text:
    McPherson v. Board of Commissioners of Hazelwood Road Improvement District.
    Opinion delivered November 12, 1928.

      Jeff Bratton, for appellant.

      D. G. Beauchamp, for appellee.
   Smith, J.

Under the provisions of .act No. 126 of the Acts of 1919 there was created the Hazelwood Road Improvement District No. 2, and, pursuant to the authority of this act, betterments were assessed amounting to $397,203.92. The preliminary work and expenses of organizing the district amounted to $20,434.53, exclusive of interest. Before any construction work had been begun or contracts therefor had been let, the G-eneral Assembly, at its 1921 session,, passed special act No. 590, which repealed the act of 1919' creating the improvement district.

Section 3 of the repealing act provided that all claims against the district should be presented to the commissioners of the district within six months after the passage of the act, and should be barred if not so presented, and that, on the expiration of said six months, it should be the duty of the. commissioners “to levy upon the real property of the district a tax sufficient to pay the indebtedness thereof.”

The act provides that, as soon as the time for presenting claims has expired, the commissioners shall file with the clerk of the circuit court a certificate setting forth the amount of the claims that have been presented against the district, which certificate the clerk was required to record, and it was further provided that, when all claims have been paid and the affairs of the district closed, the commissioners shall file another certificate with the clerk of the circuit court showing that fact.

The act required the commissioners to certify to the county clerk the proportionate amount of the district’s indebtedness which each tract of land in the district would be required to pay.

This litigation involves the correctness of the allowances made against the district by the commissioners.

Pursuant to the authority of the repealing act, the commissioners adopted a resolution, on November 5, 1921, in which the indebtedness of the district was found and declared to be $20,434.53, and it was ordered that the same should bear interest from the first day of August, 1922, until paid. The principal items comprising this indebtedness were a note to the Paragould Trust Company for borrowed money, and the claim of the engineer. This resolution or finding- by the commissioners was filed with the clerk of the circuit court December 21, 1921, and taxes were assessed against the lands of the district to pay these claims.

The repealing act provided that, in cases of delinquency resulting from the failure of the landowners to pay their proportionate part of the demands against the district, the collection thereof should be enforced in the manner provided by §§ 23 and 24 of act '279 of the Acts of 1909, entitled, “An act to provide for the creation of drainage districts in this 'State.”

The act of 1909 provides that, if the drainage district taxes were not paid, the sheriff, as ex-officio- collector, should riot sell the delinquent lands, but should report them to the commissioners of the district, who must bring a proceeding in rem to enforce the payment of the taxes, together with a penalty of twenty-five per cent, which the commissioners were directed to add. The taxes were not paid by certain landowners, appeh lants here being among that number, land in the suit brought against their lands a penalty of twenty-five per cent, was included in the decree of foreclosure. The court also made an allowance of ten per cent, of the taxes as an attorney’s fee, to be collected as costs.

Appellants by this appeal question that part of the decree allowing penalty and attorney’s fee, and they also insist that there is no authority to pay interest on the claims, as was done.

We think there was authority to pay interest, as the act creating the district conferred authority to make contracts and to borrow money, as well as to issue bonds, although no bonds were issued. But we are also of the opinion that this question has not been raised in apt time.

The repealing act contemplated the greatest expedition in winding up the affairs of the district, and that the indebtedness of the district should be determined in six months after the passáge of the act. The act provided that, if the commissioners reject a claim, the holder shall be barred unless he proceeds within ninety days to enforce the same by suit, and that all suits shall be advanced as matters of public interest, and all appeals therein must be taken and perfected within thirty days. The certificate of the commissioners showing the indebtedness o'f the district was not attacked until this suit was brought to enforce the payment of the delinquent taxes, and we think it now too late to litigate these claims.

It is insisted that, even though this be true, there is no authority to pay an attorney’s fee as costs of suit, and in no event is there authority to impose a penalty.

We think appellants are correct in their contention that no authority exists to enforce a penalty on the taxes, as no necessity therefor exists. The district does not require this penalty to pay its indebtedness. It will owe interest, but it will also collect interest, and it has authority to do so. Meek v. Christian, 168 Ark. 313, 270 S. W. 614. Section 23 of act 279, of the Acts of 1909 does allow the commissioners to enforce a penalty of twenty-five per cent, against the delinquent lands; but this is. for the benefit of a going district performing its functions, while here we have a defunct district, which can have no obligations except those already determined by the commissioners. So far as this district is concerned, act 279 of the Acts of 1909 merely prescribed the procedure for enforcing the payment of the delinquent taxes, and that is by such a suit as the one brought by the commissioners of the district.

Express authority to charge ian attorney’s fee was not contained in the repealing act, but this authority is implied as a necessary incident to the institution of the suit. Thibault v. McHaney, 127 Ark. 1, 192 S. W. 183. The fee allowed was ten per cent, of • the delinquent taxes, which does not appear to be excessive, in view of the size of the district and the amount involved. •

The decree of the court below, ordering the foreclosure of the lien in favor of the creditors of the district, will therefore be reversed, with directions to modify it by striking ont the portion imposing la penalty of twenty-five per cent. In all other respects it will be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Equitable Life Assurance Society of the United States v. King.
    Opinion delivered November 12, 1928.

      W. L. Kincamion and Rose, Eemingioay, Cantrell <& Loughborough, for appellant.

      U. C. May and Evans & Evcrnis, for appellee.
   Smith, J.

On June 18, 1925, the appellant insurance company issued a policy of insurance to appellee in the sum of $2,000. The quarterly premiums in the amount of $28.40 were payable on the 18th day of each September, December, March and June. The policy provided that if the insured became permanently disabled she would be entitled to an annuity to be paid at the rate of $20 per month.

The policy provided that “a grace of thirty-one days, subject to an. interest charge at the rate of five per cent, per ¡annum, will be granted for the payment of e^ery premium after the first, during which period the insurance herein provided shall continue in force.” The policy also provided that, if it should lapse in consequence of the nonpayment of any premium when due, it might be reinstated at any time upon the production of evidence of insurability satisfactory to the insurance society and the payment of all overdue premiums, with interest at five per cent, per annum. The policy further provided that “agents are not authorized to modify or, in the event of lapse, to reinstate this policy, or to extend the time for payment of any premium or installment thereof. ’ ’

The quarterly premiums due in June and September were duly paid to Miss Ruby McConnell, a resident local agent of the appellant insurance society, hereinafter referred to as the company;, and on January 18 or 19, 1926, appellee appeared before Miss McConnell to pay the premium due December 1(8. Appellee had been making collections of accounts due her, and discovered that she had only $23. This she paid to Miss McConnell, with the remark that she would get 'the balance of $5.40 that day, if this were required. Miss McConnell replied that this would not be required, as she would have the company execute an extension agreement. It was customary, when extension agreements were issued, to send them direct to the insured. Miss McConnell denied having said that full payment of the quarterly premium would not be required.

The $23 payment was remitted to the State agent of the company at 'Little Rock, to whom all premium payments were made', and payment of the balance of $5.40 was extended by the State agent to February 18,' 1926. Appellee testified that Miss McConnell agreed to notify her when the extension had expired, but that she did not do so.

About March 1, Gr. O. Farrish, a district agent of the company, discovered that the balance of the premium had not been paid, and he sent his check to the State agent to cover, with the interest. On March 3 the State agent wrote appellee that a check for $5.51 had been received from Mr. Parrish in payment of the balance dne on the December premium, but that the remittance had not been received until after the expiration of the extension agreement, and that appellee would have to sign and return a statement in regard to her jthen existing health.

This application for reinstatement, dated March 5, was received by the 'State agent on March 6, and, in consideration of the statements there contained that the insured had had no serious illness during the preceding' five years, the policy was reinstated. Appellee thereafter paid the quarterly premiums falling due March 18 and June 18, 1926.

On March 14, 1926, appellee fell and sustained internal injuries, which totally and permanently disabled her, and in June thereafter she made proof of her disability, and asked payment of the $20 per month provided for by the policy.

On August 26, 1926, the company advised appellee that it desired to cancel the policy here in suit because of the alleged false and fraudulent statements of appellee in procuring the reinstatement of the policy in March, and tendered to appellee $87.37 as a return of the premiums paid by her, and in December, 1926, appellant brought this suit to cancel the policy on the ground of the alleged fraud of appellee in procuring the reinstatement.

In the application for the reinstatement appellee was asked to state what illness she had had within the previous five years, and she answered that she had had none, whereas in her proof of disability she stated that she had had an operation for appendicitis on April 11, 1921; had had pneumonia in 1923, and had had an attack of flu in February, 1926.

It is not contended {hat any of these troubles caused or contributed to appellee’s disability, but it is insisted that her false answers in regard thereto induced the insurance company to reinstate appellee, whereas, if truthful answers had been made she would not have been reinstated.

Appellee testified that, as soon as she was advised that Farrish had paid the balance due on the December premium, she repaid that amount to him, her check therefor being dated March 5, 1926, and when she received the-blank application for reinstatement she carried it to Miss McConnell to be filled out, and Miss McConnell performed that service for her. In this connection she told Miss McConnell about her operation, aud the attack of pneumonia, and the spell of flu, and supposed her answers had been written into the application, but. she signed it without having read it.

Miss McConnell testified that she was a local agent for appellant, and that her duties as such were “to solicit applications and look after the policyholders’ needs.” She denied that appellee had mentioned to her the operation and the sickness.

The chancellor made a general finding in favor of appellee, and denied the prayer of appellant’s complaint to cancel the policy, and ordered the monthly payments to be made as provided in the policy.

Under the facts stated, it is the opinion of the majority — in which the writer does not concur — that this case is controlled by the case of New York Life Ins. Co. v. Adams, 151 Ark. 123, 235 S. W. 412, and that upon the authority of that case the- decree of the chancellor should be affirmed.

