author: Smith, J. McCulloch, C. J.

text:
    Hinton v. Martin.
    Opinion delivered January 16, 1922.
    1.- Appeal and error — conclusiveness of verdict. — Where evidence was conflicting as to whether an indorsement on a cheek was conditional, a verdict determining that fact is conclusive.
    ■2. Appeal and error — presumption where instructions not set out. — Where the instructions of the court are not set out in the abstract, it will be presumed that the issue was correctly submitted to the. jury.
    3. Vendor and purchaser — merchantable and marketable titles. — Under a contract providing for return to the purchaser of a deposit if .designated attorneys should find the title defective and not merchantable, the word “merchantable” is synonymous with “marketable.”
    4. Specific performance — title by adverse possession. — Where a contract of sale of an oil lease provided for return of a deposit and deed if certain attorneys should find the title “defective and not merchantable,” the attorneys’ opinion that the title was “good and indefeasible,” held to bind purchaser to perform, though the vendor’s title was based on adverse possession.
    Appeal from Union Circuit Court; Charles W. Smith, Judge;
    affirmed.

      Mahoney & Yocum, for appellant.
    In arriving at the intention of parties to a contract, it must be construed as a whole and not from some particular word or words. 130 Ark. 381. A purchaser is entitled to a marketable title in the absence of a stipulation to accept a different title. 85 Ark. 289; 120 Ark. 69. Where a “good and valid deed of conveyance” was provided for, held, the purchaser was entitled to a marketable title. 21 Ark. 298. The same conclusion was reached by the court in the following cases: 44 Ark. 145; (a deed of 'conveyance in fee of the legal title of, in and to said tract of land and appurtenances); 63 Ark. 549 (a good and sufficient title in fee simple) citing 120 N. Y. ?53.
    A marketable title is, “a clear record title.” 120 Ark. 76; 51 N. Y. Supp. 828. See also 121 Ark. 482.

      The parties did not agere to abide by the opinion of Marsh and Marlin. •
    A purchaser is not concluded by the advice of his attorney, where he was not authorized to waive objections. Devlin on Real Estate (3rd ed.) vol. 3, sec. 1529; 92 Pac. 315. The opinion of the attorneys was improperly admitted in evidence. 91 Tex. 527; 44 S. W. 819.
    Instruction No. 4 giving the jury the right to pass upon the kind of title contracted for should have been given as well as No. 5, which would have submitted the construction of the contract to the jury. 129 Ark. 473; 81 Ark. 337; 35 Ark. 156.

      Powell & Sinead, for appellee.
    The contract shows that the parties agreed to leave the cuestión of title with Marsh and Marlin. The opinion of these attorneys stated that the title,, “is good and indefeasible,” which is more than a “merchantable” title. 33 L. Ed. 53; Bouvier’s Law Die. 3d. Revision, vol. 2, p. 1532.
   Smith, J.

The complaint in this case alleged that on January 28, 1921, .E. C. D’Yarmitt delivered to appellee, C. M. Martin, as part payment on an oil lease, a check of D’Yarmitt, payable to appellant, Harley Hinton, drawn on the Commercial National -Bank, of Muskogee, Oklahoma, in the sum of $2,500, pursuant to a contract for the sale of said lease. By the terms of said contract it was agreed that D’Yarmitt should pay the additional sum of $13,500 in payment of the balance of the purchase price of said lease upon the approval of the title thereof by Marsh & Marlin, a firm of attorneys selected to examine the title, this payment to be made by a deposit in the Bank of Commerce at El Dorado, Arkansas, and if not made on or before five o’clock of the afternoon of February 4, 1921, that D’Yarmitt should forfeit to Martin as liquidated damages the sum of $2,500 represented by said cheek.

An opinion was filed at the bank by Marsh & Marlin within the time limited approving the title; bnt D’Yarmitt failed to deposit the balance of the purchase price. Thereafter Hinton indorsed the cheek, which was forwarded to the bank at Muskogee for payment. The check was protested, and Hinton has been sued as an indorser.

The facts recited are undisputed, but there is a controversy as to the conditions under which Hinton indorsed the check. He testified that he had no interest in the transaction and indorsed the check upon -the express understanding that he was doing so solely for the purpose of enabling Martin to collect it, and upon the agreement that he should not be held upon his indorsement. Hinton is corroborated by other witnesses who were present at the time the check was indorsed. But this testimony is not undisputed. Upon the contrary, there was testimony that the indorsement was unconditional. The instructions are not set out, and it will therefore be presumed that this issue was correctly submitted to the jury, and the verdict in favor of the plaintiff Martin is conclusive of that question of fact.

It is insisted that the title’ to the land was not a marketable one, and that the consideration for the contract has therefore failed.

The stipulations in the contract of sale in regard to the title are as follows: It is first recited that D’Yarmitt “has agreed to purchase and pay therefor, on the approval of the title by his attorneys, Marsh & Marlin.” It is then provided that the sum of $2,500 is “to be paid to the said C. M. Martin as soon as title is examined and approved by the said Marsh & Marlin.” And “it is understood, however, that if the abstract of title is furnished and attorney’s opinion rendered approving the title by Friday, February 4, 1921, by five o’clock, P. M. * * * ” that D’Yármitt shall pay the sum of $16,000; ¡and that, if he fails so to do, the sum of $2,500, represented by the check, should be paid to Martin as liquidated damages. The contract contained the further recital that “It is further understood and agreed that, if the said Marsh & Marlin shall approve said title, and if the said E. C. D’Yarmitt shall pay the full and total sum of $16,000 therefor within said time, the said bank shall deliver to the said E. C. D’Yarmitt said mineral deed with the abstract of title to be deposited in said bank by the said C. M. Martin, and shall pay over said sum of money to the said C. M. Martin. It is agreed that, should the said Marsh & Marlin find said title defective and not merchantable, and their written opinion shall so state, then the sum of $2,500 so deposited by the said E. C. D’Yarmitt shall be returned to him, and the said mineral deed shall be returned to the said C. M. Martin. ’ ’

Upon an examination of the title a written opinion was prepared by Marsh & Marlin to the effect that the deed deposited by Martin in the bank would convey, when delivered, a “good and indefeasible” title. It is insisted, however, that this opinion did not bind D’Yarmitt, because, as is disclosed by the abstract and also by the testimony of N. C. Marsh, of the firm of Marsh & Marlin, who examined the abstract, the title depends on the adverse occupancy' of the present owner, and is not a perfect paper title.

It is insisted by appellee Martin that it is immaterial that the title, as disclosed by the abstract, is not good, for the reason that the parties, by their contract, agreed that the opinion of Marsh & Marlin should be conclusive of that question, and that firm of attorneys prepared and delivered an opinion that the title was “good and indefeasible.” On the other hand, it is insisted that the recital of the contract that “it is agreed that, should the said Marsh & Marlin find said title defective and not merchantable, and their written opinion shall so state,” * * * conferred on the attorneys the power and duty only of determining whether the title was defective and not merchantable and that, inasmuch as it appears from the abstract, as well as from the testimony of the attorney who examined the abstract, that the record title was not perfect, the opinion approving the title was demonstrably erroneous and was not binding on the purchaser.

It is the insistence of appellant that, when the contract is construed as a whole, it discloses an agreement to convey a merchantable title as shown by the abstract, and that, as the title tendered was not a perfect naner title, the attorneys exceeded their authority under the contract in approving the title as having been perfected by the adverse possession of the vendor.

In other words, appellant contends that the examining attorneys ignored the rule announced by this court in the case of Mays v. Blair, 120 Ark. 69, and reaffirmed in the case of Shelton v. Ratterree, 121 Ark. 482, and that under the contract the purchaser was entitled to a merchantable or marketable title, and that the title was not a marketable one, inasmuch as it depended on the adverse possession of the vendor.

The testimony of Marsh makes it clear that he was familiar with the opinions of this court in the cases of Mays v. Blair and of Shelton v. Ratterree, supra, and that he used the term “good and indefeasible,” rather than the term “marketable,” because the paper title was not good.

There is nothing in the contract between the vendor and the vendee to indicate that the vendor had contracted to convey, or that the vendee had agreed to accept, anything except a marketable title. The contract provided that if the attorneys should find the title “defective and not merchantable,” then the deposit of $2,500 should be returned and the trade be at an end. The word “merchantable,” there used, is synonymous with the word “marketable,” and is used interchangebly with it by all the courts in discussions of titles to land. Moreover, we said, in the case of Mays v. Blair, supra, that “there is an implied agreement, unless stipulated to the contrary, that the purchaser shall receive a marketable title.”

In the case of Mays v. Blair we held that a title, to be marketable, must be a clear record title, and that title by-adverse possession does not constitute a marketable title, which a purchaser under an executory contract is bound to accept. That doctrine was reaffirmed in the case of Shelton v. Ratterree, supra, where we refused to enforce the specific performance of a contract because the title tendered under the contract was not a title of record, but depended upon the adverse possession of the vendor.

In view of our holding in these two cases, and of the admitted condition of the title here tendered, were the attorneys justified in distinguishing between a “good and indefeasible” title and a “marketable” title, and in accepting, for the purchaser, anything less than a title which the purchaser was entitled to demand under the contract, if there is, in fact, a difference?

It may be conceded that the parties to the contract constituted Marsh & Marlin as arbiters to determine whether the title was “defective and not merchantable.” But, as the attorneys did not decide whether the title was merchantable or not, and gave an opinion only that it was “good and indefeasible,” it becomes necessary to inquire whether there is, in fact, a difference between a “merchantable” or a “marketable” title and a “good and indefeasible” title, for, if there is a difference, we think it clear that the attorneys had no authority to waive the right of the purchaser to demand the “merchantable” title called for by the contract.

This question has received our most careful attention, and a majority of the court have reached the conclusion that we were in error in holding that only a clear record title could be a “marketable” title. The better reasoning, the weight of authority, and our own cases are to the contrary.

