid for it by boarding and rooming Basket at $200 per year for six and one-half years. He thereafter continued to board with the Parrs, paying a flat monthly sum for room and board, until 1919, when he left, and went to live with appellant, Mrs. Susie Maftin, in Lake Providence, Louisiana, selling out his blacksmith shop in Eudora, at which he had been engaged for many years.' His purpose in going to Lake Providence to live with Mrs. Martin was to make that place his home, but in April, 1924, Mrs. Martin removed from Lake Providence, La., to West Virginia, and Mr. Basket came back to Eudora, and again made his home with the Parrs from then until his death. For a short time after his return to Eudora he paid the appellees $25 per month for his room and board, and, on complaint being made, he thereafter, until his death, paid them at the rate. of $30 per month, which was accepted without objection, and no demand was ever made for any additional sum until after Basket’s death. In December, 1925, Mrs. Parr bought some real estate in Eudora on monthly payments of $80' per month, and, at her suggestion, Mr. Basket acquired these purchase money notes, and carried them as a loan for the appel-lees. These notes were paid off each month by the appel-lees to Basket until his death. Appellee, Dr. Parr, had been Basket’s physician during all these years, except during the period of his absence in Lake Providence, La., and had received pay for services rendered np to the year 1914. He had never presented any hill to Mr. Basket, or received any pay subsequent to 1914. After Basket’s death, Dr. Parr filed a claim against the estate for-medical services for the period of time running- from January 1,1914, until his death, except the years, he was living in Louisiana, amounting to $710. Included in the claim was $406.25 for room rent for two years 8y2 months at $12.50 per month, being the period of time he had lived in the Parr home subsequent to his return from Louisiana. Other items were included in the bill for nurse hire, about which there was no dispute. The administrator disallowed the claims, but the probate court allowed them in the sum of $949.41. The appellee, Mrs. Parr, filed a claim against the estate for nursing and special care from April 1, 1924, to the date of his death, in the sum of $250, which was disallowed by the administrator, and allowed in full by the probate court. The legatees under the will and the administrator appealed to the circuit court, where they filed answers, in both cases admitting that they owed Dr. Parr the $12 item for board, the item for nurse hire and for laundry, etc., and also a reasonable fee for his services during the deceased’s last illness, but contested the claim for $225 for medical services from November 22 to November 30, 1926, covering Basket’s last illness. On a trial before the court sitting as a jury, the court found, over appellant’s objections and exceptions, that the claim for medical services rendered from April 1, 1924, to the testator’s death, including the item of $225 for eight days’ services during his last illness, should be allowed in the sum of $550. The court further found, as a matter of fact, that there was no given sum fixed for 'board f.or the years 1924, 1925 and 1926, and that the customary charge for board in Eudora was $40 per month, and allowed the additional sum of $10 per month, or a total of $325. The court also allowed the items about which there was no dispute, and also allowed the claim of appellee, Irene Parr, on special finding of fact, that she had rendered services, during the years mentioned in her claim of a special nature, and not contemplated by the parties in their contract for hoard. Appellants excepted to these allowances, and have brought the case here for review.

We think the court was in error in allowing all these claims, except for the services rendered by Dr. Parr during the last illness of the deceased, and this allowance of $225, we think, is excessive, and except part of the claim of Mrs. Parr. As to the allowance of the additional amount for room rent, the proof shows conclusively that he paid $30 per month each and every month up until the 18th of November, 1926, and that at his death he owed for twelve days ’ board, which the court properly allowed at the rate of $1 per day. There was no contract to pay any additional sum. He had, for many years prior to his going to Louisiana in 1919, boarded with the Parrs and paid a flat sum monthly for room and board. He -had never 'paid a specified amount for room rent and another specified amount for board. Both were included in a flat monthly sum, and paid by him monthly. When therefore they continued to accept a specified sum monthly after his return from Louisiana, without a special contract agreeing to pay more, they would have no just claim against his estate after his death for an additional sum, the presumption of law being that the stipulated payments monthly were in full satisfaction of all claims on this account, unless the claimant is able to show that the decedent agreed to pay an additional sum.

In 24 C. J., p. 280, it is said: “Where services have been fully paid for in the lifetime of decedent, there cannot, of course, be any further recovery on that account against the estate, and, where the claimant has received a stated sum periodically for wages or salary, in payment of board or otherwise, the presumption is against a larger allowance, unless decedent is shown to have agreed accordingly. ’ ’

The cases cited under the above text are all from other States, but they support the rule announced. There is no evidence in the record to indicate that, up to the time of Mr. Basket’s death, either of the appellees ever suggested to him that the $30 per mouth paid was insufficient, or that they were expecting more, and the record is totally lacking in any evidence to show that Mr. Basket agreed or expected to pay more. The same thing is true with reference to the items in Dr. Parr’s account for medical services. As heretofore stated, he filed a claim covering all the years from 1914, except the period of time he was in Louisiana. During all this time he rendered no bill to Mr. Basket, made no claim for medical services, and at the time Mr. Basket went to Louisiana to live, when it was thought by all parties concerned that he would, in all probability, never return to Budora, nothing was said about any indebtedness from him to appellees. And we think the court was. in error in allowing all the items for medical services except during his last illness, and that the item of $225 allowed in this connection is excessive. The proof wholly fails to show what medical services were rendered; that the charge was reasonable for the services rendered. The proof shows that the only time he was in bed from any illness, after his return from Louisiana, was in August, prior to his death in November, 1926, and that, while he was not physically strong, he was up and out on the streets every day. He went to the blacksmith shop, and did some collecting for the then owner, until he was stricken f atally in November. During all this time no bills were rendered, no amount claimed from Mr. Basket by Dr. Parr, but, on the contrary, the doctor was paying to Mr. Basket the monthly installment notes of $80 each, without claim of deduction for medical services, or otherwise. He says the reason he did not render a bill was that he wanted the old man to enjoy his money while he had it.

Neither do we think the item of $250 allowed Mrs. Parr can be sustained. She made this claim, and same was allowed to her, on the theory that she had rendered special services, in connection with his diet, by preparing special food, such as soft-boiled eggs and light diet. She says that the special diet consisted of “soft-boiled eggs that he could eat, and cereals and stuff like that, and then I had to prepare them three or four times a day, sometimes five times a day that he was fed.” She doesn’t say over what period of time she prepared these special diets, but presumably it was for the short time he was sick in August, and the eight days during his last illness. It is said that she assisted in nursing him during- his last illness, and caused an injury to her kidney by helping him on the bed. The proof shows, however, that the doctor employed for Mr. Basket, during his last illness, one trained nurse and two colored nurses, incurring a total expense for nurse hire of $75.66. We do not think therefore that there is any evidence in the record to support a finding of the court in allowing this claim of $250 for special services rendered, with the exception of the eight days during his last illness, and this amount would be clearly excessive for this service. He had paid his board regularly, and no demand for additional compensation had been made upon him for special services prior to his last illness, and there had been no promise or agreement on his part to pay an additional amount for special services. However, there is some evidence in the record to support her claim for special services rendered during his last illness, but not sufficient to support the amount thereof.

For the errors indicated the judgment will be reversed, and the cause remanded, with directions to determine the value of Dr. Parr’s services for medical attention during his last illness, and the value of Mrs. Parr’s special services rendered during his last illness, and to allow their claims for such amounts as may be just and proper as shown by the evidence introduced thereon.


author: McHaney, J.

text:
    Intercity Terminal Railroad Company v. Worden.
    Opinion delivered May 28, 1928.