In this case, as in the Adams case, the policy sued on provided for a reinstatement, and did not require, as a condition precedent, that the answer in an application to reinstate should be treated as warranties. The reinstatement of appellee was therefore not a gratuity on the part of the compiany, but was a contractual right, and the company had no authority to enlarge the terms upon which the reinstatement could be obtained, and the answers of the insured can, at most, be treated merely as false representations, and not as a breach of warranty; indeed, the majority are of the opinion that appellee made no false representations, as she truthfully represented to the company’s agent, in making the application for reinstatement, what sickness she had had, and she repeated these statements in her proof of disability in Jnne, 1926. The disability claim reached the company in June, 1926, and it was not until August, 1926, that appellant refused to pay the claim and denied liability therefor, land the suit to cancel the policy was not filed until December 14, 1926. Thus, even though the knowledge of Miss McConnell is not imputed to the company, there was a period of sixty days during which appellant apparently speculated on the probable extent and duration of appellee’s injury, without returning or offering to return the premiums she had paid.

The majority are therefore of the opinion that, inasmuch as the company did not, within a reasonable time after the discovery of the alleged false representation, cancel the policy for fraud and return the premiums, it waived the forfeiture, if there had been one, and the decree of the court below so holding was correct. It is therefore affirmed.


author: Hart, C. J.,

text:
    Gilmore v. Union Sawmill Company.
    Opinion delivered November 12, 1928.

      Goodwin £ Goodwin, for appellant.

      Gaughcm £ Sifford, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for plaintiff rely for a reversal of the decree in this case upon the authority of Tays v. Johnson, 173 Ark. 223, 292 S. W. 122. In that case it was held that the decree removing the disabilities of the minor was open to collateral attack. The reason was that the judgment removing the disabilities of the minor in that case had ■been lost, and no effort was made to supply it at the trial. No presumption of jurisdiction in such case arises from the mere fact of its exercise. The reason is that the court, in removing the disabilities of a minor, exercises only a statutory power, and it is therefore incumbent upon one relying upon a decree of emancipation to show that the court had acquired jurisdiction under the law. 14 R. C. L., par. 6, page 219; and case-note in Ann. Cas. 1915D, page 490.

In Hindman v. O’Connor, 54 Ark. 627, 16 S. W. 1052, 13 L. R. A. 490, in recognition of these principles, it was held that the- requirement of our statute that a person asking for the removal of his legal disabilities as a minor be a resident of the county in which is situated the court in which the application is made, is jurisdictional, and that the record should contain an affirmative recital of this fact. The reason is that the required residence is a condition precedent upon which the court may remove the disabilities of the minor, and no presumptions can be indulged in favor of the irregularity of the judgment. 'Such exercise of power is in derogation of the common law, and is a special power delegated under the statute. Therefore the facts giving jurisdiction to the court must plainly appear in the judgment of the court.

In Young v. Hiner, 72 Ark. 299, 79 S. W. 1062, it was held that the jurisdiction of the court could not be attacked collaterally on the ground that the minor was not a resident of the county in which the proceedings were had. In that case the judgment contained the recital required by the statute, and the court held that the court’s jurisdiction could not be collaterally attacked.

That principle controls here. The decree of the chancery court removing the disabilities of the minor in the case at bar recited that he was a resident of Union County; and was eighteen years of age. The trial court, upon proof heard, found that Gilmore was a resident of Union County, and that he was eighteen years of age. This was a necessary finding of the chancery court in determining its jurisdiction in the premises, and its jurisdiction cannot be collaterally attacked in that respect. The distinction is this: in the case of Tays v. Johnson, supra, there was no proof that the jurisdictional facts were recited in the decree removing the disabilities of the minor. Hence the court held that the judgment was subject to collateral attack. In the case of Young v. Hiner, supra, the jurisdictional facts did appear upon the face of the record, and, on that account, were held conclusive on collateral attack. In the case at bar the decree removing the disabilities of the minor, as we have already seen, edntains a recital that the minor was eighteen years of age, and was a resident of Union County.

We conclude therefore that it was not subject to collateral attack, and the decree of the chancery court will be affirmed.


author: Humphreys, J.

text:
    Turner v. Rice.
    Opinion delivered November 12, 1928.

      W. D. Brouse, for appellant.

      E. G. Shoffn-er, for appellee.
   Humphreys, J.

This suit originated in the chancery court of Saline County, and the sole question involved, in both the trial court and this court on appeal, is whether appellee’s claim of title to the southwest quarter of the northeast quarter of section 5, township 2 south, range 12 west, is paramount to appellants’ claim of title thereto.

The State of Arkansas claimed title to “lot 1 of the northeast quarter of section 5, township 2 south, range 12 west, 40 acres,” in an overdue tax proceeding in the Saline Chancery Court in 1882-1883, by purchase for taxes, penalty and costs, amounting to $17.1?. After the expiration of the time for redemption, the clerk certified the land by the description designated to the State. The State’s title under said description is the source of appellee’s title. On October 8, 1909, the State conveyed the land by said description to Wade Grissom as lands bought by it at the overdue tax proceeding for a consideration of $50. On March 8, 1910, Wade Grissom and his wife conveyed the land by identical description to John Shores, and on February 4, 1911, John Shores conveyed the land by identical description to appellee, who assessed and paid taxes on the land by identical description each and every year thereafter until the present time. There was never another forfeiture or sale of the land under the identical description for the nonpayment of the taxes.

Appellants claimed title to the 40-acre tract in question under a tax deed based upon a forfeiture and sale thereof for the nonpayment of the taxes for the year 1913. The land was described on the assessment roll and assessed as the southwest quarter of the northeast quarter, section 5, township 2 south, range 12 west, 40 acres, to W. C. Turner, in 1912. He paid the taxes for 1912 in 1913, and allowed it to forfeit and sell for the taxes of 1913, and purchased same at the sale, and subsequently obtained a tax deed from the clerk which described the land as the southwest quarter of the northeast quarter of said section, township and range. Thereafter he brought a suit in the chancery court of Saline County to confirm the tax title against parties who had no interest in the land, and obtained a decree confirming and quieting his title thereto. Appellee was not made a party to the suit, and had no knowledge of its pendency. After' obtaining the decree confirming his tax title, he conveyed the land by the identical description to E. (L. Carter, his co-appellant.

According to the original government plat on file in the United States Land Office in Little Bock, of date April 20, 1827, the northeast quarter of section 5, township 2- south, range 12 west, is in a square, and' is divided by an east and west line near the center of the two lots, the south lot being designated as No. 1, containing* 80 acres, and the north lot being designated as No. 2, containing 87.60 ¡acres. There is another plat of the same land in said office which has no filing or approval date, and according to it the northeast quarter of said section, township and range is divided by a north and south as well as ¡an east and west line so as to divide the 160 acres into 40-acre tracts. As stated above, both plats are in the office, and provide methods for describing the same land by different subdivisions. Appellee acquired whatever title she has to the land in dispute by description according to the original government plat, and appellants acquired whatever title they have to the said forty-acre tract by description according to the other plat.

Appellants contend for a reversal of the decree canceling their muniments of title on the ground that appellee acquired no title through mesne conveyances from the State of Arkansas because the description contained in her muniments of title ¡are insufficient to identify and locate the land, whereas the description in their muniments of title are sufficient to identify and locate said land. They argue that it is impossible from the description in appellee’s muniments of title to determine whether it is the east or west 40-acre tract in lot 1 of said section, township ¡and range. Their argument would be sound if the qualifying words, “40 acres,” dominated and controlled the description contained in her muniments of title. The acreage mentioned in a government call of lands does not control or dominate the description. Wherever one is granted land by government call, he takes the whole of the call without reference to the amount of acreage added to the description. In other words, if one is deeded the northeast quarter of any particular section containing any particular number of acres, he would take the whole quarter section, irrespective of the number of acres ■mentioned. Of course it would be different if a particular number of acres was conveyed to one in any particular portion of a government call. We think the description contained in appellee’s deed and in all the deeds in her chain of title convey to her the whole of lot 1 in section 5, township 2 south, range 12 west, Avhich necessarily included the west 40-acre tract in said lot, or the southwest quarter of. the northeast quarter of said section, toAvnship and range. The agreed statement of facts reflects that, after acquiring her title, she paid the taxes according to the identical’ description contained in her muniments of title upon the land each year thereafter and until the present time. This being the case, the land was not subject to forfeiture for the nonpayment of taxes under ¡any other description for the year 1913.

We do not agree with appellants that the other plat in the land office abolished or superseded the original government plat. Both plats are still in the office, and the land may correctly be described according to either plat. Appellee’s title to the west half of lot No. 1 or to the southwest quarter of the northeast quarter of section 5, township '2 south, range 12 west, is prior in point of time and paramount to appellant’s claim to title thereto under the forfeiture of said 40-acre tract under the description of the southwest, quarter of the northeast quarter of said section, township and range, for the nonpayment of taxes for the year 1913. The forty-acre tract was not subject to forfeiture, as the taxes had been paid thereon by another good and sufficient description, and appellants acquired nothing under or by virtue of the forfeiture, which is the source of their title. Appellee was not bound by the decree and the confirmation of appellants’ tax title, as she was not made a party thereto and knew nothing of its pend-ency in the court prior to the rendition of the decree.

No error appearing, the decree canceling the muniments of appellants’ title and quieting the title to the said'40-acre tract in appellee as against them, is in all things affirmed.


text:
    Century Life Insurance Company v. Custer.
    Opinion delivered November 12, 1928.