We shall not attempt here a review of the cases on the subject. The authorities hereinafter referred to cite cases (a number of which are annotated) from most of the States and many of the Federal courts, to which reference may be had by anyone who cares to pursue the inquiry further.

In Warvelle on Abstracts of Title, 4th Ed., sec. 605, it is said: “In the absence of any stipulations to the contrary the vendor, in every contract of sale, impliedly undertakes to furnish to the purchaser a marketable title. * * * Therefore, the inquiry, what is a ‘good and valid’ title is pertinent in this connection. It may be briefly stated in answer, that the title disclosed should extend to show a full and perfect right to property and present possession vested in the vendor. It must also embrace the entire estate or interest sold, and that free from the lien of all burdens, charges, or incumbrances, and should not only be free from litigation, but from palpable defects and grave doubts. It should consist of both the legal and equitable titles, and be fairly deducible of record. * * *

“A defect in a record title will, under most circumstances, furnish a defense to a purchaser, particularly where it affects the value of the property or would interfere with its sale, and thus render it unmarketable, but there is no inflexible rule, in the absence of stipulations to the contrary, that a vendor must furnish a perfect title of record, and it has frequently been held that defects in the record or paper title may be removed by parol evidence. Where, however, the title depends upon a matter of fact which is not capable of satisfactory proof, or, if capable of that proof, yet is not so proved, the title is not marketable and the purchaser is not obliged to take it.

“A title, to be valid, need not necessarily be deducible of record, for a prescriptive title may, under proper conditions, be as strong as a title by grant, yet such titles, unless there has been a continuous holding for at least twenty years, are always liable to defeat from -undisclosed defects, and even after the expiration of such period they may still be open to attack through claims by minor heirs, or persons under disability.”

In Maupin on Marketable Title to Real Estate, 2nd Ed., sec. 292, it is said: “A purchaser may be compelled to take a title resting upon a hostile, adverse and uninterrupted possession, under color of title which has continued for a length of time sufficient to bar the rights of any possible adverse claimant. * * *

“A title founded upon adverse possession will not be marketable unless sufficient time has elapsed to bar the rights of any person who was under disabilities, such as infancy or coverture, when the cause of action accrued. Generally the statutes of limitations in the several States specify a time within which a person whose disabilities have been removed must assert his rights, and in some of the States it is provided that in no ease, including- such additional period, shall the period of limitation exceed a specified number of years. Under such a statute it has been held that the possibility of a claim by a person under disabilities could not render the title doubtful where the extreme period of limitation had elapsed. If it may be fairly inferred from the abstract that a defect arising before the period at which the abstract commences exists, the purchaser may require that the title before that time shall be shown; but if that be not within the vendor’s power the title will not be held bad upon mere suspicions.”

In Black’s Law Dictionary the following definition is found:. “A ‘marketable’ title to land is such title as a court of equity, when asked to decree specific performance of the contract of sale, will compel the vendee to accept as sufficient. It is said to be not merely a defensible title, but a title which is free from plausible or reasonable objections.” The definition of that term found in the other law dictionaries is not essentially different. See also, various definitions of “marketable title” in Words & Phrases.

In the case of Danzer v. Moerschel, 214 S. W. 849, the contract of sale required the vendor, as a condition of the sale, to deliver to the vendee “a warranty deed and an abstract showing good title” to the property involved. Construing this contract the Supreme Court of Missouri said: “The record shows, and respondent’s brief concedes, that respondent’s record title to a material and very substantial part of the property is bad. It may be granted that, in a suit for the specific per■formance of a contract for a marketable title, a title by adverse possession, if adequately proved, is sufficient to justify a judgment for the vendor. Scannell v. Am. Soda Fountain Co., 161 Mo. loc. cit. 618, 619, 61 S. W. 889. If one contracts merely for a marketable title, he cannot insist upon the delivery of something else. It is quite true that, if the contract calls for something more or other than a ‘marketable’ title, the courts cannot substitute a different contract therefor. Page v. Greeley, 75 Ill. loc. cit. 405, 406. The great weight of authority supports the rule that an abstract is an epitome of the record evidence of title; that a contract calling ‘for an abstract showing good title’ calls for record evidence; that nothing will ‘satisfy the condition no matter what the vendor’s real title might be’; that ‘it is not sufficient that the title is good in fact — that is, capable of being made good by the production of affidavits or other oral testimony; it must be good of record; that in such case title by adverse possession will not suffice.” This case is extensively annotated in 7 A. L. R. page 1162, and many cases are cited, in the note, to the effect that a party may contract, not only for a good title, but for a title shown to be good by an abstract thereof, in which event the purchaser cannot be required to take a title which would not be good but for the fact that it has been perfected by adverse possession. But, as was said by the Supreme Court of Missouri in the ease from which we have just quoted, “if one contracts merely for a marketable title, he cannot insist upon the delivery of something else.”

The courts are quite generally agreed that a title is not marketable if it is too defective to support an action for the specific performance of a contract to convey; and, having held, in Mays v. Blair, that a title by adverse possession did not constitute a marketable title, we thereafter held, in Shelton v. Ratterree, supra, that the courts would not decree a specific performance of a contract for the sale of land where the title tendered was dependent upon proof of adverse possession. This last holding naturally followed from the holding in the case of Mays v. Blair; but a further consideration of that result confirms the view that we were wrong in Mays v. Blair.

In 25 R. C. L. page 276, sec. 77, of the Article on Specific Performance, it is said: “As a general rule, a court of equity will not force upon a vendee a title which he may be required to engage in litigation to defend, but it has been held in a number of cases that a title by adverse possession may be so clearly proved and be so free from doubt as to be a proper foundation for a decree for specific performance against the purchaser, in the absence of a contract for a perfect record title.”

In volume 5 of Pomeroy’s- Equity Jurisprudence, 2nd Ed. in a note to the section (2226, sec. 804) of the chapter (XXXVIII) on Specific Performance, dealing with doubts arising from extrinsic facts or the construction of some document affecting title, there is a note numbered (6), in which the following statement appears: “A title by adverse possession is often so clear that the vendee may be compelled to accept it, unless he has expressly contracted for a good title of record.” A number of cases are cited in support of the note, several of which are annotated cases. As opposed to that statement of the law, our case of Shelton v. Ratterree alone is cited. Following the citation of Shelton v. Ratterree as opposed to the rule stated, the note continues: “But such a title was held insufficient in At tebery v. Blair, 244 Ill. 263, 135 Am. St. Rep. 342, 91 N. E. 475 (record title contracted for); Noyes v. Johnson, 139 Mass. 436, 31 N. E. 767 (record title contracted for); Ogooshevitz v. Arnold, 197 Mich. 203, 163 N. W. 946, 165 N. W. 633 (contract to furnish abstract showing clear title); Sulk v. Tumulty, 77 N. J. Eq. 97, 75 Atl. 757 (evidence of adverse possession not surely available in the future); Kohlrepp v. Ram, 79 N. J. Eq. 386, 81 Atl. 1103; Seller v. Cohen, 154 N. Y. 299, 48 N. E. 527, (possession not adverse); McLane v. Petty (Tex. Civ. App.) 159 S. W. 891.”

In 26 Am. & Eng. Enc. of Law, 2nd Ed. p. 107, it is said: “A title dependent upon adverse possession under color of title will entitle the vendor to a decree, if there is no reasonable doubt as to the nature and duration of such adverse possession and the title acquired thereby. It has been held, however, that to compel a purchaser to accept a title founded exclusively upon adverse possession, unless the facts of the case are clear and free from all reasonable doubt, would be an abuse of the powers of equity. And, of course, a' title by adverse possession will not be deemed sufficient where the contract implies that the purchaser shall have a perfect record title.”

In the case of Freeman v. Funk, 117 Pac. 1024, 85 Kan. 473, annotated in 46 L. R. A. (N. S.) 487, there is a very extended annotation of a note on the “use of possessory title as a weapon of offense.” A sub-note deals with suits for specific performance, and the law is stated by the annotator (p. 515) as follows: “Title by adverse possession is generally held sufficient to enable the vendor to maintain an action for specific performance against a purchaser, in the absence of a contract for a perfect record title. ’ ’ And a number of cases are cited in support of that statement. See also, Freedman v. Oppenheim, 187 N. Y. 101, 116 Am. St. Rep. 595, 79 N. E. 841; Conley v. Finn, 171 Mass. 70, 68 Am. St. Rep. 399; Waterman on Specific Performance of Contracts, p. 550; Justice v. Button,, 38 L. R. A. (N. S.) 1; Hedderly v. Johnson, 42 Minn. 443, 13 Am. St. Rep. 519.

Notwithstanding the conclusion we have now reached, that a title by adverse possession may be so clear and free from doubt as to be a “marketable” title, and may therefore be the basis of a suit for specific performance of a contract to convey land; and that our holding in Mays v. Blair and. in Shelton v. Ratterree to the contrary is against the better reasoning and the greater weight of authority, we would not now depart from those two cases but for the fact that a majority of the court have also concluded that those cases do not follow our own cases of Griffith v. Maxfield, 63 Ark. 548, and Tupy v. Kocourek, 66 Ark. 432. It was not the intention of the court to impair the authority of the two last-cited cases in either the case of Mays v. Blair or Shelton v. Ratterree, supra. Upon the contrary, it was the declared purpose of the court to follow them, and such is still the purpose of the court if there is a conflict in those cases, as they are the earlier cases and first announced the rule of law in this State.