      T. F. Digby and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Harb & Barnard, for appellee.
   McHaney, J.

Appellant operates street cars across the Main Street bridge, spanning the Arkansas River, connecting the cities of Little Rock and North Little Rock. For this purpose it maintains double tracks across said bridge, running north and south. The east track is used for northbound cars and the west track for southbound cars. The east, or northbound, track, after crossing the bridge and its approach, turns east on Washington Avenue, in North Little Rock, and makes a loop in said city, to return to the Little Rock side of the river on the southbound track. On and for some days prior to April 23, 1927, on account of the excessive high water and flood conditions generally, the northbound track was under water from Second and Main to Washington Avenue, in North Little Rock, which made it impossible to use the northbound track during the flood conditions, in the ordinary way. Therefore during the flood conditions appellant was operating all of its cars across the Main Street bridge on the southbound track, thereby running its cars, both north and south, on the southbound track.

On said date appellee’s son was driving her car south on the Main Street bridge, and had a collision with a northbound car, operating as aforesaid, on the southbound track, in which he and his companion were severely injured, and the automobile was considerably damaged. Appellee brought this action to recover damag’es to her car, in which she alleged that appellant was negligent, in that the street car was driven at a high rate of speed, without giving any signals or warnings of approach in operating said street car north on the southbound track, and in failing to give proper warning while operating the street car in a north direction on a track which was generally used for southbound cars; also in failing to keep a lookout, and in failing to stop said car.

Appellant denied all allegations of negligence.

The trial resulted in a verdict and judgment against appellant for $150.

Two errors are assigned for a reversal. The first is that the court erred in permitting the witness, John Hunter, to testify to statements made by the motorman right after the collision.' Appellee’s, son, Ralph Sigler, and his companion, the witness, John Hunter, were riding in the car together, and the witness Hunter was permitted to testify, over appellant’s objection, that, immediately after the collision, the motorman stopped his car, got out, and said: “Boy, are yon hurt very had? I didn’t see yon; I was np so close I couldn’t stop the car so quick; the car had nothing on it but a handbrake.”

The evidence shows that this statement was made immediately after the accident, at a time when the car was badly wrecked, and the witness himself was badly cut and was bleeding profusely. It is said that this testimony was incompetent and inadmissible as a part of the res gestae, under the rule announced in Itzkowits v. Ruebel & Co., 158 Ark. 454, 250 S. W. 535. In that case the court quoted with approval from Carr v. State, 43 Ark. 99, as follows:

“Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for acting. They are proper to be submitted to a jury, provided they can be established by competent means sanctioned by the law, and afford any fair presumption or inference as to the question in dispute. * * * Now, circumstances and declarations which were contemporaneous with the main fact under consideration, or so nearly related to it as to illustrate its character and the state of mind, sentiments or dispositions, of the actors, are parts of the res gestae. They are regarded as verbal facts, indicating a present purpose and intention, and are therefore admitted in proof like any other material facts. * * * Nor need any such declarations be strictly coincident as to time, if they are generated by an excited feeling which extends without break or let-down from the moment of the event they illustrate. But they must stand in immediate causal relation to the act, and become part either of the action immediately preceding it or of action which it immediately precedes.”

We think this testimony was competent, and that the court did not err in admitting it for such consideration as the jury might deem proper to give it in determining the question as to whether the motorman of the street car was negligent. There is no question in this case of the negligence of the driver of the automobile, and the only question for determination was whether appellant was guilty of negligence in failing to exercise ordinary care in the operation of its street cars to avoid injury to persons and property traveling on said bridge. In the Itzkowitz case, the collision between the two automobiles occurred at the intersection of Capitol Avenue, on the south side thereof, with the alley which runs north and south between Main and Scott Streets, and officer Witt testified that he heard the noise of the collision, and ran up to the place where it occurred; that he was stationed at Main Street and Capitol Avenue, and was permitted to testify, over objection, that he interrogated the driver of one of the cars regarding the accident and why he did not stop, and the driver replied that his brakes would not work. This court held in that ease that the declarations or statements made by the driver were incompetent as part of the res gestae, not being a part of the transaction itself, but a mere history or narrative thereof given afterwards. The court said: “The investigation and inquiry of the officer necessarily broke the continuity between the main fact sought to be elicited and the narrative given of it, and we think that, under these circumstances, the evidence cannot be received as a part of the res gestae.” ¡But here the facts are different. Immediately after the accident, and as soon as his street oar was stopped, the motorman went to the wrecked automobile and made the statement heretofore quoted.

As said by this court in Beal-Doyle Dry Goods Co. v. Carr, 85 Ark. 479-484, 108 S. W. 1053, 14 Ann. Cas. 43:

“It is. not easy always to determine when a declaration is a part of the res gestae. It is dependent upon the particular circumstances under which the declaration is made. ’ ’

And, as was said by this court in Clinton v. Estes, 20 Ark. 225:

“It may be difficult to determine at all times when declarations shall be received as a part of the res gestae. But, when they explain and illustrate it, they are clearly admissible; Mere narratives of past events, having no necessary connection with the act done, would not tend to explain it. But the declaration may properly refer to a past event as the true reason of the present conduct.”

In Flynn v. State, 43 Ark. 292, it is said:

‘Tn cases like this, words uttered during the continuance of the main action, or so soon thereafter as to preclude the hypothesis of concoction or premeditation, whether by the active or passive party, become a part of the transaction itself, and, if they are relevant, may be proved as any other fact, without calling the party who uttered them.”

In the Beal-Doyle case, above cited, many of the decisions of this court and the text-writers relating to the subject are cited and discussed. It would serve no useful purpose to again review them here. ■ But, under these authorities, the statements of the motorman, having been made immediately after the accident, at a time when undoubtedly the exciting influence thereof had not lost its sway or had not been dissipated, must be held to be a part of the transaction itself, and therefore admissible, and not merely a narrative of a past event.

The second ground of complaint made by appellant is the instruction of the court, given on its own motion, as follows:

“If you find in this case, from a preponderance of the evidence, that the street car was being operated on the left-hand track, and that in doing so the operator of the car was negligent, and that this negligence caused the damage, your verdict will be for the plaintiff.”

The complaint made against this instruction is that it was left to the jury to say whether or not the appellant was negligent in operating its car on the left-hand track. It was undisputed that the car was being operated on the left-hand track, that is, was being run north on the southbound track. Appellant says that this question should not have been submitted to the jury, 'because as a matter of law it was not, under the circumstances, negligence merely to operate its car on the left-hand track, and it made a specific objection to this effect against said instruction. It also, in its requested instruction No. 7, asked the court to instruct the jury as follows:

“You are instructed as a matter of law it was not negligence for the defendant company to operate its street car north on the west track of its double track line. ’ ’

The court refused to give this requested instruction, and overruled its specific objection to the above instruction on the court’s own motion. We think this was error, calling for a reversal of this case. It was undisputed that the northbound track was incapable of being operated, on account of the flood conditions, as heretofore -stated, but it was appellant’s duty, as well as its right, to operate its ears across said bridge for the convenience of the public. Of course, if the operator of the car was negligent in its operation on either track, appellant would be liable, 'but the above instruction given by the court did something more than to submit the negligence of the operator in running the car, to the jury, as it said that, if they found that “the street car was being operated on the left-hand track, and that in doing so the operator of the car was negligent,” etc., which left it to the jury to find that merely operating the oar on the left-hand track was negligence, no matter how careful and free from negligence he otherwise might have been in the operation of the car. We do not think the mere fact of operating the car on the left-hand track could be said to be negligence, but that there would have to be some other affirmative careless action on the part of the operator, or the failure to do something that he should have done, to be guilty of negligence. We do not find any decision of our own court in point, and counsel have not cited any. Cases from other courts, however, are cited, which we think are illustrative and authoritative for this holding. Bush v. Los Angeles Ry. Co., 78 Cal. 536, 174 Pac. 665, 2 A. L. R. 1607; William Altreuter v. Hudson River Ry. Co., 2 ed. Smith (N. Y.) 151; North Street Ry. Co. v. Irwin, 82 Ill. App. Rep. 145; Cincinnati Traction Co. v. Jameson, 32 Ohio Circuit Court Reports, 335.

