text:
    Long v. State.
    Opinion delivered November 5, 1923.
    1. False pretenses — sufficiency of proof. — An indictment for procuring money under false pretenses which alleged that defendant falsely stated that he was the representative of a large and prosperous oil company, and was the owner of a large number of oil leases in a certain county, and that he had completed plans for the immediate drilling of an oil well, is sustained by proof that defendant falsely alleged that he had completed plans for the drilling of a well, though there was no proof of the falsity of the other statements.
    2. False pretenses — description of money — allegations ano • PROOF. — In an indictment for receiving money under false pretenses, the money must be described with the same particularity and certainty as is required in an indictment for larceny, and such allegation must he sustained by proof as to the kind of money described therein.
    Appeal from Pope Circuit Court; J. T. Bulloch, Judge;
    reversed.

      Ward & Caudle, for appellant.

      J. 8. Utley, Attorney General, Jno. L. Carter, Wm. T. Hammock and Barden Moose, Assistants, for appellee.
   Wood, J.

This is an appeal from a judgment of the Pope Circuit Court sentencing the appellant to imprisonment in the State Penitentiary for a period of two years. The indictment on which appellant was tried and convicted, omitting the formal parts, is as follows: “The said Robert Long, in the county and State aforesaid, on the 10 th day of May, 1922, then and there intending to cheat and defraud one Ed Templeton, did wilfully, unlawfully* fraudulently, falsely and feloniously represent and pretend to the said Ed. Templeton that he, the said Robert Long, was the representative of a large and prosperous oil company, an active member thereof, and was the owner of a large number of oil leases in Pope County, Arkansas, and that plans had been completed for the immediate drilling of an oil well, and by reason of said wilful, unlawful, false, felonious and frauduent pretense, in manner and form as aforesaid, did then and there wilfully, unlawfully, feloniously, fraudulently induce tire said Ed Templeton to purchase and trade for $300 of alleged stock in said company and to part with the possession of and deliver to him, the said Robert Long, $300, in gold, silver and paper money of the value of $300, the property of the said Ed Templeton, with the wilful, unlawful, fraudulent and felonious intent then and there and thereby to deprive the said Ed Templeton of his said money as aforesaid, and cause him to be injured in his lawful rights and. estate; when in truth and in fact the said Robert Long was not the representative of a large and prosperous oil company; was not an active member thereof, and was not the owner of a large number of oil leases in Pope County, Arkansas, and that plans had not been completed for the immediate drilling of an oil well in Pope County, Arkansas; all of which said false pretense and representations, in manner and form aforesaid, were then and there well known' to him, the said Robert Long, to be wilfully, unlawfully, feloniously, falsely and corruptly untrue, * * * against the peace and dignity of the State of Arkansas.”

Ed Templeton, the prosecuting witness, testified that the appellant came out in witness’ neighborhood, taking leases for oil, at a meeting he had called, representing that he had oil stock for sale. He stated that he was going to dig a well, and wanted to lease land; that he had made preparations to dig; had $50,000 already, the big money in the bank at Little Rock and his personal money in the England bank. Witness could not read or write. Witness saw appellant the next morning after the meeting that night, and paid.him.$300. Appellant said that Zeke’s wife had given him a thousand dollars to sink the first well on his place. Appellant told witness that he had paid some white men $200 to show Mm where the oil. was, and that they had piled up some rocks at the place. Witness described the trip he made with appellant endeavoring to find the place. They piled up rocks all about at different places, and had witness and others to drive down sticks there. Witness didn’t see any white folks there. The next time witness saw appellant he wanted witness to go to Little Book and join the company down there. Witness went down there with appellant, and paid him $250 again. Appellant told witness that this was for promotership. He gave witness another share in the promoter, and witness paid him $250 for that. The next money witness let him have was about the land. He got to persuading witness to help him out in taking care of his father and two sisters, who were destitute of a home, and he was to secure witness, and stated that, as soon as he got home and got the land fixed up, he would turn over to witness all the papers necessary to secure it — would turn over the deed. He stated that the place was a large farm of 380 acres, and had renters on it. He never turned over the deed to witness. Appellant next told witness he was getting up a bond for protection, and wanted witness to pay some on it, and witness paid him $25 on that. Witness paid him as much as $3,500 in all, and never got anything for it. The reason witness let him have the money was because he said he had all this money, and one thing and another, and witness did it because he really thought he could get his money back. Appellant said he was going to dig a well if he didn’t get but forty acres or twenty-five acres. The reason witness paid him the $300 was that he promised to drill the first well on witness’ land. He gave witness a receipt for the $300. The $300 was not for the purpose of buying stock in any concern. Witness was not buving stock with the $300 — just gave him the $300 for the purpose of getting him to drill the first well on witness’ land. Appellant never drilled the well. Witness further testified that, after he paid the $300 in order to sret appellant to drill the first hole on witness’ land, he then paid appellant $250 to.join a comoauv, and after-wards boug'ht an interest in the leases. $1,000 worth, and then loaned appellant $250 and took his note for it.

Other witnesses testified that the appellant represented, at a meeting, that he was agent for the Block Oil & Gas Company of El Dorado, and that, at another meeting afterwards, be said that be was operating for himself. He represented that be had made arrangements with white men at Morrilton to- drill a well. He stated, among other things, that he had money to drill the well, and that $18,000 was in the Rainwater Bank at Morrilton. He positively represented that he was going to dig a well. Appellant came among them representing that he was selling share of stock for the Block Oil & Gas Company, and on another trip he came representing that he was operating for himself and was taking leases. It was shown that appellant disappeared from Pope County, and was finally located in Atlanta, Georgia, and arrested there and afterward brought back to Arkansas.

Wood Rainwater, the president of the Rainwater Bank at Morrilton, testified that appellant never had any money in his bank in 1922.

The testimony was substantially as set forth above, and at the conclusion of the introduction thereof the appellant asked the court to instruct the jury, in its prayer No. 1, to return a verdict of not guilty because the allegations of the indictment had not been sustained by the proof, and further asked the court to instruct the jury, in its prayer ,No. 2, as follows: “That the ownership and description of the money alleged to have been obtained by false pretenses are material allegations in the indictment, and, before you would be justified in convicting the defendant, -the State must prove that the defendant procured from Ed Templeton the sum of $300 of the kind of money alleged in the indictment, and that said money must have belonged to Ed Templeton, and the proof that other moneys were obtained from Ed Templeton would not justify a conviction under the allegations in this indictment, but is only admitted for the purpose of showing defendant’s general method of transacting business.”

1. The court did not err in refusing appellant’s prayer for instruction No. 1 set out above. There is no testimony in the record to show that the appellant was not the representative of a large and prosperous oil company, and that appellant was not an active member thereof, and there was no testimony to prove that the appellant was not the owner of a large number of oil leases in Pope County. But there was testimony from which the jury might have found that the appellant had not completed plans for the immediate drilling of an oil well. It could serve no useful purpose to discuss in detail the facts on this issue which the testimony tended to prove. Suffice it to say it was an issue for the jury.

2. The court erred in refusing appellant’s prayer for instruction No. 2. In Maxey v. State, 85 Ark. 500, we said: “It has been held by this court that, in an indictment for receiving money under false pretenses, the money must he described with the same particularity and certaintv as is required in an indictment for larceny. It has also been held that the allegations of the indictment must be sustained by proof as to the kind of money described therein.” See also Silvia v. State, 117 Ark. 108, and cases cited in the above cases. The allegations of the indictment, according to the above cases, met the requirements of the statute in describing the money as “gold, silver and paper money of the value of $300.” But there was no proof in the record showing the kind of money that appellant obtained. It was essential that the allegations of the indictment in this respect be established by the evidence.

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


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Basin Park Hotel Association v. Arkansas Company.
    Opinion delivered November 5, 1923.
    1. Landlord and tenant — unlawful eviction of lessee — damages of lessor. — Where a lessee of a hotel' was unlawfully evicted before expiration of his term under a paramount title, the lessor was not entitled to recover from the lessee for electric light globes belonging to the lessor attached to light fixtures in the hotel, and which passed into the possession of the purchaser under the paramount title.
    2. Appeal and error — inconsistent instructions — prejudicial error. — Where the court gave inconsistent instructions upon a material issue, and the court cannot know that the jury were not misled thereby, the cause will be reversed.
    3. Appeal and error — opinion on former appeal. — An opinion on a former appeal is the law on a subsequent appeal.
    Appeal from Carroll Circuit Court, Western District ; W. A. Dickson, Judge;
    reversed.
    STATEMENT OP PACTS.
    The Arkansas Company, a domestic corporation, leased the Basin Park Hotel in Eureka Spring’s, Ark., to the Basin Park Hotel Association, operating under a declaration of trust, for a term of three years. Before the first year of the lease had expired, the lessee was evicted from the premises under a mortgage foreclosure suit brought against the lessor. After the eviction, the lessor, which is the appellee in this appeal, brought suit against the lessee, the appellant herein, to recover the sum of $483.95, the value of certain supplies furnished the lessee by the lessor under the terms of the lease. The answer denied liability, and a counterclaim was filed by the lessee against the lessor for damages for an alleged breach of the lease.
    ■ It appears from the record that the lease in question was executed on the 6th day of March, 1919, and that the lessee was placed in possession of the hotel under the lease. The lease provided for the payment of rent in the sum of $300 per month in advance. It also gave to the lessee the option to lease the hotel and its contents under the same terms for a period of two years longer at a rental of $350 per month, npon giving written notice to the lessor of the intention of the lessee to take advantage of the option forty days before the first of April, 1920.
    The lessor had given a mortgage npon the lots npon which the hotel was sitnated and npon all the personal property in the hotel and nsed in connection, with it. Foreclosure was had npon this mortgage in the Federal court, and the lessee was evicted from the premises in December, 1919. Thus far the facts are undisputed.
    Evidence was introduced by the lessee tending to show the value of the unexpired term of the lease and of the expenses and improvements made on the leased property. The evidence for the lessee also tended io show that the value of the option to renew the lease wás worth $5,000.
    On the part of the lessor it was shown that the rental value of the leased premises had deteriorated on account of certain conditions which were described in detail by the witnesses, -and that the value of the unexpired term of the lease was less than the rental value provided in the lease. Other evidence will be stated or referred to under appropriate headings in the opinion.
    The jury returned a verdict for the plaintiff in the sum of $558.95 and also found for the plaintiff against the defendant on its counterclaim. Judgment was therefore rendered in favor of the plaintiff, and to reverse that judgment this appeal has been prosecuted.

