text:
    Maryland Motor Car Insurance Company v. Newell Contracting Company.
    Opinion delivered January 8, 1923.
    1. Arbitration and award — jury question. — In an action at law by an owner of property damaged by fire against an insurance company on an alleged award of arbitrators, where an agreement between the property owner and the insurer provided that an award in writing by two of the three arbitrators shall determine the amount of such loss or damage, and an oral agreement as to the amount was made by two of the arbitrators, but was not reduced to writing, submission to the jury of the question whether an award had been made was error.
    2. Arbitration and award — compliance with agreement.— Awards, to be binding, must comply with the agreement of submission.
    3. Arbitration and award — jury question. — In an action by the owner of property damaged by fire against an insurer on an award of arbitrators, where the agreement for submission provided that the award of the arbitrators should be in writing, and an award was agreed upon by one of the arbitrators and the umpire but was never reduced to writing, and a subsequent award was made by a substituted umpire and one of the arbitrators, whether the last award conformed to the submission agreement held for the jury.
    Appeal from Crittenden Circuit Court; J. M. Futrell, Judge;
    reversed.

      Hughes & Hughes and B. L. Bartels, for appellant.
    An award must conform in form and substance to the requirements of the agreement for submission to arbitration or appraisal. 26 C. J. 423 ; 5 lb. p. 124; § 2911, Morse on Arbitration and Award, p. 259. To be valid, the award must have stated the sound value of the truck immediately preceding, the fire. 125 Fed. 589. The agreement requiring the award to be in writing, an oral award is of no effect. 5 C. J. p. 114, § 262; p. 117, § 269 ; 169 111. App. 63. - A majority of the arbitrators must join in the award. 5 C. J. 112, § 259-; 4 Sneed (Tenn.),261. The umpire did not examine the burned car, and this failure rendered any award void. 92 Tenn. 397. The power of arbitrators to name an umpire is not exhausted by a single nomination, if the nominee fails or refuses to act. Morse on Arbitration and Award p. 245; 188 Pac. 718. The selection of an umpire was to be made by the arbitrators, and not the parties. 5 C. J. p. 106, § 234. The award made by the substituted umpire complied with the agreement, and it was error to render judgment on the award of the first umpire which was not in compliance with the agreement.

      Appellee pro se.

    The findings of a jury, if based upon substantial evidence, are conclusive. 103 Ark. 4; 89 Ark. 321; 102 Ark. 200. Where the testimony was conflicting, the issues on appeal will be treated as settled by the verdict. 101 Ark. 90; 103 Ark. 538; 86 Ark. 603; 84 Ark. 74.
   Humphreys, J.

This suit was instituted in the Crittenden Circuit Court by appellee against appellant to recover $1,675 upon an alleged arbitration and award for damages to an automobile truck caused by fire. Appellant and appellee entered into an insurance contract whereby the automobile truck of appellee was insured against fire. The truck was damaged by fire, and the insurer and insured entered into an agreement for an appraisal of the damage which contained the following provision:

“And whereas said policy contains the following condition (clause 14): £14. In the event of disagreement as to the amount of loss or damage, the same shall be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire; the appraisers together then shall estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the' umpire; and the award, in writing, of any two shall determine the amount of such loss or damage. * * *
" Therefore, in compliance with the conditions above set forth, the parties hereto having disagreed as to the amount of said loss, the said insured does hereby select M. L. Aldridge and the said company does hereby select J. K. Dobbs as competent and disinterested appraisers to estimate and appraise the sound value and damage to said described property.”

The appraisers disagreed as to the damage occasioned by the fire, and submitted their differences to Phil Wilenzick, who was selected by them as umpire. They agreed to abide by the umpire’s decision, after which each made a statement of the sound value of the truck and the damage done to it by the fire. Thereupon the umpire ascertained the original cost of the truck, and stated he would assess the damage at fifty per cent, of the cost price. A written award to that effect was offered to the umpire by J. K. Dobbs, and when he started to sign it Dobbs withdrew it and asked him to consider the matter until the following morning, at which time they would see him again. He was not to be found next morning. W. W. Harris was then selected as an umpire, and his name was substituted in the written appointment for that of Phil Wilenzick. He qualified, and joined J. K. Dobbs in a written appraisal of $750, which was declined by appellee. The testimony introduced by appellee tended to show that M. L. Aldridge did not agree to the selection of W. W. Harris as umpire or participate in the Harris appraisal.

Over the objection and exception of appellant, the court submitted the cause to the jury upon the sole issue of whether an award was made by Phil Wilenzick, who had been selected by both parties as umpire. The agreement for an appraisal provided that the award should be in writing, signed by any two appraisers. The Wilenziek award failed to comply with these requirements. In fact, the record is silent as to whether two of them orally agreed to said award. It seems that, after Wilenzick orally announced his decision, the matter was postponed until the following morning for further, consideration. They failed to get together again, and there was no final award, in writing, in which two of them concurred. Awards, in order to be binding, must comply with the agreement -of submission. 5 C. J., 112, § 259; p. 114, § 262; p. 117, § 269. The undisputed facts showed that the Wilenzick award was not final and complete, hence it was error to submit that issue to the jury for determination.

According to the testimony introduced by appellant, W. W. Harris was substituted as umpire when Wilenzick failed to appear, and a written award was made by him and J. K. Dobbs, in which M. L. Aldridge participated.

According to the testimony introduced by appellee, M. L. Aldridge did not participate in the Harris award. The issue of whether the Harris award conformed to the submission agreement of appraisal should have been submitted to the jury for determination.

The judgment is reversed and cause remanded for a new trial.


source: Caselaw Access Project

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

license: Public Domain

text:
    Fox v. State.
    Opinion delivered January 15, 1923.
    1. Burglary — larceny—sufficiency of evidence. — In a prosecution for burglary and grand larceny, evidence held to sustain a . conviction of both charges.
    2. Criminal law — evidence—acts of bloodhound. — In a prosecution for burglary and grand larceny committed by breaking into a store and stealing certain merchandise, evidence that bloodhound trailed the burglar from the store to defendant’s residence, together with an explanation as to how the dog was trained, held sufficient to make the acts of the dog in pursuit of the burglar admissible; its weight'being for the jury.
    3. Criminal law — instructions already given. — Refusal to give instructions fully covered by others given held not error.
    ’ 4. Criminal law — dual verdict — signature.—Where, in a prosecution for burglary and grand larceny, a writing on a single sheet finding the defendant guilty of each offense was signed by the foreman at the bottom of the page, this was sufficient compliance with Crawford & Moses’ Dig., § 1300, requiring the verdict to be signed by the foreman.
    Appeal from Pike Circuit Court; James 8. Steel, Judge;
    affirmed.

      W. T. Kidd and T. W. Round,tree, for appellant.

      J. 8. TJtley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   McCulloch, C. J.

Appellant was convicted under each count of an indictment charging him with two offenses of burglary and grand larceny, alleged to have been committed by breaking and entering the store of one T, J. Coffman and stealing, taking and carrying away certain property of said Coffman, of the value of thirty dollars.

The conviction rests mainly on proof of circumstances, and it is contended that there is not sufficient proof to support the verdict.

Coffman operated a small merchandise business at the village of New Hope, in Pike County, and appellant was a' farmer living about a mile, or a little less, northwest of the store.

The burglary was committed on Saturday night, January 7, 1922, and discovery of the offense was made by Coffman early the next morning. He testified that when he went to the store early the next morning (Sunday) he found that the store had been broken into and a lot of merchandise, including a sack of flour, a lot of handkerchiefs and stockings and other articles, of the total value of twenty-five or thirty dollars, had been stolen. He also testified that small change' left in the cash-drawer had 'been stolen, and that it amounted to between two and three dollars. He stated that the cash-drawer had been overturned and that about fifty cents in pennies and nickels were found scattered on the floor.

Coffman called in the constable of the township to assist in hunting up evidence of the identity of the criminal or criminals, and they discovered a trail of flour on the ground as if a flour sack had been broken and its contents sprinkled along the road. The road leading towards the house of appellant ran north from the store about half a mile, and another road turned westward at that point, going in the direction of appellant’s house.

Coffman, and Reed, the constable, testified that they followed the trail of flour along the road, and observed fresh tracks, the trail finally leading off through a field in the direction of appellant’s house. After following the trail for a distance, Coffman and Reed sent for a man in the neighborhood who owned what they termed a bloodhound- — a dog trained and qualified to follow the human trail. They testified that in following the trail up the road they kept out of the road and walked along the roadside so as not to interfere with the dog following the trail, -and they also- stationed men at each end of the road so as to block it and prevent any traveling along the road until the dog should arrive.

The man with the dog came, and the dog was carried into the store where the burglary had been committed, 'and hunted all around the store, but was disposed to return again and again to the cash drawer. The dog then left the.store and followed the trail northward along the public road where the flour was sprinkled. The dog trailed into appellant’s field, and, after “maneuvering around,” -as expressed by the witnesses, he turned towards appellant’s house, and as -he -trailed along, approaching the garden fence where two paling were missing, appellant came out -of the house and -told the man to stop the dog, that there was no need to follow him further, as he and one Cornelius Lafever had passed through there the afternoon or evening before, and that it was his track the dog was trailing. The owner of the dog then stopped the dog, and there was 'nothing. further done, except that the dog later took another trail and went towards the north.

It is further shown in the testimony that Cornelius Lafever, who is conceded to have been connected with the burglary, left the house early that morning and went northward, carrying with him the stolen goods, or at least a portion of them.

