author: Mehaffy, J.

text:
    Belleville Land & Lumber Company v. Griffith.
    Opinion delivered May 7, 1928.

      Jolm T. Hicks, for appellant.

      Brundidge & Neelly, for appellee.
   Mehaffy, J.

On the 21st day of February, 1898, the Des Are & Northern Railway 'Company purchased from the St. Louis, Iron Mountain & Southern Railway Company a large tract of land, including the ‘2,014.12 acres involved in this action, paying $2.50 per acre. The deed from the St. Louis, Iron Mountain & Southern Railway Company contained the following reservation in the granting clause:

“Reserving, however, the right-of-way of the said railroad company 100 feet wide, where the said track of said railroad or its branches has been or may be laid over said land; also reserving all coal and mineral deposits in and upon said lands, with the right to said party of the first part, its successors and assigns, at any and all times to enter upon said lands and to mine and remove any and all coal and mineral deposits found thereon without any claim for damages on behalf of said second party, its successors or assigns.”

The appellee, George C. Griffith, became the owner of said lands and held same until 1910, and in 1910 conveyed the same to the Belleville Land & Lumber Company, appellant, by warranty deed, warranting the title to said lands against all claims whatever except taxes for the year 1909. The consideration was $45,000, .$10,000 cash and $5,000 annually until the purchase price was paid. It was afterwards discovered that some portion of the lands did not contain the amount of timber the parties thought, and a reduction in price was made by canceling one of the $5,000 notes, and at that time a new mortgage and note was made for the sum of $22,500, balance due of the purchase money at that time.

Appellee brought a suit to enjoin a party who had a contract with the lumber company to cut and remove certain timber remaining on the land, and also to foreclose the mortgage which was executed October 1, 1919, for $22,500.

The defendant filed an answer and cross-complaint, denying the indebtedness, setting up tlie covenant of warranty and alleging various payments of principal and interest up to and including October 1, 1919.

The appellee, who brought the suit to foreclose, bad an absolute title except right-of-way for the railroad company and coal and mineral rights, which rights were reserved in the deed. And appellant says the issue to be determined from all the facts is whether Griffith is entitled to recover money as compensation for a base and spurious title warranted by him to be perfect, but which he never held and could not convey, and whether also he shall repay with interest money received by him upon a false claim of right which he never possessed.

Appellant’s first contention is that a covenant of warranty in a deed for land to which the warrantor had no title is broten at the time the deed is executed, and the warrantee is entitled to relief without alleging or proving eviction.

A lengthy discussion of this proposition would be useless, for this court has held that there is no cause of action until eviction. As was said by this court in the case of Abbott v. Rowan, 33 Art. 593: “Where anything passes to the vendee, there must be eviction or its equivalent before an action can arise on the covenant of warranty,” and this rule has been consistently followed by this court since.

. Again this court has said: ‘ ‘ Covenants of warranty of title are universally held to run with the land, and ordinarily a right of action does not arise in favor of the grantee or subsequent holder of the title until there has been an eviction under paramount title; but an exception to this rulé is that where the title is in the government the covenant of warranty is deemed to be broken as soon as it is made, and the right of action is complete at that time, and the statute of limitations begins to run. # * * Judge Riddick, speaking for the court in Dillahunty v. Railway Company, supra, said that one of the reasons for the exception was ‘that the United States should he considered as always asserting title to their lands.’ ” Quinn v. Lee Wilson & Co., 137 Ark. 69, 207 S. W. 211. See also Smith v. Boyston Land & Lbr. Co., 131 Ark. 22, 198 S. W. 107.

It will therefore be seen that this court is committed to the rule that, when the vendee sues for breach of warranty, where there has been an eviction, the statute of limitations applies; that no right of action accrues until there has been an eviction under paramount title. And the only distinction between this case and the cases formerly decided by this court is that the vendee did not bring a suit against the vendor for breach of warranty, but the vendor brought suit to foreclose the mortgage and the vendee interposed the defense of breach of warranty.

While the appellant could not maintain a suit for breach of warranty before eviction, it had the right, when suit was brought against it to foreclose the lien, to set up and prove that the vendor did not have an absolute title, and that it had been damaged by reason of failure of title, and it had a right to show the amount of its damages because of this failure of absolute title, and to have the purchase price reduced by that amount.

It was stated by this court in Abbott v. Rowan, supra: “Where no title passes nor possession is taken of lands held by a stranger, there have been two lines of decision totally at variance and antagonistic to each other with regard to the rights of a covenantee under a covenant of warranty. ’ ’

The court then discusses the two lines of authority, but it is unnecessary to call attention to them here. Our court has adopted the rule herein announced.

It is next contended by the appellant that eviction is not a prerequisite to an action for breach of warranty in case of a conveyance of both surface and mineral rights by warranty deed, the vendor being without right to the minerals. This identical question was decided against the contention of appellant in the case of Deupree v. Steed, supra, and it would be useless to discuss it further here. We hold, however, that, where the suit is brought to enforce the collection of the purchase money, the vendee may reduce the amount of the purchase price by the amount of damages because of the breach of the warranty.

It is next contended that “the measure of damages for the breach of warranty is the consideration of the Land and interest from the date of the deed. ’ ’ The measure of damages would be the value of the mineral rights or whatever the vendor did not have the right to convey, one of the authorities quoted by appellant holding: “Where the land is subject to an incumbrance which cannot be removed, the measure of damages is the depredation in value of the land by reason of the .incum-brance.”

Appellant’s next contention is that payment of the purchase money is not a condition precedent to the right to recover on the warranty. We have already stated that if the purchase price had been paid, then no cause of action accrued until there was an eviction, but where the vendor sues to collect the purchase price, he may set-off his damages in that suit. And under such circumstances, of course, the payment of the’ purchase money is not a condition precedent. The suit is for the purchase money, and the damages may be set-off against the claim for the purchase price.

It is next contended by the appellant that an allegation of breach of warranty offered as matter of defense is not barred by the statute of limitations, and in this case the breada is pleaded solely as a defense. The appellant is correct in this contention, and his claim was not barred. * * * As stated above, we have already held that no cause of action accrued until eviction, and a suit could not be maintained for breach of warranty except in cases where suit is brought for the purchase money as in this case.

The next contention of appellant, that knowledge of the purchaser that the vendor has no title does not- affect the right to recover for breach of warranty, we think is correct, and in this case it appears that neither party knew anything about the reservation in the original deed until long after the sale.

It is next contended by appellant that mineral rights retained by reservation or exception in the granting clause in a deed are held in perpetuity. This court has said: “There has been a wealth of discussion on the subject whether or not there can be a severance of the surface and mineral rights in land so as to uphold a sale or reservation of the latter, and there is not entire harmony in the discussion, but it appears to us to be in accordance with the great weight of authority to say that there may be such separation, and that mineral rights, even those including gas, a volatile substance and generally referred to as being of a vagrant character and liable to escape, may be the subject-matter of a separate sale or reservation so as to create or reserve a right in perpetuity.” Bodcaw Lumber Co. v. Goode, 160 Ark. 48, 254 S. W. 345.

There are numerous cases cited in the Bodcaw Lumber case, and it is the settled rule in this State that mineral rights retained by reservation or exception, as in the deed involved in this case, are held in perpetuity.

A number of witnesses were introduced and testified with reference to the value of the mineral rights reserved. The appellant offered testimony that the railroad company held the mineral rights in all of its lands at. $10 per mere, and it therefore contends that that is. the value of the mineral rights and that it ought to recover that amount because of the failure of appellee’s title. We do not agree with appellant in this contention. The appellant sells its lands including the mineral rights at $10 an acre. The price at which the railroad company would be willing to sell would not be a criterion and not a proper measure of damages, and is very little evidence, if any at all, as to the real value of the mineral rights. What appellant is entitled to recover lor failure of title to the mineral rights in the vendor is the value of the mineral rights and not what the railroad company would be willing to sell for. If fixing the price at $10 would be the measure of damages, there is no reason why it might not fix it at $50 per acre, and there would be the same reason for contending that that was the value. Besides, the testimony offered by both appellant and appellee conclusively shows that the appellant was purchasing the land for the timber that was on it and really did not consider anything hut the- timber. It is' true it bought the land, and, since it did, it was entitled to a conveyance of the land which included the timber and the mineral rights. The testimony shows that the appellant’s agent, before the purchase was completed, went over the land himself for the sole purpose of seeing the timber and estimating it. The character and quantity of the timber alone, in the estimation of both parties, fixed the value. The mineral rights were not thought of b3r either party and there is no evidence in the case tending to show that the mineral rights on the land in controversy are valuable.

The chancellor allowed appellant $1 an acre. While we think this is more than the proof justified, there is no appeal from this finding, and it will therefore not be disturbed. We think the finding of the chancellor that appellant was entitled to $1 an acre for the mineral rights on the lands in controversy is certainly as much as appellant was entitled to, and the decree of the chancery court is therefore affirmed.


source: Caselaw Access Project

author: McIIaNey, J.

license: Public Domain

text:
    Newsom v. Reed.
    Opinion delivered May 7, 1928.

      Saxon, Wade & Warren, for appellant.

      J. P. Machen, for appellee.
   McIIaNey, J.

Appellee was a judgment creditor of W. H. Newsom, husband of appellant, and brought this action against him and appellant to subject certain funds on deposit in the First State Bank of Stuttgart, Arkansas, to the credit of appellant, to the satisfaction of his judgment, on the ground that said fund was the property of W. H. Newsom and had been deposited to the credit of his wife, appellant, in fraud of creditors. An equitable garnishment was issued against said bank. Within four months from the bringing of this suit, W. H. Newsom was adjudicated a voluntary bankrupt in the district court for the Western District of Arkansas, and C. E. Wright became the trustee of his estate. He intervened in this suit, adopted the allegations of fraud of appellee and claimed the .fund as the property of said estate. He later, by leave of court, dismissed his intervention, without prejudice, over appellant’s objections. Appellant filed an answer and cross-complaint against appellee, claiming that the money in the bank was her property, and that she had been damaged in a large sum by reason of said garnishment in that she was prevented from completing the purchase of a certain 40-acre oil and gas lease on lands in Louisiana, at $15 per acre, which later became worth $150 to $200 per acre, and that she had been damaged to the amount of the difference. After the trustee had petitioned the. court for leave to dismiss his intervention, appellant attempted to make the trustee a cross-defendant, claiming damages against him to the extent of legal interest on the fund. After W. H. Newsom was adjudged a bankrupt, no further attempt was made by appellee to collect his judgment out of the funds garnished. He admitted the superior rights of the trustee and the suit thereafter continued on the cross-complaint of appellant against him for damages. The court dismissed the cross-complaint for want of equity.

Seven assignments of error are urged for our consideration, as follows:

1. That the court should not have permitted the trustee to dismiss his intervention when appellant’s cross complaint against him was pending. But it was not pending, had not been filed, when the trustee asked leave to dismiss. Another reason is that he could not be held to respond in damages for the alleged wrongful issuing of the garnishment, first, because he intervened on the order and direction of the bankruptcy court, and could not have been held personally liable, nor icould the estate which he represented; and second, he did not cause the issuance of the garnishment in the first instance. He simply claimed the .fund as the property of the bankrupt. It is further claimed that the dismissal, if at all, should have been with prejudice; but not so, as appellant had no vested right to require the trustee to litigate the matter in that court to the exclusion of the bankruptcy court.

2. We find no merit in the argument that the court erred in granting appellee a continuance in October, 1927, in order to obtain the deposition of Mr. Wall, active vice president of the First State Bank. It is the settled rule of this court that granting and refusing continuances rest in the sound discretion of the trial court, and that error cannot be predicated thereon unless there is a manifest abuse of such discretion. We do not understand counsel to contend that the case should be reversed’on this account, and, even though error, we would be at a loss to know how to correct it.

3 and 4. That the court erred in excluding the depositions of W. H. Newsom and appellant. Appellant’s deposition was considered by the court. The decree so recites. W. H. Newsom was not a party to this controversy as finally submitted, the only question being the right of appellant to recover damages against appellee on her cross-complaint. He was therefore not a competent witness for his wife. Section 4146, C. & M. Digest, sub. 3.

5. That the court erred in admitting the deposition of Mr. Wall. His deposition was taken on interrogatories which were not crossed, except by the clerk under the statute. Appellant did not'file any cross interrogatories.. It is said the witness ’ testimony is, in part hearsay, bnt appellant does not point out that which is hearsay, and did not examine the witness to determine the source of his information. Where a part of a witness’ testimony is competent and a part is incompetent, a general objection which does not point out the incompetent part is insufficient. Eureka Oil Co. v. Mooney, 173 Ark. 335, 292 S. W. 681. This court tries chancery cases de novo, and will consider only such testimony as is competent.

6. That the decree is against the preponderance of the evidence. We think not. The damages claimed were too remote, and, moreover, the great preponderance of the evidence shows that the money in bank was really the property of the bankrupt Newsom, and that the garnishment was rightfully issued. We do not review the evidence in detail, but the testimony of Mr. Wall shows clearly that substantially all the money deposited to appellant’s credit came from her husband.

“Conveyances to members of the household and near relatives of an embarrassed debtor are looked upon with suspicion and scrutinized with care; and when they are voluntary, the)'' are prima facie fraudulent, and when the embarrassment of the debtor proceeds to financial wreck, they are presumed conclusively to be fraudulent as to existing creditors.” Hernton v. Short, 121 Ark. 383, 181 S. W. 142.

7. That the court refused to hold that the money in said bank was the property of appellant. We think the court was correct in this. The only question before the court was the matter of damages on appellant’s cross-complaint, which, as we have already said, was properly denied. The title to the money was then in litigation in the Federal District Court in bankruptcy.

We find no error, and the decree is affirmed.


author: Humphbeys, J.

text:
    Ætna Casualty & Surety Company v. Taylor.
    Opinion delivered May 7, 1928.

      J. A. Sherrill, for appellant.

      T. D. Wynne and Chas. A. Miller, for appellee.
   Humphbeys, J.

Exceptions were filed by appellant, a creditor of the insolvent Bank of Morrilton, to the purported sale of the assets of said bank to the First State Bank of Morrilton by the State Bank Commissioner under order of the chancery court of Conway County in vacation. Hereafter, for the sake of brevity, the insolvent bank will be referred to as the old bank and the First State Bank of Morrilton as the new bank. The Bank Commissioner took charge of the assets of the old bank on December 15, 1926. On Feb. 11, 1927, the State Bank Commissioner levied an assessment against the stockholders of the old bank of 100 per cent, of the par value of the outstanding- shares of the capital stock. On February 16, 1927, the State Bank Commissioner entered into a tentative agreement for the sale of the assets of the old bank, including- the assessment against the stockholders therein, and the liability, if any, of the directors for the mismanagement thereof, to the new bank, subject to the approval of the judge of the chancery court of said district. On the same day he presented a petition to said court requesting approval of the same, and, pursuant to the request, an order was made on the same day by said court in vacation ratifying and confirming* the terms of the contract of sale in all respects. The Bank Commissioner advised that it was to the best interest of the creditors of the old bank to sell its assets to the new bank, and the order of the court directing and approving the contract for the sale thereof contained a recital to that effect.

Appellant’s claim against the old bank grew out of a bond which it executed to the State of Arkansas indemnifying the State against any loss by reason of having deposited $35,000 of the State’s money in the old bank. A part of the consideration for the sale of the assets of the old bank to the new bank was that the latter should immediately pay all creditors of the old bank 40 per cent, of their claims. The State received out of the proceeds of the sale 40 per cent, of her claim, amounting* to $13,673.87, thereby reducing the liability of appellant on its indemnity bond to the State in an equal amount. Appellant then paid the State the balance of her claim, which had been allowed as a common claim by said Bank Commissioner, amounting to $21,326.13, and took an assignment thereof to itself. As claimant by assignment and subrogation appellant filed objections and exceptions in said court to the sale. It attacked said sale upon two grounds: the first ground being that the transaction did not amount to a sale of said assets, but, instead, constituted the new bank a trustee for the purpose of administering the assets of the old bank in place of the Bank Commissioner himself, assigning a number of reasons, which, in our view of the case, it is, unnecessary to set out; and the second ground being* that the attempted sale was fraudulent and void for a number of alleged reasons which, in our view of the case, it is also unnecessary to set out. A demurrer was sustained to the objections and exceptions, and properly so, for appellant was in no position to attack a sale in equity out of which it had received a benefit. Its indemnity obligation to the State was reduced by the amount of $13,673.87 out of the proceeds of the sale, of the assets of the old bank to the new hank, and it should have tendered this amount hack to the new hank before or at the time it filed its objections and exceptions to the sale. It could not he heard to disaffirm a transaction or contract which it had theretofore affirmed and approved by accepting benefits thereunder. Appellant claims under assignment from and by subrogation to the rights of the State. It can therefore have no greater rights than the State had. Certainly it could not be successfully contended that the State could assail the sale after accepting benefits thereunder to the extent of $13,673.87.

No error appearing, the decree is affirmed.


author: Humphreys, J.

text:
    Davis v. Murphy.
    Opinion delivered May 7, 1928.

      Pat McNally and Jordan Sellers, for appellant.

      Mahony, Yocum ■& Saye, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellants in the chancery court of Union County to recover $2,125.60, including interest, evidenced by a promissory note for $1,650 dated August 19, 1922, and to foreclose a mortgage of even date therewith on an eighty-acre tract of land in said county by appellants to appel-lee to secure same.

Appellants filed an answer, alleging that the note and mortgage were executed and delivered on Sunday, August 20, 1922, and that the note was executed by J. A: Davis, one of the appellants, as surety merely, and the mortgage executed by both appellants as security for the note, neither of them having received any consideration therefor.

The cause was submitted upon the pleadings and testimony adduced, resulting in a judgment against appellant J. A. Davis for $2,125.60, the foreclosure of the mortgage lien, and an order of sale of the lands to satisfy the judgment, from which is this appeal.

The facts are undisputed. In June or July, 1922, E. E. Davis was desirous of obtaining a loan of $1,650, and his father, J. A. Davis, agreed to sign his note for that amount and to execute a mortgage on eighty acres of land in Union County to secure same. E. E. Davis arranged to get the money from appellee, but did not inform his father with whom he was negotiating, nor did he inform appellee that he was securing the loan by mortgage upon his father’s land. On Sunday, August 20, 1922, by arrangement over the telephone, E. E. Davis, J. A. Davis, J. W. Foster and Mattie M. Davis met, either at the home of E. E. Davis or of a justice o£ the peace by the name of W. R. Pickering, to execute a note and to secure same by mortgage on an eighty-acre tract of land in said county belonging to J. A. Davis. A question was raised about the legality of papers executed on Sunday, so the parties present agreed among themselves to date the note and mortgage on Saturday, August 19, instead of August 20. This was done, and, after the note and mortgage were executed, they were turned over- by the justice of the peace to E. E. Davis, the principal in the note. Appellee, the payee in the note and the grantee in the mortgage, was not informed that they were executed on Sunday, and never received information to that effect until appellants filed their answer to his foreclosure suit. On Monday morning, August 21,1922, E. E. Davis presented the note and mortgage to appellee and received the consideration in money expressed therein. There were no negotiations between appellants and appel-lee relative to the transaction. They never had any com-nranication with each other about the matter until after the maturity of the note. In the view we take of the case it is unnecessary to state what occurred between them after the maturity of the note relative to the collection and payment of same.

Appellants contend for a reversal of the judgment upon the ground that the delivery on Sunday of the note and mortgage after their execution to E. E. Davis was a delivery of them on the Sabbath day to appellee, the payee in the note and the grantee in the mortgage. It is the settled rule in this State that instruments delivered on Sunday are void. Tucker v. West, 29 Ark. 386. The controlling factor, with reference to the validity or invalidity of such instruments, is their delivery and acceptance, and not their execution, because they do not become effective until delivered and accepted. Appellants bottom their contention that the note and mortgage were delivered to appellee on Sunday upon the theory that E. E. Davis, the maker of the note, was the agent of appellee. We do not think the basis of their contention sound. E. E. Davis was under no legal duty to present the note and mortgage to appellee after they were executed and turned over to him. Appellee had no legal right to demand them on a tender of the money. E. S. Davis was the maker and the owner of the note. He had a perfect right to destroy the note and the mortgage and never take or accept the loan. He had procured the signatures of his father and J. W. Foster as accommodation sureties on the note and a mortgage on eighty acres from his father and mother to secure his note, in which instrument appellee was designated as the payee, but appellee had no vested right in or to the note and mortgage, as he had not paid a cent for them, and did not do so until presented to him by E. E. Davis on Monday. E. E. Davis was not acting for appellee or in any sense representing- him. He was acting* and representing himself. He was the maker , and owner of the note until he negotiated same by delivery to appellee. This was not done until Monday, hence the transaction was not a Sabbath day, but a week day, contract.

No error appearing, the decree is affirmed.


text:
    Harris v. State.
    Opinion delivered May 7, 1928.

      J. 0. A. Bush and Dexter Bush, for appellant.

      H. W. Applegate, Attorney Q-eneral, and Darclen Moose, Assistant, for appellee.
   Humphreys, J.

Appellant and Billy Cornelius were jointly indicted at the July, 1927, term of the circuit court of Nevada County for the crime of murder in the first degree for killing- Aud Hooker. Subsequently the charges were severed, and, upon a second trial of the case, appellant was convicted of murder in the second degree and adjudged to serve a term of five years in the State Penitentiary as a punishment therefor, from which is this appeal.

The first assignment of error urged by appellant for a reversal of the judgment was a refusal of the trial court to sustain his plea of former jeopardy. On the first trial of the case at the July, 19'27, term of court, after the jury had been impaneled, sworn to try the cause, the opening statement of counsel made and the testimony of one witness heard, the court was informed that, J. A. White, a member of the jury, was on appellant’s bond, whereupon the court discharged him and ordered the selection of another juror. After the juror had 'been excused, appellant made a motion to be discharged on the ground that he was placed in jeopardy when the jury was sworn, which motion was overruled by the court, over appellant’s objection and exception; Another juror was selected, but the jury failed to agree upon a verdict. The case was continued to the January, 1928, term of court. When the case was called for trial, appellant filed a written plea of .former jeopardy, to which he attached the affidavit of J. A. White, the juror who had been discharged by the court on the first trial, to the effect that he had signed appellant’s bail bond at the request of one of his friends and not because he had any interest in the case. He further deposed that he had no bias or prejudice for or against the appellant. The court again overruled appellant’s plea, over his objection and exception. Appellant argues that the court had no right to discharge the juror without an affirmative showing of bias by the State. The reason for appellant’s position is that being on the bond of an accused does not disclose bias, either actual or implied, on the part of a juror, as defined by 3159 and 3160 of 'Crawford & Moses’ Digest. It is. true that § 3160 of Crawford & Moses’ Digest prescribed the conditions under which challenges may be made for implied bias, and being on the bail bond of an accused is not one of the conditions. We think, however, the condition is covered by § 3159 of Crawford Moses ’ Digest, which is as follows;

Actual bias is tbe existence of such a state of mind on the part of the juror in regard to the case, or to either party, as satisfies the court, in the exercise of a sound discretion, that he can not try the case impartially and without prejudice to the substantial rights of the party challenging. ’ ’

Under the section quoted, actual bias is the state of mind of a juror. By the act of signing the bond in the instant case the juror aligned himself with the cause of appellant, and necessarily became interested in the result of the prosecution. He was responsible for the presence of appellant, and, had appellant not appeared, would have been responsible on the bond, and was responsible thereon until taken into custody after conviction. Indeed, it would be a travesty on justice to allow interested jurors to try cases. In the case of Martin v. State, 163 Ark. 103, 259 S. W. 6, 33 A. L. R. 133, this court quoted with approval from the Supreme Court of Maine in the case of Slorah v. State, 118 Me. 203, 106 A. 168, 4 A. L. R. 1256, the following lang-uage: ‘ ‘ The administration of justice requires that verdicts, criminal as well as civil, shall be found by impartial juries, and shall be the result of honest deliberations absolutely free from prejudice or bias. The public as well as the accused have rights which must be safeguarded. If, during- the progress of the trial, it shall become known to the court that some of the jury do not stand indifferent, whether toward the State or the accused, it would be a travest}? on the administration of justice if the trial must proceed, and, if acquitted by such a tribunal, the constitutional safeguard may be invoked against placing him in jeopardy before an impartial jury. Such a trial obviously should not constitute jeopardy, whether the jury be prejudiced or influenced in behalf of the accused or the State. To prevent such a perversion of justice, it is now well recognized that, if it comes to the knowledge of the presiding justice that such conditions exist, it creates that imperious, manifest necessity that will warrant a discharge of the jury, and such discharge "will constitute no bar to another trial on the same indictment.” The state of mind of a juror is necessarily manifested by signing the bond of an accused. The trial court did not err in overruling appellant’s plea of former jeopardy.

The second assignment of error by appellant for a reversal of the judgment was the refusal of the trial court, after severance of the charges, to try 'Billy Cornelius first. The court overruled a motion of appellant, in which Billy Cornelius joined, to that effect, over appellant’s objection and exception. In support of this assignment of error, appellant cites § 3140 of Crawford & Moses’ Digest, which provides:

“When jointly indicted for a felony, any defendant requiring it is entitled to a separate trial, and, when the trials are severed, the defendant may elect the order in which they shall stand upon the docket for trial; but, if no such election is made, they shall stand in the order in which their names appear upon the indictment.”

This statute is merely directory, and not mandatory. After the cases of persons jointly indicted for crime are severed, the cases stand on the docket independently of each-other. Neither has any concern about the order of trial of the other. This is the interpretation placed upon the statute quoted by this court in the case of Sims v. State, 68 Ark. 188, 56 S. W. 1062, and Burns v. State, 155 Ark. 1, 243 S. W. 963. The court did not .err in trying the case of appellant before placing Billy Cornelius on trial.

The third assignment of error by appellant for a reversal of the judgment was the admission of the testimony of the sheriff to the effect that-appellant did not tell him that Aud Hooker had shot up the door in the house before he killed him. This is an issue in the ease, and the conduct of appellant in failing to claim that the deceased had shot into the house on that night was admissible as tending to throw light upon that issue. The statement of the sheriff was competent, and the court did not err in admitting it.

The fourth and last assignment of error by appellant for a reversal of the judgment was the refusal of the court to grant a new trial on account of the alleged disqualification of Boh Davis, a member of the jury which convicted appellant. It was stated in an affidavit of S. R. Morgan, attached to the motion, that he heard Bob Davis say, before being selected on the jury, that he did not see how any man, could vote to turn appellant loose. Bob Davis was introduced as a witness, and denied making the statement, so it became an issue of fact to be determined by the trial court. 'The finding of the court, on conflicting evidence, that the juror was not disqualified, is conclusive. Pendergrass v. State, 157 Ark. 364, 248 S. W. 914; Corley v. State, 162 Ark. 178, 257 S. W. 750; Lane v. State, 168 Ark. 528, 270 S. W. 974.

No error appearing, the judgment is affirmed.


author: Mehaeey, J.

text:
    Bank of Manila v. Wallace.
    Opinion delivered May 7, 1928.

      Little & Buck, for appellant.

      J. F. Qautney, for appellee.
   Mehaeey, J.

The appellant brought suit against the appellee in the Craighead 'Circuit Court to recover on a note of $1,400 given 'by the appellee to C. A. Thompson.

Appellee admitted the execution of the note, but denied liability on the ground that Thompson was the agent of the Jonesboro Cotton Mills, and that the note was given for stock in the Jonesboro Cotton Mills; that the sale of the stpck to Wallace for which the note was given was made for the corporation.

The appellant contended that the note was given to Thompson, and not to the corporation, for stock, and that it was an innocent purchaser.

After hearing the testimony the court directed a verdict in favor of the appellee, and appellant prosecutes this appeal to reverse said judgment.

The appellee testified that he gave the note for stock in the Jonesboro 'Cotton Mills, a corporation; that he bought it from Thompson, but that Thompson was representing the corporation, and the note was given for stock of the corporation. No stock was ever issued to appel-lee. The note was executed on the 10th of March, and the appellant’s witnesses testified that, on the 14th of March, Thompson came to the bank with the note and that the bank purchased it, discounting it $80 because the interest rate was 8 per cent., whereas the bank charged more than that.

Testimony shows that Mr. Shaver, the president of the bank, called up Robert Braden of the Monette Bank and asked him if he would consider Mr. Wallace’s note good for about $1,400. Braden thought the note was good, but asked him if it was in connection with the purchase of stock, and, when Mr. Shaver said it was, Braden told him he would have trouble collecting it, because Mr. Wallace had talked to Braden about being dissatisfied with the deal.

There is no dispute about this conversation between Shaver and Braden, and no dispute about the fact that it occurred bef ore the Bank of Manila purchased the note.

It is also shown by the appellant’s witnesses that the bank told Thompson that it would not buy the note without a letter from Wallace; that a letter was written in the bank at the same time, on the 14th of March, and Thompson took it, and came back after a while with a letter signed by Wallace.

The president of the bank testified that hé had this letter from Wallace before he purchased the note, and that he did not know at the time he purchased the note that the Jonesboro Cotton. Mills had any interest in it. That he assumed that Thompson had sold Wallace some of his stock. Thompson had told Shaver that he owned a good deal of stock, and was going to buy more. He thought it was Thompson’s because Thompson was in possession of it.

It would serve no useful purpose to set out the testimony in detail. The testimony on the part of appellee tended to show that the note was given for stock of the corporation, and that it was void because given by Thompson for the corporation for capital stock, and that the bank bought it with knowledge.

The evidence was sufficient to justify the court in submitting to the jury, first, whether the note was given for stock of the corporation and whether Thompson was simply acting for the corporation, and, second, whether the appellant was an innocent purchaser.

If the note was given for stock in the corporation and Thompson was merely acting for the corporation, selling its stock, then, under the law as settled by the decisions of this court, the note was void. And if the bank was not an innocent purchaser, it could not recover.

Section 8 of article 12 of the Constitution provides that no private corporation shall issue stock or bonds except for money or property actually received or.labor done. In construing this section of the Constitution this court has said:

“When notes are taken in exchange for stock it is a palpable violation of the constitutional provision, because notes are merely evidences of indebtedness, and such a transaction shows upon its face that the stock has not been paid for. The design of the framers of the ‘Constitution was that stock should not be issued and sold except for its value in money or property actually received, or labor done. A note is not property in the sense of the Constitution, because it only indicates that the stock has not, in fact, been paid for, and, where the notes are worthless, the stock has been exchanged for nothing. Notes are not money and not bankable paper, but mere dioses in action, and it in no sense meets the requirements of the above provision of the Constitution to accept a note in exchange for stock.” Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S. W. 803; Bank of Dermott v. Measel, 172 Ark. 193, 287 S. W. 1017.

If Thompson was representing the bank, selling the .stock for it, and accepted a note in payment of the stock, the note is void. This would be an evasion of the Constitution and doing a thing indirectly which the Constitution prohibits. It is argued, however, that the corporation actually got money. It got money by discounting the note at the bank, if appellee’s theory is correct, but that does not alter the fact that the note was originally taken for the stock. If a corporation could sell its stock, take a note and go to the bank and discount it, and thereby make valid the void contract, the provision of the Constitution would have no effect.

This court said in the case of Bank of Dermott v. Measel, 172 Ark. 193, 287 S. W. 1017:

“If the corporation could not take the note of a subscriber in payment of its own capital stock, it is plain that it could not lend money to a subscriber to its own capital stock in payment of it. This would be a palpable evasion of the Constitution. There is no more a payment of money where the corporation lends the money to the subscriber and then receives it back in payment of the stock than where it receives a note originally in payment of a stock subscription. ’ ’

In this case, if the note was actually given for the stock it was void. And the fact that the corporation, or Thompson for the corporation, afterwards sold the note and the corporation received the money, would not affect the invalidity of the note.

In the case of City National Bank v. DeBaum, 166 Ark. 18, 265 S. W. 648, it was held that contracts made in violation of law are not rendered valid by renewal or by subsequent promises to pay them. If the law were otherwise, the constitutional provision would have no practical use.

This court said in a recent case: “It was admitted that the stock for which the note was given was sold in violation of the Blue Sky Law, and the court instructed the jury that the burden was upon the appellee to show that it was an innocent holder. The only thing necessary for appellant to show, in order to entitle him to a verdict, was that the appellee knew that the note was given for stock of the corporation which had been sold in violation of the law.” Fentress v. City National Bank, 172 Ark. 171, 290 S. W. 58.

It is a question of fact to be determined by the jury from the evidence whether the appellant was an. innocent purchaser. And, as stated in the case last mentioned, if appellant knew that the note was given for stock of the corporation, then it was not an innocent purchaser, and this question should have been submitted to the jury.

The court therefore erred in directing a verdict and in its failure to submit the questions of fact to the jury. For. these errors the judgment is reversed, and the case is remanded for a new trial.


text:
    Arkansas Brick & Tile Company v. Crabtree.
    Opinion delivered May 7, 1928.

      A. D. Whitehead, for appellant.

      W. G. Dinning, for appellee.
   Mehaeey, J.

This is the second appeal in this case. The opinion on the former appeal is in 172 Ark. 752, 290 S. W. 361. On the former appeal this court said: “The law requires an affidavit for an appeal from a justice court to the circuit court as a prerequisite to the circuit court's jurisdiction to entertain an appeal, and, unless waived, is ground for dismissal. * * * The appellant in limine objected to the jurisdiction of the circuit court, and therefore did not waive the affidavit for appeal. * * * This is likewise the law as to appeals from municipal courts. * * * We find no affidavit for appeal in this record. This is not a icase where a defective affidavit was filed, but where there is no affidavit at all. The judgment is therefore reversed, and the cause is remanded, with directions to the trial court to require the municipal court to amend the transcript so as to show that an affidavit for appeal was made, if it can be done consistently with the truth, and that the cause be tried de novo. But, upon failure of the appellee to thus perfect his transcript, the same shall be dismissed by the trial court.” Ark. Brick & Tile Co. v. Crabtree, 172 Ark. 752, 290 S. W. 361.

The municipal court amended its transcript so that it contains the following': “Thereupon, the defendant having filed his affidavit for appeal as required by law, and his motion for appeal, which said motion was granted by the court, and all the papers in the case are transferred to the Phillips Circuit Court.”

Appellant contends that this amendment is not sufficient to comply with the statute and the decision of this court on former appeal. The statement in the judgment of the municipal court that the defendant had filed his affidavit as required by law is sufficient, unless the other party had shown that no affidavit was in fact filed. The presumption is that the judgment reciting the fact that an affidavit as' required by law had been filed is correct.

Appellant introduced the attorney for appellee, who testified that he did not know whether he filed an affidavit for an appeal in this case or not. He did not say that he did or that he did not. And here the appellant rested, so far as any effort to show whether or not the recital of the judgment of the municipal court was correct. The municipal judge evidently knew whether an affidavit as required by law had been filed, and could have been required to testify, but, since this was not done, and since there is no testimony showing that the affidavit was not filed, the recital in the judgment that it was filed will be presumed to be correct.

The decision in this case on former appeal is the law of the case on the questions decided by this court on that appeal. And the court there held that the cause was reversed, and remanded with directions to the trial court to require the municipal court to amend the transcript so as to show that an affidavit for appeal was made, if this, could be done consistently with the truth. The municipal court made the correction as required by the opinion of this court on former appeal, and the opinion on that appeal is the law of the case now.

As we have said, there was no effort to show that an affidavit was not filed other than the questions asked the attorney for the other party, and his statement that he did not know whether he filed an affidavit or not is not sufficient to overcome the recital in the judgment' that the affidavit ivas filed.

It is insisted by the appellant that, because a check was deposited in the First National Bank and credited to the account of appellant’s agent, said bank was a bona fide holder, and that there is a rule that the drawer of a check cannot stop payment of it after it has passed into the hands of a bona fide holder. Appellant call's attention to the case of Gage Hotel Co. v. Union National Bank, 171 Ill 531, 49 N. E. 420, 39 L. R. A. 479, and the case of Union National Bank v. Oceana County Bank, 80 Ill. 212. These cases have no application here, for the reason that appellant in this case did not sue the bank, and it is wholly immaterial whether appellee coidd have stopped payment on the chedk or not. This, question would have been involved if the suit had been against the bank, but the appeUant sued the appellee, the maker of the check, and, of course, the question then was whether the appellee owed appellant the amount of the check. And this is the only other question discussed by the appellant.

The court gave to the jury the following instruction: “'Gentlemen of the jury, this is a suit brought by the Arkansas (Brick & Tile Company against G. W. Crab-tree upon a check executed by the defendant, G. W. Crab-tree, to the plaintiff in payment of a carload of brick. It is admitted upon the part of the defendant that he purchased the brick from the plaintiff, and upon that admission, gentlemen of the jury, you are instructed that the burden is on the defendant to show payment for the brick. It is also claimed on the part of the defendant that he paid one Mr. Foster, who he claims represented the Arkansas Brick & Tile Company. You are instructed that the 'burden is upon him to show -that Mr. Foster was an agent of the plaintiff and that he had a right to receive the payment, if he did so receive the payment.”

The above instruction submitted the question of payment and the question of the agency of Foster to the jury properly. And there was substantial evidence to sustain the verdict of the jury. The court told the jury that defendant admitted getting the brick and the burden was on him- to show payment. The jury were also instructed that the burden was upon the defendant to show that Foster was the agent and had a right to receive the money. These were questions of fact to be determined by the jury, and the verdict of a jury, if supported by any substantial evidence, is conclusive here. This court does not pass upon the credibility of witnesses nor the weight to be given to their testimony.

The appellant insists that the court erred in refusing to give instructions requested by it. Number two requested by the appellant is a peremptory instruction telling the jury that, if they find from the evidence that the plaintiff purchased the goods -and gave the check, they should find for the plaintiff. This instruction was erroneous because, although the defendant gave the check, he would still have a right, when sued for the amount, to show that it had been paid,

Number three requested by appellant is fully covered by the instruction the court gave, and number four is also covered by the instruction given. Number five is erroneous because it tells the jury that they must find for the defendant unless the plaintiff shows fraud or undue influence. Neither fraud nor undue influence was an issue in the case. The only questions in the case are, first, whether payment was made to Foster, and second, whether Foster had authority to bind the appellant by receiving- payment. The undisputed testimony showed that Foster was a representative of the plaintiff, that he ordered the g-oods himself, and that this was the fourth car ordered from the appellant, and that other payments for cars bought from appellant throug’h Foster were made in the same way. It is true the appellant’s witnesses testified that Foster had no authority as agent to collect the money, but there was sufficient evidence to take the question to the jury as to whether Foster had such authority, and, as we have said, the finding of the jury under proper instructions is conclusive here.

The judgment of the circuit court is therefore affirmed.


author: McHaney, J.

text:
    Yazoo & Mississippi Valley Railroad Company v. Littleton.
    Opinion delivered May 7, 1928.

      W. G. Dimving and II. D. Minor, for appellant.

      Fred M. Pickens, for appellee.
   McHaney, J.

Appellee, W. R. Littleton, is the father of the other appellee, Henry Littleton, a boy 14 years of age in 192l5. Prior to December 10, 1925, Henry Little-ton had been visiting- with his brother, Earle, in Vicksburg, Mississippi, where he contracted typhoid fever, and was confined for some weeks in a hospital. After being discharged from the hospital, he stayed with his brother some three or four weeks, and then decided to go home. He went to the station, in company with his brother, Earle, and cousin, M. S. Littleton, and there' bought a ticket to Newport, Arkansas, via Memphis, Tennessee. Earle informed the station agent that the ticket was being purchased for his brother, Henry, who was in a very weak condition on account of a long spell of the typhoid fever, and the agent directed him to the /conductor of the train on which Henry would make the journey to Memphis. They saw the conductor, stated the facts to him regarding his condition, that he would need assistance in getting on and off the train, and in making his transfer in Memphis, and the conductor assured them he would look after appellee and assist him in making the transfer in Memphis. He was thereupon assisted on the train at Vicksburg, and the attention of the conductor was directed to him and his location on the train. But for the assurance of the conductor that he would look after Henry, Earle would have gone with him, as he was not able to take care of himself.

On arrival in Memphis, the conductor neglected to take any care of Henry, and in attempting to get off the train and get into the station alone, he fell and received severe and painful injuries. ■ Thereafter this action was instituted, and a recovery was had against appellant in the sum of $1,000 in favor of W. R. Littleton and $1,500 in favor of Henry Littleton.

The only error relied upon for a reversal of this case is the giving, over appellant’s objection, of appellees’ instruction No. 1, which is as follows: ‘ ‘ Yon are instructed that, when a carrier accepts as a passenger a sick or disabled person, with full knowledge of said person’s infirmities, if special care is necessary to he bestowed for the protection of such passenger, the carrier will be held negligent if it fails to bestow such care; and if you find from a fair preponderance, or the greater weight of testimony in this case, that the defendant company accepted as a passenger the plaintiff, Henry Littleton, and that the said Henry Littleton was in a weak and disabled physical condition, to such an extent as to need assistance in alighting from the train of the defendant and getting into the station at Memphis,' Tenn., and that defendant’s conductor, on said train on which plaintiff was a passenger, was notified of plaintiff’s condition before his acceptance as a passenger, and had fullknowl-edge of same, and that defendant’s employees failed and neglected to bestow the care necessary to prevent plaintiff from being injured in alighting from said train and getting into the station at Memphis, Tenn., and as a result of defendant’s employees’ negligence in failing to bestow such assistance and care upon said plaintiff, the plaintiff was injured, and that the negligence of the employees of defendant company in failing to bestow such care as aforesaid caused said injury, then you would be authorized to find for the plaintiff.”

The particular part of said instruction complained of is ‘ ‘ that defendant’s employees failed and neglected to bestow the care necessary to prevent plaintiff from being injured in alighting from said train and getting into the station at Memphis,” and that, as a result of defendant’s ‘‘failing to bestow such assistance and eare upon said plaintiff,” the injury occurred, the plaintiff was entitled to recover. It is said that this instruction requires more than has ever been required of any passenger carrier, because it makes the carrier an insurer. And it is further said that the instruction is wrong- for the further reason that, after a passenger arrives, at his destination and gets off the train, it is not required to exercise the extraordinary care required by law of a carrier of passengers during actual transportation. And the following quotation from Hutchinson on Carriers is relied upon, to the effect that, “while the carrier of passengers does not warrant the safety of his passengers as the common carrier does that of goods, he is bound to provide for their safe conveyance as far as human care and foresight will go, or, as some courts have expressed it, to exercise for the safety of his passengers, while upon his conveyance the highest or utmost degree of care and diligence which human prudence and foresight will suggest, in view of the character and mode of conveyance employed.” Hutchinson on Carriers, 3d ed., § 896.

St. L. I. M. & S. Ry. Co. v. Woods, 96 Ark. 311, 131 S. W. 869, 33 L. R. A. (N. S.) 855, is also relied upon, where this court said:

“The higher degree of care is exacted only during the time in which a passenger has given himself wholly in charge of the carrier — while on the train or getting on or off — for then only is the passenger subjected to the peculiar hazards of that mode of travel, against which the carrier must exercise the highest degree of skill and care.”

We agree entirely with these statements of the law, but here we have a person who was incapable of taking care of himself, and both the agent selling the ticket and the conductor in charge of the train were notified of such condition. In fact, Earle Littleton would have accompanied his brother to Memphis- and attended to his transfer himself had not the company, through its conductor, assured him that this duty would be performed willingly and readily by him. The railroad company had the right, through its agents, to refuse to accept the passenger in the condition he was without an attendant, bul, having accepted him as a passenger, with the agreement on the part of the conductor to take care o.f him, not only while on the train hut in getting off and making his transfer to another train, or safely into the depot, the law placed upon the-company the same high degree of care after alighting from the train as it did during actual transportation. It is undisputed that he continued to be a passenger at the time he was injured. The relation of passenger and carrier still existed, and, under the peculiar circumstances existing in this case, it was the duty of the company, through its conductor, to have given that care and attention necessary in order to protect him from the very injury that occurred to him.

Mr. White, in his work 'on Personal Injuries on Railroads, vol. 2, page 586, states the law as follows,:

“The law does not require a passenger carrier to receive and carry an insane or drunken person, or one with an infectious disease, or whose physical or mental condition is such that his presence may cause injury or discomfort to other passengers, and the carrier may rightfully refuse to carry such persons. Nor is it compelled to accept disabled or sick persons, traveling without an attendant or nurse, where due care toward such persons would require an attendant or nurse to properly look after the welfare of such a passenger.

“Where the carrier voluntarily accepts such a person as a passenger, however, if special care is necessary to be bestowed for the protection of such a person, the carrier will he held negligent if it fails to bestow such care; and in case of injury to such a passenger, by the neglect of his additional duty, made necessary because of the physical condition of the passenger so accepted, the carrier would be liable in damages therefor.”

In this instance the passenger required special care and attention. Appellant voluntarily accepted him as a passenger, knowing his condition, knowing that he required special care and attention, and was guilty of negligence in failing to exercise such care. This, as we understand the instruction complained of, is all that it requires. The injury having occurred in Tennessee, the action for negligence, if any, is governed by the law of Tennessee. K. C. Sou. Ry. Co. v. Phillips, 174 Ark. 1019, 298 S. W. 325.

We do not understand the rule in Tennessee to he different from that heretofore stated 'by Judge White. See Louisville, Nashville & Great Sou. Rd. Co. v. Simon Fleming, 14 Lea 128, and Southern Railway v. Mitchell, 98 Tenn. 27, 40 S. W. 72.

The rule in Tennessee and Mississippi, as elsewhere, is that the carrier is under1 no obligation to furnish an attendant for disabled passengers, and that they may refuse to accept them as passengers without an attendant. But, having accepted them as passengers, knowing them to be disabled, it is their duty to render such special attention as may be necessary under the circumstances in each case.

We find no error, and the judgment is affirmed.


author: Hart, C. J.,

text:
    Stifft v. W. B. Worthen Company.
    Opinion delivered May 14, 1928.

      Gochrill & Armistead, for appellant.

      Frauenthal <& Johnson, Rose, Hemingivay, Cantrell & