text:
    School District of Marion v. Taylor.
    Opinion delivered May 6, 1929.

      8. V. Neely, for appellant.

      Mann & Earrelson, for appellee.
   Hart, C. J.,

(after stating’ the facts). Counsel for appellant contends for a reversal of the decree on the ground that when public funds are wrongfully deposited in a bank and intermingled with the other funds of the bank and the bank becomes insolvent, the whole of the assets becomes a fund out of which the public fund should be paid as a preferred claim.

We cannot agree with counsel in this contention. The Crittenden County Bank & Trust Company issued a time certificate of deposit to the school directors of the Special School District of Marion for $100,000, bearing interest at three per cent. The bank became insolvent, and its assets were taken charge of and wound up by the State Bank Commissioner. The assets were sold by the Bank Commissioner under the approval of the chancery court to the Crittenden County Bank, which was organized for that purpose. This bank in turn became insolvent, and its affairs were wound up by the State Bank Commissioner. The Bank of Crittenden County was organized for the purpose of purchasing its assets and assuming its liabilities. We have copied in our statement of facts so much of the agreement as relates to the issue raised by this appeal. The agreement in plain terms only makes the Bank of Crittenden County liable for so much of the claim of the school district as shall not be paid by assessments on the stockholders of the bank, and it is liable under the agreement to pay the claim of the school district only as that of a general creditor of the bank. The agreement expressly states that the Bank of Crittenden County will pay on demand so much of the deposit liabilities of the Chittenden County Bank, including $100,000 to the School District of Marion, as are not paid by the application thereto of collections realized upon the assessment against the stockholders of the Crittenden County Bank. This agreement is to pay on demand, and it does not make any difference that a certificate of deposit was issued by the bank in favor of the school district, due three years after date. This certificate did not create the liability of the bank. It was merely issued to identify the claim of the school district which it had assumed. The fact that the certificate recited that it was due three years after date did not affect the liability of the bank. Its liability was fixed by the agreement of purchase and sale.

In Warren v. Nix, 97 Ark. 374, 135 S. W. 896, the court expressly held that the county treasurer was authorized to make a general deposit of public funds in his custody in an incorporated bank. The effect of this was that the relation of depositor and creditor existed, and the deposit did not become a trust fund. The court, held that in case of the failure of the bank, the claim for .public money stands on the same footing with the claims of general creditors and has no preference over them. The writer concurred in the judgment in that case because he thought the public funds deposited under the statute became a trust fund and that, on the bank’s becoming insolvent, this became no part of its estate.

This interpretation of the opinion was reaffirmed in Wallace v. Davis, 123 Ark. 70,184 S. W. 834.

If the bank had a right to receive the deposit of the school money in the present case as a general deposit, and in ease of the insolvency of the bank the school district would not have a preferred claim over general creditors, there is no good reason why the rule should be changed because the bank agreed to pay interest on the certificate of deposit. In this connection it may be stated that the bank did pay interest, and the school directors collected it from the first two banks and applied the sums so collected to the ordinary expenses of the district. Therefore we are of the opinion that, by the terms of the purchase and sale, the bank only agreed to become liable to the school district as a general creditor for the amount owed by the bank whose assets it purchased and whose liabilities it assumed.

Counsel for appellant, however, places his reliance on the cases of Talley v. State, 121 Ark. 4, 180 S. W. 330, and State use Prairie County v. McKee, 168 Ark. 441, 270 S. W. 513. In the first of these cases, the court never specifically passed on this question. It only said that, if the funds had been wrongfully placed in the bank, the principle that the State, as a sovereign, might claim that the public funds deposited in the bank wrongfully became a trust fund and thus gave the State a preference. In the latter ease it was contended that public funds wrongfully deposited in a bank and intermingled with the other funds of the bank, upon the insolvency of the bank became trust funds out of which the public funds should be paid as a preferred claim. The court said that the rule contended for was correct, but that.it had no application under the facts in the case under consideration. Thus, it will be seen that this case is no authority for the contention of counsel for appellant. The only reason for holding that a claim, for public money was a preference over the claims of general creditors is that when it is wrongfully deposited in a bank it becomes a trust fund.

The rule in any ca.se proceeds upon the theory that the true owner has the right to his own property. So where trust property has been wrongfully converted by the trustee and constitutes, although in a changed form, a part of the assets of an estate, it is equitable that priority of lien should be adjudged in favor of the trust estate' for the value of the trust property. But, before such priority of lien should be adjudged in favor of the trust estate, the trust fund must be identified. In such oases it is not necessary to point out the precise thing into which the trust fund has been changed or the precise time when the conversion took place, but it is necessary that the trust fund should be fixed and identified in some form or other.

This rule has been followed in the case of public funds. Hill v. Miles, 83 Ark. 486, 104 S. W. 198. In that case the court held that the mere fact that an insolvent bank owed one for trust fund does not entitle such creditor to a preference, but to obtain which he must show that the receiver or person having charge of the assets of the insolvent bank has in his hands some of the trust funds or property purchased by such funds or into which such funds have been changed or invested. That suit was a proceeding in equity by a county treasurer against .the receiver of an insolvent ¡bank to recover certain funds belonging to the county which, had been deposited by the treasurer in the bank before its failure, and to obtain possession of certain school warrants held by the receiver. There was a finding and decree against the treasurer, and the decree was affirmed on appeal. The reason was that there was no identification of the fund in the bank at the time of the failure with that deposited by the treasurer in the 'beginning, and no proof to show that the school warrants claimed by the treasurer had been purchased by the ¡bank with the funds deposited in the bank by the county treasurer.

Hence it does not make any difference that, if the fund originally deposited in the Crittenden County 'Bank & Trust Company should be considered a trust fund, for these funds were intermingied with the other funds of the bank and cannot be traced into any of the assets of the Crittenden County Bank & Trust Company or of the Crittenden County Bank which were purchased and taken charge of by the Bank of Crittenden County. No funds of the school district were taken charge of by the Bank of Crittenden County. The certificate of deposit issued to the school district was simply for the purpose of identifying the claim of the school district and showing the amount thereof. No funds which were originally deposited by the school district in the Crittenden County Bank & Trust Company can Ibe traced into the hands of the Bank of Crittenden County either in their original or in a substituted form. Of course, these funds in their changed form may have contributed to the assets which ultimately came into the hands of the Bank of Crittenden County and which constitute the residue of its estate, but the same thing might be said of any other general deposit which was on hand in the Crittenden County Bank & Trust Company at the time it failed, or in the Critten-den County Bank when it became insolvent.

Therefore, we are of the opinion that the decision of the chancery court was correct, and the decree of the chancellor will he affirmed.

Smith, J., not participating.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    New England Securities Company v. West Helena Consolidated Company.
    Opinion delivered May 6, 1929.

      Bowersock, Fiezell & Rhodes, Roy D. Campbell and Moore, Walker & Moore, for appellant.

      J. G. Burke, for appellee.
   Wood, J.

Three cases, numbered 509, 510 and 511, were' appealed to this court from the chancery court of Phillips County. The cases were consolidated for hearing here and an opinion was rendered disposing of the cause on July 2, 1928. See New England Securities Company v. West Helena Consolidated Company, 177 Ark. 849. A mandate was issued in the consolidated cause out of this court on the 20th day of July, 1928, and was filed in the chancery court in each of the oases July 23, 1928. The mandate, among other things, recited that the chancery court ‘ ‘ erred in sustaining the demurrer to the complaint and also in holding that the deeds of trust could not be reformed to show the correct description of the lands intended to he conveyed as against the ap-pellee, Affiiok.” And further recited: “It is therefore ordered and decreed by the court that the decree of the chancery court in this cause rendered he and the same is hereby, for the errors aforesaid, reversed, annulled and set aside, with costs, and that this cause he remanded to said 'chancery court with directions to overrule the demurrer, ordering a reformation of the deeds of trust in accordance with the prayer of the complaint for foreclosure thereof, and for further proceedings to he therein had according to the principles of equity and not inconsistent with the opinion herein delivered.

Counsel for the appellants in each of the cases in the chancery court tendered what they conceived to he a precedent for decree to be entered in conformity with the mandate of the Supreme Court. The chancery court indorsed upon each of these precedents the following: ‘ ‘ The entry of said decree so tendered ."by the plaintiffs was by the court refused. To the refusal of the court to so enter the decree as tendered by the plaintiffs and to the entry by the court of the decree herein ordered to be entered, the plaintiffs at the time excepted and prayed an appeal to the Supreme Court of the State of Arkansas, which is hereby granted. ’ ’

The record shows that by stipulation of counsel for the respective parties, issue was joined in the chancery court on the decree that should be rendered by that court in order to conform to the mandate of the Supreme Court, which issue was heard by the chancery court on the mandates, pleadings, testimony and exhibits included in the record filed in the Supreme Court at the former hearing of said cases, and that nothing additional in the way of pleadings, exhibits or testimony was heard or considered by the court in rendering a decree on the mandate. Counsel further .stipulated that the causes on appeal anight be consolidated for hearing in this court.