The house was searched by Coffman and an officer, with appellant’s consent, but none of the stolen merchandise was found, except that there was found 86 pounds of’' flour, by actual weight, in appellant’s bin in the kitchen.^

Appellant, when questioned, denied that he knew anything about the burglary, but stated that he had been out with Cornelius Lafever that night until about two o ’clock.

Coffman testified that he observed appellant’s children chewing gum, and that he asked appellant where the children got the gum, and appellant replied that he did not know. Coffman testified that a lot 'of chewing gum Was taken by the burglar the night before.

Appellant was related to Lafever, having married the latter’s niece.

Appellant testified that on the night of the burglary he and Lafever left home together about eight o’clock and went over to the house of a neighbor, one Cornish, and remained until about two o ’clock, Lafever furnishing the whiskey for the occasion, and Cornish furnishing music on his violin. Appellant testified that he and La-fever returned to his (appellant’s) house about two o’clock, and that, after building up a fire and remaining there awhile, he went to bed, and that Lafever left the house, and returned in about an hour, bringing into the house a tow-sack which had merchandise in it. He testified further that Lafever, after remaining there awhile, made another trip and again returned, and remained at the house until after daylight. He stated that Lafever told him that he had stolen the merdmndise from a store at New Hope, and that he told Lafever that he must remove the stuff from the house, which was done. He gave as his reason for not disclosing this information to Coffman• and the officer that he did not feel it was his duty to relate it until he did so from the. witness stand.

Appellant undertook to account for the quantity of flour in his bin by saying that he had recently bought two forty-eight pound sacks of flour, one of which was bought on the afternoon before the burglary was committed. The State introduced other testimony, however, tending to show that one of the sacks of flour bought by appellant had been thrown from a mule on which appellant was riding, and that more than half the flonr was lost on the ground.

It is therefore seen that it is undisputed that Lafever entered the store of Coffman, stole the merchandise in question and carried it to appellant’s house, and that the dog followed the trail. The only real issue in the case is whether or not appellant was a participant in the crime and was present at its commission.

We are of the opinion that the circumstances warranted the jury in finding that appellant was present at the commission of the crime and participated therein. In other words, the jury were, justified in finding that appellant and Cornelius Lafever were the burglars who entered Coffman’s store and stole the merchandise. The tracks showed that there were two men who participated in the commission of the crime, and the tracks led to appellant’s house. The various circumstances, including appellant’s contradictory statements, indicate a guilty knowledge on his part of the crime and warranted the inference that he participated. The evidence warranted the jury in finding that a portion of the stolen flour was in appellant’s possession, and this was sufficient to authorize the inference that he had stolen the flour. This issue was submitted to the jury upon explicit instructions oil the subject, and we think the evidence was sufficient to support the verdict.

It is next contended that the court erred in admitting testimony concerning- the activities of the hound brought to the scene for the purpose of trailing the burglar. Titus Measles, the owner of the dog, was introduced as a witness, and he testified that the dog was about eleven months old, that he had put the dog through a course of training so as to train him to follow the human trail, and that the dog had, in fact, under his supervision, trailed four criminals who had committed burglaries on other occasions. On cross-examination he testified that he usually practiced the dog in trailing at least twice a week, and that, in addition to this, neighbors would generally come to his house on Sunday out of curiosity, and that in conjunction with his neighbors he would put in considerable time practicing the dog. He explained to the jury how he conducted the training of the dog, and stated that he had never known the dog to fail but once to find the man sought, and that on that occasion the man had climbed a tree, and that the dog followed the trail to the tree but did not locate the man up the tree. This, he said, wás when training the dog, and not upon the occasions mentioned when the dog trailed criminals. The witness was asked the direct question whether or not the dog was a bloodhound, and he answered, in substance, that he did not know the pedigree of the dog, but that so-called bloodhounds had long ears, and that this dog had that kind of ears. He said that the dog was not an ordinary hound, and that he had had no trouble in training him to follow the human trail.

We are of the opinion that th<?re was enough testimony to justify the court in submitting the question of the dog’s activities to the jury. The weight of the testimony was one for the jury. This subject has been discussed in many of our previous decisions. Holub v. State, 116 Ark. 227; Padgett v. State, 125 Ark. 471; Cranford v. State, 130 Ark. 101; West v. State, 150 Ark. 555.

Besides, the testimony concerning the actions of the dog added little, if anything, to the State’s case against appellant, for it is undisputed that stolen property was carried from Coffman’s store to appellant’s home along the route followed by the dog, which was indicated by the trail of the flour.

Several of the instructions requested by appellant’s counsel were refused by the court, and those rulings are assigned as error. We find, however, that the refused instructions related to the question of reasonable doubt, and that thev were fullv covered by other instructions, some of which were given at the instance of appellant’s counsel.

Finally, it is contended that the verdict was not in sufficient form and was not signed by the foreman.

The jury brought in two verdicts, written on the same sheet, signed by the foreman at the bottom. One read: “We, the jury, find the defendant guilty of burglary, and assess his punishment at two years in the penitentiary;” and the other read: “We, the jury, find the defendant guilty of grand larceny, and assess his punishment at one year in the penitentiary.” The statute (Crawford & Moses’ Digest, § 1300) requires that the verdict of a jury must be .signed by the foreman, and we think that the statute was complied with in this instance. The fact that the two verdicts were written on the same paper and signed at the bottom by the foreman shows that the signature, was intended to be appended to both of the verdicts. The 'objection goes merely to form and is not well founded, since it appears with certainty that the intention was to return both verdicts under the signature.

Finding no error in the record, the judgment is affirmed.

Smith, J.

(dissenting). This court has, in the cases cited in the majority opinion, upheld the admission of testimony .showing the trailing of human beings by bloodhounds as a circumstance tending to prove that the person trailed had recently been at the scene of the crime. But in all those eases it was said that the preliminary showing must first be made, and had been made, that the dogs were of pure blood and had been properly trained. The majority opinion still recognizes the necessity for this preliminary proof, but, in my .opinion, has not required that the conditions be met which the rule requires before admitting the testimony.

The first case in which we upheld the admission of bloodhound testimony was that of Holub v. State, 116 Ark. 227. In so doing we followed the Court of Appeals of Kentucky, and referred to the case of Pedigo v. Commonweath (103 Ky. 41, 42 L. R. A. 432, 82 Am. St. Reps. 566, 44 S. W. 143), for a discussion of the conditions under which testimony of that character would be admitted at all. The Kentucky ease appears to have been the second case in which such testimony was held admissible, the majority opinion reciting the fact that Hodge v. State, 98 Ala. 10, appeared to be the only case on the subject. Since then this State and a number of others, chiefly Southern States, have followed the Kentucky ease, but, in so doing, have always required a preliminary showing of the dog’s qualification. In that case it was held that testimony as to trailing an alleged criminal by a bloodhound may be permitted to go to the jury as tending to connect him with the crime only when there is testimony of some person who has personal knowledge of the fact that the dog used has an acuteness of scent and power of discrimination which have been tested in tracking human beings, and it is not sufficient to show that the dog is of pure blood and of a stock characterized by those qualities. It was there also held that the showing must be made that the persons placing the dogs on the trail were skilled in the performance of that service.

In my opinion .it is a long step from the admission of dog testimony under the limitations prescribed in the Kentucky case to the admission of testimony showing the conduct of Titus Measle’s hound pup.

There are States in which the admission of dog testimony is wholly excluded, upon the theory that neither court nor jury can have any means of knowing why the dog does this thing, or another, in following in one direction; instead of in another, as this is left to the dog’s instinct, without knowledge by court or jury upon what it was based, and that the conclusions of the bloodhound . . are too unreliable to be accepted in evidence in either ’ civil or criminal cases. The view of the courts so hold-y&ing is unaltered by any consideration of testimony showgling the breeding of the dog, or the thoroughness of its IJti’aining, or the skill in his handling.

We have held otherwise in the cases cited in the majority opinion, and I do not inveigh against those eases; but I do protest against the relaxation of the safeguards against the admission of this testimony which all the courts that admit testimony of this character at all require.

The necessity for caution along this line is pointed out in an article entitled “The Bloodhound as a Witness” in vol. 54 American Law Review, p. 109. This article was written by a lawyer who had given special study not only to the law of the question but to the characteristics of the dog itself. He shows in this article that the original blooded hound, famed for its power of scent, was a small affectionate dog found in England in the earliest days, and was much used as a pet and a house-dog. On account of its slow and plodding nature it was crossed with the fox terrier, producing a strain of hounds calle'd fox-hounds. This dog still lacked ferocity, a quality thought necessary for trailing slaves, and it was crossed with the Great Dane or the Cuban Mastiff, both savage and vicious breeds of dogs, and the bloodhounds of today with the longest pedigrees go back to this crossing.

Returning to the Kentucky case of Pedigo v. Commonwealth, which we followed in upholding the admission of dog testimony, it may be said that the fears expressed in the dissenting opinion in that case as to the consequence of the holding of the majority have been realized in the holding of the majority in the instant case. In this dissenting opinion it was there said: “The use of bloodhounds was, perhaps, necessary to efficiently and effectually uphold the institution of slavery, as well as to aid in the arrest and capture of persons accused of crime in the Dark Ages. In such cases, however, the object sought was the arrest or capture of known fugitives. Tf the dog, in fact, took up and followed the trail of a fugitive, and found him, or aided his pursuers to find him, the object was accomplished, and there could be no mistake as to whether he was the party sought or not; his gnilt and right of capture having been theretofore established, and in fact being unquestioned. * * * It is now proposed to use the hound, not to capture a fugitive, but to ascertain or furnish evidence to- convict some citizen of crime. * * * There is danger that the effect of the majority opinion will likely be to greatly promote the raising and training of bloodhounds, or hounds that will be called bloodhounds. It is a well-known fact that the owners of hounds, as well as other property, usually hold such property in high esteem; and, as the owner or trainer of hounds will be engaged in the business for pay, it will be greatly to their interest to always have well-trained hounds. In fact, I presume there will be none but trained and expert hounds in a few years; at least such will be the opinion of their owners, for it would be utterly useless to have any other sort.”

The qualification of Measle’s dog was proved by Titus himself. He had trained the dog, but had trained no other dog. The dog was given his training by Titus while Titus was acquiring his skill in training dogs by training this dog.

The pup was about- eleven months old, and Titus testified that he did not know whether he had a pedigree or not, but expressed the opinion that he was a bloodhound because he had long ears. Titus was asked: “Do you know whether he was a full bloodhound or not?” and answered, “I never saw his blood, and I couldn’t tell you.”

Mr. Coffman testified that when he turned the dog into the store “the dog smelled in and around on each side of the counter, but had put in more time, it seemed, around the money-drawer.” This was, of course, perfectly natural, as any bloodhound worthy of the name would reasonably expect the burglar to go to the cash-drawer, and then, to prevent any possibility of mistake on the dog’s part, the officers closed the public road upon which they expected the burglar to be trailed to all travel until the dog’s arrival.

As I read this testimony, it is obvious that the dog wholly lost the trail — if it ever had it — about 250 yards Irom appellant’s house. Here is where the dog did his maneuvering. Titus did not deny that the dog got off the trail and went on beyond appellant’s house, but he testified that the dog got off the trail after appellant had appeared on the scene and admitted that he had hunted “birds in the field where the dog then was. After reaching appellant’s house Titus tied up his dog, and the party accompanying the dog searched the house and found more than one sack of flour in the bin and the children chewing gum, but the searchers did not find the torn flour sack nor anything which .could be identified by Mr. Coffman as having been taken from his store. And, mirabile dictu, Titus testified that, after he had pulled the dog off the trail, and after the party had left appellant’s house, the dog then wanted to trail from there in the direction of Cornelius Lafevre’s house.

The fact of the matter is, as every boy learns, when he gets his first dog, that a dog will trail; indeed, the trouble is he trails overmuch. He trails one thing awhile, and then something else, if a fresher and more 'interesting trail is come upon. Here is where the necessity for blood' and training comes in. The dog must be .taught to keep his mind on his business, to concentrate upon the task to which his trainer puts him. This-requires skill upon the part of both dog and its trainer, and, unless the qualifying testimony shows that the dog had been previously properly trained, and was skilfully handled when put upon the trail, the evidence of the dog’s conduct is as valueless as the responses of a Ouija board.

In my opinion, the testimony does not show that Titus Measle’s dog had been properly trained, and the testimony in regard to his conduct should not have been admitted.

Mr. Justice Hart concurs in the views here expressed.


author: McCulloch, C. J.

text:
    Steele v. Buchanan.
    Opinion delivered January 15, 1923.
    Highways — disallowance op claims against district — right op commissioners to appeal. — In a .suit for an accounting as to claims for preliminary expenses of a road district on filing a master’s report in the county court, the commissioners of the district have no right of 'appeal as to claims disallowed by the court, as they are not aggrieved by the allowance thereof, nor is the challenge to their good faith in approving the claims sufficient to give them a right of appeal.
    Appeal from Nevada Chancery Court; James T). Shaver, Chancellor;
    appeal dismissed.

      H. B. McKenzie, for appellants.

      Bush <£ Bush, for appellees.
   McCulloch, C. J.

The present litigation is a continuation of the controversy between Road Improvement District No. 2 of Nevada County, which was created by a statute enacted by the General Assembly of 1919 (Special Road Acts 1919, vol. 1, p. 330), and certain owners of real property in the district. This district was divided into five sections, equivalent to as many separate districts, and sections 1 and 3 overlapped and embraced the territory of Road Improvement District No. 1 of Nevada County, organized under the general statute. Crawford & Moses’ Digest, § 5399 et seq.

The statute creating District No. 2 provided that, upon the formation of plans, and the assessment of benefits, if it should be found that the assessment would be sufficient to complete the improvement in sections 1 and 3, the county court was authorized to enter an order terminating Road Improvement District No. 1.

Plans were made, benefits were assessed, and the assessments were partially collected and preliminary expenses incurred, but the county court refused, on the petition of the commissioners of District No. 2, to terminate District No. 1, and on appeal to this court from the circuit court of Nevada County we affirmed that decision. Pittman v. Road Improvement Dist. No. 1, 147 Ark. 87.

Another action was brought by owners of property to restrain the commissioners of District No. 2 from collecting further assessments in sections 1 and. 3 of that district, and to compel the refunding of assessments already collected. We reversed the decision of the chancery court granting the relief prayed for in that case. We held that the lands were liable for preliminary expenses (not 'deciding what amount of expenses .there was) and remanded the cause for a decree to be entered in accordance with the opinion of this court. Steele v. Buchanan, 149 Ark. 91.

On the remand of the last cited case it was consolidated with still another suit in chancery, brought by property owners, and the consolidated suits proceeded as one for an accounting as to the claims for preliminary expenses. A master was appointed, without objection, and a report was filed. There were exceptions to the various items of the report, and the court allowed some of the claims and disallowed others. The commissioners of the district have appealed as to the disallowed claims.

It does not appear from the record that any of the claimants of the disallowed claims were ever formally made parties, or that they appeared in the action as claimants. None of them have appealed.

The point is made by counsel for appellees that the appeal should be dismissed, for the reason that the dis-allowance of certain claims. — which is the only issue sought to be presented by the appeal — constituted a decision in favor of the district from which neither the district nor its commissioners can appeal.

We think that the point is well taken. No theory is perceivable upon which the. district or the commissioners can be treated as being aggrieved at a decision disallowing a claim, for the decision is in favor of the district, not against it.

It is earnestly insisted by counsel for appellants that the decision of the chancery court challenges the good faith and/propriety of the acts of the commissioners in approving claims, and that this gives them the right to appeal. In this view of the case only a moral question is involved, at most — no property or contractual rights being involved — and the commissioners are not aggrieved in any legal sense.

It follows therefore that the appeal must be dismissed, and it is so ordered.


text:
    Powell v. Morrison.
    Opinion delivered January 15, 1923.
    Mortgages — sale under power — delegation op authority. — A sale by an appointee of the trustee in a mortgage authorizing the trustee to appoint an agent to make such sale is valid, and not the exercise of an unauthorized delegation of power.
    Appeal from Crittenden Circuit Court, Second Division; J. M. Futrell, Judge;
    affirmed.

      B. J. Semmes, for appellants.
    The power to make the sale could not be delegated to a person -other than the trustee. 70 Ark. 507; 55 Ark. 327. The power being personal to Scithers and requiring discretion, he was under the duty of being- present to exercise the discretion vested in him.

      Hughes & Hughes, for appellees.
    The deed of trust contained express authority for delegation by the trustee of the power to make the sale, and such delegated agent has all authority possessed by the trustee. The case in 55 Ark. 326 certainly conveys •this meaning. See also 31 Cyc. 1427; 1 Mechem on Agency (2nd ed.) sec. 314; Id. p. 225. The party making the deed was competent to contract; the thing contracted for was not illegal nor contrary to public policy.
   McCulloch, C. J.

This is an action to recover possession of a tract of land in Crittenden County, all of the parties claiming title from B. L'. Powell, deceased, as the common source. Appellants, the plaintiffs below, are the heirs at law of Powell, and appellees claim under the foreclosure of a deed of trust, with power of sale, executed by Powell. The trust deed was executed to George H. Scithers, as trustee, to secure a debt to Caldwell & Smith, and it contained the following provision: “And for any sale hereunder the acting trustee is authorized to appoint an agent and auctioneer to make such sale, in the absence of the trustee, as fully and validly as if the trustee were present conducting the sale.”

The sale was made by P. H. Carlisle, who was appointed by Scithers’ so to do, the appointment being in writing. Scithers executed the deed to the purchasers at the sale made by Carlisle.

Counsel for appellants contend that the sale made by Carlisle was void because his appointment by Scithers was an unauthorized delegation of power. They rely, in support of. that contention, on the decision of this court in North American Trust Co. v. Chappell, 70 Ark. 507, but the contention of counsel does not find support in that case. There was, in the present instance, express power conferred by the grantor in the deed of trust to the trustee to appoint an agent a substitute for the purpose of making the sale, and the authority was exercised strictly within those limits.

There is no principle of law that forbids a grantor in a deed from granting such authority to a trustee. 1 Meehem on Agency, sec. 306. The judgment of the circuit court was therefore correct.