      M. R. Perry and B. G. Clanton, for appellant.

      John P. Vezey, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant in the circuit court of Hempstead County to recover $275, las beneficiary, on a life insurance policy alleged to have been issued to his brother, William Custer, by the North Carolina Mutual Life Insurance Company, on August 31, 1925, and on January 1, 1927, reinsured by said North Carolina Company with appellant, a mutual insurance corporation.

Appellant filed an answer, denying any liability on the policy. The cause was sent to a jury upon the pleadings, the testimony introduced by each party, and the instructions of the court, which resulted in a verdict and judgment against appellant for $275, from which is this appeal.

Appellee applied and procured from the North Carolina Mutual Life Insurance Company, through its agent, James Talbert, who resided at Hope, Arkansas, and who had authority to collect premiums on all policies issued in the Hope district, an insurance policy on the life of his brother, William Custer, for his (appellee’s) 'benefit when his brother died. Neither was dependent on the other. Appellee’s brother was residing elsewhere at the time the policy was procured, and had no knowledge of it. The policy procured was dated August 31, 1925, and, according to the undisputed testimony, appellee paid the monthly premium thereon until November, 1926.

Appellee testified that he paid the monthly dues or premiums on the policy to James Talbert until August, 1927, at which time he first received news of his brother’s death, his brother having died on March 17, 1927.

James Talbert testified that appellee failed to pay the premiums on said life insurance policy in November, 1926, and that he canceled the policy in December following’. He also testified that he sold William B. Custer a life insurance policy for appellant on April 18, 1927, upon which he collected monthly premiums from appellee from the date of the policy until August, 1927.

D. D. Shackleford, the supervisor of books and records of appellant, testified that the North Carolina record showed that the policy lapsed on December 13, 1926; that the lapse sheet made up by J. C. Talbert, the then agent of the North Carolina Company, showed deceased insured’s policy No. 408854 lapsed before the reinsurance contract went into effect on January 1,1927.

Appellee testified that William B. Custer never purchased an insurance policy through Talbert from appellant, and that he (appellee) never paid premiums on any policy on the life of his brother except the policy issued August 30, 1925, by the North Carolina Mutual Life Insurance Company.

James Talbert was introduced as a witness by appellee, in the course of the trial, and testified that, prior to January 1, 1927, he was the agent of the North Carolina Mutual Life Insurance Company, with authority to collect premiums on all policies in force in the Hope district, and that, after that time, he was employed by appellant, it having reinsured all life policies of the North Carolina Mutual Life-Insurance Company and succeeded to its business, and was instructed by appellant to collect premiums on all policies taken over by it from the North Carolina Insurance Company. The reinsurance contract was introduced in evidence, which, among other things, provided that appellant should be liable upon policies issued by the North Carolina Mutual Life Insurance Company which were in full force on January 1, 1927.

Appellant requested an instructed verdict in its favor upon the theory: (1) That brothers do not have an insurable interest in the life of each other by virtue of the relationship alone. (2) (Because the undisputed evidence showed that the policy sued upon lapsed in December, 1926, and, for that reason, was not one of the policies included in the reinsurance contract on January 1,1927. (3) Because the court permitted provisions of the policy to be proved by secondary evidence.

(1). The question of whether brothers have insurable interests in the lives of each other, by virtue of the relationship alone, has never been decided by this court. Brothers are so closely related that they are naturally interested in. the. preservation of the life of each other. Generally they will lay down their life for each other. As a rule they care for each other in illness to the extent, if necessary, of furnishing all needed comforts and medical aid. It would be contrary to human nature for them to .speculate on the death of each other, so it may well be said that their contracts for insurance on the life of each other should not be classed as wagering contracts. It was ruled in the case of Ætna Life Ins. Co. v. France, 94 U. S. 561, affirming the case of France v. Ætna Life Ins. Co., 9 Fed. Cas. 657, that a .sister, by virtue of the relationship alone, has an insurable interest in the life of her brother. The doctrine announced by the 'Supreme Court of the United States in the case of Ætna Life Ins. Co. v. France, supra, is supported by the cases of Hosmer v. Welch, 107 Mich. 407, 65 N. W. 280, 67 N. W. 504; Williams v. Fletcher, 26 Tex. Civ. App. 85, 62 S. W 1082; Trenton Mutual Life & Fire Ins Co. v. Johnson, 24 N. J. Law 576; Lane v. Lane, 99 Tenn. 639, 42 S. W. 1058; Goodwin v. Massachusetts Mut. Life Ins. Co., 73 N. Y. 408; Equitable Life Ins. Co. v. Hazlewood, 75 Tex. 338, 12 S. W. 621, 7 L. R. A. 217, 16 A. S. R. 893; Hahn v. Supreme Lodge of the Pathfinder, 136 Ky. 823, 125 S. W. 259.

"We think the doctrine announced by the Supreme Court of the United States is sound, and have therefore adopted it.

('2). The undisputed evidence does not reflect that the policy lapsed in December, 1926. Appellee testified to the contrary. He said that he paid the premium every month from the date of the policy to August, 1927, at which time he first learned that his brother had died in March, 1927. If the jury believed his testimony in this respect, it may reasonably have inferred, from the further fact that the agent was instructed to collect premiums on all policies issued by the No',rth Carolina Mutual Life Insurance Company which were in force on January 1,1927, that the policy in question was included in the reinsurance contract. It is true that the witnesses introduced by appellant testified that the policy lapsed and that no premiums were collected on the policy in question for appellant, but this conflict in the testimony presented a disputed question of fact for determination by the jury. This issue of fact was sent to the jury upon proper instructions, land the finding of the jury cannot be disturbed by this court on appeal, as the jury’s verdict was supported by some substantial evidence.

(3). It is true that the court permitted some of the provisions of the policy to be proved by oral testimony, but not until it was shown that the policy was returned to appellant or its agent with the proof of death of the insured, and that demand had been made upon it for the policy before the trial of the cause, so that the policy itself might be introduced in evidence. With the policy in possession, appellant cannot be heard to complain because the court permitted its provisions to be established by secondary evidence.

Appellant was not entitled to a peremptory instruc- ■ tion on any theory advanced by it.

Appellant also contends for a reversal of the judgment on account of alleged errors in instructions submitting other disputed questions of fact. We have examined the instructions carefully, and find the court correctly instructed the jury under the facts in the case, except submitting to them the question of whether or not appellee had an insurable interest in the life of his brother. Under the undisputed facts in the case that was a question of law, which the court itself should have settled. The instruction, however, was favorable to appellant, and it has no right to complain.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Citizens’ Pipe Line Company v. Twin City Pipe Line Company.
    Opinion delivered November 12, 1928.

      James B. McDonough, Jr., W. B. Cravens, James B. McDonough and Fad jo Cravens, for appellant.

      Pryor, Miles & Pryor, for appellee.
   Kirby, J.,

(after stating the facts). The ordinance ■of the city of Fort Smith complained of, granting the right to appellant company to construct and operate its gas pipe line and to transport gas through it for consumption and use to the Harding glass plant, was attached as an exhibit to the complaint, and it has long been established that, in suits in equity, exhibits to the pleadings are considered as parts thereof, and such exhibits as constitute the ground of the action, defense or counterclaim will control the allegations of the pleadings. El Dorado v. Citizens’ Light & Power Co., 158 Ark. 550, 250 S. W. 882; Beavers v. Baucum, 33 Ark. 722; American Freehold Land Mortgage Co. v. McManus, 68 Ark. 263, 58 S. W. 250; Koons v. Markle, 94 Ark. 573, 127 S. W. 969; Cox v. Smith, 99 Ark. 218, 138 S. W. 978.

It is also true that grants from the sovereign power are to be construed strictly against the grantee and in favor of the city or government mailing the grant. El Dorado v. Coates, 175 Ark. 289, 299 S. W. 355. By § 2 of the ordinance, authority or permission is given to the Citizens’ Pipe Line Company to construct and operate its gas pipe line “and to transport gas through it for consumption and use at the Harding glass plant. ’ ’ This language indicates no intention to grant a general franchise for supplying gas to all the consumers, both industrial and domestic, in the city of Port Smith, who might desire to contract with the appellant company for use of gas, 'but is limited and restricted to the construction and operation of the pipe line and to transportation of gas for the consumption and use of the Harding glass plant.only. It grants only the permission of the city to transport the gas brought from the fields of the appellant company across and along the streets of the city of Fort Smith to the Harding glass plant, the owner of the ma-' jority of the stock of appellant company, for use in its manufacturing plant. Appellant company had no right to cross the streets and alleys of the city with its pipe line or to furnish gas to other persons than the Harding glass plant, nor to it without the permission of the city first obtained, authorizing it to do so. Barnett v. Mays, 153 Ark. 1, 239 S. W. 379; Sanderson v. Texarkana, 103 Ark. 534, 146 S. W. 105; Adkins v. Harrington, 164 Ark. 280, 261 S. W. 626. It expressly denied and disclaimed any right of a franchise under the terms of the ordinance and any intention of attempting to transport and supply gas to any consumer within the city of Port Smith other than to the Harding glass plant, in accordance with the terms of the ordinance granting it this right.

The fact that its charter authorized it to own and control pipe lines for the transportation and sale of gas to operate as a public utility was not sufficient to constitute it a public utility. In Clear Creek Oil & Gas Co. v. Ft. Simth Spelter Co., 148 Ark. 260, 230 S. W. 897, the court said:

“It was within the charter rights of the appellant to operate a business as a public utility in the production, transportation or sale of natural gas, but it was not limited to such operations as a public utility, and was not bound to so operate. It was authorized to do business in the production, transportation or sale of the commodities named, other than as a public utility. The question therefore is not merely whether appellant was authorized to operate as a public utility, but whether it elected to do so under the power thus conferred. It had a right to exercise those powers or not to do so, and, in the event of its election not to do so, it could enter into private contracts not subject to public control or regulation. In other words, appellant was not necessarily a public utility because its charter authorized it to become one in operation of its business, nor was it, under its charter, a public service corporation merely by the operation of a private business of the kind enumerated.”