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


author: Hart, C. J.,

text:
    Midland Savings & Loan Company v. Brooks.
    Opinion delivered June 4, 1928.

      Jno. D. Rogers and P. P. Bacon, for appellant.

      Frcmk 8. Qmrm, for appellee.
   Hart, C. J.,

(after stating the facts). As will be seen from our statement of facts, on the 5th day of Miay, 1926, Dan Dewberry entered into a written contract with Paul R. Brooks for the sale of the lot in controversy. After making a small cash payment, Brooks executed a note to Dewberry for the balance of the purchase money, and was placed in possession of the property. He has actually resided on the property since the date of his purchase, and was residing there at the time a mortgage was. executed by B. V. Long and wife to the Midland Savings & Loan Company, on the 18th day of May, 1926. The possession of the property by Brooks and wife at the time the mortgage to the Midland Savings & Loan Company was executed was equivalent to actual notice to that company of the title, rights and equities of the occupants. Thalheimer v. Lockert, 76 Ark. 25, 88 S. W. 591; Naill v. Kirby, 162 Ark. 140, 257 S. W. 735; First National Bank of Paris v. Gray, 168 Ark. 12, 268 S. W. 616; Reed v. Ziff Lodge 119 Order of Masons, 175 Ark. 980, 1 S. W. (2d.) 1000; Crawley v. Neal, 152 Ark. 232, 238 S. W. 1054; American Building & Loan Association v. Warren, 101 Ark. 163, 141 S. W. 765. In the case last cited the law applicable to cases of this sort is clearly stated as follows:

“Ordinarily, possession by a person under a contract of purchase, although unrecorded, is notice of his equitable rights and interests in the property. Actual possession is evidence of some title in the possessor, and puts the subsequent purchaser or mortgagee on notice as to the title which the occupant holds or claims in the property. Generally, actual, visible and exclusive possession is notice to the world of the title and interest of the possession in the property, and it is incumbent upon the subsequent purchaser or mortgagee to make diligent inquiry to learn the nature of the interest and claim of such possessor, and, if he does not do so, notice thereof will be imputed to him. ’ ’

In the case at bar Brooks went into possession of the lot as soon as he purchased it, and made payments of the purchase money under the terms of his contract to the amount of $420. He testified that he did this in good faith, and his testimony is not contradicted. The other evidence in the case shows that Dan Dewberry purchased the property from Mrs. Agnes MicOall and had the title put in the name of B. V’. Long for his benefit. iBrooks did not have any notice of this, and, relying upon the assertions of Dan Dewberry, believed that the title was in Dewberry at the time he purchased the lot, and entered into possession of it. There is nothing whatever in the record to impeach the good faith of Brooks in the purchase of the property. Dewberry represented that the title was in him when he made the contract with Brooks, and Brooks signed the note for the purchase money and entered into possession of the property, believing that he was acquiring a good title thereto. B. Y. Long admitted that the property was purchased by Dan Dewberry from Mrs. Agnes McCall and that the title was taken in the name of B. Y. Long for the benefit of Dan Dewberry, and that he (Long) had no interest whatever in the property. Under these circumstances Brooks had an equitable interest in the property, and his possession of it was notice to the defendant, the Midland Savings & Loan Company, of his rights.

It f ollows that the decree of the chancery court will be affirmed.


text:
    McGregor v. Cain.
    Opinion delivered June 4, 1928.

      J. F. Summers, for appellant.

      Boy D. Campbell, for appellee.
   Hart, C. J.,

(after stating the facts). The Legislature of 1923 passed an act to establish a circuit court and a chancery court at McCrory, Arkansas, and to create the Central Judicial District. (Special Acts of 1923, p. 210. Under § 19 of said act it is made the duty of the collector of taxes of Woodruff County to collect the same in the respective districts of said county as now provided by law, the same as if said districts were separate and distinct counties. Under the provisions of § 10042 of Crawford & Mjoses’ Digest, the collector or his deputy is required to attend at his office at the county seat until the tenth day of April each year to receive taxes from persons wishing to pay the same. This section is an amendment to a part of the original revenue act which came up for construction in this court in Hare v. Carnall, 39 Ark. 196. In that case the court had under consideration a section of the statute requiring the collector to attend at his office at the county seat until the twentieth day of April each year, to receive taxes from persons wishing to pay the same. The court said that this provision was intended for the benefit of the taxpayers, and that its observance was a condition precedent to any valid sale of land. Hence the court held that the provision was mandatory.

It is now contended that, unless the collector maintains an office in the courthouse until the tenth day of April in each year to receive taxes from persons -wishing to pay the same, all tax salles will be void. We do not think so. The term “county seat ’ ’ indicates the seat of government of a county, the town in which the county and other courts are held, and where the county officers 'discharge their duties. Williams v. Reutzel, 60 Ark. 155, 29 S. W. 374, and Graham v. Nix, 102 Ark. 277, 144 S. W. 214. Hence the county seat does not consist merely of the courthouse and jail, but also of the territory of the town designated as the county seat. While ordinarily it would be the duty of the collector of taxes to maintain an office in the courthouse to collect taxes under our revenue act, still there could be no imperative duty upon him to maintain an office there under all circumstances.

In the case at bar the allegations of the response of the collector were established by evidence. ‘The special act of the Legislature creating three judicial districts in Woodruff County was held valid by this court in Bonner v. Jackson, 158 Ark. 526, 251 S. W. 1. The court will take judicial notice that three judicial districts were established in Woodruff County by that act, and that MbCrory was designated as the connty seat of the middle district. It is a small town, and, under the facts established by the record, there was no courthouse erected; and the building provided by the county court within which to hold court and establish county offices was destroyed by fire. The county court then provided another building for courthouse purposes, and offered to fit up a room upstairs in it for the use of the collector in collecting taxes. 'The collector of taxes refused to do this, and established his office for the purpose of collecting taxes in the Central District in a mercantile establishment about a block away from the building designated for courthouse purposes. He gives as a reason for so doing that the building designated for courthouse purposes had no fireproof vault in which to keep the tax records, and that the mercantile building had such fireproof vault. The office of the collector in the mercantile building was kept open at all reasonable hours during the day, and the place was well known to the property owners and inhabitants of the Central District of Woodruff County as the place where taxes were received from all persons wishing to pay the same. This was done without cost to the county.

Under these circumstances the circuit court erred in issuing a writ of mandamus, at the request of the county judge, to require the county collector to maintain an office in the- building designated for a courthouse for the purpose of receiving taxes from persons desiring to pay the same. Therefore the judgment of the circuit court will be reversed, and the cause is remanded with directions to the circuit court to dismiss the petition of the county judge. It is so ordered. •


author: Wood, J.

text:
    Phillips v. Hardy.
    Opinion delivered June 4, 1928.

      Owens & Eh-rmmi, for appellant.

      J. 8. McKmght and Thomas W. II. Hardy, for appellee.
   Wood, J.

This action was instituted by Prank Phillips against Louis Tatum and Pearl Tatum to foreclose two mortgages on certain lands situated in Calhoun County, Arkansas. The plaintiff alleged that the mortgages were executed to secure certain notes, one for $175, executed in favor of the Camden National Bank, which note and mortgage the plaintiff had purchased from the 'hank, and also another note in the sum of $560.95, secured by a mortgage executed by Louis and Pearl Tatum to the plaintiff. The plaintiff alleged that both notes were due, also that the defendants were indebted to the plaintiff in the sum of $1,375.62 on account, which was .secured by a second mortgage. The notes and mortgages were made exhibits to the complaint. Service was had upon the Tatums, but they failed to appear, and a decree was entered against them by default in the sum of $1,375.62, and the land described in the complaint and mortgages was ordered sold to satisfy the decree. The Hand was sold under the decree, and the commissioner appointed to make the sale made his report to the court in May, 1926.

Thomas W. Hardy, trustee for Gathright Livingston, who was the guardian of Girtha Lee Livingston and Mary Lee Livingston, minors, and also as the next friend of these minors, filed a petition for intervention and a motion to postpone confirmation of the sale. In their petition it was alleged that Gathright Livingston, the guardian of the two minors, had, on November 24, 1922, been authorized -by the probate court to loan Louis Tatum $2,000, which had been done; that the loan was evidenced by a note secured by a deed of trust on the lands in controversy, which had been duly recorded; that the First National Bank of Camden and Frank Phillips, the plaintiff in the foreclosure suits, had full knowledge of this prior deed of trust; that Phillips and Louis Tatum entered into a conspiracy whereby they represented that the money due Livingston as guardian had been paid, and induced him to enter satisfaction of the mortgage on the record; that Phillips knew that the indebtedness due by Louis Tatum to Livingston as guardian had not been paid, but was past due under the terms of the mortgage securing the same; that Phillips knew these facts at the time he purchased the note from the First National iBank of Oamden, and also at the time he took the note and mortgage to evidence and secure the indebtedness due him by the Tatums.

Hardy, as the trustee for Livingston, the guardian, and as next friend of the minors, alleged that they were damaged in the sum of $1,000 by reason of .the acts of the plaintiff and the Tatums in thus clouding their title. The prayer of the complaint was that their own mortgage be foreclosed on the land involved as prior to the mortgage of the plaintiff, Phillips. Attached to the petition of intervention were a deed of trust, letters of guardianship, a copy of the order of the probate court authorizing the loan by Livingston, the guardian, and a copy of the note to the bank. Service was had upon the plaintiff, Phillips, and upon Joe Bradshaw, the trustee named in the mortgage of the Tatums to Phillips. The defendants, Louis and Pearl Tatum, waived service, and entered their appearance to the intervention. Phillips, the plaintiff in the original action, answered the intervention, denying’ its allegations, and alleged that Livingston, the guardian, on April '29, 1925, had satisfied of record the mortgage executed by the Tatums to Gath-right Livingston, as guardian, and alleged that the debts secured by that mortgage had been paid.

An amendment to the exceptions-to the report of the commissioner was made for the minors, in which they alleged that the satisfaction of the mortgage to their guardian, Gathright Livingston, had been fraudulently obtained b.y the plaintiff in the original action; that they had no knowledge of the prior foreclosure proceedings, and that they had made known 'and asserted their rights immediately after learning thereof. They asked that the satisfaction of the record of the mortgage made to their guardian, Gathright Livingston, be canceled, and that such mortgage be foreclosed.

Under an agreement by counsel representing respective parties, all documents and records referred to in the pleadings were introduced as evidence in the cause. It was shown on behalf of the minors that a note for $2,000 executed by the Tatums to Gathright Livingston, their guardian, was left in the Merchants’ & Planters’ Bank of Camden for safekeeping. The note had never been paid through the bank. Thomas W. Hardy testified for the minors that, in the fall of 1922, Gathright Livingston, as guardian of his two minor children, Girtha Lee and Mary Lee, had in his possession $2,000 belonging to them. Livingston was .authorized by an order of the probate court to loan this money to the Tatums, to' be secured by a deed of trust on the lands described in the pleadings and the deed of trust. "Witness was named as trustee in the deed of trust executed to secure the loan. The note evidencing the loan for $2,000 had never been paid, so far as witness knew. Witness informed Prank Phillips, at the time the note was executed and the mortgage was taken covering the same land, that Gathright Livingston had a mortgage on the land and the indebtedness to Livingston had not been paid. Witness did not remember the exact date, but did remember telling Phillips that the land belonged to these little negroes, and that if he took a mortgage on it he would lose it; that he could not get anything out of it until the $2,000 was paid.

Lee York testified that he sold the land in controversy to Louis Tatum. The proceeds of the loan made by Gathright Livingston, as guardian, to Tatum were paid direct to witness. Witness had a conversation with Phillips, in which Phillips stated that he had settled all the indebtedness owed by Louis Tatum. He did not say what indebtedness. Witness talked to Phillips several times about this mortgage prior to April, 1925, and Phillips understood that the Livingston children had a lien on the land in controversy. Witness told him that they had a mortgage -on this land to secure the sum of $2,000. At the time witness so informed Phillips, Phillips was furnishing Tatum and the Livingstons. The conversation referred to took place in the spring of 1925.

Gathright Livingston testified that he w’as the father of the minors, Girtha Lee and Mary Lee Livingston. He was their guardian. Witness could read and write. He identifies what purported to be the note given by Louis and Pearl Tatum, November, 1922. The mortgage was given to secure the note. The note had never been paid. On April 29, 1925, witness entered a satisfaction of record on the records of Calhoun County, where the mortgage referred to had been recorded. Witness was asked why he entered the satisfaction on the record, and stated, in substance, that he did so because Phillips told him to do so; that Phillips said he had paid all the indebtedness that Louis Tatum owed; Phillips said they could send witness to the penitentiary; that the record should have been satisfied ten days, earlier. Phillips stated that he had paid what Louis Tatum owed to the Merchants’ & Planters’ Bank at'Camden. Witness further testified that he and Tatum, in 1923, gave Phillips a joint mortgage on their mules and crops. Witness denied that he had ever told Phillips that the mortgage of the Tatums to witness for the children had been paid. He stated that Phillips told him that he had paid out the indebtedness of Tatum on the place, and if witness did not satisfy the record he, Phillips, was going to send witness to the penitentiary. In 1925 witness was living on the children’s place, and that year Phillips furnished ■witness fertilizer to use on the place. The' note of the Tatums to Gathright Livingston was due November 24, 1927.

Prank Phillips, the plaintiff in the original action, testified that he was engaged in the mercantile business at Camden, .Arkansas; that he -was in the clerk’s office in Hampton when Gathright Livingston satisfied the mortgage given to him by the Tatums. Witness did not state to Gathright Livingston that witness had paid the indebtedness of the Tatums to the children; that he had paid to the Merchants’ & Planters’ Bank at Camden the indebtedness due 'bv Louis Tatum and wife to the Livingston children. Witness took a mortgage in the year 1923-24 on Gathright Livingston’s mules and crops. Livingston did not pay anything — claimed that his cotton was burned. Witness found out that Livingston had sold cotton in Hampton and in Camden. Witness advised Livingston that he’d have to have his money or foreclose his mortgage. Louis Tatum suggested to witness that he take a mortgage on the land to secure the Livingston indebtedness and $175 which Tatum owed the bank. Witness refused to do .so until furnished with an abstract. Witness went to the bank to see about paying off the $175 which Tatum owed the bank, and was informed that there was a mortgage, on the land to Livingston for $2,000. Tatum and Livingston stated to witness that they wanted to secure him, pay the bank, and secure furnishings for that j^ear. Livingston had not, prior to that time, told witness about the $2,000 indebtedness. When ’witness asked Livingston about it, Livingston told him that the Tatums did not owe him anything, and that he, Livingston, would satisfy the mortgage. Witness did not threaten or intimidate Livingston in any way to satisfy the mortgage, but Livingston .satisfied the mortgage in order to get -witness to advance money to pay the hank to secure the indebtedness which was past due and to get six or seven hundred dollars’ worth of supplies for the ensuing year; that Tatum notified witness that the indebtedness had been paid. After witness’ mortgage on the land was taken, both Tatum and Livingston told him that the indebtedness to the children had been p'aid and that everything was cleared. Livingston was living on the land in question in 1924, and most of the money furnished by witness on the mortgage went to Livingston. Witness did not know that there was any other lien on the land except that of the bank. Livingston furnished him an abstract which showed upon its face- that the property was clear. Witness could not testify from his own knowledge that the $2,000 due the children had been paid. Witness further testified, in regard to the satisfaction of the mortgage, that he told Tatum and Livingston that, if they wanted him to furnish them, the mortgage to Gathright Livingston would have to 'be satisfied. The mortgage of the Tatums to the bank was acquired by the witness in November, 1924, and on the same day the Tatums executed the mortgage on the lands to witness. Witness told Tatum and Gathright Livingston that the mortgage given by the Tatums to the bank would have to be satisfied before witness would furnish them .anything. Gathright Livingston did not tell witness at the time that he had a mortgage on the land. He said there was nothing against it. Witness told Livingston that he was not going to pay the bank until he had satisfied his mortgage. Livingston met witness -on the Locust Bayou road, and came and satisfied the mortgage. Witness did not use any coercion or threats to have Livingston satisfy the mortgage. Witness did not furnish a nickel’s worth of supplies to Livingston -and Tatum until witness knew that the mortgage to the children had been satisfied.