Affirmed.


author: Wood, J.

text:
    Pledger v. Birkhead.
    Opinion delivered January 15, 1923.
    1. Appeal and error — testimony taken by master — authentication. — Testimony taken by a master is sufficiently identified where he files a report in court, certifying the names of the witnesses, that the stenographer correctly transcribed all of the testimony offeréd by both parties, and that the testimony so taken was filed in court.
    2. Master — failure to authenticate testimony — exception.— Failure of a master appointed to take testimony to authenticate depositions taken before him and filed with his report should be brought to the court’s attention by exceptions to the master’s report.
    3. Appeal and error — depositions—authentication.—A recital in a decree that all the evidence in the case was reduced to writing held sufficient to identify a deposition taken ore terms before the court, reduced to writing and duly authenticated.
    4. Deeds — mental capacity. — If the maker of a deed, will or other instrument has sufficient mental capacity to retain in his memory without prompting the extent and condition of his property and to comprehend how he is disposing of it and to whom and upon what consideration, then he possesses sufficient mental capacity to execute the instrument, in the absence of fraud, duress or undue influence, and mental weakness alone, whether produced by old age or through physical infirmities, will not invalidate an instrument executed by him.
    5. Deeds — mental weakness. — Mental weakness, though not to the extent of incapacity to execute a deed, may render a person more susceptible of fraud, duress or undue influence, and, when coupled with any of these or even with unfairness, such as great inadequacy of consideration, may make an instrument voidable, when neither such weakness nor any of these other things alone would do so.
    6. Deeds — presumption of capacity. — In a suit to set aside a deed because of the grantor’s mental incapacity and because of fraud and undue influence, the grantor’s capacity is presumed, and the burden is on the plaintiff to establish the allegation of his complaint.
    7. Deeds — want of capacity of grantor — evidence.—In a suit to set aside a deed on account of the grantor’s mental incapacity and of the grantees’ fraud and undue influence, evidence held insufficient to sustain finding that grantor did not have sufficient mental capacity to make the deed, or that the deed was procured by fraud or undue influence.

      Appeal from Logan Chancery Court, Northern District; J. V. Bourland, Chancellor;
    reversed.

      Jno. B. Croivnover and Hays, Ward & Hays, for appellant.
    Proof which is designed to invalidate a man’s deed or contract, must show inability to exercise reasonable judgment in regard to the matter involved in the conveyance, such as to prevent him from understanding the nature and consequences of his act. 70 Ark. 166; 1 Elliott on Contracts, sec. 365.
    The burden of proof to establish mental incapacity is upon the one attacking the conveyance. The law presumes there is full capacity to contract. 1 Elliott on Contracts 265; 142 111. 368. Such proof must be full, clear and decisive. 71 Ark. 617; 96 Ark. 264.
    The disposition made by Garrison of the land was a natural one, the terms were of his own choosing, and no undue influence was exerted in procuring the deeds. 49 Ark. 371; 13 Ark. 475; 19 Ark. 551. To show undue influence it is not sufficient to show that the appellants were members of Garrison’s household and perhaps enjoyed confidential relations with them, but there must be a malign influence, the result of fear, coercion, or any other cause which would deprive him of his free agency in disposing of the property. See 78 Ark. 420; 29 Ark. 157; 44 W. Va. 612; 118 U. S. 127. See also 119 Ark. 466.
    The $700 in suit was at no time the separate property of Garrison, but belonged to his wife.
    Appellee is barred by laches. 55 Ark. 85.
    The findings of the chancellor are persuasive merely ¡and not binding. 130 Ark. 465; 151 Ark. 474.

      Robt. J. White, for appellees.
    Garrison was mentally incompetent to make a deed to the lands involved under the tests laid down in 60 N. E. at p. 885; 171 S. W. (Ark.) 890; 70 Ark. 166. The deeds should be set aside on the ground of undue influence.

      Appellants occupied a fiduciary relation to Garrison as defined in Second Series, Words & Phrases, vol. 2, p. 229 and cases cited. See also 2 Porn. Eq. (3rd ed.) 956; 103 N. W. 632; 69 L. B. A. 409; 1 Pom. Eq. Jur. 218; 223 S. W. (Ark.) 561; 225 111. 629. The same undue influence prevailed in the execution of the will. Here we have a mentally incompetent person' conveying property for a grossly inadequate consideration, and equity will intervene to restore to him his property. 118 N. E. 543; 15 Ark. 555; 84 Ark. 490; 150 S. W. (Ark.) 117. See also cases in point in 241 Fed. 311; 111 N. E. 287.
   Wood, J.

On the 12th day of February, 1901,' George J. Garrison and his wife, Susan, executed to William Pledger a warranty deed conveying to Pledger certain lands therein described, consisting of about thirty-two acres in Logan County, Arkansas, for the consideration of $60, to be paid on the first of November of each year thereafter so long as Garrison or his wife lived; and also a warranty deed to Harvey Pledger, conveying to him certain lands described therein, consisting of about forty-three acres in Logan County, Arkansas, for the consideration of $65 to be paid on the first day of November of each year thereafter so long as Garrison or his wife lived.

This action was instituted by the appellee, as guardian ad litem and next friend of George J. Garrison, against the appellants to set aside the deeds mentioned and to recover the sum of $1,000 which he alleges came into their hands from rents and sales of property of George Garrison, and which they refused to pay over. The grounds alleged for canceling the deeds were, first, that Garrison did not have sufficient mental capacity to make the deeds, and, second, that the deeds were executed through fraud and undue influence of the appellants. The appellants denied the allegations of the complaint as to fraud and undue influence, and denied that they had in their possession any money 'belonging to George J. Garrison.

The testimony of all the witnesses, except that of George J. Garrison, was taken before a master in chancery, who was duly appointed and sworn for that purpose under the provisions of chapter 118 of Crawford & Moses’ Digest. The master’s report, filed June 7, 1921-, shows that he engaged a stenographer and took all the testimony and evidence offered by both. plaintiff and defendants bearing on the issues involved in the cause; that the same was transcribed and certified by him as special master and filed in court. Included in the report were the names of the witnesses whose testimony the master stated he had transcribed and certified. The decree recites as follows: “Now on this the 8th day of June, 1921, this cause was submitted * * * pursuant to stipulations in writing made on the 20th of April, -1921, by virtue of which this cause, with all the testimony and all the pleadings and papers, is to be on the 8th of June, 1921, thus submitted for consideration, to be finally decided at the September, 1921, term * * *, and now on this day of the regular September, 1921, term * * * this cause was submitted to the court for consideration, upon the pleadings and papers and depositions of witnesses filed in this cause, all the evidence herein being in writing * * *. And the court doth find from the pleadings, depositions and all the papers filed in the cause,” etc. * * * Then follow the findings of the court.

It appears that the testimony of George J. Garrison was taken before the court and by order of the court reduced to writing by the stenographer who took the same, and filed with the clerk of the court, and is designated in the transcript as the “testimony of George J. Garrison, taken before Hon. J. V. Bourland, chancellor, at Fort Smith on June 8, 1921.” The clerk of the chancery court certifies that the foregoing pages, numbering them from 1-693, inclusive, “contains a true, perfect, and complete transcript of all . the pleadings and exhibits thereto, record entries and proceedings, and all of the evidence taken and filed in the cause * * * as the same now appears on file and of record in my office, all the testimony being taken before George A. Hall, special master, and- reduced to writing under his direction, and no oral evidence being introduced in the cause.”

Among other things the court found that George J. Garrison was mentally incapable of executing the deeds mentioned, and that these deeds were executed “through over-persuasion and undue influence fraudulently exerted over George J. Garrison by the appellants.” The court further found that the appellants had in their possession the sum of $700 which was the property of Garrison. The court thereupon entered a decree in favor of the appellee against the appellants, canceling the deeds mentioned above, and for the sum of $700, with interest from the date of the decree. Prom that decree is this appeal.

The appellee moved to affirm the- cause on the following grounds .-'first, that the papers and writings purporting to be the depositions taken and heard in this-cause are not now parts of the record as filed in this court; second, “that the testimony of George J. Garrison was taken ore terms before the court, and that the same has not been properly authenticated and brought into the record. ’ ’

(a) The motion to affirm on these grounds must be overruled for the reason that the record shows that all of the testimony in the cause, except that of George J. Garrison, was taken before the master in chancery, who was duly appointed for that purpose, and who had reported that he had taken all the testimony of the witnesses, naming them, and had transcribed and filed the same in court. This was a sufficient identification and authentication of the testimony taken in the cause before the master. His report shows that the testimony so taken by him in the cause was filed in the court. The recitals of the decree show that the cause was submitted upon the “depositions of witnesses filed in this cause, all the evidence herein being in writing.” But, even if the report of the master and the recitals of the decree, as above set forth, were not sufficient to properly authenticate the testimony taken by the master and heard by the trial court, the appellee raised no objection before that court, either as to the manner of the taking of the testimony or to its identification. The provisions of chapter 118 of C. & M. Digest, • under which the master in chancery was specially designated to take this testimony, clearly contemplates that any defects or irregularities of the sort herein complained of shall be brought to the attention of the trial court by exceptions to the master’s report. Johnson v. Meyer, 54 Ark. 437; Goodrum v. Merchants’ & Planters’ Bank, 102 Ark. 326, 341, 342.

(b) As to the testimony of George J. Garrison, it occurs to us that the recital of the decree to the effect that the cause was submitted upon “all the evidence herein being in writing,” was sufficient to identify the testimony of Garrison. The record entries are sufficient to show that the court heard the testimony of Garrison ore tenus; that this testimony was. reduced to writing and duly authenticated, as shown by order of the court directing that'same be filed as part of the testimony upon which the cause was heard. Such we conclude to be the effect of the recital of the decree that all of the evidence upon which the cause was submitted was reduced to writing.