The appellee was without right to question the power of the city to pass this ordinance granting the permission to appellant company to furnish gas to this particular consumer, since it had no exclusive franchise for supplying gas to the consumers of the city of Fort Smith. El Dorado Gas Co. v. Coates, 175 Ark. 289, 299 S. W. 355; Natural Gas & Fuel Corp. v. Norphlet Gas & Fuel Co., 173 Ark. 174, 294 S. W. 52.

The complaint does not allege that any damage will •be done to the property of appellee on Sixth Street, or that it owns any property abutting on Sixth Street at or near the point where the pipe line crosses said street, nor does it allege or attempt to prove any specific injury to its property on Sixth Street, or that the construction of the pipe line across such street would constitute a nuisance causing specific injury to its property, and it therefore had no standing as a property owner to enjoin its construction. Packet Co. v. Sorrels, 50 Ark. 466, 8 S. W. 683; Welbourn v. Davis, 40 Ark. 83; Rufner v. Phelps, 65 Ark. 410, 46 S. W. 728.

No other taxpayer joined appellee in the demand for injunctive relief, and certainly the granting of the city’s permission to cross its streets and alleys with the pipe line transporting gas to the Harding glass plant did not constitute “ an illegal exaction” within the meaning of § 13, article 16, of the 'Constitution, authorizing appellee to bring the suit as a citizen and taxpayer to protect the inhabitants of the city against the use of the permit. Merwin v. Fussell, 93 Ark. 336, 124 S. W. 1021; Waldrop v. K. C. S. Ry., 131 Ark. 453, 199 S. W. 369, L. R. A. 1918B, 1081. Although the complaint alleges that the Citizens’ Pipe Line Company is not required to pay the’ city1 2 per cent, of its gross earnings from the sale of gas to the Harding Glass Company, which it was permitted to furnish under the ordinance, and, while the testimony shows that appellee company is required under the terms of its franchise to pay to the •city 2 per cent, of its gross revenues derived from the sale of gas, appellee cannot complain that this is an illegal exaction on the part of the city, since it voluntarily contracted to pay such percentage of its revenues to the city in consideration of the grant of its franchise. Then, too, the city has authority, under act 124 of 1921, to make reasonable and fair rates to be charged by public utilities, and if the city should exercise this right and lower the rates authorized to be charged by appellee company, certainly it would furnish no ground for a taxpayer to complain in a suit in equity that he was injured because the amount received by the city under the 2 per cent, clause was less on account of the reduction of the rates.

Appellee did not attempt to have the ordinance reviewed by the circuit court as to its legality, validity or fairness within the 60 days allowed therefor under § 19 of act 124 of 1921.

It is next insisted that appellant company acquired no right under the ordinance, not having been organized as a corporation or accepted in writing, as such corporation, the permission granted, within the time allowed therefor. In answer to this it may be said that, even if the corporation was not organized before the passage of the ordinance, the permission had been applied for by those who, it was agreed, should Represent it in petitioning the city council, and it was accepted by such individuals for the corporation as “president” and “secretary,” and the corporation was legally organized before the expiration of the time granted for acceptance of its terms by the ordinance, and the same persons wbo accepted tibie ordinance elected president and secretary -of the corporation, and the undisputed testimony shows that no objection was or has been made by the city to such acceptance of the ordinance granting the permission to construct the pipe line, and, but for the wrongful issuance of injunction, the work thereon would have proceeded to completion already.

It follows that the court erred in holding the ordinance void and enjoining the appellants from proceeding with the construction of the pipe line under the permission granted by the city authorizing it to be done, and the decree must be reversed, and the cause remanded with directions to dismiss the complaint for want of equity, and for any further necessary proceedings in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered.

Mehaeey, J., dissents.


author: Mehaffy, J.

text:
    New Hampshire Fire Insurance Company v. Walker.
    Opinion delivered November 12, 1928.

      McMillen <& Scott, for appellant.

      Owens <& Ehrman, for appellee.
   Mehaffy, J.

Appellee brought suit in the Pulaski Circuit Court against the appellant, alleging that Gr. W. Wells, agent of appellant, entered into an oral contract with appellee in which it was agreed that a policy would thereafter be issued, but that appellee would be protected from the day of the oral agreement. He alleged that the amount of the policy was to be $500, covering his household belongings. That thereafter the household goods covered by the insurance were destroyed by fire; that the value of the property lost was approximately $1,300, and that the appellant denied liability, and refused to permit appellee to make proof of loss. He prayed judgment for $500, less a year’s premium, 12 per cent, penalty, attorney’s fee, and costs. The premium was not paid, but it is contended by the appellee that Mr. Wells was to send him a policy, and, when he did that, would let him know the amount of it, and he was to send a check in payment of the premium.

The appellant answered, denying all the material allegations in the complaint, and denied that either the home agency or Gr. H. Wells was the agent of appellant and authorized to issue any policy or make any contract covering the property which the plaintiff claims was destroyed.

Plaintiff’s testimony tended to show that the contract was made as alleged, and defendant’s testimony tended to show that no agreement whatever was made. There was a trial, and a verdict in favor of the appellee for $500, the amount claimed by appellee, and the insurance company prosecutes this appeal to reverse the judgment.

It is first contended by the appellant that, the suit being on an oral contract, the burden was upon appellee to show there was a meeting of the minds as to all of the essential elements of a contract. We agree with this contention of the appellant, but appellant says, that the elements as laid down in Cooley’s Briefs on Insurance, 2d ed. vol. 1, p. 534, are: (1) the subject-matter; (2) the risk insured against; (3) thé amount; (4) the duration of the risk';' (5) the premium; and appellant contends that the evidence fails to show the duration of the risk or the premium to be charged.

We do not agree with the appellant in this contention. The appellee testified, in substance, that the duration was to be one year, and that the premium was whatever the regular rate was. This, we think, was sufficient.

On page 535 of the same volume of Cooley’s Briefs on Insurance it is stated:

“Though it is regarded as essential that all the elements of the contract be agreed upon, it is not necessary that this be done expressly. In Concordia Fire Ins. Co. v. Heffron, 84 Ill. App. 610, it was held that an oral contract of insurance will sustain an action, though no express agreement is made as to the amount of premium to be paid or the duration of the policy, if the intention of the parties to the contract in these particulars can be gathered from the circumstances of the case.”

The duration of the risk and the premium to be charged may be proved just as any other facts may.

It is next contended that the appellant company had never issued a policy at Hensley, and that no one had any authority to write a policy for it in that place; that, while Wells was ian agent of the company at Pine Bluff, he had no authority to issue policies at Hensley or covering property at Hensley.

The undisputed proof shows that the agent had no authority to issue a policy for the appellant on property at Hensley. Wells testifies to this, and Senn, a witness employed by general agents of the New Hampshire Fire Insurance Company at Dallas, also testified that it was his duty to supervise the territory, make inspections, and approve liabilities for the company; that neither Mr. Wells nor the Home’ Insurance Agency was authorized to insure any property for the New Hampshire Fire Insurance Company at Hensley. He understood Hensley was an outside town of Pine Bluff, and the New Hampshire Fire Insurance Company objected to any outside business through their Pine Bluff agency;-that they were instructed through Trezevant & Cochran not to write any outside business.

The testimony of Wells and Senn is undisputed. It is true the appellee testified that Wells told Mm that he was giving insurance in the New Hampshire Fire Insurance Company, and represented himself as having authority to issue a policy at Hensley, but it is well settled that neither the fact of agency nor the extent of an agent’s authority can be proved by the declaration of the agent, and plaintiff had no proof tending to show that Wells had any authority to issue this policy on property at Hensley, except the declaration of the agent. The law, of course, is well settled that, if an agent enters into a contract for his principal which he has no right to make, or if he exceeds his authority and does not bind the principal, he himself is liable, not on the contract of insurance, but in an action based upon the deceit or upon the contract of warranty or indemnity, but this question is not involved in this suit.

The majority of the court is of opinion that the agent did not have authority to bind the company by making a contract of insurance at Hensley, a territory where the agent had no authority. Mr. Justice Humphreys and the writer are of opinion that, since Mr. Wells had authority to issue policies of insurance for this company, although he had no authority in this particular territory, yet it was in the apparent course of his business and within the apparent scope of his authority, and that limitations as to territory not known to the person with whom he is dealing are of no effect to limit his authority.

The authorities are in conflict on this proposition, and the majority are of opinion that the appellant is bound only by such acts' of the agent as are done in the ordinary course of the business in which he is engaged, and that, since he hiad no authority to write insurance for the appellant in this territory, the appellant is not bound, even if a contract was made by.Wells.

This court has held that an agent authorized to issue policies of fire insurance may make a valid parol executory contract to insure or to issue a policy of insurance. King v. Cox, 63 Ark. 204, and Ætna Ins. Co. v. Short, 124 Ark. 505.

Wells, however, was only a local agent, with authority to issue policies in the city of Pine Bluff. It was expressly 'shown that he had no authority to go to Hensley or other outlying points to solicit or make contracts of insurance for appellant. It is claimed, however, that this was within the apparent scope of his authority. The majority of the court does not think so. His powers as agent were restricted to the territory over which he might is_sue policies. The majority of the court hold to the views expressed in North America Co. v. Thornton, 130 Ala. 222, 30 So. 614, 89 A. S. R. 30, 55 L. R. A. 547, to the effect that the fact that one is a general agent of an insurance company for a defined territory gives him no power to bind the company by contracts entered into covering property outside of the territorial limits. The court said that to establish such a doctrine would, in effect, deprive a principal of all power to circumscribe the territory to be covered by the agent, and to deny him the right to confine the-exercise of the delegated authority to a particular town or county or State-, or even country.