For a statement of the facts upon which this court rendered its opinion and issued its mandate, see the case of New England Securities Co. v. West Helena Consolidated Co., supra. Among other things, in that case, in the statement of facts we said: “It appears from the testimony of E. C. Horner-and John S. Horner, president and secretary of the West Helena Consolidated Company, and the minutes of the directors’ meeting, that the lands intended to he mortgaged for the security of the loans were those ¡belonging to the company outside of the platted portion of West Helena, as shown by the two dedication deeds filed and recorded, one in June, 1910, and the other in 1913, adding some additional territory. * * * The proof showed it was the intention to convey the lands owned bjr the company lying outside of the platted portions of West Helena, and the amendment prayed a reformation of the descriptions in the deeds of trust, inserting or substituting for the words “ corporation line, ’ ’ “platted portions of West Helena. ” We further said: “The chancellor sustained the demurrer to the complaints for foreclosure, and denied the appellant’s right to reformation of the deeds of trust showing the description of the lands intended to be conveyed, held the deeds of trust void as to certain of the lands attempted to be described therein, and quieted the title to appellee thereto, in accordance with a correct description of such lands as shown by appellant’s proof.” In the opinion in that case, on the former appeal, among’ other things we said:

“ It is insisted, first, that the court erred in sustaining the demurrer to the complaints, and also in holding that the deeds of trust could not be reformed to show the correct description of the lands intended to be conveyed as against appellee Affiick, who claims to be an innocent purchaser, and both of these contentions are correct. * * * It is true that the words ‘corporation line’ were used in some of the descriptions, indicating some municipal corporation, and that the town of West Helena had not been incorporated when the deeds of trust were executed, but the dedication deeds had been made and recorded, showing the lands platted, which were later incorporated as the town of. West Helena-, and the description in the trust deed in case No. 509 expressly states; ‘except portions platted as a part of West Helena..’ Then, too, the town had been incorporated, including virtually the platted lands, as shown by the dedication therein. They were described with sufficient certainty, the deed itself making reference to tangible landmarks and to portions of the land 'platted as a part of West Helena’ the dedication deeds and plats of West Helena within the sections of lands described therein being of record, thus furnishing a key by which the lands conveyed could be identified. ’ ’

In disposing of the appellee’s contention in that case that he was an innocent purchaser and that the deeds of trust could not be reformed as against him, we further said :

"Appellee had actual notice of the description of the land in the deeds of trust and constructive notice by their record, as well as constructive notice of the dedication deeds and plats of the lands as West Helena, made before the execution of the mortgages, and of the incorporation of the town of West Helena virtually as platted in the dedication deeds, long* before his attempted purchase of any interest in these lands. He could not therefore claim to be such an innocent purchaser as would prevent the court from reforming the deeds to more exactly describe the lands conveyed by the deeds of trust to conform to the intention of the parties in the making thereof, as shown by the undisputed testimony. The chancellor erred in holding otherwise.”

In each of the original complaints that were -filed the lands mentioned in the deeds of trust were described, and it was alleged, among other things, that the makers of the deeds of trust intended to convey property adjacent and contiguous to the corporation line of West Helena, Arkansas, and that in the preparation of these deeds of trust the West Helena Consolidated Company inadvertently and by oversight, in writing the words “corporation line” omitted the words “of West Helena, Arkansas,” and plaintiffs prayed that the deeds be reformed so as to describe the property correctly, and they set out the description as they alleged it should be, and asked that the deeds he reformed to cover such description and for a foreclosure of the deeds of trust on the lands as they should have been described in said deeds.

There was a separate demurrer filed to each of the complaints and also an answer in which it was set up in substance that the descriptions of the tracts mentioned in the deeds of trust were indefinite, uncertain, and absolutely void, and that the reformation sought by the complaint set up different lands to those that were embraced in the several deeds of trust as same had been recorded. Evidence was adduced in the cause before the demurrers were passed upon, and, after taking this testimony, the complaints were amended to conform to the proof had in the several causes of action on behalf of the "plaintiffs. The amended complaints set out a description of the lands which plaintiffs alleged were intended to be included in each separate deed of trust as shown by the resolution of the board of directors of the West Helena Consolidated Company, the maker of the deeds, authorizing the execution of the deeds of trust. It was alleged, among other things, in the amended complaint: ‘ ‘ That at the time of the passage of the resolution above mentioned and at the time the descriptions of the lands were given, certain portions of the lands above described had been platted as the town of West Helena, which said plat was duly filed in the recorder’s office of Phillips County, Arkansas, in record book 107, at page 540, and that the description of said lands as contained in the resolution of the board of directors had reference to said plat which had been filed, and that it was the intention of the parties, to-wit, the West Helena Consolidated Company and the New England Securities Company, to convey in said deeds of trust the lands described in the loan above •mentioned with reference to the platted portions of land which had been filed in the office of the recorder of Phillips County, Arkansas, and that said intention not only appears from the resolution passed by said board of directors, a copy of which will appear in the testimony talien in this cause, 'but will also appear from the testimony of the then president and secretary of the West Helena Consolidated Company, who executed said deeds of trust, and the plaintiffs state that the descriptions as contained in the deeds of trust as executed in cause No. 5180, cause No. 5182 and cause No. 5183 contain improper descriptions, which were made hy a mutual mistake of the parties to said loan and not in accordance with the intention of the parties at the time said deeds of trust were executed and the loan perfected.

‘ ‘ That in said amended complaints plaintiff's prayed that they he permitted to reform the descriptions contained in said deeds of trust in causes No. 5180, 5182 and 5183, in accordance with the intention of the parties to said deeds of trust as reflected by the resolution passed by the hoard of directors at this meeting on the 19th day of July, 1916, and that when said deeds of trust are so reformed, the indebtedness mentioned in said cause be declared a first and prior lien on said lands, and the same be ordered sold to satisfy said indebtedness, interest and cost of suit as originally prayed in the complaint filed in said cause.”

Without setting out the pleadings in detail, it suffices to say that appellee Afflict, by motions to strike, demurrers, and separate answers, joined issue on the allegations of the original and amended complaints. On the issue thus joined the appellee introduced a dedication deed executed September 8, 1913, by the West Helena Consolidated'Company, dedicating certain portions of the town of West Helena, Arkansas. Attached to this deed was a plat showing the lands dedicated and the platted additions thereto. This plat was duly recorded three years before the execution of the mortgages in controversy and was necessarily considered by the court in rendering the decrees from which this appeal comes. The original complaints prayed that the words “of West Helena, Arkansas,” be added immediately following tbe words “corporation line” in the description of the lands.

The testimony of E. C. Horner, president, and John S. Horner, secretary of the West Helena Consolidated Company, maker of the deeds of trust, was to the effect that it was the understanding’ of the parties to the deed of trust that all the acreag’e property belonging to the West Helena Consolidated Company which lay outside of the platted portions of West Helena should be embraced in the deeds of trust. The prayer of the amended complaints was that the deeds of trust be reformed in accordance with the intention of the parties as shown 'by resolution passed by the board of directors July 19, 1916.

The direction of this court contained in the mandates was that the court overrule the demurrer to the complaints, and ordered a reformation of the deeds of trust in accordance with the prayer of the complaint for a foreclosure thereof. The issue as to what decrees the trial court should enter in obedience to the mandate was heard upon the pleadings, testimony and exhibits included in the record filed in the Supreme Court at the former hearing of said oases.

The trial court could not have reformed the land descriptions by inserting the words “of West Helena” immediately following the words “corporation line” as prayed in the original complaints, because the original complaints were amended, and the prayer of the original complaints as amended was that the description in the deeds be reformed in accordance with the intention of the. parties to the deeds of trust as affected by the resolution passed by the hoard of directors at its meeting on July 19, 1916. The trial court correctly construed the mandate of this court to mean that it was directed to reform the deeds according to the prayer of the amended complaints. The pleadings and the exhibits and the testimony of the witnesses which the court heard in determining what decrees it should enter in obedience to the mandates of this court, when considered in connection with the opinion of the court upon which the mandate was issued, convince us that the trial court correctly interpreted the mandate of this court, and did not err in rendering- the decrees from which is this appeal.

It will he ¡seen from an examination of these that the chancery court reformed the deeds of trust so that the description of the lands therein should embrace all the acreage property of the West Helena Consolidated Company which is outside of the platted portions of the city of West Helena, Arkansas. This reformation of the deeds of trust i's according to the undisputed evidence of the intention of the parties and is in strict conformity with the prayers of the amended complaints and the mandate of this court.

The decrees being in all things correct, are therefore affirmed..

      The decree described the land as follows:
      509. ' Those parts' only of the southeast quarter of the northeast quarter and of the east half of the southeast quarter of section 1, township 2 -south, range 4 east, which are outside of the platted portions of the city of West Helena, Arkansas. Also only those parts of the fractional northwest quarter of section 1 lying north of blocks 45, 46, 47, 48, 49, 50, and that part of block T which are outside the platted portions of the city of West Helena, Arkansas, in section 1, township 2 south, range 4 east. Also all that part of the fractional north ¡half of section 2, township 2 south, range 4 east, lying north of part of block T and north and east -of corporation line, which is outside the platted portions of the city of West Helena, Arkansas. All that part only of north half of section 11 lying north of Little Rock road and south of blocks 84 to 91 inclusive, which is outside the platted portions of the city of- West Helena, Arkansas. Also all that part only of north half of section 12 lying south and which is outside of the platted portion of the city of West Helena, Arkansas, in township 2 south, range 4 east. Also all that part of Spanish grant No. 2412 lying north of Little Rock road, in township 2 south, range 4 east. Also the east half of the southwest quarter and south 48 acres of the west half of the southwest quarter of section 6, township 2 south, range 5 east.
      511. All that part only of the southwest quarter of section 2 lying south of block west D' and South Street and west of blocks 82 and 83 which is outside the platted portions of the city of West Helena, Arkansas. Also that part only of fractional north half of section 3 lying west of block west A which is outside of the platted portions of the city of West Helena, Arkansas. A11 those portions only of the southeast quarter and of the east half of the southwest quarter of section 3 lying north of Little Rock road and south and west of block west A and west D which is outside the platted portion of the city of West Helena, Arkansas.


author: Smith, J.

text:
    Kuykendall v. Zachary.
    Opinion delivered May 6, 1929.

      Storbird & Storbird, for appellant.

      Jesse Reynolds and Dobbs & Young, for appellee.
   Smith, J.

Amanda Bagsby and B. L. Zachary were married May 30, 1904, and on September 4 of the same year a son was born, who was named Blakely. Shortly after the birth of this son Mrs. Zachary obtained a divorce from her husband on the ground of desertion. In 1908 Zachary married a second time, and installed this wife in a home which he owned in Alma, Arkansas, where he resided with her until his death, which occurred in 19'22. Zachary was an employee of the Missouri Pacific Railroad at the time of his death, and was killed while pursuing his employment, and the administrator of his estate recovered judgment against the railroad company for the death of his intestate. The judgment was for $2,750, of which $2,000' was for the benefit of the widow and next of kin and $750 for the benefit of the estate.

On April 28,1922, suit was brought by the mother of Blakely Zachary as his guardian and next friend against his father’s second wife to recover his interest in his father’s estate. On June 18, 1923, a consent decree was rendered in this case, which recites the appearance of the parties in person and by attorneys, who “announced that settlement of the same had been reached by mutual agreement of the parties thereto.”

The decree further recited: “Whereupon the court finds that the parties have agreed judgment shall be entered in favor of the plaintiff for the sum of $650 in full satisfaction of his interest and claim in the property belonging to the estate of said Bert or B. L. Zachary, deceased, consisting of” the homestead, “and also in full satisfaction of the plaintiff’s interest and claim in and to all of thn personal property belonging to said estate, consisting of” the proceeds of the judgment against the railroad company and certain other personal property. It was therefore adjudged that plaintiff have judgment for $650 in full satisfaction of all his rights of inheritance in the estate of his father, and that “all right, title, interest and claim of said Blakely Zachary in and to said lot is hereby vested in Fannie Zachary in fee simple forever.”

After the rendition of the above judgment Mrs. Zachary sold and conveyed the homestead to appellant, Kuykendall.

On April 9, 1927, Blakely Zachary brought this suit in ejectment to recover the homestead from Kuykendall, and the cause was transferred to equity, and upon the trial there the chancellor decreed that the plaintiff was entitled to recover the property, subject only to the dower rights of Ms stepmother, all questions of accounting being reserved, and this appeal is from that decree.

It is the opinion of the majority that the instant case is not essentially different from that of Rankin v. Schofield, 81 Ark. 440, 8 S. W. 674, and is controlled by it. In this case, as in that, a compromise of a minor’s rights was effected without the direction or consent of the court, and the court was not called upon to examine the terms of the settlement or to find whether it was fair to the minor. It affirmatively appears, in this case as in the other, that the court found only that a settlement of the minor’s claim had 'been made, and a decree was rendered in accordance with this settlement. Such a decree was declared by Mr. Justice Battle, in the opinion on rehearing" in the Rankin case, supra, to be void.

The doctrine of the Rankin case was reaffirmed in the case of Frazier v. Frazier, 137 Ark. 63, 207 S. W. 215, where it was said:

‘1 Moreover, we are of the opinion that the court erred in not setting aside the order of confirmation for the reasons which affected the substantial rights of the minors. Neither the guardian nor the guardian’s attorney can make any admissions to the prejudice of the ward. McCloy & Trotter v. Arnett, 47 Ark. 445, 2 S. W. 71. TMs is in accord with the general rule that a guardian ad litem has no power to join in an agreed statement of facts on which an action to which an infant is a party is to be submitted for decision. Greene v. Mabey, 35 R. I. 11, 85 Atl. 118, Ann. Cas. 1915A, P 1290, and note. In Rankin v. Schofield, 70 Ark. 83, 66 S. W. 197, the court held that, in the absence of authority given by statute, the guardian cannot agree to any compromise or family settlement by which the property interests of his ward are affected, without the concurring sanction of the court to which he must look for authority to bind his ward. This is an application of the well-known rule that a guardian has no power to bind the infant by any admission of fact. So it may be said to be the settled rule in this State and elsewhere that a next friend or guardian ad litem, cannot by admission or stipulation surrender the rig’hts of the infant. It is the duty of the court to protect the interests of the infants, and see to it that their rights are not 'bargained away by those who represent them.”

This opinion is not to be interpreted as denying the right of the representatives of a minor litigant to effect a compromise of his litigation, for a compromise might in many cases be entirely proper and highly advantageous to the minor; but it does mean that a compromise cannot be effective unless it is first approved by the court as being fair to the minor, and the approval would, of course, imply such investigation on the part of the court as made the fact appear that the minor’s interest had not been sacrificed. But in a case, as in the Rankin case and in this, where it affirmatively appears that no investigation and determination was made, and the court’s only action was to embody the settlement in the decree, making the .settlement the decree of the court, it is void.

The decree here attacked, being void on its face, was subject to the collateral attack made against it. The decree setting’ it aside is therefore affirmed.


author: Kirby, J.,

text:
    Martin v. Camden Gas Company.
    Opinion delivered May 6, 1929.

      McMülen & Scott and Ha/ynie, Paries ■& Westfall, for appellant. ■

      Robinson, Hoitse & Moses and Powell, Smead & Knox, for appellee.
   Kirby, J.,

(after stating the facts). Appellant’s contention that instruction No. 21 was erroneous must be sustained.

Appellee' was engaged in the distribution of gas to inhabitants of the city of Camden under a franchise, and purchased its gas for distribution from the Arkansas Natural Gas Corporation, which was delivered into its pipes by said company at the corporate limits of the city. It can make no difference in its liability for negligence in the distribution to its customers that it purchased the gas from another company or corporation, since it must answer for its negligence or want of care in the distribution of gas to consumers to the same extent as though it had produced and piped the gas from the fields or manufactured it.

In Pulaski Gas Co. v. McClintock, 97 Ark. 576, 134 S. W. 1189, 32 L. R. A. (N. S.) 825, this court said: ‘ The degree of care required of persons engaged in the manufacture and distribution of gas to guard against injury to persons and property was defined in Pine Bluff Water & Light Co. v. Schneider, 62 Ark. 109, 34 S. W. 547, where this court said: ‘ The company must use a degree of care commensurate to the danger which it is its duty to avoid. If it fails to exercise this degree of care, and injury results from such negligence, the company is liable, if the person injured is free from fault contributing to the injury;’ citing authorities.”

The rule is stated in note to 25 A. L. R. 262, in support of which our cases are cited, as follows: ‘ ‘ The rule deductible from the reported decisions is that, in view of the highly dangerous character of gas and its tendency to escape, a gas company must use a degree of care to prevent the escape of gas from its pipes proportionate with the danger which it is its duty to avoid, and if it fails to exercise that degree of care, and injury results therefrom, the oompany is liable, provided the person suffering injury, either in person or property, is free from contributory negligence.” See also 12 R. C. L., § 46, p. 905, and 28 C. J. p. 590, § 56.

The appellee company was delivering gas through its pipes and meter furnished by it, and set up immediately in front of the fire-boxes or furnaces under the boilers of appellant ice company, where gas escaping from a defective meter would necessarily become ignited from the fire when the plant was in operation, and explode, resulting in damage. It is undisputed that the meter was old and defective and only made to withstand a pressure of 50 pounds, and also that the pressure of gas in the pipes coming through the meter was 78 pounds at the time of the explosion, more than one-half again as great as the meter was expected to withstand. The appellee was distributing its own gas, purchased, it is true, from the Arkansas Natural Gas Corporation, through its own pipes and meter to its consumer, was responsible to it, and bound to the exercise of the care required by law of it in such distribution, without regard to whether some one else was also negligent or whether the gas pressure had been increased to a dangerous point by the gas company from whom it purchased the gas for distribution. In other words, it was distributing its own gas through its own appliances and instrumental-ities, and was necessarily responsible for damages resulting from its negligence in so doing. It could make no difference in its liability to its customers that the pressure was increased by the agents of the Arkansas Natural Gas Corporation or other persons not employed by the appellee, since it was bound to the exercise of' the degree of care prescribed by law, and to know, under the circumstances of this case, of the condition existing, and the court erred in giving said instruction No. 21, which was erroneous and prejudicial.

There is some testimony indicating that the engineer feared the pressure was dangerously high at the time he left the boiler room, and also that there was a cut-off on the gas line which, if used by. him, would have stopped the gas from coming into the meter; but this cut-off was put there by the appellee company for its own use, and the agents of appellant company were directed not to use it. It is true he left the boiler room, where the meter showed the 50-pound pressure, went to change his clothes, and was away for a few minutes, during which time the explosion occurred, but the meter showed the pressure in the pipes at 50 pounds only, which pressure it was originally made to withstand and always had held, and, although the meter was made and limited to not register beyond 50 pounds pressure, and he could not have known that the pipes were carrying 78 pounds pressure at the time, the majority is of opinion that there was enough testimony to take the case to the jury on the question of contributory negligence, the engineer’s knowledge of the condition, and his failure to cut off the supply of gas to the fire or to cut the gas off on the appellee’s side of the meter with the cut-off which he had been directed by ap-pellee not to use. It is not complained that he did anything that could have contributed to the explosion and fire, but only that he failed to take some action that might have resulted in preventing it. We do not think therefore, under the circumstances, that the instruction complained about, No. 14, was abstract and should not have been given, although it had been better to use “ordinary” instead of “reasonable” in defining the care required.

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

HaRT, C. J., dissenting.


author: Humphreys, J.

text:
    Core v. Henley.
    Opinion delivered May 6, 1929.

      M. F. Elms, for appellant.

      Bogle & Sharp, for appellee.
   Humphreys, J.

The issue presented by the pleadings in this case was whether appellant, Orin C. Core, or one of the appellees, J. D. Henley, was entitled to a commission of $1,300 earned by one or the other for selling- the Buckholtz farm in >St. Francis County, Arkansas, consisting of over 400 acres, which was owned by the other appellee, American Investment Company. Although the action originated by appellee, Henley, instituting suit in the chancery court of Prairie County, Southern District, to recover the commission from his co-appellee, American Investment Company, yet the attitude of said American Investment. Company, as disclosed by its motion to make Crin C. Core a party, was that of an interpleader in fact offering to pay the commission as same matured to whomsoever it should be decreed, except the amount of $100, which it paid to Core before receiving notice that Henley claimed the commission.