2. The testimony on the issues as to whether or not Garrison had mental capacity sufficient to enable him to execute the deeds, and whether or not he was induced by fraud or undue influence on the part of the appellants to make the same, covers nearly nine hundred pages of the transcript. Therefore it is wholly impracticable for us to set out and discuss in detail the testimony'. on these issues. About twenty-five witnesses testified for the appellee on these issues and about the same number for the appellants. There is a hopeless conflict in the testimony of these witnesses. It will be sufficient to set out the testimony of one Virgil Griffin, which is substantially typical of the testimony of all tlie witnesses, except the experts, as to Garrison’s mental capacity.

Griffin testified that he had known Garrison all of his life. He lived by him and was intimately associated with him; knew his first wife, who transacted most of his business for him. Simeon Pledg’er attended to his business after his first wife’s death, and until he married the last time, after which his second wife and her boys and Uncle Thad Johnson attended to it. Garrison was weak-minded as far back as witness could remember, and was not capable of attending to the ordinary business transactions of a farmer. Witness never know of his being trusted to transact any business alone. Garrison was witness’ great uncle. While Garrison had the seventy-five acres in controversy it rented for $5 or $6 per acre. Most of it was in cultivation. The 'boys (appellants) attended to his business. He did not attend to it himself. They loaned his money for him. Garrison would not make a. horse trade without his wife’s consent. It was generally -understood that Garrison consulted his family about all his 'business.

All of the witnesses for the appellee, who testified as to Garrison’s mental capacity, were of one voice in saying that he did not have, average intelligence and could not attend to business properly and like a man of average intelligence. The effect of their testimony was that he had a mind so simple and his mental condition was so feeble that he was incapable of transacting ordinary business affairs without consultation and assistance.

Three physicians qualified as experts and testified on behalf of the appellee. One of these testified that he had known Garrison for twenty years and had, in a general way, during that time, observed his mental condition, his personal appearance and general conduct when he would meet Garrison in. crowds; that, within the last six months before giving his testimony, he had given Garrison close and expert examination with a view to ascertaining his physical and mental condition, and in August, 1920, liad examined him in connection with two other physicians. This examination disclosed a peculiar type of facies which the witness described, and stated that the characteristics all indicated that Garrison was a man of mental inferiority. The witness further stated that, upon asking him questions, they discovered from his answers that he was very simple-minded, the language of the witness being that “he (Garrison) is a high-grade feeble minded person, or a low-grade moron, and has never in his life been anything higher than a moron, with the mental development of a child twelve or fourteen years old.” After further describing his conduct and personal appearance, which he said he had observed in Garrison for practically thirty years, he gave it as his opinion that Garrison “would be no more competent in a business transaction than a child twelve or fourteen years old, and had not sufficient mentality and will power to protect himself in such transactions against persons of average intelligence.” In witness’ opinion such was his mental condition in 1901, when the deeds were executed.

The two other experts who assisted in the examination had not known Garrison so long, but one of them corroborated substantially the testimony of the other expert as to Garrison’s mental condition at the time of the execution of the deeds.

On the other band, the witnesses who testified on behalf of the appellants, who were equally well acquainted with Garrison, and had been closely associated with him in the life- of the community, were equally positive that Garrison had sufficient mental capacity to .enable him to transact ordinary business affairs. T-hey all testified that Garrison was an uneducated man, that many people bad stronger minds, 'but that he had judgment and business capacity to attend to the ordinary affairs of a small farmer such as he was. These witnesses testified that Garrison took an interest in the public affairs of the community. He would vote at elections, and had his partisan preferences as other ordinary voters. Many of these witnesses testified that Garrison took an active interest in church life; that he was a regular attendant, and was often called upon by the preachers to lead in prayer. He was one time a member of the Presbyterian church and a ruling elder of that church. He was designated as a messenger for the purpose of securing a pastor. He was a member of the Odd Fellows lodge, and held an office in the lodge; was a constant attendant at its meetings, and was one time warden and another time chaplain of the lodge. He had memorized the ritual so as to enable him to properly perform the functions of those offices. He became a member of the lodge two years after the execution of the deeds. In the years 1901 and 1902 Garrison served for a whole term on the regular panel of the petit jury. At least a dozen witnesses testified that they had had business transactions with Garrison. The testimony of these witnesses tended to show that Garrison conducted the business for himself in the ordinary business transactions such as a farmer in his situation would have. One of the members of a firm of merchants with whom Garrison traded from the years 1890 to 1913, inclusive, testified that Garrison would buy goods from his firm for cash and on credit, sometimes alone, and sometimes members of the family would be with him. This merchant stated that he looked after his customers and took a personal interest in them. One of the clerks in this store who sold Garrison goods between the years 1900 and 1904 stated that Garrison bought merchandise close, was a good trader, and if the stuff was not priced right they couldn’t sell it to him. This clerk was over fifty years old, and had known Garrison since he was a boy. He was a good customer and a good man. It never crossed the witness’ mind that anything was wrong with his mental condition'.

A clerk at another store at which Garrison traded during the years 1916 and 1917 testified that he sold Garrison lots of goods, and that he would usually pay cash for same, though his credit was A-l. The witness had an opportunity in that way of engaging in conversation with Garrison and of judging his mental capacity, and he stated that it was just as good as that of any ordinary countryman. lie often bought goods by himself, and was a good trader.

The lawyer who drew the deeds in question and a contract that was executed at the same time by the appellants to Garrison, testified substantially that Garrison and the appellants came to his office together to talk over with him the sale they had made, and requested him to draw up the deeds and contract to conform thereto. Garrison stated at the time that he didn’t want to be bothered with handling the place, and wanted the boys to take it and pay him so much a year; that he would be satisfied if they paid him that much as long as he lived, or his wife lived, in case of his death. Witness further stated that Garrison seemed perfectly satisfied with what he was getting for the land. Witness was asked whether, in his opinion, Garrison knew and comprehended and was able to take care of himself in that transaction, and answered, “Well, he impressed me as being just as capable of taking care of himself as the others did. I couldn’t see but what they were dealing on perfectly equal terms, so far as mental capacity was concerned.” This witness had known Garrison about forty years.

There was testimony on behalf of the appellee tending to prove that the land in controversy was worth at the time of the sale from $2,500 to $3,000, and there was testimony on behalf of the appellants tending to show that the land at that time was not worth more than the sum of $1,250. This is the value which the parties to the deeds at the time placed upon the lands.

In 1885 Garrison married Susan Pledger, the mother of the appellants. In 1886 Garrison executed a will in which he bequeathed to his wife, Susan, and her bodily heirs by him, if any, all of his property, real and personal; and in case they had no children, to his wife and her children. It was shown that the family relations, after Garrison’s intermarriage with the mother of the apioellants, were always pleasant. He treated, appellants and their sister as his children, and they treated him as a father. At the time of the marriage William Pledger was fourteen, Harvey Pledger was ten, and their sister was twelve.

The above we believe to be a substantial resume of the testimony of the witnesses, outside of the parties themselves to the transactions. Garrison’s testimony was taken before the court at the hearing. At this time he was in his seventy-ninth year. Six or seven years 'before he had fallen from the porch at his home, and since that time, according- to the testimony of his physician, he had broken rapidly in health and was not the man, mentally or physically, that he was when the physician first knew him, nine years before. The physician who gave this testimony was also one of the doctors who made the special examination of Garrison to determine his mental condition. He did not communicate this information to the other physicians at the time they were examining Garrison.

The testimony of several other witnesses, who had known Garrison many years and were closely associated with him, corroborated the testimony of the physician as to his then mental and physical condition. The family physician, who had known Garrison nine years, did not concur with the other doctors in their classification. He “did not think Garrison was ever a man of average intelligence ; that he had never developed beyond the mentality of a boy of fifteen years of age. ’ ’ In his opinion the average man should be able to read and write and attend to ordinary business .affairs. He had observed men who were able to attend to their business who had no education at all. He was asked whether Garrison’s mental condition was below the totally uneducated man of ordi nary common sense, and answered, “I don’t know as I can answer. It’s hard for me to tell what his mental condition would be if he had a good education. If he had been given proper education he would have been better than he is today.” Witness further stated that he did not think Mr. Garrison was up to the average in attending to business1 properly, but a great many good men couldn’t do that, and his answer would have to be conditioned by his personál knowledge of him since his acquaintance.

The testimony of Garrison, without setting it forth in detail, was to the effect that he didn’t remember about the deeds being written in Dardanelle. Many other of the facts relating to the transaction he didn’t remember. He made the deeds because his wife and the boys (appellants) wanted him to. He didn’t want to make the deeds for the consideration of $125 per year, but did so be cause they insisted on it, and liad been insisting on it for two or three years. At another place in his testimony he said that he loved the appellants’ sister as if she had been his own child, and also loved the appellants; that they tried to help him, and he tried to help them. He stated he wanted to see appellants make good and successful men. In further stating why he sold the land to them he said that it was a good piece from his home, and he did not like to go back and forth to work it. He was asked this question: “You just wanted William and Harvey to have it?” and answered: “I thought it was best for them to have it.”

The testimony of the appellants was to the effect that their relations with their stepfather had always been pleasant. He approachéd the appellants upon the proposition of buying the place. He valued it at $1,250. They were willing to pay that for it, the payments to be made in four or five years, but to this Garrison demurred, and proposed to sell upon the terms named in the deeds. They finally accepted his proposition, and it was understood that at his and itlieir mother’s death the appellants should pay their sister out of the consideration the sum of $416. Their testimony shows that they had complied with the terms of the deeds on their part by paying the consideration named therein to Garrison as long as he would receive the money, and had proffered the payments due just before the institution of this suit, which Garrison refused to accept.