Several witnesses testified to the effect that Gath-right Livingston’s reputation for truth and honesty in the community where he lived was bad. There was testimony to show that the Livingstons and the Tatums were negroes, and were 'associated together in making crops on the lands in controversy. Phillips was a white man.

Up-on the above record the court entered a decree refusing to confirm the sale made under the original decree in favor of Phillips, and entered a decree in favor of the interveners, Thomas W. Hardy as nest friend and Grathright Livingston as guardian of the minors, Grirtha Lee and Mary Lee Livingston, against Louis and Pearl Tatum, in the sum of $'2,774, principal and interest, and declaring the same a first lien on the land in controversy, and superior to the lien of the plaintiff on such land. Prom that decree is this appeal.

The above record shows that the deed of trust from the Tatums to Thomas W. Hardy, trustee in the deed of trust to Gfathright Livingston for his minor children, was filed for record December 1, 1922. This deed of trust was unsatisfied of record when the Tatums executed their deed of trust to the First National Bank of Camden. This deed of trust to Thomas W. Hardy, trustee, was unsatisfied when the Tatums executed their deed -of trust to appellant, Prank Phillips, on November 24, 1924. "When the appellant therefore took his first mortgage from the Tatums he had constructive notice of the mortgage in favor of the minors. Por this mortgage recited that Grathright Livingston was guardian. An inquiry ef Livingston would have disclosed that he was the guardian of his minor children and that the money loaned the Tatums was the money of these minors. Appellant also had actual knowledge, at the time he took his mortgage from the ’Tatums, that the mortgage in favor -of the minors had not been satisfied, for the trustee in that mortgage, Thomas W. Hardy, so informed him, and the appellant himself states that when he went to the bank to inquire about the purchase of the mortgage from the Tatums to the bank, he was shown a letter by an officer of the bank informing him that the mortgage in favor of the minors had not been satisfied. But, notwithstanding this notice, both actual and constructive, of the mortgage in favor of the minors, and that same had not been satisfied, appellant, on the next day after he had 'been so informed, purchased the mortgage in favor of the bank. He testified that he purchased this mortgage upon the representations by Livingston and Louis Tatum that the mortgage of the Tatums in favor of the minors was clear, and he did not purchase the mortgage until Livingston had satisfied the mortgage of record. Livingston denied that he told the appellant that the Tatums had paid the debt due by them to him as guardian for the minors.

It could serve no useful purpose to further discuss the facts, which are -set forth in detail above. We are thoroughly convinced that the chancery court was correct in finding that the appellant had actual notice, at the time he took his mortgage from the Tatums, and also at the time he purchased the mortgage of the Tatums to the bank, that the debt due by the Tatums to Gathright Livingston, as guardian for his minor children, had not been paid. Even if he did not have actual knowledge of such fact, he had notice of facts which were sufficient to put him upon inquiry, which inquiry, if pursued, would have revealed to him that the debt to the minors had not been paid, even though Livingston and Louis Taitum informed him to the contrary. The court was certainly justified in finding that the appellant, under the circumstances, was not an innocent holder of the mortgage of the Tatums to the bank. The chancery court was also fully justified in finding that the mortgage of the Tatums in favor of Gathright Livingston, guardian for the minors, in which Thomas W. Hardy was named trustee, was prior and paramount to the mortgages under which the appellant claims, and in entering its decree to that effect.

Certainly it cannot be said that the decree is clearly against a preponderance of the evidence. Therefore let the decree be affirmed.


author: Smith, J.

text:
    Gray v. Brewer.
    Opinion delivered June 4, 1928.

      T. A. Gray, for appellant.

      Cole & Poindexter and 8. M. Casey, for appellee.
   Smith, J.

Appellant brought this suit at law to recover the amount of a loss sustained by him in the purchase of 207 'bales of cotton from appellee in the spring of 1919. He alleged that the sale of the cotton Was evidenced by a written contract wherein appellee guaranteed the -weights of the cotton to be as r epresented at the time of the sale, whereas a lnss ¡of weight was sustained on nearly every hale purchased.

Appellee filed an answer, in which he denied that he had guaranteed the weights of the cotton,, but alleged that appellant had bought the cotton on his own weights after weighing it himself.

Appellee moved that the cause be transferred to equity, .and appellant saved an exception when that order was made. We think no error was committed in transferring the cause to equity. The sales in question represented several different transactions. The cotton was sold at various prices per pound, and the alleged loss of cotton involved a calculation .as to the extent of loss as to each separate bale upon which a loss of weight is claimed. The account is therefore an involved one, if that question is reached, and it was therefore not improper to transfer the cause to equity for this reason. Moreover, no motion was made in the chancery court to transfer the .cause back to the law court, nor was objection made to trying the cause in the chancery court, and the error, if .any, was therefore waived. Hemphill v. Lewis, 174 Ark. 224, 294 S. W. 1010; Ætna Casualty & Surety Co. v. State, 174 Ark. 988, 298 S. W. 501.

There was a motion to quash certain depositions taken in behalf of appellee, 'but, as the testimony which was offered upon hearing this motion is not brought into the record, it will be conclusively presumed that the motion was properly overruled, as the depositions appear upon their face to have been properly taken.

The real question in the case is whether or not there was .a guaranty of the weights of the cotton. Upon this issue the testimony on the part of appellant was to the following effect: Appellee is a merchant and cotton buyer in the city of Batesville, and sold the cotton to appellant under an express guaranty as to weights, which contract was. evidenced by a writing signed by appellee. .Appellant is'a cotton buyer, and bought the cotton for the account ¡of various brokers. In making purchase® it was customary to use a specially prepared invioice, having columns ruled so a® to show the following items in regard to the hales purchased: Marks, number, weight, re-weiglit, our tag, price, amount loss, gain. Printed at the top of the invoice was the following notation :1 ‘¿Bought of..B/C, by. Weights of cotton covered by this invoice are guaranteed by seller to be correct on date of delivery of same to consignee at Newport, Arkansas.” Other blank invoices used by appellant did not have the name of the place of destination printed, but the destination was left blank, and was inserted at the time of concluding the contract of purchase.

The sales here in dispute were made in 1919 on the following dates: 4-3, 4-10, 4-22, 4-26, 4-30, 5-5, and 5-13, and nine blank invoice sheets were used. Appellant testified that, upon each purchase being agreed upon, appellee filled out a blank invoice, and in the space’ intended to show the name of the owner of the cotton, wrote Ms name, and in appropriate spaces wrote the marks, number and weight of the bales, and also signed his name on the face of the invoices.

Appellant testified, and offered testimony of other buyers to the effect that it was customary for the seller to guarantee the weights of the cotton at the compress where tire cotton was to be compressed, and that, when the seller wrote Ms name in the space- intended to show the name of the person from whom the cotton was purchased, this, according to the custom of the trade, was treated as a written contract of sale of the bales of cotton, the number and weight.of which were written into the invoice, with a guaranty of weights at the designated place of destination. Appellant also offered testimony concerning the amount of the loss upon each of the bales where a los-s of weight had been sustained.