The cause was submitted to the trial court upon the pleadings and testimony introduced by the parties, which resulted in a decree in favor of Henley against appellant for $100 received by him from the American Investment Company; and against the American Investment Company for $300, which had accrued on commission account at the time of the trial of the cause, from which decree an appeal has been duly prosecuted to this court.

There is no dispute in the testimony as to the amount of the commission earned and that it was to be paid from time to time as the installments of the purchase money matured and should be paid. One hundned dollars of the commission was paid by the American Investment Company to Core, when he reported the sale to it and remitted the initial cash payment made by H. Loewer to said company. At the time this suit was tried $300 of the commissions had accrued. Neither is there any conflict in the testimony as to the manner in which the farm was listed for sale with real estate agents. The American Investment Company owned this and many other farms it had acquired through the foreclosure of its mortgages upon them, and, in order to dispose of them, published a list of its farms for sale in a pamphlet and mailed same to real estate agents operating in the locality where the lands -were situated. It was stated in the pamphlet that the exclusive sale of the farms was not given to any agent, and that the agent consummating the sale should receive the commission. During the time it was selling the farms thus acquired it was making new loans. The loans were made through duly authorized district or field agents, who employed local agents to solicit loans. The district or field agents, as well as their assistants, who drew salaries for their services, were also allowed to make sales of the farms and to receive additional compensation in the way of commissions for consummating such sales. W. H. Crump was field or district agent of the American Investment Company in Arkansas, and resided at Stuttgart in this State. Appellant was also his assistant, and resided at the same place. Henley was in the loan and real estate business, and resided at Brinkley.

There is a dispute in the testimony concerning the sale of the Buckholtz farm to H. Loewer.

J. D. Henley testified, in substance, that in the fall of 1924 he received the pamphlet from the American Investment Company, and decided to sell the Buckholtz farm to H. Loewer, and spoke to W. IT. Crump, the field or district agent, about his intention; that Crump told him to go ahead and sell the farm to Loewer, and that he (Crump) would come over and help him close it up; that he went to see Loewer, who told him that the place was so poisoned with grass that he did not know whether he wanted to buy it, and would not know until later; that he went back to see him early in the spring of 1925 and obtained a proposition from him to rent the place with the option of buying same during the crop season; that he ’phoned Crump to come over and close the deal, and that Crump came to Brinkley, and he took him in his car to see Loewer; that Crump entered into a written rental contract with Loewer for the year 1925, with the verbal understanding that, should he buy it during the season, the rent would be applied as a payment on the farm; that in June, 1925, Loewer came to Brinkley and informed him that he was ready to purchase the farm, and would close the deal as soon as he returned from Little Bock, where he intended to remain a day or two; that he (Henley) telephoned to Crump, but was unable to get him, but that next day Core came to Brinkley with an auditor of the American Investment Company, whereupon he informed him of Loewer’s intention to buy the farm, and stated to him that he wanted Crump to come over and help him close up the deal; that Core told him that Crump was not in the employ of the company any longer, but that he (Core) was to take his place; that he would get all the data from Crump and’come over and help witness close the deal; that he waited a few days, and, hearing nothing from Core or Crump, he called up Loewer, and was informed by him that he closed the deal with Crump; that he immediately wrote to Crump, and he denied having anything to do with closing the deal himself, claiming that Core had closed same; that Core wrote to him that he closed the deal with Loewer on his own account; that he immediately wrote to the American Investment Company, informing it of the entire transaction, and demanding his commission; that it refused to pay him, claiming that Core consummated the sale, and was entitled to the commission.

Henry Loewer testified, in substance, that on June 16,1925, when he purchased the land, he was unacquainted with Core, and had never talked with him before about purchasing the farm; that the transaction in closing the deal was between Crump and himself, although Core signed the contract of sale with him; that he could not recall to whom he made the $500 payment pending the execution of the deed and mortgage; that he understood that they came and dosed the deal pursuant to the arrangement he had with Henley.

Orin C. Core testified, in substance, that he understood Loewer' had the farm leased, but did not know of his verbal option to buy it; that he understood from the office employees at Stuttgart that Loewer was a prospective purchaser of the farm, and on one occasion, while in the employ of the company, Henley telephoned him about a prospective purchaser who he understood from Crump was Loewer; that he had gone to see and tried to sell the farm several times to Loewer; that on May 23, 1925, he quit working for the company on a salary; that he did not meet Henley in Brinkley early in June and receive information from him that he had sold the farm to Loewer, and did not promise Henley that he would go with him and help close up the deal; that on June’16, 1925, he decided to go and see Loewer and .try to sell him the farm; that he took Crump with him, but not for the-purpose of helping him close the deal;-that he closed the deal himself with Loewer, and sent the written contract of sale, together with the initial cash payment of $500, to the American Investment Company, and that it credited him with $100 on commission and promised to pay him $1,200 more in commissions as same accrued.

The trial court found from the testimony detailed above that Henley furnished the American Investment Company with a purchaser for the farm, who completed the purchase and paid part of the purchase price, thereby entitling him, under the law, to the commission agreed upon. Appellant contends that the rule of law entitling an agent to a commission where he is the procuring cause of the sale was erroneously applied in the instant ease, because appellant and appellee, Henley, were independent or rival agents, and that, in order to earn a commission under those circumstances, the agent must not only be the procuring cause of but must consummate the sale. As authority for his contention appellant invokes the rule announced .by this oonrt in the case of Murray v. Miller, 112 Ark. 234, 166 S. W. 536, Ann. Cas. 1916B, 974, to the effect that: “ "Where two rival agents have the right to negotiate the sale of lands for the owner, the agent actually bringing about the sale is entitled to the commission, where the owner acted in good faith with both. ’ ’ The rule invoked is applicable to rival agent or agents who are independent of each other, when neither has the exclusive right to sell the property. It has no application whatever to an agent who has promised to assist another in completing a sale which the other has been instrumental in procuring, and will not protect him in the collection of a commission if he violates his promise to the other and attempts to appropriate same to his own use. According to the finding of the chancellor, which finding is supported by the weight of the evidence, Henley procured the purchaser for the farm and communicated that fact to Core, who informed him that he was to succeed Crump as district or field agent for the American Investment Company, and that he would assist him (Henley) in closing up the deal; but, in violation of the promise, and with the aid of Crump, he circumvented Henley by closing and reporting the sale as his own to the American Investment Company and wrongfully obtaining credit for the commission.

It would be unjust and inequitable to apply the rule governing rival or independent agents in the sale of property to the facts in the instant case, as appellant, according to the weight of the evidence, was an assistant by promise, and not a rival agent of Henley. The trial court applied the correct rule of law to the facts as reflected by the weight of the evidence.

Appellant makes the further contention that, in any event, the court erred in rendering a decree against him in favor of Henley for $100' which he had received from the American Investment Company as a voluntary payment on his claim for commissions. It is argued that, because the American Investment Company voluntarily made the payment to him, it could not recover the com-taission .from Mm, and that, because there was no privity of contract between Mm -and Henley, Henley could not recover it from Mm. According to the finding of the chancellor, which is supported by the weight of the evidence, the American Investment. Company paid the amount of $100 to Core under the erroneous belief that he was entitled to 'the commission, and hence would be entitled to recover the amount back from him. Although there was no privity of contract between Core and Henley, it developed that Core had wrongfully collected $100 that should have been paid to Henley. It all grew out of the same transaction and all the parties interested in the transaction were parties to this suit. This court construed our statutes governing counterclaim and set-off in the case of Coats v. Milner, 134 Ark. 311, 203 S. W. 701, and announced that under the statutes (quoting syllabus No. 4) : “Persons who have gone to law may in a single suit settle all matters of dispute between them, whether the respective causes of action grow out of the same or different contracts, or whether they arise upon contract or arise out of some tort.” Under the rule thus announced we think the court took the proper course in treating the pleadings as amended to conform to the proof and in settling all matters of dispute between them.

No error appearing, the decree is affirmed.


author: Mehaffy, J.

text:
    Quattlebaum v. Hendrick.
    Opinion delivered May 6, 1929.

      Martin, Wootton i& Martin and Moore, Gray & Burrow, for appellant.

      Jay M. Rowland and Murphy & Wood, for appellee.
   Mehaffy, J.

This action was instituted in the Garland Chancery Court hy Mrs. M. H. Quattlebaum against Max Hendrick, Max Hendrick, trustee, and Mabel R. Hendrick, wife of Max Hendrick, in January, 1927, seeking- to impress certain real property and improvements thereon, in the city of Hot Spring's, with a trust in favor of the appellant, and to compel the relinquishment of this specific property to the appellant. Appellant also asks judgment against Max Hendrick for the sum of $23,000 with interest from July 10,1925, until paid, at the rate of 6 per cent, per annum, less the value of such trust properties as are ordered and decreed by the court to be conveyed to appellant by appellees.

Mrs. Quattlebaum, whose home was in Jefferson County, Arkansas, went to Hot Springs in the spring of 1924 to take the 'baths. She testified that her husband had just died.

Max Hendrick, whose wife and children were in Denver, Colorado, also went to Hot Springs in the spring of 1924. They met at the Townsend Hotel, being introduced by Mrs. Townsend. Hendrick was the owner of a closed ear, and, after Mrs. Quattlebaum and Mr. Hendrick became acquainted, they went riding together a number of times. Mrs. Quattlebaum returned to her home, and then went to California. Before she left Hot Springs, however, she stated that she was going to Denver in the summer of 1925, and Mr. Hendrick told her that he also would be in Denver at that time.