The familiar principles of law applicable to cases of this kind have often been announced by this court. Tf the maker of a deed, will, or other instrument has sufficient mental capacity to retain in his memory, without prompting, the extent and condition of his property, and to comprehend how he is disposing of it, and to whom, and upon what, consideration, then he possesses sufficient mental capacity to execute such instrument. Sufficient mental ability to exercise a reasonable judgment concerning these matters in protecting his own interest in dealing with another is all the law requires. If a person has such mental capacity, then, in the'absence of fraud, duress, or undue influence, mental weakness, whether produced by old age or through.physical infirmities, will not invalidate an instrument executed by him. McCulloch v. Campbell, 49 Ark. 367; Seawell v. Durst, 70 Ark. 166; Taylor v. McClintock, 87 Ark. 243-247; McIlroy v. Tucker, 115 Ark. 430.

But mental weakness, though not to the extent of incapacity to execute the instrument designated, “may render a person more susceptible of fraud, duress, or undue influence, and, when coupled with any of these, or . even with unfairness, such as great inadequacy of consideration, may make a contract voidable, when neither such weakness nor any of these other things alone, or of themselves, would do so.” 8 Sup. Elliott on Contracts, § 365; Hightower v. Nuber, 26 Ark. 611; see West v. Whittle, 84 Ark. 490, and cases there cited; also Travers v. Jones, 116 Ark. 95; Martin v. Davis, 105 Ark. 44; Boggianna v. Anderson, 78 Ark. 420. In Boggianna v. Anderson, supra, following McCulloch v. Campbell, we held that “to avoid a deed for undue influence it is not sufficient that the grantor was influenced by the grantee in the ordinary affairs of life, or that he was in close touch and upon confidential terms with him, but there must be a malign influence resulting from fear; coercion, or other cause, which deprives the grantor of his free agency in disposing of his property.” See also Milton v. Jeffers, 154 Ark. 516; Taylor v. McClintock, supra, at page 280.

The capacity on the part of Garrison to make the deeds under review is presumed. The burden of proof therefore was on the appellee to establish the allegations of his complaint. Taylor v. McClintock, supra.

Applying the above principles of law to the facts as above set forth, we have reached the conclusion that the trial court erred in finding that Garrison did not have sufficient mental capacity to make the deeds. As we read the record, the testimony of those who had business transactions with him before, at the time of, and after the execution of the deeds, and who had the best opportunity to observe him, such as merchants and others with whom he had dealings, as well as those who observed his conduct in the ordinary life of the community, shows that he had mental capacity sufficient to enable him to make the deeds in controversy. The testimony of the experts who had made a personal examination of Garrison with a view of determining whether or not he had sufficient mental capacity in 1901 to make the deeds, is entitled to great consideration, and likewise the fact that Garrison, while giving his testimony, was under the oN servation of the learned trial court. The chancellor, in all probability, was greatly influenced by the testimony of the experts and such personal observation of Garrison, But these experts, except one, had not been acquainted with Garrison until long after the deeds were executed, and the one expert who had observed him before that time had made no examination with a view of ascertaining his mental condition. He had only casual and general observation of. him as a citizen of the community. The personal examination by the experts to ascertain his mental capacity was made after his mind and body had been weakened by disease as well as the infirmities of old age. It occurs to us that the opinion of experts as to the mental capacity of Garrison, grounded upon an examination made of him some twenty years after the deeds were executed and after accident, disease, and advancing years had made inroads upon his mind and body, and the condition of his mind and body as he appeared to the chancellor at the time of his examination, should not overbalance the testimony of many witnesses as to his mental condition at the time of the execution of the deed, as determined by business transactions and civil conduct some time before and after the deeds were executed, and before any accident had befallen him, and before old age and disease had laid their hands upon him. Before this occurred it appears, from a preponderance of the evidence, that he was mentally able to carry on the ordinary business affairs of a small farmer. He bought and sold, and was able to conduct his business satisfactorily and profitably. He was twice married to women who were themselves shown to be intelligent and capable. He served on juries, voted at elections, took a keen interest in politics, church, and secret orders, and discharged functions in connection with these that he would hardly have been called upon or expected to perform if his mental processes had been such as to render him incapable of understanding the nature and extent of the simnle transaction of making deeds to seventy-five acres of land.

As we view the record, a decided nrenonderance of the evidence shows that the appellants did not perpetrate' any fraud or exercise any undue influence upon Garrison to cause him to execute the deeds.

The deeds which the appellee seeks to set aside are of long standing. Nearly twenty, years elapsed after their execution and before any steps were taken to have thepa annulled. The lands have greatly enhanced in value. Appellants have complied with the terms of the deeds by paying the consideration named therein, and during all this time have managed and controlled the property as their own, and have made valuable improvements thereon. Under all the facts of the record we are convinced that the appellee has not, by a preponderance of the evidence, sustained the 'allegations of his complaint as to the lack of mental capacity, and fraud and undue influence. The court therefore erred in entering a decree canceling these deeds.

The court likewise erred in rendering a decree in favor of the appellee against the appellants for the sum of $700. A preponderance of the testimony shows that the $700 in the hands of the appellants was the separate property of their mother, and that she delivered the same to them before her death, with the understanding that it was to be their property, but upon her death they agreed that they would look after Garrison and would use any of it for him that he might need, which they had always been ready and willing to do. The appellee lias not shown by a preponderance of the evidence that the money for which this decree was rendered had at any time become the separate property of Garrison. The testimony of the appellants is to the contrary, and we do not find any evidence in the record sufficient to overcome their testimony.

For the errors indicated, the decree of the court is reversed and the cause remanded, with directions to dismiss the appellee’s complaint for want of equity.


author: Hart, J.

text:
    Johnson v. State.
    Opinion delivered January 15, 1923.
    1. Homicide — evidence.—Evidence held to sustain a conviction of murder in the second degree.
    2. Criminal law — repetition op instructions. — A court is not required to multiply instructions on the same point.
    3. Criminal law — argumentative instruction. — It was not error to modify a requested instruction on self-defense by striking out a portion of it that was argumentative and tended to invade the jury’s province.
    4. Homicide — instruction.-—Where, in a prosecution for murder in the first degree, the evidence tended to prove that offense, but not murder in the second degree, an instruction as to thé latter offense was not open to general objection, nor was it prejudicial to defendant.
    5. Criminal law — motion to exclude testimony — -discretion op court. — It is within the court’s* discretion whether -testimony admitted without objection should be excluded on motion after all the testimony is in.
    6. Criminal law — evidence op another crime. — Evidence of location and range of fatal wounds inflicted by defendant on deceased’s son held admissible in a prosecution for murder of deceased, where both killings occurred at the same time and place, and the jury were instructed to confine their inquiry as to the killing of deceased only; the testimony being competent to show motive on part of accused.
    Appeal from Drew Circuit Court; Turner Butter, Judge;
    affirmed.

      R. W. Wilson, W. F. Norrell and G. P. George, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Hart, J.

Cliarlie Johnson prosecutes this appeal to reverse a judgment of conviction against him for murder in the second degree. The defendant was indicted for murder in the first degree and was tried before a jury, which found him guilty of murder in the second degree and fixed his punishment at twenty-one years in the State Penitential.

According to the evidence for the State, Charlie Johnson shot gnd killed R. B. Wood on the 15th day of May, 1922, in Drew County, Ark. Some time in January, 1922, Elston Wood, a son of R. B. Wood, deceased, killed Curtis Baker, a half-brother of the defendant. Elston Wood had been convicted, and, pending an appeal to this court, was out on bond. The killing of Baker had engendered ill. feeling between the family of deceased and that of the defendant. The defendant lived with his mother on a farm which adjoined the farm of R. B. Wood, there being only a lane between them. Elston Wood and Calvin Downey, his brother-in-law, cultivated land on the farm of the deceased, and were engaged in planting cotton when the killing occurred. Elston Wood and Downey had finished planting- one piece of land and had gone to another piece which was only separated from the farm of the defendant’s mother by a narrow lane. They started to planting cotton in this field. R. B. Wood was sixty-five years of age, and was unable to work. He was barely -able to come out into the field and watch his son and son-in-law work. On the morning of the killing he came into the field and sat down by a stump near where his son and son-in-law were engaged in planting-cotton. The defendant was engaged in plowing in his mother’s field just across the lane. When he saw deceased and his son and son-in-law come into the field adjoining that in which he was plowing, he went to his mother’s house and brought back a high-power rifle which he laid across the plow-handles while plowing. After plowing a while, he came to the lane between the two farms, only twenty-five or thirty yards distant from the deceased and his son. He shot and killed Elston Wood with his rifle, and, just as he heard the shot, R. B. Wood started to raise up from where he was sitting beside a stump. Before he had raised up, the defendant shot and killed him with the rifle. Calvin Downey, the son-in-law of the deceased, started to run arvav in a zigzag direction across the field, fearing- that the defendant would kill him. The wife of Elston Wood was washing clothes about 150 yards away. She looked up when she heard the first shot, and ran into the house and got a pump shotgun and a 38-caliber pistol. She .ran towards the place where the defendant was and emptied the shotgun and pistol at him. The defendant ran towards his mother’s house and escaped injury.

According to the evidence for the defendant, Elston Wood first commenced shooting at him, and he killed him and his father in his own necessary self-defense. He had placed the gun on his plow-handles in order to defend himself if attacked by any member of the Wood family. He saw them at -work in the adjoining field, and knew they were armed.