Appellee testified that appellant negotiated with Mm for some days in regard to the purchase of the cotton before a sale was made; that appellant had a cotton yard, in which cotton belonging to various owners was stored until it was ready fior shipment, and that appellant weighed each hale as it was received in his yard, and made a chairge for weighing and storage against each hale. Appellee had previously sold appellant cotton the weights of which were guaranteed, hut he expressly refused to guarantee the weights of the cotton here in question, and he finally sold the cotton to appellant upon appellant’s own weights and with the express understanding that there was no guaranty of weights. Upon completing the sale, appellant re-sampled and re-weighed the cotton in his own yard, and gave appellee a check for the contract price, which was duly paid.

Appellee admitted writing his name in the space showing the owner of the cotton sold, but denied writing his name on the face of the invoices, and there was testimony in regard to' his handwriting which corroborated him in this respect.

’The testimony .shows that where Newport, Arkansas, was printed as the destination at which the cotton should he re-weighed, the name of that city was erased and Memphis, Tennessee, was inserted, and in the invoices, where no place was named as the destination, Memphis, Tennessee, was inserted as the destination. Appellant testified that appellee wrote Memphis, Tennessee, in each of the invoices as the place of destination, while appellee testified that he did not write the name of any place in any of the invoices as the point of destination. Appellee further testified that he used the blank invoices of appellant only because they were furnished him to make memoranda as to the marks, number and weight of the bales, and that there was no thought on the part of either party of making a written contract of sale, including a guaranty of weights.

At § 129 of the chapter on Contracts, 13 C. J. 306, it is said that: “It is not necessary that the signature of a party to a contract should appear at the end thereof. If his name is written by him in any part of the contract, or at the top, or at the right or left hand, with intention to sign or for the purpose of authenticating the instrument, it is .sufficient to hind him, unless subscription is required by law.”

At § 75 of the same chapiter, page 277, it is said that: “Where a person .signs a document, he is • not permitted to show that he did not know its terms, and, in the absence of fraud, he will be 'bound by its provisions. Therefore, when an action is brought on a written agreement which is signed by defendant, the agreement is proved by proving his signature, and, in the absence of fraud, it is wholly immaterial that he has not read the agreement and does not know its contents.”

Again, at § 76 of the same chapter, page 277, it is said that: “A contract may be formed by accepting a paper containing terms. If an offer is made by delivering to 'another a paper containing the terms of a proposed contract, and the paper is accepted, the acceptor is bound by its terms; and this is true as a rule, whether he reads the paper or not. ’ ’

These are well recognized principles of law, and no useful purpose would be served in reviewing the oases cited in support of the text quoted in the notes thereto; but we do not think it appears, under the facts as herein summarized, that the court below ignored these principles in finding’ for the defendant and in -dismissing the complaint as being without equity.

If the blank invoices had been tendered appellee as an offer to contract, and required only the insertion of the marks, number and weight of the cotton and the signature of appellee to make a complete written contract, we would hold that appellee had sufficiently signed the contract to make it valid as a written contract, the conditions of which he would not be heard to deny. But appellee testified (and was corroborated by two witnesses in that testimony) that the invoices were intended only to evidence the notations made by him thereon, to-wit, the marks, number and weight of the bales, and that there was no discussion or agreement concerning the destination where the cotton should be re-weighed, and that the point of destination was written into the invoices by appellant after they had been delivered to him, without appellee’s knowledge or consent, and without any authority, express or implied, so to do. Appellee further testified that, upon the contrary, this insertion on appellant’s part, in so far as it apparently made a written contract of guaranty of weights, was done in disregard of an express understanding that there should be no contract to guarantee the weights, but that appellant should himself weigh the cotton and buy according to his own weights, and that this was done.

As we have said, the testimony is in irreconcilable conflict as to whether appellant or appellee wrote into the contract the point of destination, and as to whether appellee signed the invoices on the face thereof after the point of destination had been written in the invoices. The court made a general finding, both as to the law and the facts, in favor of appellee, and we are unable to say, after a careful consideration of the testimony, that the finding of the court upon the facts is clearly against the preponderance of the evidence; and if there was no written contract expressing all the essential terms of the agreement, no error was committed in admitting parol testimony to show what the agreement between the parties really was.

The decree of the court below must therefore be affirmed, and it is so ordered.


text:
    Wilson v. Sawyer.
    Opinion delivered June 4, 1928.

      Harris, Hanley & Wilson, for appellant.

      Walter M. Purvis, for appellee.
   Smith, J.

Appellant brought suit against Thomas M. Sawyer, a disabled World War Veteran, and, as an incident thereto, sued out a writ of garnishment against the Bank of Melbourne and J. W. Hall. The bank answered that it had on deposit the sum of $681.39 belonging to Sawyer, which had been deposited for his benefit in the name of J. W. Hall as clerk; of the probate court. Hall answered that he had on deposit $681.39 with the bank, and a note for $-500 and another for $100 which had been taken by plaintiff as guardian for Sawyer, pursuant to § 5059, C. & M. Digest, all of which had been turned over to him by plaintiff when plaintiff’s final .settlement of his guardianship of Sawyer had been approved and plaintiff discharged as guardian, and that he held the notes to and for the use of Sawyer.

A motion was filed to quash the garnishment, upon the ground that the money which had come info Willson’s hands, a portion of which he had invested in the notes, had been paid to him by the United States Government on account of the disability of his ward. In support of this motion Wilson was called as a witness, and testified that letters of guardianship were issued to him in 1924, and that he had received from the Veterans’ Bureau, on account of his ward, the sum of $3,280, and that he had made full and final settlement of his guard-iansMp and bad been discharged, -and bad paid tbe balance, found by tbe probate court to be in his bands to J. W. Hall, clerk of tbe court, under tbe order -of tbe court, for tbe account of bis former ward.

Upon bearing this testimony tbe court quashed tbe garnishmént, and in so doing declared tbe law as follows:

“Tbe court will dissolve this attachment. I do not think these funds can be attached until they come into tbe bands of Tom Sawyer, and they have never been in Ms bands. 'They are money derived from the Federal Government, and, under tbe Federal laws, those funds cannot be garnished until they come -into tbe bands of tbe party entitled to receive, under tbe law. These funds were paid by tbe United States Government to Mir. Wilson, as guardian. He has been discharged, and the funds have been paid over to tbe -clerk of tbe probate court, and tbe funds are now in tbe bands of tbe register of tbe court, with instructions to turn them over to Tom Sawyer, and, until they come into tbe bands of Tom Sawyer, they cannot be attached. The petition to quash tbe garnishment and release the funds will be sustained.”

The court wa,s correct in tbe declaration of law made, ex-cept that tbe funds were not -subject to seizure even after they had come into tbe hands -of the ward.

In 28 C. J., page 1-87, § 227, of the chapter on Garnishment, it i-s said: “But, after a pension or bounty has 'been paid to, and received by, the beneficiary, it is subject to garnishment in the hands of -a t-hird person to tbe same extent as other property, unless exempted by statute.5 ’

Tbe funds here involved -are exempted by tbe statute under which they were allowed and paid to Sawyer.

The act known as tbe “World War Veterans’ Act, 1924’-’ (June 7, 1924, e. 320, § 1, 43 Stat. 607), makes provision for compensation and treatment for disabled veterans, this being part 2 of the act; for their insurance, this being part 3, -and for vocation rehabilitation, tMs being part 4 ¡o-f the act. By § 22 of the act it i-s provided: “That tbe compensation, insurance, and maintenance and support allowance payable under titles 2, 3 and 4, respectively, shall not be 'assignable; shall not be subject to the claims of creditors of any person to whom an award is made under titles 2, 3 or 4; and shall be exempt from all taxation; provided, that such compensation, insurance and maintenance and support allowance shall be subject to any claim which the United .States may have, under titles 2, 3, 4 and 5, against the person on whose account the compensation, insurance or maintenance .and support allowance is payable* * *.”