In the ease of Mays v. Blair we quoted and applied to the facts of that case the statement from Sugden on Vendors, p. 385, that “the title to the estate ought, like Caesar’s wife, to be free from suspicion.” Having applied that high standard to the title we were there reviewing, we held the title insufficient because it was not a perfect record title. In the case of Griffith v. Maxfield, supra, Judge Battle, speaking for the court, quoted the same statement from Sugden on Vendors and said of it: “This statement is not accurate. To defeat the enforcement of a specific performance against a purchaser, there must be something more than mere speculation, theory or possibility. The doubt as to the sufficiency of the title must be ‘such as would and ought to induce a prudent man to pause and hesitate; not based on captious, frivolous and astute niceties, but such as to produce a real tona fide hesitation in the mind of the chancellor.” In the case of Griffith v. Maxfield, Judge Battle pointed out the defects existing in the title there tendered which prevented it from being marketable, and, after announcing the holding of the court that the title was not marketable, because of the defects there stated, he proceeded to say: “Another defect in the title tendered by appellees is the dower interest of the widow of George R. Maxfield, deceased, in the lot. Appellees insist that this defect has been cured by the statute of limitations. But there is nothing in the complaint to show that the widow is barred from recovering her dower by an adverse possession which continued for the statutory period.” The clear implication from this statement is that the title would not have been held bad, on account of the dower interest of the widow, had it been alleged and shown that the widow was barred from recovering her dower by an adverse possession which had continued for the statutory period.

In the case of Tupy v. Kocourek, supra, the 'Court had occasion to define a “good” title, which was done in the following language: “One who contracts and pays his money for a title to land ought to get not only a title that he can hold against all adverse comers, but one that he can hold without reasonable apprehension of its being assailed, and one that he can readily transfer, if he desires, in the market. Irving v. Campbell, 121 N. T. 353; Sheehy v. Miles, 28 Pac. 1046; Street v. French, 35 N. E. 814; 22 Am. & Eng. Ene. Law, p. 948, note; Griffith v. Maxfield, 63 Ark. 548, and authorities cited. In common parlance, a warranty deed means a perfect title; and, in legal contemplation, when parties contract for a warranty deed, they must be understood to mean a title paramount to all others. Devlin, Deeds, sec. 937.” That was a suit brought upon a promissory note, upon the payment of which Kocourek and his wife were to execute deeds to .two tracts of land, one of which was claimed by Kocourek and the other by his wife. The opinion recites that “the chancellor found that Mrs. Kocourek had title by the statute of limitations of seven years. This finding was correct.” But this court found the fact to be that there was a failure of title to the tract of land claimed by Kocourek. The court held that “the contract for the sale of this land cannot be severed,” and the court refused to enforce the contract as to Mrs. Kocourek, notwithstanding the title depended on adverse possession, only because the title to the other tract of land had failed.

We think the contract under review did not call for a title shown to be perfect by an abstract, but that it did call for a marketable title; and no contention is made that the title is not in fact “good and indefeasible,” as stated in the opinion of the examining attorneys; and, from what we have said, it follows that there is, in fact, no difference between a “good and indefeasible” title and a “marketable” title; and the purchaser will therefore be required to accept the title under his contract.

We have many times held that our statute of limitations under which title is acquired by adverse possession is not defensive alone, but confers a title which may be enforced by suit. Wilson v. Spring, 38 Ark. 181; Logan v. Jelks, 34 Ark. 547; Jacks v. Chaffin, 34 Ark. 534; Crease v. Lawrence, 48 Ark. 312; Stricklin v. Moore, 98 Ark. 30. Such a title, when good at all, is as good as any title. The cases hold that for such a title to be marketable the proof of possession must be readily available and of a character so convincing as to leave no reasonable doubt of its sufficiency. But, when that showing is made, such a title is, in fact, marketable, unless the purchaser, by his contract, has required something more, as that the sufficienc,y of the title appear of record and be shown by an abstract thereof.

Adhering, as we do, to the earlier cases of Griffith v. Mayfield and Tupy v. Kocourek, the cases of Mays v. Blair and Shelton v. Ratterree, in so far as they are in conflict with what we have said herein, are overruled. Carter v. Carter, 129 Ark. 573.

The judgment of the court below is correct, and is therefore affirmed.

McCulloch, C. J.

I concur in the result reached by the majority for the obvious reason that under the contract the title was to be accepted if approved by the attorneys mentioned and the title was so approved, there being no suggestion in the record of fraud or unfairness in that respect. Whitener-London Realty Co. v. Ritter, 94 Ark. 263; LeRoy v. Harwood, 119 Ark. 418.

It seems to me that the majority have gone out of the way to overrule the cases of Mays v. Rlair, 120 Ark. 69, and Shelton v. Ratterree, 121 Ark. 482. Those cases constituted rules of property if there can be such a rule under the decision of this court, for they interpreted and determined the effect of executory contracts for the sale of land. Taliaferro v. Barnett, 47 Ark. 359; Apel v. Kelsey, 52 Ark. 341. The majority justify their conclusion in overruling these' cases by stating that they are in conflict with certain earlier cases — Griffith v. Maxfield 63 Ark. 548, and Tupy v. Kocourek, 66 Ark. 433. I can discover no conflict between the cases. At any rate, the two earlier cases did not decide that a purchaser under executory contract was bound to accept the title by adverse possession as a marketable title within the meaning of the contract. The effect of the opinions in those cases must, under well-settled rules of interpretation, be confined to the fact in each case and the particular points the court was called on to decide.

In Griffith v. Maxfield, supra, there was involved the question of specific performance of an executory contract for the sale of the land, and it was determined by this court that there was a defect in the record title, and that specific performance should not be decreed. After announcing this conclusion, Judge Battle, delivering the opinion of the court, called attention to the fact that there was still another defect by reason of the fact that the wife of one of the prior owners had not joined in the conveyance for the purpose of relinquishing dower, and that that defect had. not been cured by the statute of limitation. The basis of the decision in the case was, however, that there was a defect in the record title which rendered the title doubtful, and that the purchaser was not bound to accept it. In reaching that conclusion Judge Battle quoted from a well-known text writer the maxim that under such circumstances “the title to the estate ought, like Caesar’s wife, to be free from suspicion.”

In Tupy v. Kocourek, supra, there was an executory contract to sell two tracts of land, one of which was owned by the seller himself, and the other by his wife, the two joining in an inseparable contract to sell and convey to Tupy, the purchaser. The court reached the conclusion that Kocourek’s record title was imperfect to the-extent that the purchaser was not bound to accept it, and that as the contract was indivisible, there could be no recovery for any part of the purchase price. The opinion merely stated that the chancellor’s finding that Mrs. Kocourek had title by adverse possession to the tract of land which she had undertaken to sell was correct. The court, in disposing of the case, made a statement of the law, which is as applicable now as it was then, as follows:

“One who contracts and pays his money for a title to land ought to get, not only a title that he can hold against all adverse comers, but one that he can hold without reasonable apprehension of its being assailed, and one that he can readily transfer, if he desires, in the market.”

It is unnecessary to determine now where the weight of authority lies on this question, and it may be conceded that the weight is in favor of the position now taken by the majority; but the authorities are divided on the subject, and, this court having- taken a position on the question, the cases should not be overruled where they have-become rules of property. It certainly cannot be said that there is no reason for holding that the purchaser should not be compelled to accept a title established merely by adverse possession, for it can scarcely ever be said that a title dependent on adverse possession established by extrinsic evidence is perfect beyond the realms of doubt. That kind of a title is generally suspicious, and it is not unlikely that one who buys it will sooner or later find that he has a lawsuit on his hands to defend his title. There are secret pitfalls in the defense of this kind of a title, for often, after a long lapse of years, it is found that there is some one under disability who has the title and is not barred by limitation.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Clower v. State.
    Opinion delivered January 16, 1922.
    1. Perjury — sufficiency of indictment. — An indictment for perjury which alleges that accused was called and sworn as a witness by the foreman of the grand jury, said grand jury being duly and-legally sworn and impaneled to investigate violations of the penal laws of the State, and the said foreman being regularly appointed, etc., held to import necessarily that W. H. Roberts had authority to administer oaths, and that the grand jury was in session.
    2. Perjury — sufficiency of indictment. — Where an indictment for perjury charges defendant with swearing falsely concerning an alleged purchase of whiskey from certain specified persons, and “from any one else,” it sufficiently charged perjury in relation to the purchase from the persons named, even if it was too general to charge a purchase “from any one else.”
    3. Perjury — sufficiency of testimony. — In a prosecution for perjury, one witness ■ is sufficient to prove what accused swore, but the falsity of his testimony must be established by something more than the testimony of one witness that he swore falsely.
    4. Perjury — instruction as to corroboration of witnesses. — In a prosecution for perjury, it was error to refuse to charge, “that a conviction for perjury cannot be had in this case save on the testimony of two credible witnesses, or on that of one witness corroborated by other evidence, showing that the statements of defendant on oath for which he was indicted, were in fact false.”
    Appeal from Lincoln Circuit Court; W. B. Borréis,

    Judge;
    reversed.

      A. J. Johnson, for appellant.
    The motion for continuance should have been sustained. Appellant had discharged every burden on him in order to have witness Roberts in court. 94 Ark. 538; 99 Ark. 394; 100 Ark. 133.
    The demurrer and motion to quash should have been sustained because the indictment was not filed in open eourt in the presence of all the grand jury. 19 Ark. 178; 24 Ark. 637; 31 Ark. 427; 33 Ark. 815; 93 Ark. 290.
    The indictment does not allege that W. EE. Roberts had authority to administer oaths. The mere fact that he was foreman of the grand jury in the absence of a showing that court was in session at the time is insufficient. Sec. 2590, C. & M. Digest; Id. sec. 3023; 100 Ark. 549. .
    Instruction No. 6, to the effect that the materiality of the testimony alleged to tbe false must be established by the evidence and cannot be left to presumption or inference, was the law and should have been given. 32 Ark. 192.
    Instructions No. 9 and No. 10, to the effect that the falsity of the perjured testimony must be shown by at least two witnesses, or by the testimony of one witness corroborated by other evidence, were the law, and it was error to refuse them. 5.1 Ark. 138; 133 Ark. 341; 135 Ark. 275; G-reenlief on Evidence, par. 257; Wharton’s Crim. Ev. Yol. 1, (3rd Ed.) par. 387.
    Instructions 3 and 5 given by the court were error, the first because it required no corroboration, and No. 5 because it was abstract and too general. 54 Ark. 336.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants.
    ■ Appellant does not allege in his motion for continuance that he himself believed to be true the facts which he expected to prove by his absent witness, which is a necessary allegation. Brickey v. State, 148 Ark. 595, and cases cited.

      Appellant did not file a motion to quash the indictment, for any reason, and thereby waived any defects. 71 Ark. 180. 'The defect, if any, could not be reached by demurrer.
    The allegation in the indictment to the effect that appellant was sworn by W. H. Roberts, foreman of the g*rand jury, etc., neccessarily imports that the Lincoln Circuit Court was in session, and the grand jury sitting.
    Appellant’s requested instruction given by the court as modified was correct. C. & M‘. Digest, § 3023.
    Instructions 9 and 10 were properly refused. An accused can be convicted by the testimony of one witness, properly corroborated. Enc. of Ev. vol. 9, p. 759, 760.

      A. J. Johnson, for appellant, in reply.
    Appellant did allege that he believed the facts set out in his motion for continuance to be true, as shown by the last paragraph thereof.
    The demurrer to the indictment was by its language in effect a motion to quash. An erroneous caption should be disregarded. 119 Ark. 224.
    The allegation in the indictment that the defendant swore that he did not purchase whiskey from “any one else” is to.o general and indefinite. Sec. 3012, C. & M. Digest; 59 Ark. 113.
    The evidence of one witness alone, not corroborated by any other evidence, is insufficient to warrant a conviction. Enc. Ev., vol. 9, p. 759, 760.
   Humphreys, J.

Appellant was indicted, tried and convicted of the crime of perjury in the Lincoln Circuit Court, and as punishment therefor adjudged to serve a term of one year in the State penitentiary. A demurrer was filed, attacking the sufficiency of the indictment on several grounds, which was overruled by the court. Appellant insists that each of the three following grounds set forth in his demurrer was a good and sufficient attack upon the indictment; first, that the indictment was not filed in open court in the presence of all the grand jury; second, that the indictment contained no averment that W. H. Roberts had authority to administer oaths, and that the grand jury was in session on the 17th day of May, 1921, the day appellant is alleged to have falsely testified; and, third, that the allegation contained in the indictment charging the appellant with purchasing whiskey from “any one else,” and with contributing money to purchase whiskey from “any one else,” is general and states no charge.

(1) . This ground of attack is met by the following recital in the judgment: “Defendant (appellant) waives arraignment on the indictment therein for the crime of perjury, which indictment was regularly returned and filed in open court in the presence of all the grand jury May 17th, 1921.”

(2) . This ground of attack is met by the fact that both averments appear in substance in the indictment. The following allegation in the indictment necessarily imports that W. H. Roberts had authority to administer the oath, and that the grand jury was in session at the time: “The said John Tom Clower, in the county and State aforesaid, on the 17th day of May, 1921, did then and there, being called and sworn as a witness by W. H. Rogers, foreman of the grand jury of Lincoln County, Arkansas, said grand jury being duly and legally sworn and impaneled to investigate violations of the penal laws of the State of Arkansas, and the said W. H. Roberts being regularly appointed as foreman of said grand jury, the said John Tom Clower being and sworn by the said W. H. Roberts that the testimony he should give before said grand jury concerning all legal matters about which he should be interrogated should be the truth, the whole truth and nothing but the truth, and, after being so regularly sworn by said W. H. Roberts as aforesaid, did then and there wilfully, unlawfully, feloniously and corruptly depose and swear as follows.”

(3) The answer to this ground of attack is that, while necessary to name the party from whom appellant purchased whiskey in order to give him notice of the falsity of the testimony charged against him, the indictment did specifically charge him with swearing falsely concerning an alleged purchase of whiskey from Ray Roberts and Mead Roberts. Even if the indictment was insufficient to charge perjury in relation to purchases of whiskey from “any one else,” it sufficiently charged perjury in relation to a purchase from the Roberts brothers.

In the course of the trial two witnesses, Edgar Collins and Fred Knuckols, testified that on or about the 8th day of May, 1921, they accompanied appellant, in his automobile, to a point near the home of Mead and Ray Roberts for the purpose of purchasing whiskey from them; that appellant gave Edgar Collins the money with which to purchase the whiskey, and that he went to the Roberts home and purchased some whiskey from Ray Roberts, which was brought back, and, after appellant took a drink, was placed in a car. Based upon this testimony, appellant requested the court to instruct the jury as follows: “You are instructed that a conviction for perjury cannot be had in this case save on the testimony of two credible witnesses or on that of one witness corroborated by other evidence, showing that the statements of defendant on oath for which he was indicted were in fact false; therefore, if the State fails to show by testimony thus corroborated that one or more of the assignments of perjury was false and that said testimony was material to the inquiry before the grand jury at the time, you should acquit the defendant”, which the court refused to do, over the objection and exception of appellant.

This court is committed to the doctrine that to sustain an indictment for perjury “the evidence must more than counterbalance the oath of the prisoner and the legal presumption of his innocence. One witness is sufficient to prove what the witness swore, but more is necessary to prove the falsity of what was sworn. The oath of the prisoner is entitled to have the same effect as is given to that of a credible witness. If nothing more than the testimony of one witness was introduced to prove its falsity, the scale of evidence would be exactly balanced, and additional evidence would be necessary to destroy the equilibrium before the accused could be convicted.” Thomas v. State, 51 Ark. 138. See also Atkinson v. State, 133 Ark. 341; Lamb v. State, 135 Ark. 275.

The State contends that the vice in the instruction requested and refused lies in the clause “that a conviction for perjury cannot be had in this case save on the testimony of two credible witnesses,” but with that clause excluded the instruction correctly declared the law. The clause referred to was an alternative statement, and is tantamount to saying that, unless the charge for perjury was established by two credible witnesses, it must necessarily have been established by one credible witness corroborated by pther evidence. This was a correct declaration of the law, for, unless the charge was established by one credible witness, corroborated by other evidence, it necessarily follows that a conviction must have been established by the evidence of two credible witnesses. The-court should have given instruction 9, as well as instruction 10, requested by appellant, which latter instruction was the same as instruction 9, but carrying the additional direction that a charge of perjury must be established by the State beyond a reasonable doubt.

For the error in refusing to give instructions numbered 9 and 10, requested by appellant, the judgment is reversed, and the cause remanded for a new trial.


text:
    Martin v. State.
    Opinion delivered January 16, 1922.
    1. Criminal law — evidence of venue. — In a prosecution for .receiving stolen goods in Polk County, proof tending to connect the defendant with the goods at Little Rock about 10 months and in Oklahoma about 11 months after they were stolen, was insufficient to prove that defendant received them in Polk County.
    2. Criminal law — sufficiency of evidence. — One cannot be convicted of a crime upon mere suspicion or conjecture, and a verdict must be based upon some substantial evidence.
    3. Criminal law — instruction as to defendant’s failure to testify.- — It was error to refuse to instruct the jury that accused’s failure to testify should not raise a presumption of guilt against him.
    Appeal from Polk Circuit Court; James S. Steel, Judge;
    reversed.

      Norwood & Alley, for appellant.
    1. The evidence is altogether too remote to connect the defendant with receiving the bonds( in Polk County.
    2. It was improper to permit the prosecuting attorney in his opening statement to the jury to say that the State would show that the defendant robbed a bank at Alma, Ark.; that he had served terms in the United States prisons, and would show the defendant’s picture taken in a rogue’s gallery. Likewise in his closing argument, it was error to permit him, without reprimand, to state that he believed that the defendant was a member of a conspiracy going through Arkansas and other States, robbing banks. In responding to defendant’s request that the court reprimand the prosecuting attorney, and instruct the jury to disregard such statement, by the abrupt reply, “The court will not do it,” it in effect indorsed his statement. 69 Ark. 657; 58 Id. 482; 71 Id. 416; 88 Id. 580; 81 Id. 31; 141 Id. 447; 138 Id. 530.
    3. It was improper to permit the witness Pepper to testify that he received from the defendant some bonds in Little Eock, without a showing that they were the bonds alleged to have been stolen, or tliat'they came, from the Bank of Vandervoort. 91 Ark. 555; 54 Id. 626; 39 Id. 278.

      4. The State’s instruction number 4, on the subject of conspiracy, as well as the prosecuting attorney’s argument thereon, was erroneous. 37 Ark. 274; 41 Id. 13; 109 Id. 389; 74 Id. 574.
    5. The court erred in refusing appellant’s request for an instruction that the failure of a defendant to testify in his own behalf creates no presumption against him. 110 Ark. 152; 114 Id. 398; 145 Id. 75.

      J. 8. Utley, Attorney General, Elbert Gowin and W. T. Hammock, Assistants, for appellee.
    1. The evidence was sufficient. While the unexplained possession of the bonds by appellant would not of itself warrant a conviction, yet that fact, taken in connection with other undisputed facts in the evidence, warranted the jury in finding that he received them within jurisdiction of the court, knowing that they had been stolen. 34 Ark. 443; 55 Id. 244; 91 Id. 492; 19 Id. 684; 88 Id. 200; 121 Id. 45; 216 S. W. (Ark.) 1054.
    2. It is not clear just what the prosecuting attorne}^ did say with reference to the bank robbery at Alma. It is too indefinite to consider. However, the latitude allowed the courts in controlling prosecuting attorneys in opening statements will not be disturbed unless there has been a clear abuse of discretion. 2 B. C. L. 410, 411. In the closing argument, the remark that he believed appellant was a member of a conspiracy, etc., was improper, but it was not reversible error. 2 R. C. L. 417; 46 L. R. A. 641 and note.
    3. We think Pepper’s testimony relative to the appellant’s offering to him two $500 registered Liberty bonds was competent. The fact that he was offering such bonds indiscriminately was a circumstance tending to show that he knew at the time he let Carignanno have them that they were stolen. 52 Ark. 303; 72 Id. 586; 84 Id. 119. 1 • :

      4. On the question of the unexplained possession of stolen goods, the length of time that must elapse after the larceny before such possession ceases to be a circumstance tending to show guilt is purely a question of fact for the jury. 17 R. C. L. 73, 74, § 78.
   Humphreys, J.

Appellant was indicted in the Polk Circuit Court for grand larceny and receiving stolen property. He was acquitted of the charge of grand larceny, but convicted of receiving.stolen property and adjudged to serve a term of five years in the State penitentiary as punishment therefor. From the judgment of conviction an appeal lias been duly prosecuted to this court.

The property charged to have been unlawfully and feloniously received by appellant with intent to deprive the owners thereof consisted of one United States registered Liberty bond of the value of $500, the property of B. F. Litchliter, one United States registered Liberty bond of the value of $500, the property of John B. Marling, and one United States registered Liberty bond of the value of $1000, the property of John T. Maloney. The facts revealed by the record, in so far as necessary to a determination of the vital issues presented by this appeal, are, in substance, as follows: The bonds were stolen from the Bank of Yandervoort, in Polk County, Arkansas, on the night of November 13, 1918, at which time the bank was robbed. In October, 1919, the bonds were discovered in the bank at Wilburton, Okla., to which bank they had been sold by Contance Carignanno, a merchant of Wilburton. About the middle of September, 1919, Pete Rapello took appellant to Constance Carignanno for the purpose of selling him the bonds. Carignanno asked the appellant why he didn’t sell them to the bank. Appellant said the bank wanted to discount them too much. Carignanno proposed to and did negotiate them to the bank, receiving $1,950 for them, which amount he paid the appellant, less $75 charged for his services. A short time after Carignanno negotiated the bonds to the bank it informed him that they could not be assigned, as Carignanno had assigned them, and on that account were of no value to the bank. Carignanno immediately informed appellant to that effect, who told him that he had left the money with Rapello; that he would get it. and return it to Carignanno. Instead of doing so, he departed and was later arrested and placed under bond. After giving bond, lie ran away, but was rearrested and placed in jail, where he remained. In the fall of 1919 appellant attempted to negotiate in Little Rock, Arkansas, United States registered Liberty bonds of the same denomination as the bonds in question, but failed to do so because they had not been assigned by the registered owners.

Appellant did not take the witness stand in his own behalf, and requested, but was refused, an instruction charging the jury that his failure to testify should not create any presumption against him.

Appellant’s first contention is that the judgment should be reversed because the evidence was insufficient to show that appellant committed the offense charged in Polk County, Arkansas. There was proof tending to connect appellant with the bonds at Little Rock about ten months, and at Wilburton, Okla., about eleven months after they were stolen, but there was no legal proof .tending to show that he received them in Polk County. The times he was found in possession of the property were remote and the places distant from the scene of the larceny. So far as disclosed by the evidence, appellant never was in Polk County until he was arrested and taken there. It cannot be said, in the light of this record, that appellant was found in possession of recently stolen property, unexplained, which might be regarded as a circumstance tending to establish his guilt of the crime charged. The remoteness of the time and the distance from the scene of the robbery when appellant was found in possession of the stolen property is insufficient from which to draw a legitimate inference that the stolen property was received by appellant in Polk County. A conjecture or suspicion might be drawn from the fact that appellant received the bonds in Polk County, but one cannot be convicted of a crime upon mere suspicion or conjecture. A verdict, to stand, must be based upon some substantial evidence. The venue therefore was not sufficiently established.

Appellant also insists that the court committed reversible error in refusing to instruct that it was appellant’s privilege to testify or not, and that his failure to do so should not raise a presumption of guilt against him. The privilege of election to testify in his own behalf is extended by statute in this State (Crawford & Moses’ Digest, § 3132) to any one charged with the commission of crimes, offenses and misdemeanors. In order to give a defendant the benefit of this election, it is the duty of trial courts, when requested at the proper time, to inform the jury that a failure to testify in his own behalf shall not raise any presumption of guilt against him. Otherwise a jury might regard a defendant’s silence as an admission of guilt and thereby deprive him of the election accorded him by statute. Threet v. State, 110 Ark. 152; Lee v. State, 145 Ark. 75.

Other assignments of error are insisted upon by appellant for reversal, such as alleged improper statements and argument of the prosecuting attorney, which we deem it unnecessary to consider, as they will not likely recur upon a retrial.

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


author: McCulloch, C. J.

text:
    Thompson v. State.
    Opinion delivered January 23, 1922.
    1. Statutes — time of taking effect. — Amendment 7 of the Constitution, providing for reference of legislative acts to the people by petition, applies to local as well as general legislation, and, in the absence of an emergency clause, an act detaching territory from one school district and annexing it to another does not go into effect until 90 days after final adjournment of the Legislature, the time allowed by such amendment for filing a referendum petition.
    2. Malicious mischief — authority of school directors. — Where the directors of a rural school district, after the Legislature had passed a special act detaching a strip from the district and annexing it to another district, in good faith passed a resolution to remove a schoolhouse from the strip, persons who proceeded to tear down the building in pursuance of such resolution before the special act went into effect were not guilty of a misdemeanor under Crawford & Moses’ Dig., § 2542, making it a misdemeanor to damage a schoolhouse; it being within the authority of school directors to change the site of schoolhouses, under Crawford & Moses’ Dig., §§ 8942-3.
    3. Malicious mischief — right of church to use schoolhouse.— Permission to a church to use a school building for religious services is a revocable privilege, and persons tearing down a school building used by a church organization are not criminally responsible under Crawford & Moses’ Dig., § 2542, for damaging church property, where they were acting under a resolution of the school board.
    Appeal from Lonoke Circuit Court; George W. Clark, Jndge;
    reversed.

      William & Holloway, and Guy E. Williams, for appellant.
    The evidence discloses no malicious intent. McClain’s Crim. Law, § 826; 30 Ark. 433, 435; 48 Id. 56, 3 Am. St. Rep. 216; 35 Ark. 345.
    There can be no criminal liability for acts done in good faith under supposed right or claim of authority. McClain, Crim. Law §§ 827-828; 25 Cyc. 1677-1678. The property necessarily belonged to Rural Special School District No. 20, when the offense is alleged to have been committed. The act transferring the territory did not go into effect until June 28, 1921. 36 Cyc. 1192; 104 Ark. 162; 103 Id,. 48; 145 S. W. 199; 101 Ark. 473; 142 S. W. 1153; 200 S.W. 501.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Where one is accused of violating this statute, C. & M. Digest, § 2542, it is not necessary either to allege or prove malicious intent on the part of the accused against any preson, or persons, intended to injure any specific individual or many individuals. 113 Ark. 97.
    The church organization and the church-going public had such an interest in- the building as would authorize the prosecution of any one injuring the same in the manner prohibited by the statute. 113 Ark. 97; C. & M. Dig., § 3018.
   McCulloch, C. J.

Appellants, Will Thompson and fifteen other citizens of Lonoke County, were arrested and tried before a justice of the peace of that county on an information charging them with damaging and destroying a certain building known as “Mason Schoolhouse and Pleasant View General Baptist Church.” The charge is preferred under the statute which makes it a misdemeanor punishable by fine of not exceeding $100 for any person to “cut, write upon, deface, disfigure or damage any part or appurtenance of the inclosure of the Statehouse, or any building belonging to the State, or of any church or schoolhouse, or any other .public building, or to any citizen of this State, when not occupied.” Crawford & Moses’ Digest, § 2542. An appeal was prosecuted from the judgment of the justice of the peace, and on the trial in the circuit court a verdict of guilty was returned against appellants on direction of the court.

The building shown to have been damaged was one situated on school property, and it was erected and used as a schoolhouse by the district in which it was located, but the testimony tends to show that contributions were made by members of the church mentioned above toward the improvement of the property, and that it was sometimes used for church purposes. The building was situated within the bounds of a rural single school district designated as Rural Special School District No. 20, and was one of the schoolhouses in which public schools were taught in that district. There were three schoolhouses in the district, the one involved in this controversy being known as Mason schoolhouse, situated on the east side of said district. Another building known as Hill Schoolhouse was situated on the west side of the district, and the other building, known as Hickory Valley Schoolhouse, was situated at or near the central portion of the district.

The General Assembly at the session of 1921 enacted a special statute detaching* from Rural Special District No. 20 a strip on the east side of the district a mile wide and two and a-half miles long, which embraced the land on which Mason Schoolhouse was situated, and annexed it to an adjoining single school district known as Oakdale Special District. By the same statute a strip of land on the west side of rural special school district on which the Hill Schoolhouse was situated, was detached and annexed to another single school district, thus leaving only one school building (Hickory Valley Schoolhouse) in rural special school district. This statute was approved by the Governor on March 28, 1921, and provided that it should go into effect 90 days from anci after its passage. There was no emergency clause attached to the bill.

Six of the appellants constituted the board of directors of rural special school district, and they claimed to have held a meeting on the night of April 12, 1921, and passed a resolution directing that Mason Schoolhouse and Hill Schoolhouse should be torn down and the materials moved and used in the construction of another school building on the land which would, under the new statute, remain in the territory of rural special school district. On the next day the directors, together with the other appellants, who were residents and taxpayers within the boundaries of rural special school district, met at Mason Schoolhouse and proceeded to tear down tlie building and fences and to remove tlie material together with the benches and other movable property in the building. The evidence shows that up to the time they were arrested they tore out the windows, window-facings, doors ‘and door-facings and part of the ceiling and removed them, and also tore down the fence and removed the material. The benches and certain other things in the building were also removed. Appellants testified that they were tearing down the building and moving the material in pursuance of the resolution passed by the board of directors.

The court erred in directing a verdict, as the testimony tended to show that the board of directors passed the resolution mentioned above, and that the directors, together with other appellants, were carrying out that resolution in tearing down the building. The building remained the property of rural special school district, notwithstanding the passage of the statute detaching that territory from the district, for the statute had not •become effective, and the control of the directors of the district over that property was at that time unaffected by the new statute. The Constitution of this State, as changed by amendment adopted at the general election of 1910, provides for a reference of legislation to a vote of the people upon a petition signed by five per centum of the legal voters of the State filed with the Secretary of State not more than 90 days after the final adjournment of the session of the Legislature which passed the bill. Unless an emergency is declared in the bill, it does not go into effect until three months after the final adjournment of the Legislature. Arkansas Tax Commission v. Moore, 103 Ark. 48. We decided in Hodges v. Dawdy, 104 Ark. 583, that the Constitution, as amended, does not confer power upon the voters of a municipality or county to initiate legislation, but we have never decided that, under the amendment mentioned above, local legislation cannot be initiated or referred by petition to a vote of the people of the State as a whole. On the contrary, we hold that local legislation may be initiated or there may be a referendum of such legislation, provided it is referred to the vote of the people of the whole State and the petition therefor is signed by the percentage of voters of the whole State as prescribed in the amendment. This being true, the statute detaching territory from rural special school district was not in effect at the time the damage was done by appellants to the school building, and therefore it remained as the property of that district, and was within the control of the directors. The fact that the property would soon pass to another district if a referendum vote should not be ordered did not take away the power of the directors to manage and control this property the same as any other property of the district. In other words, until the time had passed for a referendum of the new statute, the directors had the same power over the property that they had before the statute was enacted and approved by the Governor. The question of abuse of that discretion, and the legal or equitable right of the citizens of another district to restrain such abuse is not involved in the present controversy, the present proceedings being a criminal prosecution for a statutory offense which does not involve the motives of the accused. It is within the statutory authority of the directors to change the site of schoolhouses and to sell one site and purchase another. Crawford & Moses’ Digest, §§ 8942, 8943.

It was, we think, a question of fact in this case to be determined by the jury whether the attempted removal of the school building was being done pursuant to the resolution adopted by the directors, or whether the resolution, if adopted, was merely colorable, and that appellants were attempting to tear down and remove the building, not pursuant to the resolution, but merely for the purpose of destroying the property to thwart the legislative will. This issue should not have been taken from the jury by a peremptory instruction.

According to the undisputed evidence, the building in question was not church property, but was exclusively the property of the school district. The statute gives no authority to a school district to permit other organizations to construct buildings on school lands, and the right of a church organization to hold services in the building was, at most, a mere privilege which could be revoked at any time, and the directors of the school district and those acting under their direction were not criminally responsible for the damage done to the property without the consent of the church organization.

The judgment of the circuit court is therefore reversed, and the case remanded for a new trial.

Smith, J., dissents.


text:
    Ritchie v. State.
    Opinion relivered January 23, 1922.
    1. Intoxicating liquor — evidence.—Evidence held to sustain conviction of selling intoxicating liquor.
    2. Criminal law — question for jury. — The weight of evidence is for the jury.
    3. Criminal law — resistance of arrest as evidence of guilt.— Proof that defendant resisted arrest by force is a circumstance indicating his guilt.
    Appeal from Grant Circuit Court; W. H. Evans, Judge;
    affirmed.

      D. E. Waddell, for appellant.
    The evidence falls short of that substantial proof necessary to convict. Suspicion cannot be taken as proof. 118 Ark. 352; 20. Id. 454; 29 Cyc. 832; 94 Ark. 569; 65 Id. 279.

      J. S. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Autry’s testimony supports the verdict. Appellant’s conduct in disposing of the whiskey to him was a mere subterfuge for a direct sale. 43 Ark. 75. The fact that appellant resisted arrest was a circumstance indicating consciousness of guilt, and admissible in evidence. 38 Ark. 225; 45 Id. 135; 68 Id. 529; 25 Id. 92.

   McCulloch, C. J.

Appellant was tried and convicted in the circuit court of Grant County of the offense of selling intoxicating liquor, and the principal ground urged here for reversal of the judgment is that the evidence is not sufficient to sustain the verdict of the jury.

The State introduced proof tending to show that appellant sold whiskey at or near the town of Leola, in Grant County. One of the witneses testified that appellant came to him and asked him if he did not want to buy “some good stuff” for $4 per quart, and, an affirmative answer being returned, appellant conducted the witness to a spot in a heading-yard near by and showed the witness a quart of whiskey. The witness testified that he placed $4 on the ground beside the bottle of whiskey and left the place for a few minutes and then returned and found appellant and the money gone, but die whiskey still there. The same witness testified tliaf on another occasion appellant accosted him and asked whether or not he would like to get some “good stuff” at $4 a quart, and carried him out on the pike near Leola and showed him a bottle of whiskey at the root of a tree, and the witness carried through the same performance as at the heading-yard and laid down $4 beside the bottle of whiskey and stepped aside a few moments and came back and found appellant and the money gone and the whiskey still there. In each instance the witness . paid the money and got the whiskey. There were other witnesses in the case who gave testimony tending to show the sale of whiskey by appellant. There was a conflict in the testimony, for appellant himself testified that he had not sold any whiskey and had not carried the witnesses to the places where they claimed to have gotten it. The weight of the evidence was for the jury, and it was sufficient to justify the Verdict of guilty.

Appellant, on cross-examination, was asked concerning Ms efforts to resist arrest, and npon denial the State introduced the arresting officer to prove that appellant had made resistance. We have often held that attempted flight is a circumstance indicating guilt, which made it competent testimony in a criminal case, and for the same reason resistance of arrest by force is equally competent. The weight of such testimony is of course always a question for the trial jury.

Judgment affirmed.


text:
    Sims v. Miller.
    Opinion relivered January 23, 1922.
    1. Limitation of actions — action on written contract. — In an action on a written contract witnessed by correspondence, the five-years statute of limitation (Crawford & Moses’ Dig., § 6955) applies, though an account is filed specifying the items on which the three-years statute (Id. § 6950) would have applied if the action had been brought on the account.
    2. Limitation of actions — statute applicable — The statute of limitation applicable to a particular action is determined by the cause of action declared upon if the facts justify it.
    3. Limitation of actions — when action commenced. — Under Crawford & Moses’ Dig., § 1049, providing that the commencement of a civil action is “the filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon,” delivery of the writ to the officer is an essential part of the issuance, but an action properly commenced arrests the statute of limitation, even though summons is not served until after the statutory period elapses.
    4. Limitation of actions — commencement of action in proper county. — In the case of a transitory action, filing complaint and issuing summons in a county other than that of defendant’s residence do not arrest the running of the statute until the writ is served, and when served it relates back to the date of the issuance of .the writ; and, when such writ is not served, the subsequent issuance of another writ and the service thereof constitutes the commencement of an action.
    5. Abatement and revival — pendency of another action.- — The mere filing of a complaint in one court while another action is pending in another court of this State does not operate as a dismissal of the prior action; the pendency of a prior action being ground of demurrer if it appears on the face of the complaint, or of defense by answer if it does not so appear.
    6. Judgment — prior judgment as bar. — If more than one action between the same parties and with reference to the same subject-matter is pending, the first judgment rendered in either action bars the other action, regardless of priority in time of commencement.
    7. Limitation of actions — new action after nonsuit. — Where an action was commenced within time in the county of defendant’s ' residence on a transitory cause of action, and later, while it was pending, a complaint was filed in another county on the same cause of action, and a writ was served on defendant after the prior action had been dismissed by the plaintiff, the second action was within Crawford & Moses’ Dig., § 6969, providing that plaintiff may commence a new action within one year after non-suit suffered.
    8. Sales — instruction.—Where a seller of hay agreed that the buyer might sell the defective portion of a shipment of hay in the market at the best.price obtainable and credit same to seller’s account, an instruction that if a portion of the hay was defective, the buyer was authorized to dispose of the hay at the best price obtainable and credit same to seller’s account, and to recover the difference between the sales and the contract price, was not objectionable for failure to confine the buyer’s right to so dispose of the hay to the defective portion.
    9. Appeal and error — harmless error. — An abstract instruction which could not possibly have prejudiced the appellant is not ground for reversal.
    10. Set-off and counterclaim — judgment for costs. — Defendant should have been permitted to plead as a counterclaim the amount of costs adjudged to him in a former action on the same subject-matter brought in a different court and dismissed by plaintiffs.
    Appeal from Pulaski Circuit Court, Third Division; A. F. House, Judge;
    affirmed with modification.

      G. W. Emerson and Frauenthal <& Johnson, for appellant.
    The judgment for costs obtained by appellant against appellee in the Prairie Circuit -Court growing out of the same cause of action should have been allowed on appellant’s counterclaim. C. & M. Dig. §§ 1195 and 1197; 74 Ark. 224; 134 Ark. 311.

      Appellee’s suit, which, was one on account, was barred by the three-year statute of limitations, the last payment on the account being on October 19, 1911, and the present suit being brought on May 31, 1916. 43 Ark. 275; 17 R. C. L. No. 171; 59 Am. Dec. 142; 60 Am. Dec. 253. The present suit was not protected by the suit filed in the Prairie Circuit Court on March 2, 1916, because that suit was still pending and not dismissed for more than five months after bringing of present suit. 73 S. W. 184. An action properly brought and voluntarily dismissed cannot be used to save a subsequent action from the bar of the statute of limitation. 103 N. E. 672; 8 Cranch. 462; 18 N. J. Law, 269; 42 Fed. 652; 23 Vt. 623; 101 la. 266; 22 N. W. 894; 130 Mass. 419.
    Appellee did not sue on a written contract, but merely introduced a letter, and the five-year statute does not apply. In any event he is barred by the five-year statute, as such statute would begin to run from the date of the alleged breach of contract sued on. 132 Am. St. 737; 95 N. W. 901; 93 N. W. 137; 75 Am. Dec. 477, which date could not have been later than Oct. 26,1911. The present action was commenced May 2, 1917, the date the alias summons was served, and not upon the filing of the complaint in Pulaski County, on May 31,1916. The intervention of a term of court without suing out an alias works a discontinuance of the original service, and the bringing of the suit dates from the issuing of the alias. 53 N. C. 55; 19 N. C. 492; 22 N. W. 915; 81 N. W. 593; 108 N. "W. 87. Here two terms were allowed to lapse before the alias was sued out. If, as here, the time constituting the bar be allowed to lapse between the suing out of one process until another, the mere bringing of the suit does not prevent the statute of limitation from running. 3 Bush (66 Ky.) 223. Summons must be issued with the intent that itf be served before it will constitute. the commencement of suit. 47 Ark. 121; 85 Fed. 827. Appellant was a non-resident of Pulaski County, and appellee knew service could not be had on him immediately.

      The action was barred by the one-year non-suit statute. Repeated successive actions are not warranted or authorized by our nonsuit statute. C. & M. Dig., § 6969. Sec. 190 S. W. 458; 66 S. E. 186; 223 S. W. 734; 90 Pac. 764.

      W. C. Adamson and Mehaffy, Donham & Mehaffy, for appellee.
    Appellant’s contention that the case was a suit on account is untenable, for the reason that the suit was not tried on that theory in the lower court. 101 Ark. 95. A binding contract of sale ma3r be entered into by letters and telegrams. 95 Ark. 421, and this case falls within sec 6955, C. & M. Digest, and is not barred. The cause of action accrued Oct. 26, 1911, and the present suit was filed May 31, 1916. An action is commenced when the complaint is filed and a summons issued thereon. 104 Ark. 627. The time of service of summons is not regarded. 57 Ark. 459. A stipulation was entered into between the parties that when the suit was field in Pulaski County a summons was given the sheriff for service upon appellant. The suit in Prairie County having been dismissed, the Pulaski Circrut Court had jurisdiction to try the-suit pending before it. 22 Ark. 103. Section 6969, C. & M. Dig., does not narrow the period of limitations but extends it. 93 Ark. 215; 107 Ark. 352.
   McCulloch, C. J.

This litigation grows out of transactions between the -parties which began during the month of June, 1911, appellant residing at the town of Hazen, in Prairie County, Arkansas, and was there engaged in the business of selling and shipping hay, and appellees were engaged in business in Chicago, buying and selling hay. The communications between the parties which constitute the contract between them were conducted by letters and telegrams, and by that mode of communication appellant entered into an agreement to sell appellees 50 car-loads of hay of the best qualify at a stipulated price, delivered on board cars at Hazen, consigned to appellees at Chicago. Appellant drew drafts on appellees with bills of lading attached, which drafts were paid by appellees through regular banking channels. The shipments were made from time to time during the months of July and August, 1911, 'at the rate of about six carloads per week. When the first car of hay was received by appellees at Chicago and inspected, they notified appellant that it was in damaged condition and not of the quality specified in the contract, and they made a proposal to appellant in a letter that they would unload the hay and handle the same, “deducting from the proceeds the amount of profits that we have in the original deal,” and that they would, in like manner, have each car inspected. Another letter was written on a later date reminding appellant of his failure to respond to the proposal and asking for a reply by wire indicating whether it would be satisfactory to appellant for appellees “to handle the hay as suggested in our letter.” Appellant replied by telegraphic message directing appéllees to handle the same as indicated in letter. After-wards, appellant also replied by letter as follows: “Wo have your favor of the 26th inst. referring to the contract which we have with you. We expect you to handle all hay shipped you until contract is filled, when we will have a final settlement. ’ ’ This was the letter referred to in the telegram. Pursuant to this letter, appellees kept an account of the damaged hay, and they claim that appellant owes them the sum of $2,548.25 for the difference between the contract price of the hay and the price it brought on sale in the market at Chicago.

This is an action instituted in the circuit court of Pulaski County by appellees against appellant to recover the amount mentioned above. It was set forth, in substance, in the complaint that appellant contracted in writing with appellees to sell 50 carloads of hay' at the stipulated price; that a large quantity of the hay shipped by appellant was in damaged condition and unfit for sale and was not of the quality specified, and that upon appellant being notified of the condition of the hay he agreed that appellees might dispose of the same at the best price obtainable and credit the amount of the proceeds to appellant’s account against the amount paid him on the drafts drawn with bills of lading attached. It is alleged in the complaint that appellees sold the damaged hay at the best obtainable market-price and credited the same to appellant’s account with them, leaving a balance of indebtedness on the part of appellant in the sum of $2,548.25, recovery of which is sought, with interest and costs.

Appellant filed a motion to require appellees to make the complaint more definite and certain by stating whether or not the contrast was oral or in writing, and, if in writing, that appellees be required to file a copy. Appellees filed an amended complaint setting forth the statement that the contract between the parties was in writing, but consisted of numerous letters and telegrams between the parties, copies of which were in possession of appellant, and that some of the originals were in Ms possession, and that it was impracticable to file all of the correspondence with the complaint.

The case was tried before a jury, and the trial resulted in a verdict in favor of appellees for the sum of $2,500.

Appellant pleaded, in addition to other defenses, the statute of limitation in bar of the right of appellees to recover, and it is insisted here that according to the undisputed evidence the plea should have been sustained.

The question first arising is which one of the statutes of limitation is applicable to this case, whether it is the one which provides that all actions founded on contract not in writing shall be commenced within three years after the cause of action shall accrue (Crawford & Moses’ Digest, § 6950), or the one which provides that action on written instruments shall be commenced within five years after the cause of action shall accrue. The complaint sets forth a written contract as the basis of the cause of action. The account is exhibited as a specification or bill of particulars of the items constituting the amount due under the contract. The various written communications between the parties, when read together, constituted a written contract, and they contained all of the terms of the sale. Mann v. Urquhart, 89 Ark. 239; Emerson v. Stevens Grocer Co. 95 Ark. 421. Our conclusion is that the five-year statute applies, for the action is one based on a written contract complete in its terms, the account filed being a mere specification of the items. Friend v. Smith Gin Go., 59 Ark. 86; Railway Co. v. James, 78 Ark. 490; Vicksburg Waterworks Co. v. Yazoo & M. V. R. Co., 102 Miss. 504, 59 So. 825. The right of action might have been based upon the account, and the various written communications between the parties could have been used as evidence to establish the right to recover. In that event the action would be one upon account and governed by the three-year statute of limitation; but the right -of action could be, and has been, based on the written contract, which makes the five-year statute applicable. It is a matter of pleading, and a party is bound by his pleadings in designating the particular right of action he declares upon and is entitled to the protection afforded by the statute of limitations applicable to the cause of action declared upon if the facts justify it. American Mortgage Co. of Scotland v. Milam, 64 Ark. 305; American Freehold Land Mortgage Co. v. McManus, 68 Ark. 263.

The evidence is sufficient to establish the claim of appellees under the written contract, and the right of appellees to recover the money sued for rests upon the express contract set forth in the written communications between the parties, whereby it was agreed that appellees should-sell the damaged hay and credit the proceeds on appellant’s account with appellees for the amount paid out on the drafts.

The parties agree that the cause of action accrued on October 26, 1911, when appellant, after the shipment of hay had been completed and all the damaged hay had been sold, refused to pay the balance claimed by appellees. The right of action was therefore barred on October 26,1916, unless kept alive by the timely commencement of an action or actions. Appellee’s first action against appellant on this cause was instituted in the Prairie County Circuit Court on October 1, 1913, and that action was voluntarily dimissed by appellees on March 19, 1915. Appellees next instituted action on the same cause in the Prairie Circuit Court on March 2, 1916, and dismissed it on September 18, 1916. Appellees filed their complaint in the present action in the Pulaski Circuit Court on May 31, 1916, and caused summons to issue and be placed in the hands of the sheriff for service, but the writ was never served. Appellees caused an alias writ to be issued on May 3, 1917, and it was served on that date on appellant, who was found in this county. The last action in the Prairie Circuit Court was commenced within the statutory period, and the contention of counsel for appellees is that the action brought in Pulaski County is protected against the statute bar by force of a statute which provides that if an action shall “be commenced with the time respectively prescribed in -this act, and the plaintiff therein suffer a nonsuit * * * * such plaintiff may commence a new action within one year after such nonsuit suffered * * Crawford & Moses’ Digest, § 6969. On the other hand, it is insisted by counsel for appellant that the present action is not protected from the application of the statute of limitation because it was commenced before the action in Prairie County was dismissed, and they invoke the rule announced by this court in Hill v. Pipkins, 72 Ark. 549, as sustaining their contention. In that case, however, the first action was never dismissed, but final judgment was rendered in it, and the second action— the one brought to this court — was commenced and pros-edited -without dismissing the former action. Our statute provides that the commencement of a civil action is the “filing in the office of the clerk of the proper court a complaint and causing a summons to he issued thereon.” Crawford & Moses’ Digest, § 1049. The delivery of the writ to an officer is an essential part of the issuance of the writ, and until this is done an action is not properly commenced. Hallum v. Dickinson, 47 Ark. 120. An action properly commenced in this manner arrests the statute of limitation, even though summons is not served until after the statutory period elapses. In order, however, for it to have that effect, the action must, be one properly commenced, if it be a transitory action, in the county where the defendant is served with summons or may be served. Such an action instituted in a county other than that of the residence of the defendant does not arrest the statute until the writ is served, and when served it relates back to the date of the issuance of the writ.

The term “proper county,” used in the 'statute referred to above, has been defined to mean the county' of defendant’s residence or where the defendant may be served with process. 6 Words & Phrases, 5689, 5690. Where such action is brought in a county other than that of defendant’s residence, if the writ is not served, its issuance and placing in the hands of an officer does not constitute the commencement of an action so as to arrest the statute of limitation. The subsequent issuance of another writ and the service thereof constitutes a new action. Ethridge v. Woodley, 83 N. C. 11; Wolfenden v. Barry, 22 N. W. (Iowa) 915; Richardson v. Turner, 81 N. W. (Iowa) 593; Collin v. McGregor, 108 N. W. (Mich.) 87; Hume v. Dickinson, 4 Bibb (Kv.) 276; Hotchkiss v. Aukerman, 90 N. W. (Neb.) 949; Reliance Trust Co. v. Atherston, 93 N. W. (Neb.) 150.