According to the evidence for the State, neither the deceased, nor his son and son-in-law were armed. This is a brief summary of the evidence for the State and for the defendant. A bare recital of it shows that the verdict of the jury is sustained by the evidence for the State, and no further discussion, of this assignment of error is necessary.

Counsel for the defendant contend that the court erred in refusing to give instruction No. 6 requested by thé defendant. The instruction is as follows:

“Justifiable homicide is the killing of a human being in necessary self-defense of habitation, persons-or property, against one who manifestly intends or endeavors by violence or surprise to commit a known felony. The right of self-defense is one to which every man is entitled, and which he may reasonably exercise whenever the emergency may demand, even to the extent of taking human life; and where one is himself, without fault, assaulted in such manner as makes it reasonably apparent that his life is in such present and imminent peril and the danger is so urgent and pressing that it is necessary to take the life of his assailant in order to save his own life, or prevent and preserve himself from great bodily harm, he may stand his ground and repel force with force, to the extent of killing his adversary, provided he does so in the actual honest belief that it is necessary, and acts under all the circumstances in a reasonably prudent manner.”

The matters embraced in the instruction were given by the court in an instruction for the State. Instruction No. 8 reads as follows:

“ Jiistifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, person or property, against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony. In ordinary cases of one person killing another in self-defense, it must appear that the danger was so urgent and pressing that, in' order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary, and it must appear also that the person killed was the assailant; but where the assault is so sudden and violent as to make it reasonably apparent that it would be equally as dangerous to retreat as not, then one would not be bound to retreat, but might stand his ground and repel force with force, even to the extent of taking life to save life or prevent great bodily harm.--
“A bare fear of those offenses to prevent which the homicide is alleged to have been committed shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under their influence, and not in a spirit of revenge. ’ ’

It will be observed that all the matters embraced in the’instruction asked by the defendant were fully covered by the instruction given for the State, and it has been uniformly held in this State that a court is not required to multiply instructions on the same point. The instruction given was in accordance with the views expressed in our previous decisions relating to the question. Duncan v. State, 49 Ark. 543, and McDonald v. State, 104 Ark. 317.

Tlie next assignment of error is that the court erred in refusing’ to give instruction No. 7 asked by the defendant. The instruction as asked is as follows:

“You are instructed that, if you believe from the evidence in this case that the deceased had threatened the life of the defendant, and that these threats had been communicated to the defendant at some time prior to the killing, and that deceased’s reputation for turbulence and violence or peace and quietude was bad, and this reputation was known to the defendant, then the defendant had a right to arm himself with a gun loaded in any manner he saw fit, for the purpose of defending himself against any unlawful assault that the deceased might make upon him, and the law does not hold him to the same deliberate action it does under ordinary circumstances. ’ ’

The court modified the instruction by striking therefrom the following: “and the law does not hold him to the same deliberate action it does under ordinary circumstances.” The court did not err in modifying the instruction. The part stricken out was argumentative and tended to invade the province of the jury.

The next assignment of error is that the court erred in giving to the jury instruction No. 19, which reads as follows: “If the jury should find that the defendant fired the fatal shots, one of which took the life of R. B. Wood, the deceased, at a time when Elston Wood and Calvin Downey were plowing in the field and R. B. Wood was near a stump, and while they were making hostile demonstrations toAvard the defendant, and that he fired the shots not in necessary self-defense but from a spirit of malice and revenge, but without premeditation and deliberation, he would be guilty of murder in the second degree. ’ ’

Counsel for the defendant made only a general objection to this instruction, but now insists that it was erroneous because the defendant was either guilty of murder in the first degree or- should have been acquitted. While this is true, the instruction was favorable to the defendant, and the error is not one of which the defendant can complain on appeal. Glenn v. State, 71 Ark. 86; Rogers v. State, 136 Ark. 161; and Webb v. State, 150 Ark. 75.

The next assignment of error, is that the court erred in permitting the State to impeach one of defendant’s witnesses. It appears from the record that no objection was made to this testimony at the time it was given. An objection was first made after all the evidence in the case had been given to the jury. Counsel for the defendant then moved to exclude the testimony, and it was within the discretion of the court to refuse to exclude it at that time. No abuse of the discretion is shown, and we hold that assignment of error is not well taken.

The next assignment of error is that the trial court erred in permitting the State to show the location and • range of the wounds inflicted upon Elston Wood. While the defendant was being tried for the killing of R. B. Wood, yet Elston Wood was first killed by him. Both killings occurred at the same time and place and were necessarily parts of the same transaction. The two shots were fired in quick succession, and the testimony was competent as tending to show motive on the part of the defendant. Besides, the court gave to the jury on this point an instruction as follows:

“You are instructed that the defendant is now being tried for the killing of R. B. Wood, and while there has been evidence to show he killed J. E. Wood also, you are instructed that you should not consider the question as to whether or not the defendant was justified in killing the said J. E. AYood, but you should confine your inquiry solely to the killing of R. B. Wood and the facts and circumstances surrounding the same.' And the jury should not consider the killing of J. E. Wood whatever except for the purpose of shedding light upon the killing of R. B. Wood.”

The next assignment of error is that the court erred in allowing the prosecuting attorney to ask leading questions, and also erred in allowing certain remarks to be made by the prosecuting attorney in his argument to the jury. We have carefully examined the record on both these assignments of error and find them not well taken. We do not deem it necessary to extend this opinion by setting forth the remarks of the prosecuting attorney or making an extended discussion with reference thereto.

.Other assignments of error are pressed upon us for a reversal of the judgment, but we do not deem it necessary to discuss them separately or-in detail. It is sufficient to say that the respective theories of the State and of the defendant were fully and fairly submitted to the jury in the instructions of the court upon competent evidence.

We find no reversible error in the record, and the judgment must be affirmed.


author: Hart, J., (after stating the facts).

text:
    St. Louis-San Francisco Railway Company v. Lane.
    Opinion delivered January 15, 1923.
    1. Master and servant — negligence—sufficiency of evidence.— Evidence held to sustain a verdict that plaintiff -while aiding his fellow servants in putting a motor car on a railroad track .was injured by the unexpected pushing or shoving forward of the car by his fellow servants without the customary signal being given by the foreman.
    2. Trial — instruction limiting consideration of jury. — Where several allegations of negligence are made in a complaint, and at the trial all but one are abandoned, a requested instruction limiting the jury’s consideration to that one was improperly refused.
    - Appeal from Crawford Circuit Court; James Coch-. ran, Judge;
    reversed.
    statement op pacts.
    Pete Lane brought this suit against the St. Louis-San Francisco Bailway Company to recover damages'for personal injuries received while assisting his fellow servants .in putting a motor-car on the defendant’s railroad tracks. The defendant denied negligence on its part, and pleaded contributory negligence and assumption of risk on the part of the plaintiff.
    According to the testimony of Pete Lane, the plaintiff, lie was injured on the 12th of April, 1921, while assisting in putting a motor-car on the defendant’s railroad tracks between Clayton and Stanley, Oklahoma. He was working at the time with a crew of seven men under the direction of a foreman. They had gone to the place where the injury occurred for the purpose of un- ■ loading a car of chat. They went to the place in a motorcar, and set it off of the track. They then assisted another section crew in unloading the car of chat. When they had finished, the foreman directed the crew to -put the motor-car back on the track. Seven men were engaged in the work. Three of them were at one end and four at the other. After the foreman had given the orders to put the motor-car back on the track, the crew pushed the car up to the end of the ties. The plaintiff got hold of the car to help lift it up on the track, and the members of the crew at the other end pushed'the car so that it was rolled over his foot.' The plaintiff’s foot was severely injured, and, according to his evidence, it is permanently injured.
    According to the evidence adduced by the defendant, the crew was working under the direction of a foreman at the time the plaintiff was injured. Before the car was moved at all, the foreman would give a signal. The car had been removed from the rails and placed beside the track while the crew was unloading the chat. The foreman then directed the crew to place the motor-car back on the track. He first gave a signal, and the crew placed the car up on the end of the ties. The foreman then gave another signal for the crew to lift the car on the rails, and the plaintiff was injured while assisting in doing this.

      The jury returned a verdict for the plaintiff, and the defendant has appealed.

      W. F. Evans and Warner, Hardin & Warner, for appellant.
    The testimony was not sufficient to establish negligence bn the part of defendant. 1 Roberts, Federal Liabilities of Carriers, 942; U. P. B. Co. v. Hadley, 246 U. S. 330; A. T. & S. F. R. Co. v. Swearingen, 239 U. S. 339. Negligence cannot be inferred merely from the occurrence of the accident; it must be proved by the party alleging it. Patton v. T. & P. R. Co., 179 IT. S. 658; K. C. S. R. Co. v. Cook, 100 Ark. 467; St. L. I. M. S S. Ry. Co. v. Steel, 129 Ark. 520. Plaintiff assumed all the obvious and ordinary risks of his employment. 118 Ark. 304; 14 L. R. A. (N. S.) 952; 48 L. R. A. (N. S.) 466; 84 Ark. 270; 106 Ark. 32. If signals were not used or required in the work, then his fellow servants were not charged with any duty of protecting him by giving signals before moving the car. 104 Ark. 67; 1 Roberts. Federal Liabilities of Carriers, 959; 240 IT. S. 444; 60 L. Ed. 732; 124 Ark. 431. The court erred in giving instruction No. 1, as requested by plaintiff, on the question of negligence other than the particulars charged in the complaint. 71 Ark. 518; 135 Ark. 340; 69 Ark. 380; 153 Ark. 454; 152 Ark. 90. Instruction No. 6, on the question of assumption of risk, was erroneous and prejudicial. 245 IT. S. 441, 62 L. ed. 385; 233 IT. S. 492, 58 L. ed. 1062; 241 U. S. 310, 60 L. ed. 1016; 244 U. S. 320, 61 L. ed. 1162.