      J. N. Saye and W. G. Biddich, for appellant.

      Charles D. James, for appellee.
    The appellants were not entitled to recover special damages, if any were proved, except and only such damages by reason of their eviction by paramount title as would compensate them for the repair of the hotel and fixtures therein, which would enable them to occupy the hotel more profitably. 110 Ark. 509; 132 Ark. 599; 151 Ark. 225; 102 Ark. 113. “Where a tenant is unlawfully evicted by the landlord before the expiration of his lease, lie may recover the money expended by him in tbe repair -of tbe building and fixtures. 132 Ark. 599; 151 Ark. 255. Tbe measure of damages in an action of tbis kind is tbe difference between tbe rental value of tbe demised premises and tbe rental price named in tbe lease. 102 Ark. 113; 75 Ark. 589.
   Hart, J.,

(after stating tbe facts). Tbis is tbe second appeal in tbe case, and tbe opinion on tbe former appeal is referred to for a more detailed statement of tbe case. Basin Park Hotel Assn. v. Arkansas Co., 151 Ark. 322.

Tbe electric light globes in tbe electric light fixtures were in tbe various rooms of tbe bot-el at tbe time tbe lessor delivered possession of tbe hotel to tbe lessee under tbe terms of tbe lease, and, as they wore out or became defective, new ones were supplied by tbe lessee. These globes were screwed in the electric light fixtures, and remained there at the'time tbe purchaser under tbe mortgage foreclosure decree took possession of tbe mortgaged premises. In other words, when tbe lessee was evicted under tbe mortgage foreclosure proceedings, tbe electric light globes were left screwed in tbe electric light fixtures and passed into tbe possession of tbe purchaser under tbe foreclosure proceedings. Tbe value of these electric light globes was $114.(80.

Tbe lessor recovered their value from the lessee in this action. Tbis was error. As we have just seen, tbe lessee was given possession of these globes which were screwed into tbe electric light fixtures at tbe time tbe hotel was turned over to it under tbe lease. Tbe lessee was evicted before its term expired, and the purchaser under tbe mortgage foreclosure proceedings against the lessor acquired possession of these electric light globes at tbe time it took possession of tbe hotel. The lessor was a party to the foreclosure proceedings, and, if these globes were not included within tbe terms of tbe mortgage, it should have looked to tbe purchaser in tbe mortgage foreclosure proceedings, and bad no right to look to tbe lessee for their recovery. If the lessee had been permitted to retain possession of the hotel until its lease expired, then it should have accounted to the lessor for the globes.

It is conceded, however, that the lessee was unlawfully evicted before its term expired, and, under the circumstances detailed above, it is not liable to the lessor for the value of the electric light globes. Hence the judgment in favor of the lessor in this respect is erroneous and calls for a reversal of the judgment upon the complaint of the plaintiff.

The next assignment of error is with regard to the instructions on the measure of damages upon the counterclaim. At the request of the lessee the court gave instruction No. 8, which, as modified and given by the court, is as follows:

“8. The court tells you that the defendants are entitled to recover on their counter-claim the difference between the rent agreed upon and the rental value of the premises for the unexpired portion of their term, as shown by the evidence; also for the value of the option to renew their lease, as shown by the evidence; also the amount expended by the defendants, if any, for repairs and improvements which could be used only upon the premises, regardless of whether such repairs or improvements were authorized by plaintiff, or were of any value to plaintiff; also whatever amount the evidence shows the defendants spent for dishes, linens, supplies, repairs or improvements. ’ ’

At the request of the lessor the court gave instruction No. 2, which is as follows:

“2. I charge you that, if you find for the defendants on defendants’ counterclaim, then the only damages you would be authorized to assess in defendants’ favor, because of eviction by paramount title, would be the difference between the rent reserved, that is the rent defendants were to pay by the terms of the lease, and the rental value of the property during the period of the lease, if any is proved by a preponderance of the evi-deuce, together with what special damages for repairs, fixtures and materials furnished by defendants, in order to make their operation of 'said hotel profitable, if any are proved by a preponderance of the evidence on the part of the defendants, and if the rental value of the hotel is not proved' greater than the rent reserved, then you can only assess nominal damages on that issue. By rental value of the hotel, as used in this instruction, does not mean probable profits of said hotel under the lease, but what the evidence shows would be the fair rental value of the hotel for the term of the lease, above the rent defendants were to pay for the hotel.”

The opinion on the former appeal is the law of the case, and by reference thereto it will be seen that the court held that the lessee was entitled to recover the value of its option to renew the lease, if such value was shown by the evidence.

Instruction No. 8, copied above, properly submits this issue to the jury. Instruction No. 2, as copied above, and which was given at the request of the lessor, omits any right to recover the value of its option to renew the lease by the lessee. The instruction specifically tells the jury what damages the lessee will be entitled to recover on the counterclaim, and omits entirely the item with reference to the option to renew the lease. Having omitted to submit to the jury the value of the option to renew the lease as a part of the measure of damages suffered by the lessee for its unlawful eviction from the leased premises, it is obvious that the instruction is in conflict with instruction No. 8 on the same subject. This court cannot know which of the two instructions the jury followed1.

According to the evidence for the lessee, the value of the option to renew the lease was worth $5,000. Hence the giving of the contradictory instructions was necessarily prejudicial to the rights of the lessee and constitutes reversible error. Rector v. Robins, 74 Ark. 437, and cases cited; McCurry v. Hawkins, 83 Ark. 202; Kelly Handle Co. v. Shanks, 146 Ark. 208, and Webb v. Waters, 154 Ark. 547.

Therefore, for the errors in allowing the plaintiff to recover the snm of $114.80 for the electric light globes ■and for the error in giving instruction No. 2, as above set forth on the measure of damages on the counterclaim, the judgment is reversed, and the cause will be remanded for a new trial.


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

text:
    Hunt v. Taggett.
    Opinion delivered November 5, 1923.
    1. FRAUDS, STATUTE OF — PROMISE TO PAY ANOTHER’S DEBT. — A parol promise to pay the debt of another is not within the statute of frauds when it arises from a new and original consideration of benefit or harm moving- between the newly contracting- parties.
    2. Contract — consummation.—Plaintiff offered to let a tenant remain on his premises for another year if defendant would pay the tenant’s rent for the past year; the tenant subsequently told defendant that he thought this arrangement would be all right; afterwards plaintiff entered into a written contract with the tenant, to which defendant was not a party, and in which the tenant agreed to pay the past-due rent out of the next year’s crop. Held, that no contract between plaintiff and defendant was ever consummated whereby defendant was obligated to pay such rent.
    Appeal from Woodruff Circuit Court, Southern District; J. M. Jackson, Judge;
    affirmed.

      Jonas F. By son and G. F. Greenlee, for appellant.
    The promise of Taggett to pay the debt was not within the statute of frauds. 45 Ark. 67; 64 Ark. 465; 76 Ark. 292; 110 Ark. 325. '

      Roy D. Campbell, for appellee.
    Before a party can be held on a parol agreement to pay the debt of another, there must be some new and original consideration of benefit between the new contracting parties. There was no such consideration here. 113 Ark. 545; 102 Ark. 438.
   Hart, J.

S. C. Hunt sued Sam Taggett to recover the sum of $2,068, which he claimed the defendant promised to pay him. The defendant denied liability, and pleaded the statute of frauds.

The plaintiff, S. C. Hunt, was a witness for himself. According to his testimony, he made a contract in writing with Frank Hicks to sell him a tract of land in Woodruff County, Ark., in January, 1920. Hicks gave a note for the purchase price and also for certain improvements which were made by Hunt to enable Hicks to raise a crop of rice on the place. Flicks was to pay for the improvements the first of the following year.

It appears from the evidence that Hicks executed a mortgage on the crop of rice grown .by him to Sam Tag-gett, his father-in-law, for certain supplies furnished by Taggett to enable Hicks to make the rice crop. Hicks was unable to pay any of his indebtedness to Hunt. Hunt served a written notice on Hicks to get off of the premises on February 24, 1921. Subsequently Hunt met Taggett, and the latter asked him what he was going to do about evicting Hicks from the premises. Hunt told Taggett that if he would pay him the account of Hicks in the sum of $2,068, he would let Hicks stay on the place another year. Taggett spoke of the stock on the place as belonging to him. Hunt told Taggett that he would let Hicks stay on the place another year for a third of the rice crop if Taggett would pay Hicks’ account to Hunt in the sum above mentioned. Hunt then asked Hicks how he liked the arrangement, and1 Hicks said that he thought it was all right. Subsequently Hunt and Hicks entered into a written contract whereby the former leased to the latter the farm in question for the year 1921. The lease provided that the land should be cultivated in rice, and the lessee should pay as rent one-third of the rice. The lease also contained a clause that the lessee should deliver to the lessor enough rice raised on the place in 1920 to pay his account in the sum of $2,068. The lease was signed by C. S. Hunt, as lessor, and Frank Hicks, as lessee, on the 5th. day of March, 1921. Sam Taggett denied having made the promise to Hunt to pay the account of Hicks in the sum of $2,068, as testified to by Hunt.