In July, 1924, while Mr. and Mrs. Hendrick were living together, she found letters in Hendrick’s pocket written to him by Mrs. Quattleibaum. She immediately wrote to Mrs. Quattlebaum, and Mrs. Quattlebaum wrote her that she would not correspond with her husband any more, and Mr. Hendrick also agreed not to communicate with Mrs. Quattlebaum. This was satisfactory to Mrs. Hendrick, but thereafter she found another letter from Mrs. Quattlebaum, and she instituted suit for divorce, and obtained a divorce from Mr. Hendrick in November, 1924, at Fredonia, Kansas. Mr. and Mrs. Hendrick had two small children, a girl and a boy.

While in Hot Springs, Mr. Hendrick learned that Mrs. Quattlebaum had some money which was deposited in a bank at 4 per cent, interest. When they were in Colorado in 1925, they had arrangements by which Hendrick was to invest certain moneys belonging to Mrs. Quattle-baum in purchasing mortgages. Mrs. Quattlebaum was to receive 6 per cent, on the mortgages and Hendrick’s pay was to be the difference between 6 per cent, and what was collected on the mortgages. There is no dispute or controversy about the money which was invested in mortgages, but, on July 6, she gave Hendrick a check for $23,-000, which she contends was given to him to buy Sinclair oil stock for her. Her contention is that he was to take it in his name and transfer it to her. Hendrick contends that the $23,000 was a loan, and that he bought the Sinclair stock for himself, and gave her his note for the $23,000.

When Hendrick began to purchase mortgages for Mrs. Quattlebaum they rented a deposit box at the United States National Bank of Denver, and the mortgages and papers connected with their transactions were deposited in this box, and each of them had a key. They also opened an account in the bank in the name of Hendrick-Hunt, Hunt being Mrs. Quattlebaurn’s maiden name.

It is the contention of the appellant that this $23,000 given to Hendrick was for the purpose of purchasing Sinclair oil stock for Mrs. Quattlebaum, and that it was a trust fund, and that this stock was sold and a part of the proceeds used to purchase the home of Mrs. Hendrick in Hot Springs, Arkansas, and that she was entitled to have this property conveyed to her or impressed with the trust because of the transaction with reference to the Sinclair oil stock.

When Hendrick was preparing to leave Denver, he and Mrs. Quattlebaum went to the bank, got their papers from the deposit bos, went over them, and, among other papers in the box, was Hendrick’s note for $23,000 to Mrs. Quattlebaum. At that time she said that she would not accept the note, and that she did not lend him any money, but that the oil stock was hers. Hendrick said the oil stock was his, and that he had borrowed the money from her and executed the note. The note was left with the bank, and the bank made several efforts to collect it after Hendrick had come to Hot Springs.

Hendrick not only claims that this was not a trust fund, but he also contends that the money which Mrs. Hendrick invested in a home in Hot Springs was received from other stocks which belonged to Mrs. Hendrick, and that all the money that went into the home was hers, and no part of it belonged to Mrs. Quattlebaum.

The chancery court found all the issues in favor of the defendant, Mabel R. Hendrick, and entered a decree accordingly. This appeal is prosecuted to reverse this decree.

The vital issue in this case is whether there was a trust created at the time Hendrick received the $23,000 from Mrs.. Quattlebaum. Whether a trust has been created is largely a question of fact in every case, and it is proper, in determining the fact as to whether or not there is a trust, to give effect to the situation and relation of the parties, the nature and situation of the property, and the purposes or objects which the settlor had in view. The burden of proving the existence of a trust rests on the person asserting it, and he must prove it by clear and satisfactory evidence, having in view all the surrounding facts and circumstances and the intention of the parties. 26 K-. C. L. 1203.

The appellant testifies positively that the $23,000 was received by Hendrick to buy Sinclair oil stock for her, and that, while she agreed that it should be bought in his name, the understanding' and agreement was that he was to transfer it to her. The testimony of Hendrick was just as positive that the $23,000 was a loan, and that there was no agreement that the stock should be transferred to her, but that the stock was to be his, and that he was to pay her, and he gave her a note for the $23,000. No one was present when Mrs. Quattle-baum and Mr. Hendrick made their agreement about the $23,000, and therefore no one knows what that agreement was except themselves, and their testimony on the question is in hopeless conflict.

While Mrs. Quattlebaum and Mr. Hendrick were having the numerous transactions with reference to property, Mrs. Hendrick was prosecuting a suit against Hendrick for divorce, and the undisputed proof is that Hendrick and Mrs. Quattlebaum were to be married. She evidently, at the time when she expected to marry Hen-drick, had the utmost confidence in him, and they had a good many transactions after the transaction with reference to the $23,000. Hendrick bought mortgages in his name and transferred them to her, and spent large sums of money of hers, and no dispute arose over any of these transactions.

Mrs. Quattlebaum- testifies that she suggested to Hendrick that he go back to his wife and children, and, shortly after he left Denver in October, he did go back to his wife, and they were remarried. Before leaving Denver, Mrs. Quattlebaum had become dissatisfied, and, as she says, suspicious. The evidence does not show the cause of her dissatisfaction or why she became suspicious.

This $23,000 transaction occurred in July, and they had a joint checking account, and also had rented together a deposit box, and this deposit box was kept by them, and the joint account was kept from July until October, although Hendrick had never transferred the stock to her, but had executed a note which she knew of and had put it in the deposit box with her other papers. The evidence however does not show that she knew this was in the deposit box, but when she and Hendrick went to the bank, Hendrick took. out all the papers, and the $23,000 note was the last paper. This was in the presence of Mr. A. S. Brooks, a lawyer, who was vice president and trust officer of the United States National Bank of Denver, and he testifies that at that time Mrs. Quattle-baum stated that she did not know anything about the note until a short time prior to the date of the interview referred to; that she had given Hendrick $23,000 to purchase 1,000 shares of Sinclair Oil Stock for her, but that up to that time she had been unable to obtain the stock from Hendrick.

The undisputed evidence shows that Hendrick, some time about the latter part of September, sent the Sinclair oil stock to Arkansas, and that Mrs. Quattlebaum knew that he was doing this. Therefore, when Hendrick and Mrs. Quattlebaum went to see Mr. Brooks, and at the time they got the note out of the deposit box, both Mrs. Quattlebaum and Mr. Brooks knew that the oil stock had been sent to Arkansas. Mr. Brooks, of course, knows nothing about the $23,000' transaction and the purchase of the oil stock except what was told him at the time by Mrs. Quattlebaum and Mr. Hendrick, and, according to his testimony, Mns. Quattlebaum claimed that the oil stock was hers and Hendrick claimed that it was his. He testified, however, that he asked Mr. Hendrick if he would not, without any regard to the merits .of the controversy, send him the oil stock to be held as collateral, and that Hendrick promised to do this. This was in Mrs. Quat-tlebaum’s presence.

Some correspondence was had between Brooks and Hendrick after Hendrick returned to Arkansas, and Hen-drick finally declined to send the oil stock, giving as his reasons a conference had with Mrs. Qnattlebaum in which he stated that she was so unreasonable that he had declined to do it. Thereafter 'Brooks undertook to collect the interest on the note and to collect the note.

It would be useless to set out the testimony in detail and review it here on the question of whether there was not a trust, but we have set out above the substance of the claims of each of the parties, and the evidence is in hopeless conflict.

This court, in a recent decision, quoted with approval from Pomeroy’s Equity Juris., as follows:

“A second well-settled and even common form of trusts ex maleficio occurs whenever a person acquires the legal title to land or other property by means of an intentionally false and fraudulent verbal promise to hold the same for a certain specified purpose, as, for example, the promise to convey the land to a designated individual, or to reoonvey it to the grantor, and the like, and, having thus fraudulently obtained the title, he retains, uses and claims the property as absolutely his own, so that the whole transaction by means of which the ownership is obtained is in fact a scheme of actual deceit. Equity regards such a person as holding the property charged with a constructive trust, and will compel him to fulfill the trust by conveying according to his engagement.” Bray v. Timms, 162 Ark. 247, 258 S. W. 338.

The court also, in the above case, said: “It is well settled by the above authorities that the parties seeking relief must establish the trust by clear and satisfactory evidence. The burden of proving* the existence of a trust rests on the person asserting it, and he must prove it by clear and satisfactory evidence, having in view all the surrounding facts and circumstances and the intention of the parties. The same degree of proof should be required to prove an express trust as to establish a resulting trust, and the naked oath of one witness, without other corroborating circumstances proved, ought never to he held sufficient.”

In order to establish a trust by parol evidence, the evidence must be clear, convincing and satisfactory. It requires something more than the preponderance of the evidence.

“Constructive trusts may be proved by parol, but parol evidence is received with great caution, and the courts uniformly require the evidence to establish such trusts to be clear and satisfactory. Sometimes it is expressed that the ‘ evidence offered for this purpose must be of so positive a character as to leave no doubt of the fact,’ and sometimes it is expressed as requiring the evidence to be ‘full, clear and convincing,’ and sometimes expressed as requiring it to be ‘clearly established.’ ” The above has been the rule of this court in an unbroken line of cases, from Crittenden v. Woodruff, 11 Ark. 82, down to the present time. Scogin v. Scogin, 176 Ark. 1009, 4 S. W. (2d) 953; Kavanaugh v. Morgan, 172 Ark. 11, 287 S. W. 1022; Mann v. Mann, 164 Ark. 43, 260 S. W. 731.

Again, this court said in a recent case: “A trust ex maleficio must be established by clear, decisive and convincing evidence, not merely by a preponderance.” Lake v. Garrett, 167 Ark. 415, 268 S. W. 608. See Tillar v. Henry, 75 Ark. 446, 88 S. W. 573; Coleman v. Wigman, 172 Ark. 132, 288 S. W. 376; Dillard v. Battle, 166 Ark. 241, 266 S. W. 80.

In this case the burden was upon the appellant to establish her claim by clear and convincing evidence.