The filing of the complaint in the Pulaski Circuit Court did not operate as a dismissal of the action then pending in the Prairie Circuit Court. The pendency of an action for the same cause in another court of this State is made ground for demurrer (Crawford & Moses’ Digest, § 1189, third subdivision), and the fact of pendency of another action must be pleaded by demurrer, if it appears on the face of the complaint, or by answer if it does not so appear; otherwise it is waived. Kastor v. Elliott, 77 Ark. 148; Bliss on Code of Pleading, (3rd. Ed.) § 410. If more than one action between the same parties and with reference to the same subject-matter is pending, the first judgment rendered in either action bars the other action, regardless of priority in time of commencement. Church v. Gallic, 76 Ark. 423.

Appellant was not called to plead to the complaint in this action until the alias writ was served on him, and at that time the action in Prairie County had been dismissed. It was held by the Supreme Court of Iowa, under a statute similar to our own, that where there are two actions pending between the same parties upon the same cause of action, and there is a plea filed on that ground in one of the actions, an abatement may be prevented by dismissal of the other action before the court has determined the sufficiency of the plea. The court in that case said:

“The useless form and ceremony of requiring a party to go out at one door and come in at another, or, rather, come in at the same door in all due form for the simple reason that he had come in too soon, or not in the usual or ordinary way, is against the spirit and policy of the Code; and, if the error is corrected when it is called to the party’s attention, there is no sense or reason in his marching out' and then marching back again. The other party obtains no substantial benefit if he be so required. Of course we do not hold that two actions for the same thing, and by and against the same parties, may be pending at the same time one of them is being .tried; but what we do hold is that, if one of them has been dismissed at the time the matter pleaded in abatement comes before tbe court for determination, it is sufficient. Indeed, we go one step further: If one action bas been dismissed before tbe court bas determined tbe sufficiency of tbe plea, it is sufficient to prevent tbe abatement of tbe action.” Bush v. Frost, 49 Iowa 183.

It is thus seen tbat tbe service on appellant of an alias summons in tbe present action was tantamount to the commencement of a new- action — this action — -even though tbe complaint bad previously been filed during the pendency of tbe action in tbe Prairie Circuit Court, and, as the action in tbat court bad been dismissed within one year prior to tbe issuance and service of tbe process in this case, the statute of limitation does not bar appellees’ cause of action. 'The action was commenced in tbe Prairie Circuit Court within tbe statutory period of limitation, and tbe present action was commenced within one year after tbat action was dismissed, hence tbe latter is not barred. Love v. Cahn, 93 Ark. 215; Dressler v. Carpenter, 107 Ark. 353.

Objections were made to tbe instructions given by tbe court at tbe instance of appellees, and tbe rulings of tbe court in regard thereto are assigned as error. Tbe first instruction stated, in substance, tbat if it was found tbat a portion of tbe bay shipped by appellant to appellees “was, at tbe time it was loaded at Hazen, not. such hay as contracted for,” appellees could not dispose of it except at a loss, and that, after advising, appellant of tbe condition of tbe bay and asking for instructions, appellant instructed appellees to dispose of tbe bay at tbe best price obtainable and credit same to appellant’s account, and tbat appellees in pursuance to such instructions disposed of the bay at tbe market price, they would be entitled to recover tbe difference between the contract price of tbe bay and the net amount received on the sale of it in tbe market. Tbe ground of objection to this instruction is tbat it does not confine the right of appellees to dispose of tbe hay to the particular portion, if any, which was not of the quality specified in the contract at the time of the delivery at JEIazen. In the first place, we think that this criticism of the instruction is unfounded, for it only submitted to the jury for consideration the question in regard to the hay not being up to the standard of the contract, and no reference is made to any other portion of the hay. Moreover, the undisputed evidence shows that complaint was made by appellees when the first carload of hay was received, and that appellant then authorized appellees to sell the damaged hay on the market and to credit his account with the price received, and this direction applied to all subsequent shipments under the contract. That is a fair and reasonable interpretation of the language of appellant’s letter. The language of the instruction could not have been understood by the jury to have had reference to any other portion of the hay except that which did not come up to the standard specified in the contract, and we think that this objection to the instruction was unfounded.

The objection to the next instruction is equally unfounded, for it correctly stated the measure of appellees’ recovery to be the difference between the contract price of the hay and the net amount received on re-sale. This was within the letter of the contract between the parties.

Objection was made to the following instruction:

“You are instructed that, while delivery to the railroad company was deli'verj to the plaintiff, yet this was only for the purpose of transportation, and it did not give the railroad company the right to accept or reject the hay, but the plaintiffs had the right to inspect the hay when it arrived in Chicago to determine whether or not said hay at the time it was shipped was according to contract. ’ ’

The point of this instruction is that the appellees had the right to inspect the hay on its arrival at destination for the purpose of determining whether the quality at the time of shipment was according to contract. They undoubtedly had the right to inspect under these circumstances (American Hardwood Lbr. Co. v. Milliken-James Hardwood Lbr. Co., 140 Ark. 544), but in this instance the contract, as evidenced by the correspondence, expressly gave appellees that right. They did, in fact, inspect the hay, and we can scarcely see the pertinency of this instruction. It certainly could not have prejudiced appellant’s case in any way, as the right of recovery was made dependent upon proof that the hay was not of the quality specified in the contract at the time it was shipped. This was made clear and emphatic in the instructions given by the court at the request of appellant. That part of the instruction which told the jury that the delivery of the hay to the railroad company was merely for the purpose of transportation and did not give the company the right to accept or reject the hay, was a correct statement, and was merely the introductory portion of that part which told the jury that appellees had the right to inspect after the hay had arrived at destination. It was likewise not’ pertinent to the issues presented, but it could not possibly have been in anywise prejudicial.

Every phase of the case was covered by the instructions given by the court at the instance of appellees and appellant, and there was no error in refusing certain instructions requested by appellant.

The evidence was, as before stated, sufficient to sustain the vedict.

Appellant pleaded, as a counterclaim, the amount of costs adjudged to him in the Prairie Circuit Court on dismissal of the action pending in that court. This claim, with interest thereon, amounted to the sum of $242.62, but the court sustained a demurrer to this cross-complaint and dismissed it. Counsel for appellees have not attempted to defend the rulings of the court in that regard, and we perceive no reason why appellant should not have been permitted to plead this counterclaim. It was in the form of a judgment rendered in a court of competent jurisdiction and was available to- appellant for the purpose of reducing the judgment against him in this case. The judgment of the circuit court will therefore be modified by crediting thereon the amount of appellant’s counterclaim as of the date of the rendition of the judgment below, and, as thus modified, the judgment will be affirmed. It is so ordered.


text:
    W. T. Rawleigh Company v. Pritchard.
    Opinion relivered January 23, 1922.
    1. Limitation op actions — written contract. — Where plaintiff entered into a written contract for sale of merchandise in installments at stipulated prices, and certain of the defendants at the time of execution of the contract joined therein for the purpose of becoming guarantors of the purchaser, a suit upon the agreement is upon a written contract, to which the five-years statute of limitation (Crawford & Moses’ Dig. § 6955) applies, though an account of the purchases under such agreement is filed with the complaint.
    2. Limitation op actions- — part payment. — A part payment on an account based upon a written agreement, made within five years, interrupted the running of the statute of limitations.
    Appeal from Pulaski Circuit Court, -Second Division; Guy Fulli, Judge;
    reversed.

      Sherrill £ Mallory, for appellant.
    The contract is controlled by the five-years statute of limitations. C. & M. Dig., sec. 6955.
    The -contract and guaranty are one and the same, both being written, and the obligation of the guarantors is to pay the account, upon the failure of the principal. 190 S. W. 118.
    An action by a waterworks company against a defendant on'a written contract to furnish water is controlled by the five-year statute. 59 So. 825. 'But on the death of the principal the statute did not begin to run until the appointment of an administrator. 48 N. Y. Supp. 36; 36 Mo. 121; 80 N. Y. Supp. 428; 25 Ark, 463; 73 Ark, 45,

      Tbe contract sued on is one of guaranty, 115 Ark. 606, and an action against the guarantors could not be maintained until the principal had breached his contract. 190 S. W. 118.
    On the death of the principal the statute of limitation ceases, and the statute of non-claim does not begin to run until the appointment of an administrator. 73 Ark. 45.
   McCulloch, C. J.

Appellant was a foreign corporation engaged in selling goods and merchandise, and on January 5, 1915, entered into a written contract with A. ¡3. Ott for the sale of merchandise to the latter in installments at stipulated prices. Appellees, A. L. Pritchard and W. L. Davis, at the time of the execution of this contract, joined therein for the purpose of becoming guarantors of Ott for the payment of all amounts due under the contract for the sale of merchandise. Ott died on July 29, 1916, owing a balance of $695.32. Appellant presented the claim to Ott’s administrator and instituted the present action in the circuit court of Pulaski County against the administrator and against appellees as guarantors of the account. Appellees pleaded the statute of limitation in bar of appellant’s right to recover against them, and the court sustained the plea, and rendere'd judgment in favor of appellees, but judgment was rendered in favor of appellant against the estate of Ott.

The contract between Ott and appellant, as well as the contract of guaranty executed by appellees, was declared upon in the complaint, but the full amount of Ott’s account for purchases under the contract was exhibited with the complaint.

This is a suit upon a written contract and the case is controlled by the statute of limitation which provides that all actions on written instruments shall be instituted within five years after the cause of action accrues. Crawford & Moses’ Digest, sec. 6955; Sims v. Miller, ante, p. 377. The present action was instituted March 1,1990, and nearly the whole of the balance claimed by appellant, the last items of the account, was sold within five years prior to that date. However, there was a payment on the account within five years, which interrupted the running of the statute. Nunn v. McKnight, 79 Ark. 393. The action was not barred, and the court erred in sustaining the plea of statute of limitation.

Reversed and remanded for a new trial.