This being the opinion of the majority, it follows that the case must be reversed and dismissed, and it is so ordered.


text:
    Lilly v. Lilly.
    Opinion delivered November 12, 1928.

      Trimble & Trimble, for appellant;

      Chas. A. Walls, for appellee.
   Mehaffy, J.

On the 29th day of May, 1924, W. H. Lilly, a resident of Lonoke County, died intestate, leaving surviving him his widow, ¡Beulah Lilly, and four minor children. He owned a piece of property in ■Carlisle, Arkansas, but at the time of his death he was living on. a rice farm in Lonoke County, Arkansas, upon which he had a lease. He ¡also left one life insurance policy in the State Life Insurance Company for $1,000, one in the Pacific Mutual Insurance Company for $2,000, and one in the Modern Woodmen for $2,000.

Within a day or two after the death of W. H. Lilly his brother, K. L. Lilly, was appointed administrator, and gave bond, and letters were issued to him. The administrator filed an inventory and a report of the assets.

W. H. Lilly and Beulah Lilly had been married only about two months when he died, and, after letters of administration had been issued to K. L. Lilly, brother of the deceased, the bank,' which had agreed to furnish Mr. W. H. Lilly to enable him to make his crop, declined to continue to furnish unless some person other than the widow and children would manage the rice farm. A contract was drawn by the bank, and another brother of the deceased agreed to take charge of the rice farm, and did do so. This contract was signed by Mrs. Beulah Lilly. Bhe states that she did not know anything about the effect of the contract; did not know what interest she had in the estate of her deceased husband, and did not know that she had dower, or any other interest. We think, however, it appears from all the evidence that there was no intention on the part of the brothers of W. H. Lilly to take advantage of Beulah Lilly, and no intention on her part to get anything except what she was entitled to.

The property in Carlisle had at one time been the home of W. H. Lilly, but- he had left that property, moved away from it in 1919, and, as has already been stated, married Beulah Lilly about two months before he died, the 29th of May, 192.4. It is earnestly insisted by the appellant that this property fat Carlisle was his homestead, and that the appellant is entitled to this property as a homestead. The law with reference to a homestead of a widow is well settled in this State, and there is no dispute about the principles of law in this case.

The appellant insists that there is no evidence of abandonment by Lilly during his lifetime, and that it was still his homestead at the time of his death. While there is no direct testimony that he abandoned it or said he had abandoned it, yet abandonment may be proved by conduct, circumstances and actions, as well as by direct testimony. Whether it was his homestead at the time of his death and whether he had abandoned it, were questions of fact, and the chancellor found against the appellant, and we cannot say that the finding of the chancellor as to the homestead was against the weight of evidence.

There was an indebtedness against the homestead of approximately $900. This indebtedness was paid out of money belonging to the estate which was collected from the insurance companies. The chancellor found that the indebtedness should be deducted from the value of the property, and the widow was entitled to ia dower interest, or one-third of the difference between the value and the indebtedness. It is the contention of the appellant that, since the indebtedness was paid with the estate’s money, one-third of that was hers, and that she is entitled to a dower of one-third of the property and not one-third of the equity or one-third of the value after paying the indebtedness.

This would be true if the estate’s money had been used to pay the indebtedness and had not been accounted for by the administrator, because, if the estate’s money was used, one-third of that belonged to her, and when she contributed her portion to paying the indebtedness she would, of course, be entitled to dower in the property freed from the indebtedness. 'But the evidence shows that, while originally the insurance money was taken to pay this indebtedness, yet all of the insurance money was accounted for in the settlement, and she gets her one-third of the insurance money, and she would not be entitled to take one-third of her insurance money and then take one-third of the property when the indebtedness had been paid out of that portion of the insurance money that did not belong to her. These also are questions of fact, and were determined by the chancellor, and, we think, correctly determined.

When the insurance money was received by the administrator, he made a deposit in one bank of $700 and in another bank of $600, and received interest on that, one-third of which interest the chancellor found belonged to the widow. It is the contention, however, of the appellant that she was entitled to one-third of the $700 and one-third of the $600 items. This is true, but one of the insurance policies was for $1,819.26 and the other one was for $878.41, the insured having borrowed a small amount on each policy. The appellant is entitled to one-third of each of these items, but she is not entitled to take one-third of each of these and then take one-third of the $1,300, when the $1,300 was itself ¡a part of this insurance money — that is, a part of the $1,819.28 and a part of the $878.41. 'She could not have dower interest in these items and also in the $1,300, which was a part of these items.

The other insurance policy was for $2,000, and, according to the testimony, belonged entirely to the appellant as the widow of W. H. Lilly. It was a policy, however, taken out in the Woodmen during the lifetime of Lilly’s first wife, and the appellant, although told that she was entitled to all of it, said that it was money coming from a policy issued in the lifetime of the first wife, and that she would take $400 of it and give the children $1,600, and Mr. Lilly, the guardian of the children, has that $1,600 as guardian of the minor children. There is no controversy about this. The appellant agreed to it, but it accounts for $400 that she had which she says she used in helping to pay expenses.

There is some controversy about the manner in which the $300 to which the widow was entitled was set aside to her, but it appears from the evidence that she signed a petition asking that it be set aside, and that it was. It appears, however, that a portion of it • was never turned over to her, the parties in possession claiming that she has never called for it, and she can, of course, get that at any time she calls for it. It is the property she is entitled to under the statute, and that property belongs to her, and she may possess herself of it at any time.

There was some of the personal property sold, and it appears that the proceeding with reference to the sale was irregular, and some of the payments made by the administrator were not authorized by the court, but, as to the sale of the personal property, it clearly appears that it brought all that it was worth, and it was approved by the court and the amount for which it was sold accounted for by the administrator.

We think the undisputed proof shows that, after paying the debts and expenses of the rice crop, there was a balance of $1,168:53. The widow was entitled to one-third of this, which was $389.51. Adding to this the amount found by the chancellor makes a total to which the appellant is entitled of $965.28.

We do not think that any fraud or that any intentional wrong can be charged to either party. The testimony shows that the appellant lived on the rice farm, worked and helped make the crop; that she cared for the minor children of the deceased; that one of the brothers, in December, moved the appellant and minor children of the deceased to the Carlisle property, and that she cared for them, and there was no complaint about her treatment o'f the children. She was willing to continue to keep them, but one of the brothers took them to other homes. During the time she kept the children the chancellor did not charge her with any rents, but from that time on he charged her with rent, and, without deciding whether that was properly chargeable to her, the evidence conclusively shows that she collected approximately as much by renting rooms as this item amounted to.

Ás we have already said, there are no principles of law involved, but the questions determined 'by the chancellor were purely questions of fact, there being no dispute about the principles of law to be applied, and the chancellor’s finding, unless against the preponderance of the evidence, will be sustained. He did not find in favor of the widow for one-third of the money on hand from the rice crop, after paying the expenses and indebtedness, and the testimony is undisputed that it wias the intention of the parties that she and the children should have whatever profit there might be in the rice crop.

The decree of the chancery court, because of the chancellor’s failure to allow her a dower in the profits from the rice crop, will be reversed, and remanded with directions to enter ia decree in appellant’s favor for $965.28, with a lien on the property as provided in the original decree.


text:
    Arkansas Power & Light Company v. Orr.
    Opinion delivered November 12, 1928.

      Raymond Roddy, W. H. Holmes, Harry E. Meek and Robinson, House & Moses, for appellant.

      H. B. Means, B. M. Halbert and D. D. Glover, for appellee.
   Mehaffy, J.

This is the second appeal of this case. Jhe decision in the case, when it was here before is in 175 Ark. 246, 298 S. W. 1029. It was reversed and remanded, and, on a re-trial in the Hot ¡Spring 'Circuit Court, there was a verdict and judgment for $100. The appellant filed motion for new trial, which was overruled, exceptions saved, and the ease is here again on appeal. The issues are stated in the case on former appeal, and it is not necessary to restate them.

The appellant insists on ia reversal because it says the court erred in not admitting the testimony of witness Rube Gilliam, setting forth the dates of checks given by him to Fred Harper and Tom Moorehead, during the fall of 1925. Appellant cites numerous authorities to sustain this contention, and the principles of law and rules of evidence announced in said authorities are correct.

The testimony thiat appellant desired to introduce consisted of checks which the witness had given to Fred Harper and Tom Moorehead during the month of October. Fred Harper had testified in reference to the height of the river or the flood above Remmel Dam on the 16th of October, 1925, and had testified that he went to Hot Springs about every two weeks with a bunch of cattle, and that he knew it was the 16th of October, as he had looked at some checks, and the check that Rube Gilliam gave him was dated the 16th of October; that he deposited it on the 16th, and knows it was on that day he took the cattle to Hot Springs; that he could look at these checks and tell the date, but that he knew it was the 16th;. that a check that Rube Gilliam gave him was dated the 16th, and he deposited it oh that day, and that was the day he saw the river, and testified about the flood.

The appellant undertook to introduce some of the cheeks that 'Gilliam had given for the purpose of contradicting Fred Harper as to the date. But Gilliam did not testify, that he did not give the check on the 16th of October. He testified that he had given to Mr. Harper and to Mr. Moorehead some checks; that they drove together, and that generally Mr. Harper would deliver the cattle and the next morning Mr. Tom Mloorehead would 'call, and lie would give the checks to Mr. Moore-head ; that he had all of his canceled checks in the vault at the hank, and that he has gone through same, and that he thought all of the checks for October were there; that he could not say positively that was all the 'checks he had given, but that he thinks it was all of them, and that he looked through the October account. The court asked Gilliam if these were all of the checks that were given to both parties, and Gilliam answered: “Well, I would not swear that. I have all of my checks in a vault and— I am supposed to have them there. But I went through them hurriedly, and that is all the checks I found in October, 1925.”

It will be seen that Gilliam did not testify at any time during his examination that he did not give a check on the 16th of October. On the other hand, he stated that he would not swear that these were all of his checks given in October, but that he had looked hurriedly in the vault, and the cheeks he had with.him were all he found. Certainly the introduction of checks - of other dates would not tend to show that he did not give a check on the 16th of October, and therefore they would not ■be admissible to contradict Harper’s testimony. The proof that a check was given on the 19th of October would be no evidence at all that one was not given on the 16th of October. And certainly, unless Gilliam could have testified that these were all the checks that he gave Harper, or that he did not give, him one on the 16th of October, this.testimony would be inadmissible.

It would have been proper to impeach witness Harper by proving that no check was given him by Gilliam on the 16th of October, because that would have tended to show that his statement about seeing the. river and about the flood on'the 16th of October was erroneous. But it would not be proper to impeach him or try to discredit Mm by showing that he received a check on the 19th of October when there is .no evidence that he did not also receive one on the 16th of October. We think the court was correct in excluding this evidence.

It is next contended that the principles of riparian law are involved in this case, and that the owner of the dam was not an insurer. The appellant cites and quotes from numerous authorities in support of this contention. When this case was here on former appeal this question was discussed by attorneys in their briefs, and this court said:

“Instruction number one tells the jury that plaintiff may recover if it negligently raised the gates and caused the water to flow, etc. No matter what the rights of the defendant might be with reference to building the dam and gates and operating the same, if it did these things negligently, and this negligence caused the injury to the plaintiff, of course it would be liable. It is not liable because it built the dam or gates or operated the same, but it is only liable if its negligence caused the damage.” Ark. Power & Light Co. v. Orr, 175 Ark. 246, 298 S. W. 1029.

The decision of the case when here before is the law of the case now. • And this case was tried on the theory that the damage claimed by plaintiff was caused by the negligence of the defendant, and not because it built a dam and gates and operated them. In other words, the right to recover in this case depends wholly only whether appellant was guilty of negligence, and ■there is no contention that there is any absolute liability or that the appellants were insurers.

Appellant’s next contention is that the evidence was insufficient to sustain the verdict. When the case was here before, this court did not pass on the sufficiency of the evidence. We there said: “And, since the case will have to be retried and the erroneous evidence eliminated or omitted, we do not pass on the question of the sufficiency of the evidence, and deem it unnecessary to set out the evidence here. ”

The evidence on the part of appellant was to the effect that the gates were raised, that the Ouachita Eiver was very high, and that on the 16th of October appellant raised eleven of the gates; that the gates are about 27% feet wide, and can be raised about 17 feet. Witness, who was at tbe time in tbe employ of tbe appellant, stated that on the 16th of October the highest point reached by-the water was 19.6 feet. The dam is approximately 900 feet long and has an extreme height of 75 feet. The height of the gates is 57 feet from the bed of the river. The gates were originally designed for a height of 55 feet, but the water can now be raised to the height of 57 feet.

The testimony shows that these gates were raised, and that permitted the water held by the dam to rush through and overflow and injure the crops. There is no contention, of course, that it could not have been let off gradually. In fact, it is the contention of the appellant that the gates were not all raised at the same time. But it is not necessary to set out the entire evidence. We have examined it very carefully and have reached the conclusion that the evidence as to whether the crops of appellees were destroyed by the negligence of the defendant is sufficient to take the case to the jury. And it is a well established rule of this court that, if there is any substantial evidence to support the verdict of the jury, it will not be disturbed by this court.. The appellant does not complain about the instructions given or refused. It is therefore conceded that the question of negligence was properly submitted to the jury, and the jury’s finding on the question of fact is conclusive here.

It is the province of the jury to pass upon the conflict in and the weight of the testimony, and the fact that the testimony is conflicting and that the verdict may even appear to be contrary to the preponderance of the testimony, furnishes no ground for reversal. Blankenship v. State, ante, p. 190; Wright v. State, 177 Ark. 1039, 9 S. W. (2d) 1033; Tyner v. State, 109 Ark. 138, 158 S. W. 1087; People’s Bank v. Brown, 136 Ark. 517, 203 S. W. 579; Harris v. Ray, 107 Ark. 281, 154 S. W. 499; Gazola v. Savage, 80 Ark. 249, 96 S. W. 981.

The verdict of the jury was against the appellants on the facts, and the case is therefore affirmed.


author: McHaney, J.

text:
    Missouri & North Arkansas Railway Company v. Potts.
    Opinion delivered November 12, 1928.

      Shouse & Rowland, for appellant.

      J. M. Shinn and Marvin Hathcoat, for appellee.
   McHaney, J.

Appellees brought this action to recover from appellant the damage sustained by them on a shipment of cattle to the National Stock Yards, East St. Louis, 111., by reason of the alleged negligence of the appellant in failing to remove said oar of cattle from Everton, Arkansas, to Seligman, Missouri, promptly, in time to make connection with the Frisco, so that said car of cattle should reach the National Stock Yards on the early morning market of Monday, the 2d day of August, 1926, it being alleged that they were not delivered at destination until about 4:30 o ’clock a. m. August 3, and that, by reason of the long delay, the cattle had shrunk in weight, had been down in the car, and were muddy and bruised bo such an extent that they suffered $300 damages by reason thereof.

Appellant denied all the allegations of negligence, and s'ays that, even though the cattle were not transported promptly from the point of origin to 'Seligman, Missouri, they did in fact arrive there in time to make the same Frisco connection they would have made had the train which moved them from the point of origin to Seligman reached Seligman on schedule time.

The case was submitted to the court sitting as a jury, who, in rendering judgment for the appellees for $297.78, made the following findings of fact:

“That when the plaintiffs, L. M. Graham and J. F. Potts, applied for a car on the 29th day of July, 1926, for the following'Saturday, July 31,1926, for a shipment of their cattle to the National 'Stock Yards at East St. Louis, Illinois, the defendant’s station agent at Everton, Arkansas, understood that it was the intention of the defendant to have a car arrive at East St. Louis for the following Monday morning market; that there was an unnecessary delay in getting the shipment to Seligman, Missouri, and but for this delay the shipment should have arrived at East 'St. Louis several hours earlier, and said stock could have been unloaded and fed and their damage lessened; that, by reason of the unnecessary delay, the plaintiffs were damaged in the sum of $297.78, and that they should have judgment for said amount. ’ ’

Appellant challenges the above findings to the effect that, when appellees applied for a car on the 29th of July, for the following 'Saturday, July 31, appellant’s agent in Everton understood that it was the intention of appellees to have the car arrive at East St. Louis for the following Monday morning market, and says that there is no evidence in the record to support such finding. Counsel for appellant concede the well-established rule of this court, that it will not reverse upon conflicting evidence submitted either to the jury or to the court sitting as a jury. They say, however, that there is no evidence upon which to base this finding, and that therefore it should be reversed. We disagree with appellant in this regard. We think there is substantial evidence in the record to support the finding of the court. Mr. Graham testified that they ordered the car on Thursday, July 29, for Saturday, July 31, and that on Friday they went back to E'verton and asked the agent what time they had to get the stock in, and the agent told them that they should have them in the pens by nine o’clock. He was asked this question:

“Q. I will ask you if they informed you that if you would load your cattle they would put them on Monday’s market at St. Louis? A. They said they would have to have them there by nine o’clock to put them on. Q. What lime, when you loaded at nine, or delivered the stock to the pen, what time were they in the habit or custom of putting- them into St. Louis? A. Anywhere from seven to eight Monday morning.”

He further testified, in substance, that he asked the agent what time he would have to have his stock in the pens to be loaded in order to get them to the St. Louis market Monday morning, and the agent told him nine o’clock Saturday morning. This evidence is disputed by the agent, and there is other substantial evidence in the record sufficient to take the case to the jury, or the court sitting as a jury, as to whether or .not the -agent invited the shipment for nine o’clock a. m. July 31, 1926, in order to have the cattle reach the National .Stock- Yards the following Monday morning.

In the case of C. R. I. & P. Ry. Co. v. Butler, 132 Ark. 37, 200 S. W. 144, L. R. A. 1918C, 537, this court, quoting the second syllabus, said:

“Where a shipper is invited by a carrier to tender to it his stock for shipment, and the shipper does so pursuant to this invitation, the shipper may presume that the carrier has provided and will furnish the facilities needed, and if, through the lack of facilities, the shipper be compelled to load his cattle into oars prematurely, and they are compelled to stand in the oars an unnecessarily long time before the cars are put in* motion, the shipper may recover damages to compensate the loss sustained thereby.”

It was therefore not a question of whether appellant’s train reached Seligman on schedule time, or that they reached the same train on the Frisco they would have reached if appellant’s train had arrived on schedule time at ¡Seligman, but it is a question of the appellant’s negligence in inviting the shipment at such an hour that it had no facilities to move the cattle promptly to Seligman. Appellees had the right to assume that appellant and the agent invited the shipment for nine o ’clock on ¡Saturday, in response to a query from them as to when they must be delivered in the pens to reach the St. Louis market on Monday, that they would thus be transported in time to reach the market, and, if appellant failed to do so, to the damage of appellees, they would be answerable therefor.

We find no error, and the judgment is affirmed.


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    Hurst v. Hilderbrandt.
    Opinion delivered November 12, 1928.

      Smith & Blackford, for appellant.

      W. M. Ponder and H. L. Ponder, for appellee.
   McHaney, J.

On October 29,1905, Isham J. Bagley executed and delivered to his wife, Nancy Elizabeth Bagley, a deed to a large body of land in Lawrence County, Arkansas, and certain lots in Walnut Ridge, the habendum clause of said deed being as follows: “To have and to hold the same, with all appurtenances thereto belonging, to her, the said Nianoy Elizabeth Bagley, for and during her natural life, and in the event that I, Isham J. Bagley, shall survive her, at her death the title and possession of all of said lands shall revert and be reinvested in me, as though this conveyance had never been made. But if the said Nancy Elizabeth Bagley shall survive me, then at her death the title to said lands shall revert and be vested in my surviving children and grandchildren, the latter taking per stirpes, and said land shall be divided between them according to the laws of descent, inheritance and distribution of the State of Arkansas.”

Isham J. Bagley died intestate October 22, 1910, and Nancy Elizabeth Bagley died March 27, 1928. Ed Bagley, son of Isham J. Bagley, died, and left surviving as his only child and heir at law Harry Bagley, who died prior to the death of Nancy Elizabeth Bagley, and left surviving him his two minor children and only heirs at law, the appellants, Harry Joseph Bagley and Bettie Ruth Bagley. Harry Bagley and his wife, Josephine Bagley, on the 10th day of November, 1924, executed and delivered to the appellee, J. F. Hilderbrandt, their warranty deed to “all my interest, as the son of and heir of Ed Bagley, deceased, who was the son of I. J. Bagley, who is also deceased, and who was my grandfather; and I further state that I am the sole and only heir at law of Ed Bagley, deceased, being an undivided one-fourth interest in the following lands, lying in the county of Lawrence ,and .State of Arkansas, to-wit ’ ’ (describing* lands).

This conveyance was made for la consideration of $2,000 by Harry Bagiey to his maternal grandfather, the appellee, J. F, Hilderbrandt. After the death of Nancy Elizabeth Bagiey, suit in partition was instituted to divide the land, in which the appellants, Joseph and Bettie Ruth Biagley, appeared by their respective mothers as next friend, and complained that the deed from their father, Harry Bagiey, to the appellee, J. F. Hilderbrandt, was void for the reason that Harry Bagiey bad only a contingent remainder in the lands of his grandfather, by virtue of the clause in the deed heretofore mentioned, and not a vested remainder, and could not therefore convey anything by his said deed. The chancery court held that Harry 'Bagiey acquired a vested remainder interest in and to a one-fourth'interest in the land described in his grandfather’s deed, land that therefore his deed to the appellee, Hilderbrandt, conveyed a good title to his vested interest in remainder, which ripened into an absolute title in fee on the death of Nancy Elizabeth Bagiey.

It therefore becomes necessary for us to decide only one question. Was Harry Bagiey a vested remainder-man or a contingent remainderman under the deed from his grandfather, Isham J. Bagiey, to his grandmother, Nancy Elizabeth Bagiey, after the death of said Isham J. Bagiey?

The subject of vested and contingent remainders has formed the basis of prolific decisions of courts of last resort, textwriters and annotators. We will not undertake an extensive review of the oases touching on this subject, not even those of our own court. It is a fundamental rule of construction of both deeds and wills to ascertain the intention the grantor had in mind, as to the course he desired his property to take, from the language used in the" instrument, and to give effect to such intention, if it may be done without doing violence to the law. As said by this court in Booe v. Vinson, 104 Ark. 439, 149 S. W. 524: “The purpose of construction of a will is to ascertaip. the intention of the testator from the language used, as it appears from the consideration of the entire instrument, and, when such intention is ascertained, it must prevail, if not contrary to some rule of law; the court placing itself as near as may be in the position of the testator when making the will.” And it is also a rule that the law favors the early vesting of estates, and that, if a deed or a will is susceptible of a dual construction, by one of which the estate' becomes vested and by the other it remains contingent, the former construction will be adopted. Booe v. Vinson, supra; McCarroll v. Falls, 129 Ark. 245, 195 S. W. 387.

In the last cited case the court quoted with approval from Archer v. Jacobs, 125 Iowa 467, 101 N. W. 195, the second syllabus on the subject of vested and contingent remainders as follows :

“A remainder is contingent where the right of the remainderman to succeed to the possession and enjoyment of the estate depends upon some contingency which may never arise, or where the person who is entitled to succeed to the possession and enjoyment at the termination of the life tenancy is not, and may never be, ascertained, or is not in being..In general, it is the present capacity of taking effect in possession, if the possession becomes vacant, and not the certainty that the possession will become vacant before the estate limited in remainder determines, that distinguishes a vested from a contingent remainder. ’ ’ The court in the same opinion quoted from Hawley & King v. James, 5 Paige (N. Y.), 318,-as follows:

“A remainder is vested in interest where the person is in being and ascertained, who will, if he lives, have an absolute and immediate right to the possession of the land upon the ceasing or failure of all the precedent estates, provided the estate limited to him by the remainder shall so long continue. In other words, where the remainderman's right to an estate in possession cannot be defeated by third persons, or contingent events, or .by the failure of ia condition precedent, if he lives, and the estate limited to him by way of remainder continues till all the precedent estates are determined, his remainder is vested in interest.”

R. C. L., vol. 23, page 500, § 32, makes the distinction between vested and contingent remainders in the following language:

“The fundamental distinction between the two kinds of remainders is that, in the case of vested remainder, the right to the estate is fixed and certain, though the right to possession is deferred to some future period, while, in the case of a contingent remainder, the right to the estate as well as the right to the possession of such estate is not only deferred to a future period, but is dependent on the happening of some future contingency. The broad distinction between vest'ed and contingent remainders is this: In the first there is some person in esse known and ascertained, who, by the will or deed creating the estate, is to take and enjoy the estate, and whose right to such remainder no contingency can defeat. In the second, it depends upon the happening of a contingent event, whether the estate limited as a remainder shall ever take effect at all. The event may either never happen, or it may not happen until after the particular estate upon which it depended shall have been determined, so that the estate in remainder will never take effect.”

It therefore becomes necessary to determine the intention of I. J. Bagley by this language appearing in the deed: “But if the said Nancy Elizabeth Bagley shall survive me, then at her death the title to said lands shall revert and be vested in my surviving children and grandchildren, the latter taking per stirpes, and said land shall be divided between them according to the laws of descent, inheritance and distribution of the State of Arkansas.” She died surviving him. When did the title to said lands .revert and vest in the grantor’s surviving children and grandchildren? His own language answers the question — “at her death.” It is conceded that Nancy Elizabeth Bagley held a life estate only. At her death the title was to go to Ms surviving children and grandchildren. Surviving whom — him or her? Manifestly, we think, he meant that it should go to such children and grandchildren as survived her, and not those surviving him. The grandchildren, according to the language, were to take “per stirpes.” That is, .they were to take the shares equally their immediate ancestor would have been entitled to had he not died. Therefore, giving the language used this construction, which we believe to be the intention of the grantor, the necessary result is that Harry Bagley took as a contingent remainderman, because it could not be known what children and grandchildren would survive Nancy Elizabeth Bagley until she had died. iSince his interest in this land was a contingent remainder and not a vested remainder, he had no power to convey, because he had no vested interest to convey, and his deed to the appellee, Hilderbrandt, conveyed nothing.

.A similar situation existed in Eversmeyer v. McCollum, 171 Ark. 117, 283 S. W. 379, where, to quote the third syllabus, it was held: “Where land was conveyed to A and her husband for their natural lives, and at her death to A’s children or descendants, 'and, if none such be in existence at their death, to a named child of the husband by a former marriage, held that, during A’s lifetime, her child was a contingent remainderman to whom no title passed.”

We will not undertake a. discussion of the other cases cited by counsel on both sides, las it would unduly extend this opinion, and, as already stated, there are so many cases on the subject of vested and contingent remainders that the writer feels that it would be a work of supererogation and an affectation of learning on his part for him to attempt to review them, or to announce any new principles on the subject.

Having reached the conclusion that Harry Bagley took only as a contingent remainderman, and that his deed to appellee, ITildebrandt, conveyed nothing, it necessarily follows that the decree must he reversed and the canse remanded with directions to enter a decree in accordance with this opinion. It is so ordered.


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    Barr v. Barr.
    Opinion delivered November 12, 1928.

      Pat L. Robinson, for appellant.

      Murphy & Wood, for appellee.
   McHaney, J.

This is an laction for divorce and alimony, brought by appellee against appellant, alleging a course of cruel treatment and general indignities which made her condition in life intolerable; that he cursed and abused her on numerous occasions, in the presence of others, thereby greatly humiliating her; that he struck her, pulled her hair, and threatened to kill her.

Upon a hearing, the chancery court entered a decree granting appellee an absolute divorce from appellant, and rendering judgment for $75 per month alimony, beginning on the 20th day of March, and payable on the 20th day of each month thereafter.

'Several questions are raised on this appeal, but we find it necessary to determine only one of them, in view of the disposition we make of it, and that is, the question of the sufficiency of the corroborating evidence. Appellee testified to several minor incidents in the course of their married life, which was only about eight months, tending to support, her action for divorce, one of which was that, on one occasion, when her brother, Dr. Houston, and his wife, of Hot Springs, visited them in their home in-Little Bock, when appellee says appellant became violently angry at her, cursed her, calling her a damn fool because she gave her brother, Dr. Houston, a drink of appellant’s whiskey, kept for medical purposes. This, while denied by appellant, he stating that he only said to her that she was making a damn fool of herself, was corroborated by Dr. and Mrs. Houston, who heard what he said to her, and this is the only respect in which appellee is corroborated by her testimony of several different instances tending to show a ground for divorce. .All the charges are denied by appellant, but, even though he had admitted them, this would not be corroboration within the meaning of the term. As was said by this court in Pryor v. Pryor, 151 Ark. 157, 235 S. W. 421:

“The appellee, in his testimony, flatly contradicts the testimony of the appellant that he had been afflicted for the length of time and to the extent that the testimony of appellant tended to prove. But, even if he had admitted that her testimony in this respect was entirely true, still this would not entitle her to a decree of divorce, because the law, as announced by this court in numerous cases, is that divorces are not granted on the uncorroborated testimony of the parties and their admission of the truth of the matters ¡alleged as grounds therefor.” Shelton v. Shelton, 102 Ark. 59, 143 S. W. 110; Sisk v. Sisk, 99 Ark. 94, 136 S. W. 987; Chappell v. Chappell, 83 Ark. 533, 104 S. W. 203.

As to the incident related by her in which she is corroborated by Dr. Houston and his wife, the record shows that there was a reconciliation afterwards. She thereafter continued to live with him for a period of approximately two weeks, and the testimony of both of them is to the effect that they lived happily during that time; that by appellant being that they were happier during the last two weeks than ever before, and appellee admitting that they resumed their former conjugal relations and lived together as husband and wife. Appellee testified herself that this was the last unpleasant occurrence that happened between them, land about two weeks later she left for her brother’s home in Hot Springs, without telling appellant that she was leaving him, and that he did not know that she was not going to return until some days later, when he telephoned her, asking her if she did not intend to come back, and she told him that she did not. She testified that the relations between them after the last unpleasant incident were agreeable; that they worked crossword puzzles together, and that their relations thereafter were as pleasant as usual. Under this state of the record we do not think appellee was entitled to a divorce, as the evidence on her behalf was wholly uncorroborated, except as to the one incident, and the proof conclusively shows that that was condoned. We do not discuss the evidence in detail, as it would serve no useful purpose, but we have examined it carefully, and find it as heretofore stated. This case must therefore be reversed, and the cause dismissed.

On October 1 this court made an order directing appellant to pay appellee as counsel fees $100, and the cost of printing her briefs in this court. This order was not complied with, and, upon motion of appellee to dismiss the appeal, counsel for appellant suggested that it be passed to the final submission of this case, which was done. The appellant is therefore ordered to pay into the registry of this court the above sums of money within ten days from this date, and all the costs that have accrued in both the lower court and this court.


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    Grady Drainage District v. Free.
    Opinion delivered November 19, 1928.

      A. J. Johnson, for appellant.

      Brockmcm & Reid, for appellee.
   Hart, C. J.,

(after stating the facts). Grady Drainage District contains land both in Jefferson County and in Lincoln County, Arkansas.. It was organized under §§ 3607-3655 of Crawford & Moses’ Digest.

Section 3607 contains a clause that, if land in more than one county is embraced in a proposed drainage district, the application shall be made to the circuit court of either county, and all proceedings shall be had in such county. Hence the district was properly organized by the circuit court of Jefferson County.

Section 3607 was amended by § 1 of act 353 of the Acts of 1921. See General Acts of 1921, p. 388. The amendment provides that if lands in more than one county are embraced in the district, the application shall be addressed to the circuit court of the county in which the greater portion of the land lies, and all proceedings shall be had in such circuit court.

In Indian Bayou Drainage District v. Dickie, 177 Ark. 728, 7 S. W. (2d) 794, it was held that the commissioners of a drainage district are empowered to preserve the district improvement without a petition from the landowners, if the necessary funds are- available for that purpose. It was further held that, if it is proposed to do additional work, that is, work not contemplated by the original plans, it would be necessary to proceed by a petition of the landowners under act 203 of the Acts of 1927. See Acts of 1927, p. 680. Under § 3 of that act the commissioners are empowered to file plans for additional work when a petition has been filed with the county court, signed by a majority in numbers, acreage and value of the landowners within the district, praying that the work as provided in the plans shall proceed. Hence it is sought to uphold the action of the circuit court in sustaining a demurrer to the petition because it was not filed in the county court as directed by the act of 1927, under which the commissioners were proceeding to act.

"We do not agree with counsel in this contention. The act of 1927 in question was passed in aid of drainage districts established under §'§ 3607-3655 of Crawford & Moses ’ Digest. Under the -original act the commissioners of drainage districts had no power to construct lateral ditches or to enlarge the original ditches unless they had funds for that purpose on hand. The object of the amendment was to confer upon the 'commissioners these additional powers.

The settled rule to- be followed in the interpretation of an amendment is that the Legislature must be presumed to have had in mind existing statutes on the subject, and the courts will review and interpret the words used in the amending statute as they were used and interpreted in the statute existing at the time of the amendment. McIntosh v. Little Rock, 159 Ark. 607, 252 S. W. 605, and American Woodenware Mfg. Co. v. Schorling, 96 Ohio St. 305, 117 N. E. 366, Ann. Cas. 1918D, p. 318.

Now, § 3607 of the Digest contains a clause which says that whenever the words “county court” or “county judge” are used in the act, they shall he construed to mean “circuit court” or “circuit judge,” in cases where the district contains lands in more than one county. It will be presumed that the Legislature had this legal definition of the. words “county court” in mind when it passed the act of 1927 in aid of drainage districts. It would be just as necessary to enlarge and add laterals to drainage districts situated in more than one county as it would be to perform such work where the drainage district was situated wholly within one county. Hence it must be presumed that the Legislature had in mind that, when a drainage district was situated in more than one county, the words “county court,” as used in the amending act, should be given the meaning of “circuit court” as prescribed by § 3607 of the Digest.

In this view of the matter, the circuit court erred in holding that the proceedings should be had in the county court, or in the Jefferson Circuit Court, where the district was originally organized.

'Section 3607 of the Digest was amended by the Acts of 1921, above referred to, so that, if lands in a drainage district are in more than one county, the application should be addressed to the circuit court in which the larger portion of the lands lie, and all proceedings shall be had in the same circuit court. Now, the matter in question was a proceeding within the contemplation of that amendment. The record shows that the larger body of lands in the district was situated in Lincoln County.

Hence the Lincoln Circuit 'Court had jurisdiction of the proceedings, and the court erred in not so holding; and the judgment will be reversed, and the cause will be remanded for further proceedings in accordance with law and not inconsistent with this opinion.


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    Watkins v. Moore.
    Opinion delivered November 19, 1928.

      Brundidge & Neelly, for appellant.

      J. R. Linder and Snodgress & Snodgress, for appellee.
   Hart, C. J.,

(after stating* the facts). It is well settled in this ¡State that, when a person holds himself out, by word or deed, to another as a partner, and thereby induces him to extend credit to the partnership on the faith of such representation, he cannot shield himself from liability under the partnership. When a person holds himself out as a member of a partnership, any one dealing with the firm on the faith of such representation is entitled to act on the presumption that the relation continues until notice of some kind is given of its discontinuance. Brugman v. McGuire, 32 Ark. 733; Herman Kahn Co. v. Bowden, 80 Ark. 23, 96 S. W. 126, 10 Ann. Cas. 132; and Gerhner v. Scott-Mayer Commission Co., 93 Ark. 301, 124 S. W. 772.

We think that a preponderance of the evidence shows that M. E. Moore held himself out to T. A. Watkins as a partner with his sop in the purchase and sale of fertilizer from Watkins and his brother. The Moores were in business at Beebe, and the Watldns were in business at Searcy. It is true that the testimony of the parties to the contract is in direct and irreconcilable conflict, but we believe that the attendant circumstances turn the scale in favor of the plaintiffs. The record shows that very little of the fertilizer was sold for cash. Notes to the total amount of $4,000 were given by purchasers of the fertilizer, and these notes were indorsed by Guy Moore, in the name of M. E. Moore & Son, to the plaintiffs. The notes were either made payable to M. E. Moore & Son or to Moore & Son. It is true that M. E. Moore denies that he knew that this was done until in the fall, when an attempt was made to collect the notes. Notwithstanding his testimony on this point, the. record shows that he signed one of these notes himself, payable to M. E. Moore & Son, or Moore & Son. M. E. Moore only states in a general way that he did not know these notes ' were made payable to Moore & Son. He does not state specifically that he did not read over the note that he gave for fertilizer. It is true that Guy Moore says that he presumed his father signed the note without reading it, but his father makes no such statement. If M. E. Moore read the note, he was bound to know that it was payable to M. E. Moore & Son, or to Moore .& Son.

Again, the record shows that in the fall M. E. Moore and G.uy Moore brought suit on one of these notes and recovered judgment in the circuit court. It is true that M. E. Moore said that this was done to accommodate the parties, hut this could have been done as effectually by disclaiming* any right to the proceeds of the note. During the whole olf the season he was considered a partner in the 'business, and was so treated 'by the plaintiffs. The partnership was organized and conducted as a trading business, and Guy Moore had the right to indorse the notes to the plaintiffs in payment of the fertilizer which the firm had purchased from the plaintiffs. The law of partnership is a branch of the law of agency. One partner acts for himself and as the implied agent of the other within the scope of the- partnership business. Stephens v. Neely, 161 Ark. 114, 255 S. W. 562, 45 A. L. R. 1236; hence a member of the partnership is authorized to settle and adjust claims against the partnership. Mortimore v. Atkins, 98 Ark. 183, 135 S. W. 865.

Guy Mooi?e was acting within the scope of the partnership 'business when he indorsed the notes given by the purchasers of fertilizer to the plaintiffs in payment of the debts of the firm. By indorsing the notes in the firm name in payment of a firm debt he 'bound all the members of the partnership by his indorsement; and, as we have already seen, M. E. Moore became liable for the partnership debts by holding himself out as a member of the firm to T. A. Watkins when the arrangement was made for the purchase of the fertilizer from the White 'County Supply Company by Moore & 'Son.

The decree is reversed, and the cause is remanded with directions to the chancery court to- render judgment in favor -of the plaintiffs against M. E. Moore jointly with Guy Moore as members of the partnership of Moore & Son.