While we have not set out or reviewed the testimony in detail, we have carefully considered all the testimony in the case, including the testimony with reference to the prosecution of Hendrick by Mrs. Quattlebaum, and also the evidence with reference to investments made by Mrs. Hendrick and evidence tending to show where the money came from, and, after a careful consideration of the entire evidence in the case, we have reached the conclusion that the appellant not only did not prove her claim by clear and convincing evidence, but that the finding of the chancellor is supported by a preponderance of the evidence.

“The rule was early announced and has been consistently adhered to, that the findings of the chancellor will not he set aside by this court unless they are clearly against the preponderance of the evidence. This simply means that, on a trial anew of the issues of fact in a chancery cause on the record, as presented to this court on appeal, unless it is clear to our minds, that is, unless we are fully convinced as to which of the parties litigant .is entitled to the decision, we accept and adopt the findings of the chancellor as our own, and treat them as conclusive. The meaning' of the rule may be shown by this simple illustration: When chancery causes are taken up for determination by this court, the judicial balance, so to spealc, stands at perfect equipoise. One side of the scales is labeled ‘appellant,’ the other ‘appellee.’ The testimony is examined, and all that is incompetent is discarded. That which remains for appellant is put on his side, and that for the appellee on his side, and, if the scales are evenly balanced, or so nearly so as to leave the judges in doubt as to where lies the greater weight, then the decision of the court below is persuasive, and is allowed to stand as the correct result. While the rule has been stated in different forms and in somewhat different language in various decisions of this court, the above, we believe, correctly states and illustrates the rule that chancery causes are tried de novo in this court, and that the findings of fact by the chancery court are allowed to stand unless they are clearly against the preponderance of the evidence.” Leach v. Smith, 130 Ark. 465, 197 S. W. 1160; State Bank v. Conway, 13 Ark. 350; Ringgold v. Patterson, 15 Ark. 309; Woodruff v. Core, 23 Ark. 341; Greeson v. Pool, 31 Ark. 85; Chapman v. Liggett, 41 Ark. 292; Gist v. Barrow, 42 Ark. 521; Skaggs v. Prince, 176 Ark. 1170, 5 S. W. (2d) 340; Manzil v. White, 161 .Ark. 1, 255 S. W. 567; Webb v. Alma Cash Store, 160 Ark. 290, 254 S. W. 670; Griffin v. Eustace, 160 Ark. 508, 255 S. W. 12; Marble v. Fallin, 161 Ark. 504, 256 S. W. 841; Linker v. Rachel, 163 Ark. 426, 260 S. W. 440; Morrow v. Merrick, 157 Ark. 618, 249 S. W. 369.

Having reached the conclusion that the finding of the chancellor on this issue is supported by a preponderance of the evidence, it becomes unnecessary to decide the other questions discussed by learned counsel. There was a judgment against Hendrick in favor of Mrs. Quattle-baum for $23,000 and interest, but there is no appeal from this judgment.

The finding of the chancellor is not against the preponderance of the evidence, and the decree is therefore affirmed.


author: McHaNey, J.

text:
    Wigley v. House.
    Opinion delivered May 6, 1929.

      Hill, Fitzhuglv & Brizsolara, for appellant.

      Starbird & Starbird, for appellee.
   McHaNey, J.

This action was instituted by appellee, to enjoin the commissioners of Waterworks District No. 1 of Mulberry, Arkansas, from proceeding to make the improvement contemplated by ordinance No. 52 of November 3, 1927, laying off and establishing the whole of the incorporated town of Mulberry as such district, based on the petition of ten real property owners therein.

This ordinance was published according to law. On February 9, 1928, and within 90 days after the publication of the ordinance establishing the district, the second petition, purporting to contain a majority in value of the owners of real property in the district, was filed and presented to the town council, praying that such improvement be made, designating the nature and boundaries thereof, and that the cost thereof be assessed and charged upon the real property therein. The council, by resolution, directed the recorder to publish the statutory notice, setting out the form thereof, warning the property owners that on March 6,1928, the council would hear said second petition and determine whether the petitioners constituted a majority in value of owners of real property in.the district. This notice was published according to law. On March 6, the council met to consider the matter. A number of property owners were present and all were given an opportunity to be heard. The minutes of the council on this date recited the purpose of the m-e.eting to be to consider whether the second petition contained a majority in value of real property owners “as listed on the taxbooks for the 1926 assessment.” The meeting adjourned “to some future day to enable parties protesting the petition to procure some desired information from the county clerk’s office.” The real object of the adjournment appears to have been to have the county assessor assess the value of certain exempt property, such as schools and churches, and extend same on the assessment rolls. On March 12, the council again met “in an adjourned session,” as shown by the minutes, with all members present, including the appellee, who was a member of the council, and it was unanimously determined, after full investigation, that the second petition contained a majority in value “as shown by the county assessment of 1926.” Thereafter, on March 22, the council appointed the appellants as commissioners of the district. More than thirty days later, on April 28, this suit was brought for the purpose heretofore stated. The court held the district void and open to collateral attack on the ground that the records of the council show that, in determining whether a majority in value had signed the second petition, the 1926 assessment was used instead of the 1927 assessment, which was the last county assessment on file in the county clerk’s office.

We think the court arrived at the wrong conclusion. The great preponderance of the evidence, if not the undisputed evidence, shows that the members of the council did consider the 1927 assessment instead of that of 1926, and that the reference to the 1926 assessment in the minutes was a clerical misprision. An error of the recorder in writing the minutes of the council could not -have the effect of voiding' the district if the proceedings were otherwise valid. The undisputed proof shows that a very substantial majority in value signed the second petition based upon the assessment either for 1926 or 1927. The 1927 assessment was only about $1,500 more than that for 19'26, and the majority on the petition was more than $6,000. So, based on the assessment for either year, there was a substantial majority in value on the second petition.

We think the assessment of the exempt property and its extension on the assessment rolls sufficiently appears to have been made by the county assessor, although made at the instance of citizens interested. It was held in the recent case of Dunbar v. Street Imp. Dist. No. 1 of Dardanelle, 172 Ark. 656, 290 S. W. 372, quoting the 4th syllabus, that “where a list of exempt property and its value was extended by the county assessor on the regular assessment roll, his failure to file a separate list at the time of filing the roll with the county clerk, under Crawford & Moses’ Dig., § 9936, was a mere irregularity which did not avoid the assessment roll as a guide to the city council in determining whether a petition for a street improvement was signed by a majority in value of the property owners.”

Moreover, the statute provides (§ 5652, C. & M. Digest) that the finding of the council, as to whether a majority in value have signed, ‘ ‘ shall be conclusive unless within thirty days thereafter suit is brought to review its action in the chancery court of the county where such city or town lies.” This is not a suit “to review its action, ’ ’ nor was it brought within thirty days after the council found that a majority had signed. Why is the appellee not precluded from making this attack? He was a member of the council, and helped make the finding — so voted. This court has many times held this to be a valid statute. Waters v. Whitcomb, 110 Ark. 511, 162 S. W. 61; Jacobs v. Paris, 131 Ark. 28, 198 S. W. 134; Burns v. Beard, 134 Ark. 10, 203 S. W. 20, and cases cited in all these.

The council had found that a majority in value had signed. Of course the validity of the district depended on this fact, as the right to make assessments for local improvements in cities and towns, under the Constitution, depends upon the consent of the majority in value. The Legislature lias vested the council with the power to determine this fact and made its finding- conclusive against collateral attack. A direct attack may he made in thirty days, hut not thereafter. The only question the council had to determine was whether a majority in value had signed. When it found in favor of the district and no review thereof was sought in’the chancery court in thirty days thereafter, its finding .became conclusive on the courts under the plain letter of the statute. The chancery court was therefore without jurisdiction to hear and determine the matter presented to it. See cases above cited. Many others to this effect might be cited.

The decree will be reversed, and the cause dismissed. It is so ordered.

Kirby and Mehafey, JJ., dissent.


author: Hart, 0. J.

text:
    Durham v. State.
    Opinion delivered May 13, 1929.

      DuVal L. Purhins, for appellant.

      Hal L. Norwood, Attorney General, and Pat Mehaffy, Assistant, for appellee.
   Hart, 0. J.

Dan Durham was convicted of assault with' intent to rape, and his punishment was fixed by the jury trying him at three years in the State Penitentiary.

The child upon whom the assault was alleged to have been committed was allowed to testify, and it is urged that the court erred in allowing her to do so. Before she was permitted to testify, the trial court examined her as to her competency. iShe was six years old, and stated that she had been to Sunday-school, where she was taught that if she fold a lie she would go down to the bad-man. She also stated that if she told a story she would be sent to the jail house. She appeared small for her age, but was intelligent looking. The court ruled that she was competent, and there is nothing in the record to show that there was any abuse of judicial discretion.

In criminal cases this court has adopted the rule of the common law, that a witness of any age may testify in a criminal 'Case, if, upon examination by' the court, the witness appears to have sufficient intelligence to comprehend the nature and obligation of an oath and understands that there may be punishment for false swearing. Crosby v. State, 93 Ark. 156, 124 S. W. 781, 137 Am. St. Rep. 780; Penny v. State, 109 Ark. 343, 159 S. W. 1127; Yother v. State, 167 Ark. 493, 268 S. W. 861; and Payne v. State, 177 Ark. 413, 6 S. W. (2d) 832. The trial court was justified, from the examination of the witness, in finding that she had sufficient intelligence to know what she was testifying about and that she understood the obligation of an oath and the punishment that might follow from swearing falsely. Hence we hold this assignment of error was not well taken.

In this connection it may be stated also that the witness gave an intelligent account of how she had been assaulted by the defendant, and her testimony was corroborated by other facts and circumstances adduced in evidence. Her own testimony, if believed by the jury, was sufficient to warrant a conviction. Wilson v. State, 177 Ark 885, 7 S. W. (2d) 969, and Wallace v. State, 177 Ark 892, 9 S. W. (2d) 21.

It is next urged that the judgment should be reversed because the court went into the jury room and instructed the jury upon ,the form of its verdict, in the absence of the defendant. The record shows that the trial judge went into the jury room, at the request of the jury, and that ,the prosecuting attorney and the attorney for the defendant went with him. The defendant was only seventeen years of age, and the jury asked the court for instructions as to its right to return a verdiqt of guilty and its power to send the defendant to the reform school instead of the penitentiary. The court .correctly instructed the jury as to the law in this respect, in accordance with Pittman v. State, 84 Ark. 292, 105 S. W. 874, and Jones v. State, 161 Ark. 242, 255 S. W. 876.

It is claimed, however, that the action of the court was prejudicial because, under § 3192 of Crawford & Moses’ Digest, it was the duty of the court to have the jury brought' into court and to have instructed it in the presence of the defendant. It is true that this court has held this provision of the statute to be mandatory, and it would have been the better practice for the trial court to have obeyed it. Wacaster v. State, 172 Ark. 983, 291 S. W. 85, and Hinson v. State, 133 Ark. 149, 201 S. W. 811. In the Wacaster case the judgment was reversed because the instruction given by the court was held to be an expression of opinion upon the weight of the testimony, in violation of the provision of our Constitution. In the Hinson case the judgment was reversed because the attorney for the defendant was not present at the time the court instructed the jury, and it was considered that the defendant did not object because he did mot know that the proceeding was erroneous or that he had any right to- object.

In the case before us, the attorney for the defendant was present, and did not make any objection to the action of the court. Consequently lie 'will be deemed to have waived any error of the court in this respect. In Davidson v. State, 106 Ark. 191, 158 S. W. 1103, Ann. Cas. 1915B, 436, it was held that a defendant accused of murder in the first degree may, through his attorney, waive his presence when the verdict of the jury is received; and, in the absence of a, showing to the contrary, the authority of the attorney will be presumed. In Shinn v. State, 150 Ark. 215, 234 S. W. 636, where certain experiments were made by the jury at the defendant’s request and he was given an opportunity to watch the experiments, it was held that he -could not complain because the experiments were conducted in his absence.

Other cases supporting the general rule are as follows: McVay v. State, 104 Ark. 629, 150 S. W. 125; Scruggs v. State, 131 Ark. 320, 196 S. W. 694; Morris v. State, 142 Ark. 297, 219 S. W. 10; Guerin v. State, 150 Ark. 295, 234 S. W. 26; Wells v. State, 151 Ark. 221, 235 S. W. 796; and Sullivan v. State, 161 Ark. 19, 257 S. W. 58.

The evidence was legally sufficient to warrant the verdict, and the case was tried in all respects with regard to the admission of evidence and the giving of instructions in accordance with the settled principles of law often decided by this court.

There being no error in the record, the judgment must be affirmed.


author: Hart, C. J.,

text:
    George H. McFadden Brothers’ Agency v. Keesee.
    Opinion delivered May 13, 1929.

      W. G. Dinning, for appellant.

      Brewer S Cracraft, for appellee.
   Hart, C. J.,

(after staging the facts). The record shows that the cotton was sold by the plaintiff to the defendant for cash and a check given in payment thereof. Where goods are sold for cash on delivery, and payment is made by the purchaser by check on his banker, such payment is only conditional, and the delivery of the property also is only conditional; and if the check, on due presentation, is dishonored, the seller may retake the goods. National Bank of Commerce v. Chicago, Burlington & Northern Ry., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263; and Hodgson v. Barrett, 33 Ohio St. 63, 31 Am. Rep. 527.

Eeplevin cannot be maintained without showing a general or special ownership of the .property in the plaintiff, together with the right of immediate possession. Brown & Hackney, Inc., v. Loveless, 152 Ark. 540, 239 S. W. 21.

In the case at bar there was a constructive delivery, of the cotton at the same time the check was given in payment of it. Hence the sale was on condition that the check should be paid on presentation. A check is given for immediate payment, and the holder owes the duty of presenting it for payment within a reasonable time. Wha,t is a reasonable time will depend upon the facts in each case, and this court has recognized the rule which requires a holder of a check, receiving it at the same place in which the drawee transacts business, to present it for payment within banking hours on the day it.is received, or at least on the following day. Burns v. Yocum, 81 Ark. 127, 98 S. W. 956. In that case the court, laid down the rule that, where the payee of a check and the hank on which the check is drawn are in the same place, reasonable diligence requires the check to be presented for payment not later than the day after it has been received, and delay beyond that time, without excuse, will discharge the drawer from liability, if he is injured by the delay.

'Counsel for the defendant contend that the application of this rule to the facts of the case will cause a reversal of the judgment, because the check was neither presented on the day it was received nor on the following day. The plaintiff and the bank upon which the check was drawn did business in the same city. The plaintiff deposited the check in his ,own bank for collection on the next day after it was received. It will be remembered that the check was given about eleven o’clock in the morning on the 7th day of February, and it was deposited by the plaintiff in his bank for collection about ten o’clock on the 8th instant. The check was cleared in the usual way, and was dishonored because the bank closed its doors on the morning of the 9th instant, before payment had been demanded. The undisputed evidence shows that the check was deposited for collection by the plaintiff with its own bank and by that bank presented for payment according to the usual custom in the city of Helena, where all the parties resided. The check was not paid because of the failure of the bank on which it was drawn before the check could be presented according to the usual course of business in the city.

Under these circumstances we do not think that the facts in the case call for the application of the rule laid down in Burns v. Yocum, supra. This is apparent from the la,t'er case of Federal Land Bank of St. Louis v. Goodman, 173 Ark. 489, 292 S. W. 659. In that case the court held that what constitutes a reasonable time for presenting a elieck for payment depends npon tbe circumstances of the particular case, and means such, time as a prudent man would exercise or employ about Ms own affairs.

The court called attention to the fact that the case of Burns v. Yocum, 81 Ark. 127, 98 S. W. 956, was decided before the passage of our Negotiable Instruments Law. This act was passed by the Legislature of 1913, and is very comprehensive in its nature. Section 186 of the act, which is § 7952 of Crawford & Moses’ Digest, provides that a cheek must be presented for payment wi,thin a reasonable time after its issue or the drawer will be discharged from liability thereon to the extent of the loss occasioned by the delay. Section 193 of the act, which is § 7763 of the Digest, provides that, in determining what is a reasonable time or an unreasonable time, regard is to be had to the nature of the instrument, the usage of trade or business, if any, with respect to such instrument, and the facts of the particular case.

According to the business usages of the city of Helena, as shown by the record, a holder of a check deposits it in his own bank for collection, and the check is presented in due course, after its deposit, through the clearing-house, with the result that, if a check is received too late to be deposited on the day of its receipt, it is not deposited until the next day, and consequently is not cleared until the second day after its receipt. Having due regard for business usage, such presentment has been held to be within the rule of reasonable diligence. Zaloom v. Ganim, 120 N. Y. Supp. 85; and Loux v. Fox, 171 Penn. 68, 33 Atl. 190. The New York case was cited and quoted from with approval in the case of Federal Land Bank of St. Louis v. Goodman, 173 Ark. 489, 292 S. W. 659. Therefore we are of the opinion that the court was correct in holding that, under the facts of this case, having due regard for business usage, the check was presented within a reasonable time, and that, on account of its being dishonored, the plaintiff had a right to rescind the sale of the cotton and to retake it. The court, however, only allowed the plaintiff interest on the value of the cotton from the. day of the sale. At the time of the trial the price of .cotton had risen two cents per pound, and the plaintiff claims that the court erred in not allowing him to recover the cotton or its value at the advanced price. We do not think so. The court correctly allowed the plaintiff to recover the price fior which he sold the cotton, together with interest ,thereon from the date of sale at six per cent. The parties contemplated a cash transaction, and this result enabled the plaintiff to receive the price for which he sold the cotton, together with interest at the legal rate for the time he has been deprived of the use of the money.

Therefore the judgment will be affirmed.

KiRby, J., dissents.


text:
    Swift & Company v. Fort Smith & Western Railway Company.
    Opinion delivered May 13, 1929.

      William N. Straclc and Daily ■& Woods, for appellant.

      Warner $ Warner, for appellee.
   Smith, J.

This suit was brought by appellee, Fort Smith & Western Railway Company, against appellant, Swift & Company, to recover certain alleged undercharges on freight shipped by appellant over appellee’s railroad. The alleged undercharges covered a period extending from May 1, 1924, to January 22, 1927, and included 125 different less than carload shipments of butter, eggs and dressed poultry. These shipments all moved over the railroad of the appellee and of the Missouri Pacific Bailroad Company, a connecting carrier.

Appellant paid the freight demanded, which was based on rates expressed in cents per 100 pounds, and, in addition thereto, paid appellee for the refrigeration furnished in connection with these shipments. At the time each of these shipments moved there was no contention on the part of appellee that appellant was not paying proper charges for the transportation services rendered by appellee.

Numerous freight tariffs approved by the Interstate Commerce Commission were offered in evidence, one of wbicb provides for the rales in 'Cents per 100 pounds for the transportation of butter, eggs and dressed poultry, specifying a minimum weight of 100 pounds for each' shipment, and it is the contention of appellant that this is the only minimum weight which is applicable to the shipments herein. On the other hand, appellee contends that the shipments were made under and are governed by rule 630 of the perishable protective tariff approved by . the Interstate Commerce Commission.