      Dave Partad-n and G. L. Grant, for appellee.
   Hart, J., (after stating the facts).

It is first earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to warrant the verdict.

We do not agree with counsel in this contention. According to the testimony of the plaintiff, while it was not customary to give signals before moving the car, still he did not have any chance to get his foot away after they pushed the car up the dump to the end of the ties. According to his testimony, his foot was caught under the wheels of the car by the other members of the car pushing it, without giving him any warning that they were going to do so.

Of course, under the evidence for the defendant, the customary signals were given by the foreman before the car was moved, and the defendant was not guilty of negligence. The evidence for the defendant, however, was contradicted by the.testimony of the plaintiff, and this left the question of the negligence of the defendant and the contributory negligence of the plaintiff for the jury. If the men were working under the direction of .the foreman, and only moved the car after he. had given them a signal to do so, the men would have a right to rely on the giving of this signal before the car was moved. This was a proper method of doing the work, because the men could work to better advantage under signals given by the foreman than they could if each man was required to look out exclusively for his own safety. Where several men are engaged in lifting a heavy object it is fairly inferable that they could work to better advantage under concerted action than they could if each man was left to work in his own way. Therefore we do not think that this assignment of error was well taken.

It is next insisted that the court erred in refusing to give instruction No. 7 at the request of the defendant. The instruction reads as follows:

“The court instructs you that the only question of negligence in this case which you can take into consideration is whether or not the defendant’s employees who were working with plaintiff in re-railing said motorcar, or placing same back upon the track, carelessly and negligently, and without notice or warning to him, shoved and pushed said motor-car upon the plaintiff, i hereby catching his foot and heel between the front end of said motor-car and the track, and injuring him as alleged, and the burden of proof is upon the plaintiff to prove such negligence upon the part of the defendant by a preponderance of the testimony, and if, he fails to do so you should return your verdict for thedieiAndant. ’ ’

We think the assignment of error is well taken. Several allegations of negligence were made in the complaint, but at the trial all were abandoned except the one alleging that the car was run over the plaintiff’s foot while being placed back upon the track, without notice or warning to him.

This 'is admitted by counsel for the plaintiff, but they insist that the instruction is not prejudicial because, in another instruction asked by the defendant and given by the court, all the grounds of negligence alleged in the complaint were submitted to the jury. This* however, did not relieve the court of the responsibility of submitting the case to the jury on the only ground of negligence relied upon by the defendant when specifically requested to do so. Otherwise the jury might have found for the plaintiff upon allegations of negligence of which there was no proof. Arkansas Central Rd. Co. v. Workman, 87 Ark. 471; Ohio Handle & Manufacturing Co. v. Jones, 98 Ark. 17, and Athletic Min. & Smelt. Co. v. Sharp, 135 Ark. 330.

But it is insisted that instruction No. 7 was faulty in ignoring the evidence to the effect that the motor-car was, without notice or warning, shoved or pushed over the defendant’s foot. A careful reading of the instruction will show that such is not the case, and the instruction in apt words submits to the jury the only question of neglience relied upon by the plaintiff for a recovery. No other instruction limiting the recovery to a finding by the jury in favor of the plaintiff on the question of negligence relied upon by him in his proof was given to the jury. Therefore the case was not properly submitted to the jury, and the court erred in refusing to give instruction No. 7 asked for by the defendant.

While we do not deem it necessary to set out other instructions asked by the defendant and modified by the court, we call attention to the fact that they carried this same error. The instructions as modified specifically submitted to the jury all the allegations of the complaint, and, as we have already stated, the plaintiff concedes that there was only proof to establish one of these allegations.

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


author: Humphreys, J.

text:
    Blair v. Wells.
    Opinion delivered January 15, 1923.
    1. Bills and -notes — release of indorser — evidence.—A finding by the chancellor that defendant’s liability as indorser on notes had been released held against the weight of the testimony.
    2. Bills and notes — contribution among indorsers. — Where five of six indorsers on a note were compelled to pay the whole amount of the note, they were entitled to contribution from the sixth indorser for one-sixth of the amount so paid if the sixth indorser’s liability had not been released.
    3. Bills and notes — contribution among indorsers. — Where'five of six indorsers on a note take it up after it is due and cancel it by giving their own note which is accepted by the creditor, this is equivalent to payment of the first note, and will support a suit for contribution against the sixth indorser.
    4. Bills and notes — contribution among indorsers. — Crawford and Moses’ Dig., § 7886, prescribing the methods by which persons secondarily liable on negotiable instruments may be discharged, does not affect the right of indorsers upon notes to contribution from a co-indorser after they were compelled to pay the note..
    Appeal from Lee Chancery Court; A. L. Hutchins, Chancellor;
    reversed.

      Daggett & Daggett, for appellants.
    Where one or more co-sureties on a promissory note pay the same, they are entitled to contribution from others. 6 Pomeroy’s Equity, §§915-916-9; 6 R. C. L. 1042; 34 Ark. 73; 8 Ark. 494; 4 Ark. 506; 14 Ark. 267; 123 Ark. 77; 73 Ark. 174; 34 Ark. 569; 127 Ark. 462; 80 Ark. 304; 124 Ark. 555.

      R. D. Smith and II. F. Roleson, for appellee.
   Humphreys, J.

Appellants, indorsers with appellee of three promissory notes executed by the Rondo Milling Company, a private corporation, to Lee County National Bank, instituted suit in the Lee Chancery Court against the Rondo Milling Company for $6,883.79, and •against appellee for one-sixth of said sum, or $1,129.29; alleging that they had paid the notes and were entitled to be subrogated to the rights of the Lee County National Bank, and to contribution from appellee, their co-indorser. It was also alleged that said bank was indebted to W. H. Wells in the sum of $750, for which amount a writ of garnishment was procured.

Said bank filed an answer admitting the indebtedness, and Avas released-upon the payment of the amount into court.

Appellee interposed the following defenses: first, that he Avas released by agreement of all the parties; second, that lie Avas released by failure of the bank to notify him of the nonpayment, to demand payment and protest the paper.

The cause Avas submitted to the court upon the pleadings and testimony adduced by the respective parties, Avhich resulted in a decree dismissing the bill for the Avant of equity, from Avhich is this appeal.

The notes contained a Avaiver of notice of nonpayment, demand, and protest.

The record reflects that the Rondo Milling Company Avas incorporated in 1918; that R. M. Blair was a director and president; that appellee Avas a stockholder and manager; that the other appellants Avere stockholders and some of them directors; that the mill was operated at a loss; that during the operation thereof a large amount of money Avas borroAved from the Lee County National Bank upon notes signed by the Rondo Milling Company and indorsed by appellant and appellee; that on November 30, 1920, appellee sold his stock to Louis Knnda, who took his place as manager.

Each of the appellants testified, in substance, that the bank demanded payment of the notes, and in a few months thereafter, pursuant to the demand, - each paid $100 and the milling company $500, making a total payment thereon of $1,000, leaving a balance due the bank of $6,883.79, for which they executed two promissory notes; that said notes were renewed several times before this suit was instituted; that when they made the payment and signed the new note's to the bank, the old notes were surrendered and the milling company was released; that the new notes became a joint and several obligation of appellants; that at the time appellee sold his stock to Kunda, neither appellants nor the bank agreed to release appellee from his obligation as indorser upon the original notes executed by him as manager for the Rondo Milling Company.

The testimony of appellants was corroborated by the testimony of Chas. M’Kee, the cashiér of the bank. He testified that he demanded payment of the notes or the direct obligation of the directors; that, several months thereafter, $1,000 was paid and the balance arranged by taking notes directly from appellants; that he refused to release any of the directors from the payment of the debt, and remembered distinctly to have told W. H. Wells that he would hold him on his indorsement on the Rondo Milling Company notes.

Appellee testified that, when he sold Kunda his stock, appellants and the bank released him from his indorsement on the original Rondo Milling Company notes. The chancellor so found, but we think the finding contrary to a clear preponderance of the testimony.

The law applicable to the facts disclosed by this record was clearly enunciated in the case of Thornsen v. Poe, 123 Ark. 77, in the following language:

“Where several parties are equally liable for the same debt, or bound to the discharge of an obligation, and one is compelled to pay or satisfy the whole of it, he may have contribution against the others, to obtain payment for tlieir respective shares.”

It was also ruled in the case of Neal v. Newland, 4 Ark. 506, that “where a surety in a note takes it up, after it is due, and cancels it by giving his own note, which is accepted by the creditors, this is equivalent to payment of the first note, and will support a count for money paid, let out, or expended.”

The doctrine announced in the two cases just' cited was not changed by section 7886 of Crawford & Moses’ Digest, as contended by appellee.

All the parties in interest were before the court, and, instead of dismissing appellant’s bill, the court should have rendered judgment against the Eondo Milling Company for the total amount paid by appellants for it, which was $6,883,79, and against appellee for one-sixth of said sum, or $1,147.29, with instructions to sell the assets of the Eondo Milling Company and apply the proceeds to the payment of the judgment against it, and to credit the judgment against appellee with one-sixth of said proceeds.

• The decree is reversed and the cause remanded, with directions to proceed in accordance with this opinion.