The court instructed the jury to find for the plaintiff against Frank Hicks in the sum of $2,068, and further told the jury to find in favor of the defendant, Taggett, because the latter’s agreement to pay the account of Hicks to Hunt, not being in writing, was within the statute of frauds and not binding on him. Whereupon judgment was accordingly rendered in favor of Taggett, and to reverse that judgment Hunt has duly prosecuted an appeal to this court.

The court did not err in directing a verdict in favor of the defendant, Taggett. This court has- several times held that a parol promise to pay the debt of another is not within the statute of frauds when it arises from a new and original consideration of benefit or harm moving between the newly contracting parties. Jonesboro Hdw. Co. v. Western Tie & T. Co., 134 Ark. 543, and cases cited, and Tyson v. Horsley, 141 Ark. 545.

We do not think, however, that the facts bring this case within that class of cases where the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties. When the testimony is given its strongest probative force, we do not think it can he said that there was any binding contract entered into between Hunt and Taggett. Taggett merely promised Hunt to pay the account of Hicks to Hunt if the latter would let Hicks stay on the place during the year L921. Hicks was not a party to this agreement. It is true the matter was mentioned to him by Hunt, and he said that he thought it would be all right, but no contract of rental for the place was entered into between Hicks and Hunt until a subsequent date.

Taggett was not a party to this contract, which was in writing, and Taggett did not sign it, nor was he asked to do so. The contract expressly stated that the account of Hunt in the sum of $2,068 was to he paid by Hicks out of the rice which he had raised on the land which he had contracted to purchase from Hunt during the year 1920. If Tag’gett had been a party to this contract, or if he had entered into a binding contract with Hunt with regard to the payment of the account of Hicks, it might be said that his promise to pay the account of Hicks to Hunt was an original undertaking on his part and was not within the second subdivision of our statute of frauds, providing that no action shall .be brought to charge any person upon any verbal promise to answer for the debt or default of another. Crawford & Moses’ Digest, § 4862. Hicks never made himself a party to the transaction between Hunt and Taggett. At the time Taggett made the promise, it was not definitely known that Hicks would rent the place. It is true that Hicks said that he thought it would be all right, but this falls short of making a binding contract. On the contrary, he subsequently made an independent contract with Hunt in which he promised to pay his account of $2,068 to Hunt out of rice which had been grown upon the farm which he had purchased from Hunt in 1920.

Therefore, the contract between Hunt and Taggett never became' consummated, and the circuit court was right in holding that the promise of Taggett to Hunt was within the statute of frauds, and, being verbal, did not constitute a binding contract between the parties.

It follows that the judgment of the circuit court was correct, and it will be affirmed.

DISSENTING OPINION.

McCulloch, C. J.

If there was any agreement at all between Hunt and Taggett for the latter to pay the debt of Hicks, it was founded on a new consideration, i. e., that Hunt was to enter into a contract with Hicks for the rent of the farm. This made the promise an original one, and took it out of the operation of the statute of frauds, under the rule that a parol promise to pay tbe debt of another is not within the statute “when it arises from some new and original consideration, of benefit or harm, moving between the newly contracting parties.” Chapline v. Atkinson, 45 Ark. 67; Gale v. Harp, 64 Ark. 462; Long v. McDaniel, 76 Ark. 292; Tyson v. Horsley, 141 Ark. 545.

Hunt’s agreement to rent the farm to Hicks was sufficient consideration to support the new contract between Hunt and Taggett, even though no benefit resulted to Taggett. If this did not constitute a consideration for the new contract, then it is unimportant whether the latter was in writing or verbal, for, if there was no consideration for the promise to pay the antecedent debt of Hicks, then the contract was unenforceable. But the majority say that the alleged contract between Hunt and Taggett was never consummated, for the reason that Hicks was not a party to that contract, and Taggett was not a party to the contract between Hunt and Hicks. So the turning point in this case is not whether the alleged contract was within the statute of frauds, but whether the parties assented upon the same terms at the same time so as to constitute a meeting of minds. It is, in other words, a question of offer and acceptance. I think the majority is wrong in saying that there was no consummation. The proposal of Tag-gett to pay the debt of Hicks if Hunt would rent the farm to Hicks was accepted by the execution of the rental contract. Taggett could have withdrawn his offer at any time before acceptance, but he did not do so, and the acceptance of the offer within a reasonable time made the contract complete. It was not essential that Hicks should be a party to the contract between Hunt and Taggett, nor that Taggett should be a party to the rental contract between Hunt and Hicks, for the two contracts were independent and between different parties, even though the execution of one constituted the consideration for the other.

According to the testimony in tliis case, Taggett proposed' to pay the debt of Hicks if Hunt would rent the farm to Hides; Hunt assented to this, as well as Hicks, and a few days thereafter Hunt and Hicks executed the contract for the rent of the farm, Taggett not having withdrawn his offer at any time. This made a binding contract on the part of Taggett to pay the debt, and the case should not have been taken from the jury.

Justice Smith concurs in this dissent.


author: Smith, J.

text:
    Bradley Lumber Company v. Beasley.
    Opinion delivered November 5, 1923.
    1. New trial — newly-discovered evidence — diligence.—A new trial will not be granted for newly-discovered evidence of a witness who was present in attendance as such at the trial, and whose testimony might have been produced at the trial.
    2. New trial — newly-discovered evidence — impeaching testimony. — Newly-discovered evidence which goes only to impeach or discredit a witness is not ground for a new trial.
    Appeal from Bradley Circuit Court; Turner Butler, Judge;
    affirmed.

      Bradham & Purkms, for appellant.
    We recognize the rule that the court will not ordinarily set aside the verdict of a jury on the ground of newly-discovered evidence, where the effect of such newly-discovered evidence would1 be merely to impeach another witness, but that rule, as any other of a similar nature, must yield, where justice demands it. However, in our view this was not impeaching evidence. G-reen-leaf on Evidence, 16th edition, chap. 25.

      Clary ■& Ball and S. M. Powell, for appellee.
    No diligence was shown. Appellant had abundant opportunity to learn who was in the store at the time of the sale. 147 Ark. 378; 73 Ark. 528; 85 Ark. 179; 96 Ark. 400; 103 Ark. 589; 99 Ark. 121.' The sole purpose of obtaining the alleged newly-discovered evidence is to impeach, the testimony of witnesses who testified at the trial. 135 Ark. 159; 149 Ark. 642; 143 Ark. 1; 36 Ark. 260; 78 Ark. 324; 142 Ark. 587.
   Smith, J.

Appellee recovered judgment to compensate a serious injury which he sustained as the result of an explosion, his suit being based on the theory that appellant had sold him gasoline for kerosene. At the trial Fred Smith and L. C. Smith gave testimony tending to show that gasoline had been put into the can which appellee had brought to appellant’s store to carry the kerosene. A motion for a new trail was filed on the ground of the newly discovered evidence of Harry Johnson and Cora Johnson, his wife, who stated in their affidavits that they were present in appellant’s store when the purchase was made, and that neither of the Smiths was present at the time. In opposition to these affidavits, appellee offered the affidavits of a deputy sheriff, who was in attendance on the court, and of the clerk of the court, in which those officers swore that Johnson was in attendance during the trial of the case as a witness for appellant, the defendant below, and received a certificate as such. The motion for a new trial was overruled; and this appeal questions the correctness of that decision.

Upon this showing, we think there was no abuse of the .court’s discretion in the matter of overruling the motion for a new trial. There was a sharp issue of fact as to whether any gasoline was pumped into appellee’s can, and the importance of knowing who was present when the sale was made is apparent. It is true the manager of the store and his son, who made the sale, testified that they .did not remember who was in the store at thé time. But appellant knew Johnson was present at the time of the sale, and Johnson was in attendance as a witness, and the trial court may have concluded that appellant should have inquired of Johnson, either before or during the trial, who was present when the oil was sold, and not have postponed that inquiry until after the trial was over.

Moreover, the testimony of Johnson and his wife on ■the matter set out in their affidavits was in the nature of impeaching testimony of the Smiths (§ 4187, C. & M. Digest); and it has been held by this court that newly discovered evidence which goes only to impeach or discredit a witness is not ground for a new trial. Murphy v. Willis, 143 Ark. 1; Hayes v. State, 142 Ark. 587; Plumlee v. St. L. S. W. Ry. Co., 85 Ark. 488; Tillar v. Liebke, 78 Ark. 324; Jones v. State, 72 Ark. 404; Minkwitz v. Steen, 36 Ark. 260.

This is the only error assigned for the reversal of the judgment, and it will therefore be affirmed.


text:
    Eminent Household of Columbian Woodmen v. Heifner.
    Opinion delivered November 5, 1923.
    1. TRIAL — question for jury. — Evidence held to make it a question for the jury whether a letter mailed by insured’s beneficiary to the insurer was received by the latter.
    2. Insurance — forfeiture—estoppel.—The officers of an insurance company, whether operating- as a fraternal company or an old-line or stock company, may, by a course of conduct calculated to lead and leading the policy-holder to believe that some provision of the constitution or some by-law of the order, or some provision of the policy itself, which, if enforced, would invalidate the policy, would not be enforced and on the faith of this belief so induced the insured makes payments of dues or assessments, the company will be estopped to deny the obligation of the certificate or policy.
    Appeal from Jefferson Circuit Court; W. B. Sorrels, Judge;
    affirmed.

      Caldwell, Triplett & Ross and Hamilton Moses, for appellant.
    The insured engaged1- in a prohibited occupation wdiich voided his certificate. This provision was contained in the constitution and by-laws of the order, which, under the holdings of this court, form a part of the contract. 81 Ark. 512; 52 Ark. 201; 104 Ark. 538; 135 Ark. 65; 145 Ark. 313; §6076, C. & M. Digest. A benefit society fias tbe right to select the particular risks it is willing to assume. 155 S. W. (Mo.) 892; 230 S. W. (Ky.) 540; 150 Ark. 176:138 Ark. 442. The question of waiver is not involved in the case. There must be some expressed intention to relinquish a known right, and1 nothing akin thereto is found in this case. 142 Ark. 156; Cooley on Ins., vol. 7, § 2659. The insured, while working at a prohibited occupation, could not be in good standing, and no one had authority to accept or reinstate a member while so engaged. 167 S. W. 590; 176 S. W. 507; 157 S. W. 818. There is no question .of estoppel here, since the appellant was not advised of the insured being engaged in a prohibited occupation. 40 Cyc. 256-257; 142 Ark. 157. The notice claimed to have been given was not addressed to the proper party. 150 Ark. 177. A notice deposited in the mail is ineffective unless received. 14 B. C. L., § 350; 23 Am. Bep. 697.

      Rowell & Alexander, for appellee.
    There is a presumption that a letter properly mailed was received by the addressee, but such presumption may be rebutted. 93 Ark. 252; 72 Ark. 305. If an insurer, after receiving knowledge of the falsity of answers in the application on which a policy is issued, continues to collect premiums, it is estopped to deny liability. 147 S. W. 882; 41 L. B. A. (N. S.) 505. For other cases distinguishing between waiver and estoppel, see the following: 142 Ark. 132; 206 S. W. 970-2; 148 Ark. 562; 111 Ark. 435; 140 Ark. 289; 127 Ark. 133; 53 Ark. 499; 151 Ark. 231; 155 Ark. 407; 168 N. W. 189. An insurance company may be estopped by the conduct of its agent. 158 Ark. 199; 79 Ark. 315; 14 B. C. L. 1166.
   Smith, J.

During the year 1912 appellant company issued its benefit certificate for $3,000 to W. O. Budder, of Harleton, Texas, in which the wife of the insured (now Mrs. Heifner) was named as beneficiary. In this application, Budder stated his occupation to be that of “station agent.” ■

In June and July, 1918, Rudder permitted the policy to lapse for the nonpayment of dues for those months, and during the month of July he made application for reinstatement, in which he gave Ms occupation as that of brakeman. Upon receipt of this application, .the secretary of the appellant company wrote a letter to Rudder under date of July 12, 1918, in which Rudder was advised that, if he were a brakeman on a passenger train, he could be reinstated by paying 25 cents per thousand per month additional premium, but that, if he were a brakeman on a freight train or a mixed train, he could no longer be a policyholder in the appellant company, as brakemen on freight trains or mixed trains were excluded from membership.

On July 16, 1918, Rudder, in response to the letter from the company, renewed his application, and stated his occupation was known as “passenger brakeman,” and that his duties were to “call stations, and to load and unload passengers and flagging,” and upon receipt of this application and this information Rudder was reinstated.

On August 12, 1920, while running on a freight train as a freight brakeman, Rudder was killed by a tramp, and, when this fact was made to appear in the proof of death which his beneficiary sent in to the company, the company denied liability on the certificate, whereupon this suit was brought.

The constitution and by-laws of the insurance company are made a part of the contract of insurance, and by article 11, section 3, paragraph 9, of the constitution, it is provided that “if any guest, after the date of his application, shall engage in any hazardous occupation or employment classed as prohibited risk, or in like hazardous occupation or employment, or if any member shall engage in hazardous undertaking without having first obtained the written consent of the society, his beneficiary certificate shall thereby become and be forfeited and void.”

By another paragraph, of the constitution it is provided that “if any guest shall fail to give notice of a change of occupation to a grade for which a higher rate is required within thirty days after such change, such failure shall forthwith cause a forfeiture of the covenants held by such guest, and his membership and all rights and benefits in the society shall cease.”

Another article of the constitution names the prohibited risks, and that of brakeman on a freight train or a mixed train is included among them.

At the trial from which this appeal comes, Mrs. Heifner, the insured’s widow and beneficiary, testified that, after receiving the letter , from the company, and after answering it as stated above, .she and her husband discussed the matter and the reply that had been made, and that she wrote the company advising that she was the beneficiary under the certificate, and was paying the monthly dues out of her own earnings, and that her husband was only an extra man and never knew when he would be called on a passenger train or a freight train or a mixed train, and if, under the circumstances stated, her husband was not eligible to be reinstated and insured? to return the money which had been sent to pay the delinquent dues. That this letter was properly addressed and was placed in the mails by her, and no reply was ever received, and she and her husband supposed that it -was satisfactory to the company for her husband to be reinstated as a member and to continue as such, and, acting on this assumption, she paid the dues each month until her husband’s death.

Respective counsel discuss the questions, whether the testimony, on the one hand, is sufficient to make a case whether the company ever received this letter, and, on the other hand, whether the company sufficiently denied the receipt of the letter to warrant the submission of the question of its receipt to the jury. But these questions were properly submitted to the jury, and we think there was testimony from which the jury might have found that the letter was sent to and received by the company; and there was testimony from which the jury might have found that the company denied having received the letter and did not in fact receive it; but, as we have said, these were questions for the jury.

The testimony shows that, from the time of Rudder’s reinstatement until his death, he was employed as ■brakeman on freight and mixed trains.

The case was submitted to the jury under instructions which substantially told the jury that, if the head or managing officers of the company knew that the insured was engaged as a freight brakeman, and thereafter continued to receive premiums from the insured as if his policy was a valid and binding contract, then a recovery could not be defeated upon the ground that the insured was engaged in a hazardous occupation or excluded risk.

We think the testimony, in its entirety, fairly presented this question of fact, and we think the declaration of law set out above is warranted by prior decisions of this court. This court has previously held, in cases which need not be here reviewed, that the officers of an insurance company, authorized to act for the company, whether operating as a fraternal .company or an old-line or stock company, may, by a course of conduct calculated to lead and in fact leading the policyholder to believe that some provision of the constitution, or some by-law of the order, or some provision of the policy itself, which, if enforced, would operate to invalidate the policy, would not in fact be enforced, and, on the faith of this belief so induced, the insured makes payments of dues or assessments, the company will be estopped to deny the binding obligation of the certificate of insurance. Indiana Lumbermen’s Mutual Ins. Co. v. Meyers Stave & Mfg. Co., 158 Ark. 199; U. O. of Good Samaritans v. Meekins, 155 Ark. 407; Sovereign Camp W. O. W. v. Richardson, 151 Ark. 231; Sovereign Camp W. O. W. v. Key, 148 Ark. 562; Sovereign Camp W. O. W. v. Newsom, 142 Ark. 132; Grand Lodge A. O. U. W. v. Davidson, 127 Ark. 133.

There appears to he no error, and the judgment is affirmed.


author: Humphreys, J.

text:
    Moore v. Warren.
    Opinion delivered November 5, 1923.
    1. DIVORCE — conclusiveness op decree as to property rights.— A divorce a vinculo obtained by a wife will bar an independent suit for the recovery of property rights in the estate of her divorced husband.
    2. Divorce — res judicata. — Where a wife secured a divorce from her husband without asking for or obtaining a division of his property, she cannot, in a subsequent action of ejectment, brought by him to recover possession of his homestead, ask that the cause be transferred to chancery, in order that her property rights may be adjudicated, alleging that through mistake or inadvertence, she failed in the divorce suit to ask that her property rights be adjudged.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      J. E. London, for appellant.
    The case should have been transferred to chancery. Act March 28, 1893; 94 Ark. 485; 101 Ark. 552; 105 Ark. 669.

      Starbird & Starbird, for appellee.
    A divorce a vinculo bars the wife’s right of dower. If she does not ask a division of property in her complaint for divorce, the decree will not be vacated because of any supposed error in not decreeing to her one-third of her husband’s estate. 59 Ark. 441; 133 Ark. 160.
   Humphreys, J.

The sole question involved on this appeal is whether a divorce a vinculo obtained by a wife will bar an independent suit for the recovery of property rights in the estate of her divorced husband.

This is a suit in ejectment, brought in the circuit court of Crawford County, by appellee against appellant, Ms divorced wife, wlio liad remarried, to recover possession of Ms homestead wMcli she continued to occupy after she had obtained a divorce from him. The title to the property was in appellee. In the divorce suit appellant failed to ask or obtain a division of appellee’s property. In this suit appellant filed a motion to transfer the cause to the chancery court in order that the property rights between herself and her former husband might be adjudicated, alleging that, through mistake and inadvertence, she failed in the divorce suit to pray that her dower and homestead rights in her former husband’s estate be adjudged to her, and that the chancery court had failed to adjust the property rights between them. Over the objection and exception of appellant, this motion was overruled by the trial court.

Appellant contends for a reversal of the judgment because the trial court refused to transfer the cause to the chancery court for the purpose of reopening the divorce suit and having the lands divided in accordance with §3514 of Crawford & Moses’ Digest. In construing this section it was said in the case of Taylor v. Taylor, 153 Ark. 206: “Our statute allows one-third of the husband’s estate to be assigned to the wife when she obtains a divorce, and not afterwards. She would have no interest in the nature of dower in her husband’s estate after the divorce was granted, and, if she could enforce the right by independent proceedings after the divorce was granted, great confusion and uncertainty would result. * * * If she did not ask and obtain the relief when the decree of divorce was granted to her, the matter became res judicata.” The, wife’s right of homestead is as dependent upon the marital relationship as her dower interest. Both rights cease after the divorce is granted.

The doctrine in Wood v. Wood, 59 Ark. 441, and Taylor v. Taylor, supra, was reiterated and approved in the recent case of Dawson v. Mays, 159 Ark. 331.

No error appearing, the judgment is affirmed.

Mr. Justice Hart dissents on the ground that appellant continued in the possession of the homestead after she had obtained her divorce, and that this prevented the rule announced above from governing in this case.


text:
    Van Buren v. Lawson.
    Opinion delivered November 5, 1923.
    1. Municipal corporations — vehicle tax — statutes.—Crawford & Moses’ Dig., § 7749, providing that “cities of the first class are authorized to require residents of such city to pay a tax for the privilege of keeping and using wheeled vehicles, except bicycles,” was not repealed, but was modified as to motor vehicles only, by ' §§ 1, 2, of act 289, 1919, p. 227.
    2. Municipal corporations — vehicle tax — discrimination.—An ordinance of a city of the first class imposing a vehicle tax of $5 upon the resident owner of each horse-drawn or motor ^driven vehicle is not void as discriminating against the owners of horse-drawn vehicles.
    Appeal from Crawford Chancery Court; J. V. Bour-land, Chancellor;
    reversed.

      G. M. Wofford, for appellant.
    This is a privilege tax merely, and not a property tax. The act of March 26, 1901, C. & M. Dig., § 7749, is valid. 70 Ark. 549. The act of March 27, 1919, C. & M. Dig., §§ 7745, 7746 and 7747, is but a reenactment of the former statute, adding them to motor vehicles. The ordinance is valid. 13 B. C. L. 257; 13 L. R. A. 413, and note; 141 Ark. 521.

      E. D. Chastain, for appellee.
    1. The ordinance is for revenue only, and imposes a tax. It is invalid (a) because in violation of art. 12, § 4, Constitution of 1874, and (b) because it is an abuse of the statute, C. & M. Dig., § 7444, by imposing a tax or exaction annually from all persons owning and using such vehicles, indiscriminately and without regard to size, capacity or relative tendency to injure or wear the streets. 85 Ark. 509; 70 Ark. 549.

      2. The statute was repealed- by act 229, Acts of 1919, p. 227.
   Humphreys, J.

Appellees filed suit against appellant in the chancery, court of Crawford County to restrain appellant from enforcing an ordinance passed by the city council on August 2, 1920, levying a tax of $5 upon the owner of each horse-drawn or motor-driven vehicle, living within the -city, except bicycles, etc. The bill for injunction was based upon the alleged invalidity of the ordinance upon two grounds: first, that the statute authorizing cities of the first class to tax vehicles indiscriminately was repealed by act 289 of the G-eneral Assembly of 1919, p. 227; second, that the ordinance is discriminatory and .void for laying a tax upon the owners of vehicles without regard to size, capacity, or relative tendency to injure or wear the streets.

1. Cities of the first class were authorized by act March 26, 1901, p. 113 (§7749, Crawford & Moses’ Digest), to levy a privilege tax upon residents for keeping and using wheeled vehicles, except bicycles. Section 1 of the act is as follows:

“That cities of the first class are hereby authorized to require residents of such city to pay a tax for the privilege of keeping and using wheeled vehicles, except bicycles, but such tax shall be appropriated and used exclusively for repairing and improving the streets of such city.”

Appellees make the argument that the entire subject embraced in said act was covered by §§ 1 and 2 of act 289,1919, p. 227, and was repealed by the later act. The later act related to motor vehicles only, while the first act related to all wheeled vehicles, so the entire subject was not covered :by the later act. The later act was a modification of the first act by fixing the maximum tax for ■motor vehicles, -which operated as an implied amendment of the first act. The first act was not repealed by the later one.

2. It will be remembered that the tax levied by the ordinance is not for regulatory but for revenue purposes, and is not, therefore, measured ¡by the relative cost of supervision of different kinds or classes of vehicles. It follows that any reasonable amount may be exacted from resident owners and users of wheeled vehicles without offending against the doctrine of non-discrimination. The fact that all wheeled vehicles were included in one class and the authorized maximum amount levied upon the resident owner and user of each without regard to the use made of it, did not void the ordinance as imposing a discriminatory tax, for the maximum amount was a moderate and reasonable sum for the use of any wheeled vehicle upon the streets. It does not follow tnat,'because the Legislature restricted the maximum amount upon motor vehicles to $5, the same amount would be an arbitrary or discriminatory levy upon wheeled vehicles propelled by muscular power.

Appellees make the further contention that the decree should be affirmed because it does not appear from the record that a judgment was entered. The record shows that the “precedent for judgment” was entered. The clerk has certified that the “precedent for judgment” was a decree of the court. The certification of the clerk must govern as to the proceedings had and done in the case.

For error indicated the decree is reversed, and the bill of appellees is dismissed for the want of equity.


author: Per hurt am :

text:
    Southern Improvement Company v. Elliott.
    Opinion delivered November 5, 1923.
    1. Mandamus — matter op discretion. — Permission to a litigant to file pleas or other motions out of time is a matter of discretion, which will not ‘be controlled by- mandamus.
    2. Appeal and error — how errors brought up. — Error of the trial court in refusing to permit additional pleas to be filed must he corrected by appeal; and if the trial court refuses to let the record show the error, either by recitals in the record or by bill of .exceptions, tbe party complaining has a remedy by a bill of exceptions certified by bystanders as provided by statute.
    Petition for mandamus to Arkansas Chancery Court; John M. Elliott, Chancellor;
    writ denied.

      Sam W. Trimble and B. W. Wilson, for petitioner.
    The writ of mandamus should go. It was not within the discretion of the chancellor to rhfuse leave to file the supplemental answer, the motion to strike the inter-plea and cross-complaint of the interveners, nor the motion to suppress the depositions, of the interveners, taken, as they were, long after the expiration of the time fixed by the chancellor for taking depositions. A chancellor has no discretionary power to deny a defendant the right to avail himself of a meritorious defense. His action in the premises was violative of both the Federal and State Constitutions. Art. 14, § 1, U. S. Const.; art. 2, § 3, Const. Ark.; art. 7, § 4, 13.; 45 Ark. 121; 35 Ark. 298-303; 91 Ark. 29; 26 Cyc. 192; 25 Ark. 452.

      John W. Moncrief, for respondent.
    The matters involved were purely discretionary. Petitioner seeks to supplant the office of a bill of exceptions by the extraordinary writ of mandamus. The statute provides a complete and adequate remedy. If the petitioner fails to avail himself thereof, that is no reason why mandamus should be employed as a substitute. 18 E. C. L. 131; Id. 297; Id. 314; Id. 128; Id. 100.
   Per hurt am :

The petitioner, Southern Improvement Company, entered into a contract with a road improvement district in Arkansas County for the construction of certain improvement work, and sublet a part of the contract to A. M. Perdue, who later instituted an action in the chancery court of Arkansas County against the petitioner and the road improvement district, to recover a certain amount of money alleged to be due on an unpaid balance for work done in constructing the road. During the pendency of the action E. J. Spratlin •and certain other taxpayers in the road district intervened and filed a cross-complaint on behalf of the district against petitioner and Perdne and took depositions of witnesses in support of their plea.

A final decree was rendered in the case in favor of Perdne against the petitioner and the road district for recovery of the sum claimed, and also in favor of the road district against petitioner for the recovery of a large sum of money. Petitioner obtained an appeal to this court, and appears here now with a petition in which it is asked that a mandamus issue to compel the chancellor to file certain papers which, it is alleged, were tendered prior to the final submission of the cause in chancery court. It is alleged that, on the day of the submission and prior to the actual submission of the cause, petitioner tendered and asked permission to file a supplemental answer to the complaint of Perdue and a motion to strike from the records the interplea and cross-complaint of the interveners, and also a motion to suppress the depositions taken by the interveners, or to continue the case in order to give time to take testimony on the cross-complaint of the interveners. It is alleged that the court refused to permit either of these papers to be filed.

The chancellor has filed a response, stating that the papers referred to in the petition were offered after all the parties, by their attorneys, had voluntarily consented to a submission of the cause on the record then made, and that the chancery court, in the exercise of its discretion, refused to permit any additional pleadings or motions to be filed after submission.

Each side has filed ex parte affidavits here on the issue of fact as to whether or not the additional pleas were tendered by petitioner before or after the actual submission of the cause.

Permission of the court to a litigant to file pleas or other motions out of time is, or may be, according to the circumstances, a matter of discretion with the trial court, and the rule has quite frequently been announced by this court that a writ of mandamus cannot be used as a substitute for appeal, nor will the discretion of the trial court be controlled by mandamus. Collins v. Hawkins, 77 Ark. 101; Branch v. Winfield, 80 Ark. 61; Rankin v. Fletcher, 84 Ark 156; Maxey v. Coffin, 94 Ark. 214; Automatic Weighing Co. v. Carter, 95 Ark. 118; Nixon v. Grace, 98 Ark. 505; Rolfe v. Spybuck Drainage District, 101 Ark. 29 ; Sea Insurance Co. v. Fulk, 103 Ark. 503. Where the trial judge refuses to act at all in the matter, this court may compel him by mandamus to do so, but, as before stated, it will not attempt to control the discretion of the trial court or to determine what the discretion of the court shall be.

The court may or may not have erred'in refusing to allow additional' pleas to be filed, but any error committed in that respect must be corrected by appeal. Statutory methods are provided for making up the record for an appeal to this court, and those methods must be adopted if a review is sought here. Errors of the trial court in the progress of a case must be shown either by a bill of exceptions or by recitals made by the court on its records. If those methods of completing the-record be denied by the trial court, a statutory remedy is afforded by bill of exceptions certified by bystanders. The fact that petitioner let the term of court lapse without effort to obtain a bill of exceptions in either of the modes specified by statute affords no ground for allowing the extraordinary writ of mandamus.

The writ is therefore denied.


author: Wood, J.

text:
    Manzil v. White.
    Opinion delivered October 29, 1923.
    1. Appeal and error — conclusiveness op chancellor’s finding of facts. — In chancery causes the findings of fact of the chancellor are allowed to stand, upon appeal, unless they are clearly against the preponderance of the evidence.
    2. Fraud — materiality of representation. — In order to vitiate a contract on the ground of fraudulent misrepresentation, the misrepresentation must relate to a matter material to the contract and in regard to which the other party had a right to rely, and did rely, to his injury; and, where the means of information as to the matters misrepresented is equally accessible to both parties, they will be presumed to have informed themselves, and, if they have not done so, must abide the consequences of their own carelessness.
    Appeal from Sebastian Chancery Court, Port Smith District; J. V. Bourlcmd, Chancellor;
    affirmed.

      Cravens S Cravens and Holland & Holland, for appellant.
    To constitute fraud, the facts misrepresented or concealed1 must have been material, and substantially affect the interest of the person alleged to have been deceived. 12 R. C. L., p. 297, § 61; 30 Ark. 362; 8 Ark. 146; 95 Ark. 131. A plaintiff must also show that not only was he misled and damaged by the false representation, but also show that the defendant knew that the representation was false, or, being ignorant as to whether false or true, asserted it was true, and did1 so with intent to deceive. 71 Ark. 305. The fraud must have resulted in injury before an action would lie. 11 Ark. 378; 57 Ark. 441; 20 Cyc. p. 43. A purchaser must make use of his means of knowledge, 'and, failing to do so, cannot recover on the ground that he was misled by the vendor. 20 'Cyc. 50; see also 7 Ark. 167; 43 Ark. 462; 191 Ark. 522; 31 Ark. 170. If the beneficial enjoyment of his contract be not materially taken away, and there is only a failure >of consihJeration which can be compensated in damages, there is no ground for rescission. 46 Ark. 337. The articles removed were of slight value. The representation must be material; must relate to some matter substantial and important. 20 Cyc. 23; 20 Cyc. 124 (b); 30 Ark. 362. The testimony is 'not sufficient. Fraud is not presumed, and the burden of proving it rests upon him who asserts it. 108 Ark. 415; 45 Ark. 492; 20 Cyc. 108-9; 16 -Cyc. 930; 144 Ark. 97. See also 20 Cyc. 120; 23 Ark. 176; 11 Ark. 378; 82 Ark. 20.

      Webb Covington, for appellee.
    A vendor guilty of falsehood, made with intent to deceive, should not be heard to say that the purchaser ought not to have believed him. 128 U. S. 383; 9 Sup. Ct. Rep. 101, 32 L. ed. 439; 97 Fed. 854; 54 Fed. 320; 74 Ark. 46.
   Wood, J.

This action was instituted by the appellee against the appellants to restrain appellants from disposing of certain notes executed by the appellee to the appellants as purchase money for certain personal property which the appellee had agreed to purchase of appellants, and also to recover the sum of $575, which he alleges the appellants had realized on a check given ■to them by the appellee, and the further sum of $200 damages. The appellee, among other things, alleged that she purchased of the appellants all furnishings in a certain rooming-house in Fort Smith, and agreed to pay the appellants the sum of $1,100; that, prior to said purchase, the appellants represented to the appellee that twelve rooms in the rooming-house in which the furnishings were then located were occupied by roomers, and that the rooms paid the sum of $150 per month, 'exclusive of any and-all expenses to be incurred in the conduct of the rooming-house. Appellants represented that they were 'the owners of the furnishings in the rooms, and that there were no claims against them whatever. The appellee alleged that she relied upon the representations made to her with reference to the earnings of the rooming house and as to the ownership of the property mentioned, and by reason of such representations she gave her check to the appellant in the sum of $575 and executed ten notes of $50 each, payable monthly thereafter; that soon after the execution and delivery of the notes and check she ascertained that the appellants were not the .o-wners of a large portion of the furnishings in the rooms in the building mentioned, and that the rooms had not paid, and were not then paying, the sum of $150 per month, all of which facts were well known to the appellants at the time they made such representations; that such representations were false and fraudulent and made for the false and fraudulent purpose of inducing' the appellee to execute the notes and checks, and that she relied upon such representations in doing so; that the appellants had cashed the checks and unless restrained would dispose of the notes. She prayed for a restraining order preventing the appellants from disposing of the notes and for a decree in the sum of $575 for her damages growing out of such false representations.

The appellants answered, denying specifically the allegations of the complaint as to the fraudulent misrepresentations, and they averred, by way of cross-corn-plaint, that the appellants showed the appellee their rooming-house and advised the appellee that the appellants and their family occupied seven of the twelve rooms in said house as their home, and they told appellee that, if. she could rent all of the rooms, including those occupied by the appellants, she could get therefor approximately the sum of $150 per month. Appellants, at the same time, pointed out the furnishings in the rooming-house which did not belong to them, which included certain small articles, and told the appellee that these were not included in the sale, and, with the exception of .these articles so pointed out, the appellants informed the appellee that the furnishings in the house belonged to appellants, and that there were no liens or incumbrances against any of the property. Thereupon the appellants and the appellee closed a deal for the furnishings which appellants pointed out to the appellee as their property; that the appellee thereupon gave to appellants her check in the sum of $575 and executed her promissory notes as alleged in the complaint. They further set up that the appellee had thoroughly inspected the property before purchasing same and fully understood what she was purchasing. They averred .that appellee had not paid one of the notes at the time the same became due, and that, under the terms of the contract, such failure to pay rendered all of the series of notes due and payable. Appellants therefore prayed that the appellee’s complaint be dismissed for want of equity, and, by way of cross-complaint, that they have judgment against appellee for the sum of $500 with interest, balance due of the purchase money as represented by the promissory notes, and also for the sum of $25 represented by check which the appellee had given to appellants as earnest money and on which she had stopped payment at the bank.

Appellee testified that she purchased certain personal property under a bill of sale, which she identified and introduced in evidence. The bill of sale recited that, for the consideration of $1,100, the appellants sold to the appellee “the following property, goods, and chattels, to-wit, all the furnishings used in the conduct of a certain rooming-house located at 412^ Garrison Avenue, Fort Smith, Arkansas.” It was recited in the writing that $600 had been paid in cash, and -ten notes in the sum of $50 each, due monthly thereafter, had been executed. The writing further recited that Mary Manzil was “the true and lawful owner of the property, goods and chattels hereby sold, and has full power to sell and convey the same. The title so conveyed is clear, free and unincumbered, and that she will warrant and defend the same against the claims of all persons whomsoever.”

The testimony of the appellee was substantially as follows: She examined the house and furniture before purchasing the furniture, in company with Mrs. Manzil, who showed appellee the property, and told her that everything in there was to be hers for the sum of $1,100, except trunks and a graphophone which belonged to people there. They went through the rooms, and Mrs. Manzel showed appellee everything in the rooms, There were six rooms on one side and six on the other. Appellee wanted to know what the income of the house was, and Mrs. Manzil stated they'were getting $150 a month for the place. Those were her exact words. Appellee relied upon these representations, and made the purchase. Appellee paid $575 for the house, and, in addition thereto, executed her notes as set forth in the complaint. The whole consideration amounted to $1,100. After she had purchased and executed the notes and given Mrs. Manzil her check, she returned to the house about 7 p. m. to take possession of it. She received information that appellant did not own all the things that she represented as being hers. Therefore she did not take possession of the house, and endeavored at once to notify the cashier of the bank not to cash the check she had given, but did not succeed that night, and the next morning she tried to stop payment on the cheek, and the bank officials promised not to pay the check. She saw Mr. Manzil, and asked him what he was going to do about the check, and he informed the appellee that he was not going to do anything about it; that he had already taken it to the bank and paid it in on a note that he was due the bank. She told Manzil that certain ladies had informed her that certain property, which Mrs. Manzil had represented as hers, belonged to them, linen, silverware, bedolothing, furniture, rugs, dishes and necessary cooking utensils and things that, according to witness’ understanding, belonged to the house. Mrs. Manzil told witness about these things that belonged to them; that everything belonged to'her except'the trunks and.1 the Edison graphophone. Witness was buying the furnishings for the rooming-house and was going to take a lease thereon. There were two families in the house on the light-housekeeping side, and one roomer and no other boarders in the rooms. Appellants represented to witness that they were getting $25 a month on the light-housekeeping side for the rooms, two rooms for each apartment, and that for the other rooms they were getting $15 per month. They told appellee that the rent would come to ninety some odd dollars for the light-housekeeping* side of the house and $150 for the whole house. Mrs. Manzil further informed the appellee that she was paying $75 per month for the rent of the entire house. Appellants told appellee that she could make arrangements with the .party who owned the house to lease it by the month, and appellee was going to lease it as soon as she took possession.

On cross-examination, the appellee, among other things, testified that she found everything in the kitchen as Mrs. Manzil had represented it. She stated that when she returned to take possession that night, in the last two rooms the people had moved out, and it was the emptiest place she ever saw. She didn’t know what' the property was worth that the people claimed belonged to them. The rugs, carpets, mattresses and springs and things like that were intact. Further along* in her testimony she stated that the woman who had moved out, when she returned to take possession, had moved linen, cooking utensils, dishes and things like that, but she didn’t know what they were. ' '

After this litigation arose A. J. Berry was appointed receiver of the property. He made an inventory of the property. The rent of the rooming-house per month was $65. He identified the inventory of the furnishings of the house which he took over that was embraced in the bill of sale.

A. S. Bullock testified that he was the cashier of the First National Bank, and that, as such cashier, he cashed the check drawn by the appellee in favor of Manzil for $575 some time in May. He cashed the check at 7:18 in the morning — met Manzil coming toward the bank, and went with him to the bank and gave him credit for the amount of the check on his account. Manzil at the time showed the cashier the notes and the contract that he had with the appellee.

Witness Bourland testified, on behalf of the appellants, that he was a real estate agent, and went with the appellee to show her the rooming-house occupied by the appellants with a view of making a deal between the appellee and the appellants for the furnishings. Appellee gave witness her check for $25 to pay to Manzil as earnest money. Among other things witness testified that, when witness and the appellee went to look at the house, Mrs. Manzil told appellee that if she rented all the rooms the place would bring around $150 per month. Everything was shown them as they went through the house. There were a couple of boxes in one of the front rooms which Mrs. Manzil said she would move out. Then she spoke about a victrola in one room that belonged to roomers. She pointed out some dishes, pans, and stuff like that belonged to roomers. All of the furniture belonged to Mrs. Manzil. Mrs. Manzil said something about keeping her own silverware that she had been using herself.

Mrs. Garcia testified that she was one of the tenants in the rooming-house at the time of the transaction in question. She was doing light-housekeeping. She stated that Mrs. Manzil and appellee went in the witness room at the time the sale was made, and that Mrs. Manzil told the appellee that the trunk and the linen belonged to the witness; that is, by the term “linen,” witness meant sheets, pillow-slips, towels and things like'that. Witness owned the dishes and the silverware. Nothing was said about this. Witness had about three pots, seven or eight dishes, three or four forks and four spoons— something like that. Everything else in the róom belonged to Mrs. Manzil. Witness had just one room. On cross-examination witness stated that Mrs. Manzil didn’t say anything’ to the appellee about witness owning the dishes, cooking utensils and things of that kind. Mrs. Manzil stepped to the trunk and .told appellee that that belonged to witness and the linen belonged to witness. When witness moved out she left the mattresses, heating-stove, two chairs and a table. Witness went in another room where the roomer had her things packed to move out, and she had everything she had in two trunks. She took her silverware, dishes and linen. Things like that were about all you could use about a house.

Mrs. Manzil testified that appellee came to her house two or three days before the trade was made, and she showed her through the rooming-house with a view to selling her furnishing’s. Witness went in all the rooms and showed appellee all the beds, rugs and furniture that belonged to witness. Witness didn’t furnish her housekeepers with dishes. The roomers got the linen and dishes. Witness told appellee everything three times. She stated that she told appellee that witness was occupying six rooms, and that if appellee could rent all the rooms she would receive $150 per month. She didn’t tell her that she was getting $150 out of it. Witness was the owner of all the furniture in the house except the talking machine, two pillows and some linen and dishes, and everything that belonged to the roomers. There was no conversation between witness and-appellee as to silverware, except she told appellee that the silverware and everything in the kitchen belonged to witness. Appellee bought the house from witness. Witness stated that, one time before the deal was closed, the appellee was in the room where one of the roomers was ready to move out. Appellee saw the room and everything packed up and in the trunk, and, after that, closed the deal with the annellants. Witness testified that they cashed the check. Witness was receiving on the rooming house at the time of the transaction $85 or $90. Witness stated that she had in the rooms furniture and kitchen stuff, and showed her the things that 'witness owned. When witness left the house she took her clothes, trunk, suitcase and machine. She didn’t take her kitchen furniture. She left everything that she had sold to the appellee. Witness then enumerates the various articles that the roomers possessed, consisting of pillows, blankets, linen, silverware and kitchen utensils. She showed appellee everything that belonged to her and everything that belonged to the roomers, and told her what went into the sale. The articles that she had enumerated as belonging to the roomers were shown to the appellee, and she didn’t tell appellee that anything belonged to witness that belonged to roomers. Witness also enumerated the articles on a list that belonged to witness and which were * sold to the appellee.

Manzil testified that he met the cashier of the bank on the street on his way to work in the morning between 7:15 and 7:20. He gave the cashier the check of appellee, who agreed to place the same to Manzil’s credit.

The court found the facts to be as follows: “That said furnishings had been sold to plaintiff in bulk; that no itemized statement or list of same was made at the time of the sale, which was consummated and the notes signed and check delivered, as aforesaid, between the hours of 4 and 5 o ’clock p. m. on the 1st day of May, 1922; that a considerable portion of the furnishings in said rooms in said rooming-house were owned by said roomers, a fact known by defendants but not known by plaintiff; that the defendant, Mary Manzil, falsely represented to the plaintiff that said rooming-house was paying a net sum of $150 per month, and, by this and other fraudulent representations herein mentioned, plaintiff was induced to sign said notes and sign and deliver to defendant the said cheek for $575; that at about the hour of 7 o’clock p.m. on the same afternoon that said sale was consummated, the plaintiff was advised by tenants occupying said property that she had been deceived by the defendant, Mary Manzil, in the matter of the ownership of the property and the monthly income derived therefrom; that plaintiff immediately thereafter had a conversation with the defendant, Joe Manzil, in which she made complaint to him in reference to misrepresent-actions as to ownership of the property and its income, and desired to know of him what action he proposed to take in the matter, and he replied that he would do-nothing, that she had purchased the property, and that he had the notes and the check. The court further finds that the defendant, Joe Manzil, on the following morning, May 2, 1922, appeared at the First National Bank long before banking hours, about the hour of 7:1'5 on said morning, and then and there cashed said check, the cashier of said bank, Albert Bullock, mailing payment , thereof; that at the hour of 7:30 a. m., May 2, 1922, plaintiff called said bank, and was advised by the bookkeeper that said check had not been paid, and, upon plaintiff’s request to stop payment thereon, promised to do so; that by reason of the false and fraudulent representations made to the plaintiff by the defendant, Mary Manzil, acting for herself and the defendant, Joe Manzil, and the fraudulent acts of said defendant in concealing from plaintiff the ownership of said property in said rooming-house, and by reason of her reliance on the truthfulness of the representations made as aforesaid, she was induced to and did part with the sum of $575 in cash, and execute and deliver ten promissory notes of $50. each, payable as herein stated; that the false, misleading and deceitful representations made by the defendants were made for the purpose of inducing plaintiff to part with her money and sign and deliver said notes; that said sale should be set aside for fraud, and that plaintiff should have judgment for the sum of $575, payment having been stopped on the check for $25; that said notes and each of them should be canceled; that said property now in the hands of a receiver should be sold and the proceeds appropriated to the payment of .the sums due plaintiff under this decree.

The court thereupon entered a decree in favor of the appellee, from which is this appeal.

In Leach v. Smith, 130 Ark. 465-469, we said: “In determining the issues of fact by this court in chancery causes, no weight is given to the findings of fact by the trial court unless the evidence is so conflicting as to leave the minds of this court in doubt as to where the preponderance lies. Where the evidence is evenly poised, or so nearly so that we are unable to determine in whose favor the preponderance lies, then the findings of fact by the chancellor are persuasive. * * * The findings of fact by the chancery court are allowed to stand unless they are clearly against the preponderance of the evidence.” See also Morrow v. Merrick, 157 Ark. 618.

In reviewing the facts of this record, surely it cannot be said that the findings of fact of the chancery court are clearly against the preponderance of the evidence. On the contrary, it occurs to us that the preponderance of the evidence shows that the chancery court was correct in its findings. Such being the case, the principles applicable to the facts of this record are quite familiar, and have been declared in numerous decisions of this court. Judge Battle, speaking for the court, in Delaney v. Jackson, 95 Ark. 131, 136, quotes language from some of our earlier cases as follows: “In order to vitiate a contract on the ground of fraudulent misrepresentation, the misrepresentation must relate to a matter material to the contract and in regard to which the other party had a right to rely, and did rely, to his injury. If the means of information as to the matters represented is equally accessible to both parties, they will be presumed to have, informed themselves; and, if they have not done so, they must abide the consequences of their own carelessness.” See cases there cited. There are many subsequent cases to the same effect.

The facts of this case bring it well within the doctrine of those cases. The decree is correct, and it is therefore affirmed.


author: Hart, J.

text:
    Clear Creek Oil & Gas Company v. Fort Smith Spelter Company.
    Opinion delivered November 5, 1923.
    1. Constitutional law — reasonableness of pipe-line charges — due process. — An order oí a public service commission, fixing the maximum rates to be charged by a pipe-line company for transporting gas, is not in violation of the due process clause of the Constitution of the United States where the statute provides for submitting the reasonableness of such rates to a judicial tribunal for determination upon its own independent judgment as to both the law and the facts.
    2. Public service commission — presumption as to rates fixed.— On a question of the reasonableness of rates fixed by the Corporation Commission for the transportation of gas by a pipeline company, there is a prima, facie presumption in favor of such rates.
    3. Public service commission — order fixing rates — appeal.—On appeal from an order of the Corporation Commission fixing rates to be charged by a pipe-line company for transportating gas, it is not the duty of the circuit court to establish rates, but to determine whether the rates so established, when considered in the light of the evidence, are reasonable.
    4. Public service commission — order fixing rates — review.—On appeal from judgment of the circuit court upon the reasonableness of rates fixed by the Corporation Commission, the Supreme Court is called upon to inquire into the weight of the evidence for the purpose of determining whether such judgment is against the preponderance of the evidence when tested by the presumption in favor of the findings of the Corporation Commission.
    5. Gas and oil — reasonableness of pipe-line charges. — As a general rule, a natural gas pipe-line company is entitled to ask a fair return upon the value of the property employed for the public convenience, taking into consideration the nature of the business devoted to the public service and all the surrounding circumstances, while the public is entitled to demand that no more be extracted from it than the services given by such company are reasonably worth.
    6. Gas and oil — pipe-line charges — review.—On appeal from a judgment of the circuit court setting aside rates for pipe-line charges fixed by the Corporation Commission, evidence held too general and indefinite to overcome the presumption in favor of the commission’s finding.
    7. PUBLÍC SERVICE COMMISSION — FIXING OF CHARGES — REHEARING.—: The power of the Railroad Commission to establish or change rates for pipe-line charges is continuous, and an application by either party showing a material change in conditions from those existing at the time the rates were established by the Corporation Commission will he ground for a rehearing as to the reasonableness of such rates.
    Appeal from Pulaski Circuit Court, Second Division; It. M. Mann, Judge;
    reversed.

      Bill & Fitshugh, for appellant.
    There is no particular rate of compensation which, must, in all cases and all parts of the country, he regarded as sufficient for capital invested in business enterprises. Such compensation depends upon circumstances, i. e., the locality, the amount of risk in the business, and the rate expected. 212 U. S. 19. Bate cases must be tried as of the date of the filing of the petition. Southwestern Bell Tel. Co. v. Public Service Corporation Commission of Mo., 262 IT. S. 276.

      Mehaffy, Donham< & Mehaffy and Daily & Woods, for appellee.
    Where a company fails to perform its plain duty and to exact sufficient returns to keep its investment unimpaired, the fault is its own. 53 Law. ed. 371. Past losses are not to be capitalized as property on which the fair return is based. 212 U. S. 114, 53 Law. .ed. 371; 258 TJ. S. 388, 66 Law. ed. 678. The action of the Corporation Commission in fixing the rate for gas other than the contract price impaired1 the obligation of the contract entered into between the gas company and the spelter company, and was violative of § 10, art. 1, of the Constitution.
   Hart, J.

This is the third appeal in this case. The opinions on the former appeals dealt with questions of law and of practice, and reference is made to the opinions for the particular- questions decided. Clear Greek Oil & Gas Co. v. Fort Smith Spelter Co., 148 Ark. 260, and Fort Smith Spelter Co. v. Clear Creek Oil & Gas Co., 153 Ark. 170.

The present appeal is prosecuted to reverse a judgment of the circuit court overruling the rate established by the tribunal or commission which was vested with the power to establish rates.

The Legislature of 1921 abolished the Arkansas Corporation Commission, which had the power to regulate public service corporations and to establish rates therefor, and created the Arkansas Railroad Commission. General Acts of 1921, p. 177.

, The rates involved in- this appeal were established by the Arkansas Corporation Commission, which had jurisdiction to establish rates for pipe line companies for the transportation of oil, gas, or water. In the former appeal it was held that the Clear Creek Oil & Gas Company was a public service corporation engaged in the transportation and sale of natural g*as. It was also held that the Corporation Commission in establishing the rates at which the gas should be transported and sold to customers acted in a g-wa-si-judicial capacity and that its orders establishing rates were subject to review by the court in the manner prescribed by statute. Clear Creek Oil & Gas Co. v. Fort Smith Spelter Co., 148 Ark. 260.

When the rates established by the Commission came on for hearing in the circuit court, the Arkansas Corporation Commission had been abolished and the present Railroad Commission created. The new act gave the Railroad Commission authority to establish rates for common carriers, including pipe line companies for the transportation of oil, gas,- or water. The act also provides for an appeal from the Railroad Commission to the Pulaski Circuit Court from any order made by the Railroad Commission.

Section 20 of the act provides that, when the appeal is taken, the secretary of the Commission shall at once ' make a full and complete transcript of all proceedings had before such Commission in such matter, and of all the evidence before it, including all files therein, and ■ deposit the same forthwith in the office of the clerk of the circuit court. Continuing, the section provides as follows:

“The said circuit court shall thereupon review said order upon the record presented as aforesaid in the case and enter its finding and order thereon and cause to be certified' forthwith to such Commission the said order, therein directing that action be taken by said Commission in conformity therewith, unless an appeal from said order to the Supreme Court of this. State shall be taken within the time hereinafter specified, and, in case of such appeal, to. await further orders of said circuit' court.” General Acts of 1921, p. 177.

Thus it will be seen that the statute provides a fair opportunity for submitting the reasonableness of the rates established by the Commission to a judicial tribunal for determination upon its own independent judgment as to both the law and the facts, and it cannot be said that the order in establishing the rates was void because it is in conflict with the ‘due process’ clause of the Constitution of the United States. Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287.

This brings us to a discussion of what consideration the circuit court should have given to the finding of fact by the Commission. It will be noted that the statute does not fix any rule of evidence to govern the court in the premises.

In Louisville & N. Railroad Co. v. Behlmer, 175 U. S. 648, Chief Justice White, speaking for the court in a discussion of the weight to be given to the finding of the Interstate Commerce Commission, said:

“But the law attributes prima facie effect to the ' findings of fact made by the Commission, and that body, from the nature of its organization and the duties imposed upon it by the statute, is peculiarly competent to pass upon questions of fact of the character here arising.”

Again, in Illinois Central Railroad Company v. Inter. Com. Com., 206 U. S. 441, it was said that the finch ings of the Commission are made by law prima facie true, and that the Supreme Court of the United States ascribed to them the strength due to the judgments of a tribunal appointed by law and informed by experience. In Darnell v. Edwards, 244 U. S. 564, it was said that it is well established that, in a question of rate-making, there is a strong presumption in favor of the conclusion reached by an experienced administrative body after a full hearing.

In Railway Co. v. Smith, 60 Ark. 221, it was held that the courts can inquire into the reasonableness of passenger rates, and that, in such cases, the presumption is that they are reasonable, and that the burden is on those contesting them to affirmatively show that, as to them, they are not.

■Therefore the presumption is that the rates fixed by the Commission are reasonable, and the burden of proof is upon the company contesting the rates to show to the contrary. Our statute contemplates a judicial review by the circuit court of the law and the facts as presented to the Commission, and it is the duty of the circuit court to try the questions of law and fact upon the same record as the Commission, bearing in mind that the Commission is a rate-making body created by the Legislature, and its orders are prima facie correct, and that this presumption in their favor will yield only to the probative force of the evidence in the record. It is not the duty of the court to establish the rates, but to determine whether the rates as established by the Commission, when considered in the light of the evidence, are reasonable.

Upon appeal to this court we are called upon to inquire into the weight of the evidence for the purpose of determining whether or not the judgment of the circuit court is against the preponderance of the evidence. In other words, on appeal the findings of fact by the circuit court are allowed to stand unless they are against the preponderance of the evidence when tested by the presumption in favor of the finding’s of the Commission, as outlined above. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1.

In this connection it may be stated that neither the' circuit court nor this court sits as a board of revision to substitute our judgment for that of the Commission. Minnesota Rate Cases, 230 U. S. 352; 48 L. R. A. (N. S.) 1151.

This brings ns directly to a consideration of whether the judgment of the circuit court overruling the finding of the Commission and establishing a new rate should be allowed to stand. No special finding of fact was made either by the Commission or by the circuit court. The testimony introduced by appellant was directed to showing what rates yielded a proper return upon the fair value of the property which was.used in the service of the public in this case at the time it was so used. The accountants, in making up their statements as to the fair value of the property, took into consideration the testimony of experts as to the deterioration from year to year of the gas fields and the hazardous character of the business. No hard and fast rule in determining the value of the property can be laid down, and each case must be determined, to some extent, by its own peculiar facts, taking into consideration the nature of the business devoted to the service of the public and all the surrounding circumstances.

As a general rule the company is entitled to ask a fair return upon the value of the property which it employs for the public convenience. On the other hand, the public is entitled to demand that no more be exacted from it than the services given by the public corporation are-reasonably worth. Wilcox v. Consolidated Gas Co., 212 U. S. 19, and Darnell v. Edwards, 244 U. S. 564.

The Commission made a sliding scale of rates, the higher rates being made for small consumers and the lower ones for factories and other large consumers, like the Fort Smith Spelter Company.

No useful purpose could be served by making a detailed statement of the evidence in the case. The life and extent of gas fields are very uncertain. What promases a fine field one year may fail the next. New fields maybe discovered from time to time in the same locality. This element of uncertainty would make it unprofitable for us to set out a statement of facts so that it might be used as a precedent 'in another case. If the Commission or the circuit court had made a finding of facts upon which their respective conclusions were reached, this would have been of great advantage to us in testing the correctness thereof.

In the absence of a special finding on the* part of the Commission or of the circuit court, we will presume that each acted within its appropriate sphere as outlined above, or, at least, we have considered the matter from that viewpoint in weighing the evidence’ and reaching our conclusion in the matter.

As above stated, the Clear Creek Oil & Gas Company introduced evidence before the Commission tending to show the fair value of its property, the probable length of time its fields could be profitably worked, and all the surrounding circumstances which could be considered in estimating the fair value of its property and the reasonable value of its service. An attack was made on its testimony by the Fort Smith Spelter Company and evidence was introduced by it 'before the Commission tending to show that the evidence of appellant did not correctly establish the value of the property of the public utility in question.

When we have considered all the evidence in the record, bearing in mind the deference, as indicated above, which should be given to the decision of the Commission, we are of the opinion that the circuit court erred in finding that the rates established by the Commission were unreasonable and in establishing a lower rate.

The evidence for appellee was too general and not sufficiently definite and certain to overcome the presumption in favor of the finding of the Commission and to show that the rates established by it were unreasonable.

The finding Of the circuit court in this regard is not supported by the preponderance of the evidence, and its judgment, based upon such, finding, must therefore be reversed. In this connection it may be stated that the establishment of rates is the making of a rule for the future, and is therefore an act legislative in character, whether exercised by the Legislature itself or by some subordinate body created for that purpose by it.

Therefore the power of the Commission to establish or change rates is continuous, and, npon application of either party, showing a material change in tbe conditions from those existing at the time the rates were established, there will he ground for new action in the premises by the Commission. The result of our views is that the judgment of the circnit court will he reversed,- and the cause remanded, with directions to it to certify forthwith to the Arkansas Railroad Commission an order directing that it put into effect the rates established in this case by the Arkansas Corporation Commission until the further action of the Arkansas Railroad Commission in the premises, upon a new application, as indicated above.

It is so ordered.