In the case of Payne v. Jordan, 36 Ga. App. 787, 138 S. E. 262, it was held by the Court of Appeals of Georgia that a house purchased with proceeds only of war risk insurance payable under the War Risk Insurance Act of Congress, approved October 6, 1917, was not subject to execution. In a case of the same style, 152 Ga. 367, 110 S. E. 4, it was held by the 'Supreme Court of Georgia that funds actually paid by the giovernment to the beneficiary of an insurance policy, and by her deposited in a bank, are not subject to garnishment.

In the case of Succession of Qeier, 99 Sou. 26, the Supreme Court of Louisiana held that the heirs-at-law, who received insurance from a deceased service man, under the provisions of the War Risk insurance Act, received the money as beneficiaries, and not as heirs, and that the money so received was not subject to the payment of an inheritance tax under the laws of that State taxing the right to inherit.

The World War Veterans’ Act of 1924 contains substantially the same exemption from seizure as is found in the War Risk Insurance Act, and the cases cited which construe the latter act are applicable here.

We think the manifest purpose of the legislation making provision for World War Veterans was to devote the benefactions there provided to the sole use of the beneficiaries,' and that the same should not be subject to the demands of creditors, even after the money had oorae into their hands or was held hy another for their benefit.

The writ of garnishment was therefore properly quashed, and the judgment of .the court so ordering is affirmed.


author: Humphreys, J.

text:
    Crockett Motor Company v. Thompson.
    Opinion delivered June 4, 1928.

      Ward & Ward, for appellant.

      Dudley & Dudley, for appellee.
   Humphreys, J.

Appellant brought suit against appellee, in the court of a justice of the peace in Olay County, to recover the balance due for an automobile purchased from it by appellee, amounting to $180.76. The justice of the peace found the issues for appellee, and appellant appealed to the circuit court of said county, Eastern District. Appellee failed to appear himself in the circuit court when the case was called for trial, but his father appeared, and, over the objection and exception of appellant, was appointed guardian ad litem for his son, upon the representation that he was a minor, and was allowed to interpose his son’s minority and disaf-firmance of the contract ais a defense to appellant’s alleged -cause of action.

On the trial of the cause it was disclosed by the undisputed testimony that appellee was a minor when he purchased the automobile; that he lived out in the country two -or three miles, with Mr. Thompson, and that he used the machine to drive back and forth to town and to drive around with his friends. At the conclusion of the testimony the court instructed the jury to return a verdict for appellee, over appellant’s objection and exception. Judgment was rendered in accordance with the instructed verdict, dismissing appellant’s complaint, from which is this appeal.

Appellant’s first contention for a reversal of the judgment is that the disaffirmance of the contract of sale and purchase was interposed -as a defense the first time in the circuit court on appeal. It is immaterial whether the defense was interposed before the justice of the peace. On appeal from justices’ courts to the circuit court, on trials de novo, any defense may be interposed to the action, except set-off which was not pleaded before the justice. Texas & St. Louis Ry. v. Hall, 44 Ark. 375; Meddock v. Williams, 91 Ark. 93, 120 S. W. 842. Error was not committed in allowing the plea of minority and disaffirmance of the contract in the circuit court. The defense was neither a new cause of action nor a set-off.

Appellant’s next contention for a reversal of the judgment is that only a minor himself can disaffirm his contract. This may be true after a minor reaches his majority and within the statutory period of limitations, but we know of no law inhibiting -a natural guardian, or guardian ad litem, from disaffirming his child’s or ward’s contract when an attempt is made to enforce it during the minority of the child or ward. Appellant cites the cases of Bozeman v. Browning, 31 Ark. 364, and Cooper v. State, 37 Ark. 421, in support of this contention. Neither case has any application to the point involved here. The Bozeman case simply announces the doctrine that no one hat a minor’s legal representative, after his death, or his privies in blood, may disaffirm his contract; and the Cooper case simply announces the doctrine that a minor is not 'hound by any express contract for necessaries, but bound only on an implied contract to pay value for them.

.Appellant’s last contention for a reversal of the judgment is that the automobile was one of the necessaries of life, for the price of which appellee was liable. It is true that minors may be required to pay for necessaries of life, but, where a minor uses an automobile for pleasure and to ride a few miles to town and back, as in the instant case, it cannot be characterized as a necessity of life for which he may be required to pay.

No error appearing, the judgment is affirmed.


text:
    School District No. 26 v. School District No. 32.
    Opinion delivered June 4, 1928.

      Emmet Vanghan, for appellant.

      George W. Emerson, for appellee.
   Humphreys, J.

On petition of School District No. 26 to the county board of education of Prairie County, under authority of § 8823 of Crawford & Moses’ Digest, the board detached three sections of land from School District 32 and added same to said’ District 26, from which order of the board an appeal was prosecuted to the Southern District of the circuit court of Prairie County. The cause was tried de novo in the circuit court upon an amended petition and response and the oral testimony of the witnesses, resulting in a denial of the prayer and a dismissal of appellant’s petition, from which is this appeal.

Appellant contends for a reversal of the judgment upon two’ grounds: First, because contrary to the evidence, and second, ¡because the circuit court is not authorized by statute to try appeals from the county board of education de novo.

(1). We are not called upon to determine whether the judgment of the court is supported by the weight of the evidence. The rule is that, if the finding* of the court is supported by any substantial evidence, this court cannot disturb it on appeal. We have read the testimony, and have concluded that the finding and judgment of the court is supported by substantial evidence. We do not understand appellant to seriously contend that, the finding and judgment of the court is not supported by some substantial evidence. It could serve no useful purpose to set out the testimony of the several witnesses, so we will not unnecessarily extend this opinion by doing so'.

(2). It was provided by act 183 of the Acts of the General Assembly of 1925 that a party to the record in a proceeding before any county board of education, who feels aggrieved by any final order or decision of such board, may prosecutexan appeal therefrom within thirty days to the circuit court of the district. The argument is made that, because said act fails to expressly provide for trial de novo in the circuit court, the Legislature only intended that errors of law or gross abuse of power by such boards might be corrected on appeal. Had this been the intention of the Legislature, the act would not have provided for a general appeal, but for one limited in scope. No provision is made.in the law for making and preserving the record of proceedings before the county hoards of education and for transmitting same to the circuit court. Without such a record it would he impossible for the circuit court to determine whether errors were committed in the proceedings or whether such hoards grossly abused 'the power conferred upon them. It is quite evident that the Legislature intended to allow any party to the record who felt aggrieved to appeal and try his- case upon its merits in the circuit court.

No error appearing, the judgment is affirmed.


text:
    Trevathan v. Taylor.
    Opinion delivered June 4, 1928.

      Davis & Gosten, for appellant.

      S. H. Mown, for appellee.
   Mehaeey, J.

Beginning about 1916, the appellant, a farmer, owned certain lands in Crittenden County, Arkansas, described in plaintiff’s complaint, and was doing business with the bank in Crittenden County. He owed the bank considerable money, and executed a deed of trust to secure the payment of his indebtedness to the bank, and from year to year would give mortgages on personal property, including crops. He was unable to pay the indebtedness to the bank, and, some time in 1924, a suit was brought in the chancery court to foreclose the mortgage or deed of trust. The complaint was filed, and summons. was served on the appellant. Shortly after the summons was served on appellant, he went to see the officials of the hank, talked to the cashier, who was in charge, and the cashier told him to forget about the foreclosure, and to go right ahead and they would give him a chance to pay it out. He would go right ahead farming just as he had been doing.

The appellant himself testifies that the cashier told him, when he asked him about the mortgage foreclosure, to forget it. The appellant testified: “I asked Mr. Rhodes, the cashier, what he was going to do about it. He said to forget it, and carry my business on as usual. My understanding and impression was that the foreclosure was. not to be carried out.” But, whether it was or was not to be carried out, both parties agree that Mr. Trevathan was to carry on his business as usual, and the preponderance of the testimony shows that the bank arranged with Mr. Trevathan that he should go right on with his business, and make his chattel mortgages yearly as usual. He was not to pay any rent, and did not pay any for two years, and the bank was to give him a chance to pay the indebtedness.

The foreclosure suit and the agreement were really one transaction. Mr. Trevathan relied on the bank giving him a chance to pay it out, and, according to his testimony, he understood that there would be no further procedure in the foreclosure suit. But, whether that was true or not, both parties understood that Mr. Trevathan was to go ahead with his farming business as usual and try to pay the debt to the bank, and, if he did pay it, the land was to be his. According to this understanding, the sale was made, and, although the suit was. to foreclose a debt for $16,000, the bank bid the land in for the entire indebtedness due it from Trevathan, and Trevathan kept the place, farmed it the two years, did not pay any rent, insured the place as usual, with a clause in the policy payable to the bank as its interest' might appear, and in every way treated the property just as he did before the foreclosure. He paid the taxes on it, and the hank also treated it as if there had been no foreclosure.

The testimony of the bank officials showed that it was the intention for Mr. Trevathan to pay the debt, and, if he could do that, he was to have the place. He was unable to pay the indebtedness, and in 1927 the bank brought a suit to foreclose on one of the notes that Trevathan had given, which had matured, and which was secured by a chattel mortgage, it alleging that it was. the owner o,f the land which it had purchased.

After the bank failed and the Bank Commissioner took charge, Mr. Trevathan agreed with the bank officials to turn over all his property, including land and personal property, in payment of the debt. This was agreed to by the bank, and the representative of the bank actually took charge of and sold five mules, began arrangements to rent to Mr. Travathan one hundred acres of the land, sold some of the hay, and then Mr. Trevathan changed his mind, and claimed that, because of the foreclosure sale, which he said he did not know about when he first offered to turn his. property over to the bank, the bank was indebted to him, becuase the record showed that the land was conveyed to the 'bank for $27,-000, practically the entire indebtedness. It was, however, agreed by all parties that Mr. Trevathan could not go on with it, could’ not pay it, and no one claims that all the property, land and personal, was worth as much as the debt. In fact, the undisputed proof shows that Mr. Tre-vathan, before this time, wanted to turn over all the property in payment of the debt, and the bank declined to accept it.

But Mr. Trevathan testified himself: u After I had the conversation with Mr. Rhodes, I understood I owned the land and owed the debt. I did not know any difference until Mr. Oliver told me. I made the proposition to turn over everything to Mr. Oliver, and changed my mind when I saw no prospects of getting my papers. I had nothing to do with the price put on the mules; Mr. Outzen told me he was getting $85 apiece for them. At the time I made the agreement to deliver this personal property I did not know that the land had been sold.”

But he did know, according to his own testimony, that he was going on as he usually did, that he did not pay rent, and he knew, according to his conversation with Mr. Rhodes, that he owed the debt and was to own the land. Certainly he did not expect to retain the land without paying the debt.

There is practically no conflict in the testimony, except Mr. Trevathan insists that he did not know that the hank had proceeded with the foreclosure suit, but his agreement would have been the same if he had known it. He was to pay his indebtedness and have the land, and the fact that the consideration shown in the deed was the entire indebtedness- and the fact that Mr. Trevathan remained just as he was on the farm without the payment of any rent, and continued to give his mortgages- annually as he had before, are all circumstances tending to show that the agreement was made that Trevathan was to pay the debt and then own the land.

The rule is well stated in a note in 42 A. L. R. 82, as follows:

“An examination of the authorities will disclose that many of-them simply lay down the general proposition that, where one buys land at a judicial sale under a parol agreement to purchase for another, and fails to convey according to the agreement, a resulting trust arises, where the promisee owned or had- any interest in the land, without discussing other equities or other equitable considerations. And while the facts of this case, as we have above pointed out, make it unnecessary to so decide, it would appear to be hardly practicable in all cases to search for further equities, and that it would be enough to say with the Mississippi and California courts, above quoted, that ‘the defendant, upon the faith of such an agreement, may have ceased his efforts to raise the money for the purpose of paying off the execution, and thus preventing a sale of his property. ’ In fact, it could only be for the purpose of saving his property that such an agreement would he made, and it is but reasonable and natural to suppose that further efforts would be made, did not the particular promisor afford sufficient assurance that he would make the desired purchase, and therefore afford the desired protection.”

And, still quoting from the note:

“In such case it is not the parol contract, but the trust, that is sought to be enforced. If the owners were lulled into security and thereby induced to desist from trying to save their property, and the person agreeing to buy it in acquires it at a grossly inadequate price, then the right of action rests not upon the parol contract, but upon the fiduciary relations and transactions, of which the agreement was a mere attendant. ’ ’

Here the bank bid in the property for $27,000, when the foreclosure suit was for only $16,000, and no one contends that the land was worth anything like $27,000. There is no testimony showing what the land is worth, but the appellant, through his son, agreed to rent 100 acres of it at $3 an acre, provided he was permitted to select the 100 acres himself.

Many authorities hold that, where there is a friendly foreclosure with the understanding that the property shall be bid in and held for security for the amount advanced, the purchaser holds in trust for the owner. It is said that this trust is enforceable in some jurisdictions as an express trust, and in others it is called a trust ex maleficio. But it is a trust nevertheless, and the bank could have been compelled to restore the property to Trevathan at any time that he paid the debt. And, if it was binding on one party, it would, of course, be binding on the other.

In the instant case there appears to have been a friendly suit, a friendly foreclosure, with the understanding that Mr. Trevathan should own the property when he paid the debt. If the foreclosure was as contended for by appellant, he would be entitled to equitable relief.

The New York court has held:

£<Iu the case cited the defendant had undertaken to purchase certain real estate at a foreclosure sale for the benefit of the owner of the equity of redemption, and had thus acquired the property at a price very much below its true value. Under these circumstances such purchaser was held to be a trustee of the party for whom he promised to act in buying the land, and was compelled to convey it to the party for whom he really acted, upon a tender of the purchase money and interest. I am unable to see why, under the rule thus applied, the respondent in the case at bar is not compellable, upon proof of the' facts set out in this amended complaint, to account as trustee to the plaintiffs in the present action.” Wakeman v. Somarindyck, 73 App. Div. 606, 76 N. Y. Sup. 818.

But this court has passed on similar questions numerous times, and, discussing the question quoted from the Missouri court, said:

‘‘ There is another class of cases growing out of the conduct of debtors and purchasers at public sales. This is where the purchaser becomes such under a state of facts as would make it a fraud to permit him to hold on to his bargain. As if a purchaser, by means of a promise to reconvey to his debtor; should induce a relaxation of the efforts on his part to prevent a sacrifice of his property, and thereby obtain it at an under price, or, if the purchaser, taking advantage of that reluctance invariably manifested by those attending public sales to interfere with any arrangement a debtor makes to save his property, should create an impression that he was buying-for the debtor, thereby preventing competition, or by any other improper means obtain the property of a debtor at a sacrifice, such conduct would convert the purchaser into a trustee for the benefit of those who were defrauded by his conduct. * * * The same rule applies where the promisee relaxed his efforts to save the property from being sold at the judicial sale.” Strasner v. Carroll, 125 Ark. 34, 187 S. W. 1057.

As to the weight of the evidence and the credibility of the witnesses, the finding of a chancellor is never disturbed unless such finding is against the preponderance of the evidence.

We think the chancellor’s finding in this case is supported by the preponderance of the evidence, and the decree is therefore affirmed.