Rule 630 provides, in part, as follows:

"Unless otherwise specifically provided, in separate tariffs of carriers parties to this tariff, carriers, upon reasonable notice, will furnish or will allow shippers to use or will participate with connecting carriers in handling refrigerator cars to be loaded by shippers at their own expense with freight as specified below when moving on basis of less than carload or any quantity freight rates and covered by tariffs governed by Official, Southern or Western Classifications, as they may respectively apply (except ‘meat peddler cars’, for which see rule 625), when aggregate weight is not less than 15,000 pounds per car or when freight charges are assessed on basis of 15,000 pounds per car. (.See Exception No. 4). This rule will apply only as follows * * *
"'Between points governed by Southern Classification.
"3. From one consignor at one point of origin to one consignee at one destination. (See paragraph F).
“On shipments of butter, * * * eggs, * * dressed poultry, * * * in straight or mixed lots, no charge will .be made for icing, re-icing or refrigeration. (See exceptions).
"4. Any deficit in weight will be charged for on basis of freight rate applicable to the highest rated commodity contained in the car.”

On January 31, 1927, after the last of the shipments in question had been made, the assistant traffic manager of appellant wrote a letter, a copy of which was sent to the freight claim agent of appellee, which appears to have precipitated this litigation. This letter reads as follows:

“R. C. Dearborn, Chairman
“National Perishable Freight Committee,
“Chicago.
“Dear sir: We are in controversy with Mr. F. R. Spnrgin, F. C. A., Fort Smith & Western Ry., regarding overcharges ion numerous shipments of dressed poultry, butter and eggs, moving from Oklahoma City,’ Okla., to points on or via his line in Arkansas and Louisiana. Mr. Spurgin has refused to honor our claims on 15,000-lb. cars based on rule 630 of your tariff. An illustration of the shipments involved is as follows:
“S. R. L. 22191 was forwarded from Oklahoma City, Okla., by our produce plant on April 2, 1925, containing shipments of butter as follows:
'2088 lb.Monrioe, La.
5074 lb..Pine «Bluff, Ark.
2508 lb.Alexandria, La.
1040 lb.Ft. Smith, Ark.
3956 lb.little Rock, Ark.
“Our claim was based on paying freight charges on the deficit of 344 lb. at the 4th class rate of 76c to the first destination in the car, which was Fort Smith, Ark., observing, however, minimum revenue based on the 4th class rate at 15,000-lb. to the final unloading station, which was Alexandria, La. We asked the carrier to refund all icing charges, both initial and re-icing, and assess «only transportation charges based as outlined above. Mr. Spurgin informs us that he must decline the claim, because it is not filed in accordance with the manner in which the tariff is issued. Will you kindly interpret rule 630 for Mr. Spurgin, referring his claim No. 65443 and letter of January 27, sending us a copy of your interpretation, referring to our claim PO-815527.”

The particular shipment there referred to is typical of all the others. In each of the 125 cars the shipper had loaded less than 15,000 pounds of freight, and had iced the cars at point of origin, and had paid for re-icing when that service had been rendered, and this letter was written to recover the value of this ice.

It is plain, from the above quotation from rule G30, that, if the rule applies to the shipments, it was the duty iof appellee to pay the icing charges, and the controlling question in this case is whether rule 630 applies. Upon this question the litigants have reversed positions. Appellant originally demanded- to be reimbursed for icing charges which, appellee should have borne, because rule 630 so provided, whereas appellant now contends that the rule does not apply. After first denying liability for the icing charges, appellee now concedes this liability, but demands the amount of the undercharge which exists if rule 630 is applicable.

Section 6 of this rule provides that any deficit between .the actual weight and the minimum of 15,000 pounds shall be paid by the shipper at the fourth-class rate from the point of origin to the first unloading station of the car, with the further proviso that the freight charges on such a car shall not be less than on 15,000 pounds at the fourth-class rate from the point of origin to the final unloading station of the car.

An auditor of appellee checked each iof the 125 shipments in accordance with this § 6 of rule 630, and submitted a statement of the account between the parties if rule 630 applies, after crediting appellant with all proper icing charges. The correctness of this statement as a ma,titer of accounting is not questioned, and, as the court found that the shipments had been made under and were governed by rule 630, judgment was rendered in accordance with the audit.

Appellant contends that the freight was computed and paid pursuant to rule 13 of the Consolidated Freight Classification Tariff No. 3, which provides that:

“The minimum charge for a single shipment of less than carload freight, from one consignor to one consignee, on one bill of lading shall be: (a)'; If classified 1st class or lower, for one hundred pounds (100 lb.) at the class or commodity rate applicable thereto.”

It is. proper to announce the rules of construction which must be applied in determining which tariff governs. The tariff rates are prepared by the carriers, and are not effective until they are approved by the Interstate Commerce Commission. Like all other similar writings, they are to be construed most strongly against the party preparing .them, and all doubts or ambiguities must be resolved in favor of the shipper. So also, if it be found that more than one tariff applies to a particular shipment, the one most favorable to the shipper mus,! be applied. North Packing & Provision Co. v. Director General, 104 I. C. C. 607, 614; North American Oil & Refining Corp. v. Director General, 85 I. C. C. 697, 700; Brenner Lbr. Co. v. Director General, 811. C. C. 241, 244; Louisiana Red Cypress Co. v. M. L. & T. R. R. & S. S. Co., 95 I. C. C. 159, 160.

We are also of the opinion that appellant is correct in i,ts insistence that rule 630 cannot properly be applied unless it appears that (a) appellant had the exclusive use of the refrigerator cars in which the shipments were made, and (b) its contract entitled it to this use.

Upon this question the testimony was to the following effect: Appellant had a warehouse in Oklahoma City, and branch agencies at the cities in Arkansas and Louisiana to which portions of the shipments were consigned. Appellant’s manager at Oklahoma City testified that appellant' ordered a refrigerator car each week, and this ear was delivered at appellant’s place of business to be loaded. Cars were so placed only upon orders given. Appellant’s manager at Oklahoma City testified that he did not know whether the cars contained freight belonging to other shippers or not, but he did know that, after he had ordered and loaded cars, they were closed and sealed with appellant’s seals, and icing directions were written into the bills of lading by appellant. As to the icing directions contained in the hills lof lading, ‘ ‘ It was further agreed that upon each and every bill of lading covering these shipments herein and appearing in the place for re-icing instructions in substance ‘Don’t re-ice unless delayed in transit.’ ” After the cars had been thus loaded and sealed, they were taken in charge by appellee and carried to its yards, where they were reworked by being placed into the trains of which they became a part.

It does not affirmatively appear from the .testimony whether, in any case, any freight not belonging to appellant was shipped in any one of the 125 cars. This does not appear to be a fact peculiarly within the knowledge of either party, but the burden of proof on this subject was on appellee, for the reason that it is the plaintiff in the case, and we have said that a showing was essential, not only that appellant had the exclusive use of the cars, but had a contract entitling it to that use.

It is not questioned that rule 630 contemplates the exclusive use of the car by the shipper to whom the bill of lading issues, and we think the inference is fairly deducible, if not irresistible, from the testimony herein summarized, that the shipments were made pursuant to this rule.

The letter from appellant’s traffic manager, which is quoted above, was not a casual letter, but was written by an expert who was conversant with the facts upon which the technical question involved would be determined. The cars were specially ordered, and were delivered when ordered, and of this last fact we will later have more to say. After the cars were loaded, the private seal of appellant was placed on them, and the direction was given not to re-ice unless there was a delay, and it is mot contended that these instructions were departed from. We think the inference is fair that appellant would not have assumed to give icing directions if' it had not had the exclusive right to the car. It could not have known what other freight would be shipped in the car, nor what its destination was. No doubt appellant sought the expedition in transit which would result from the exclusive use of the car, and this right appears to have been accorded it. The judgment rendered was for $4,756.18, which is an average of only slightly more than $38 per car.

It is not questioned that, if there was an undercharge, appellee had the right and was under the duty of suing to recover the deficit. Section 7 of the Act to Regulate Commerce, Compiled Statutes, § 8569, provides that:

“Nor shall any carrier charge or demand or collect or receive a greater, or less, or different compensation for such transportation of passengers or property, or for any service in connection therewith, between the points named in such tariffs, than the ratesj fares and charges which are specified in the tariff filed and in effect at the time; nor shall any carrier refund or remit in any manner or by any device, any portion of .the rates, fares and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs. ” Mo. Pac. Rd. Co. v. Pfeifer Stone Co., 166 Ark, 226, 266 S. W. 82.

Appellant insists that if any portion of § 6 of the perishable protective tariff schedule applies, it is rule 610, and not rule 630. Rule 610 covers what is called “scheduled refrigerator car service,” which is defined in another rule to mean “insulated car service established or operated by carriers on fixed days of the week from specified points to specified points fior the handling of 'less than carload’ shipments of perishable freight (as defined in item No. 1130), transported over a specified route which interested carriers have authorized.” Appellee concedes that if this rule 610 has any application to the facts of this case, it cannot recover; but we concur in its view that this rule does not apply. The rule obviously applies to a car service operated by the carriers on fixed days of the week. No shipper orders these cars. They move without orders from the shippers, on fixed days, over a defined route, of which all shippers may take notice and ship accordingly.

It is undisputed that each of the 125 cars here in question was specially ordered, and, while most of them moved on the day assigned for the movement of the “scheduled refrigerator car service,” this was not true of all of them, as the testimony shows that some iof the 125 cars were moved on every day of the week except Sunday. Moreover, there is no testimony whatever that appellee operated insulated car service between the points to which the cars in question were shipped on any day of the week.

The case was heard by consent by the court without a jury, and we must affirm-this judgment, so far as the sufficiency of the testimony is concerned, if the testimony tending to support the verdict (and there are no substantial conflicts in the testimony) is, with the in ferences reasonably deducible therefrom, legally sufficient to support it. We think the trial court was warranted in finding, as was found, that rule 630 applied, and,- this being true, the judgment must be affirmed, and it is so ordered.

Kirby, J., dissents.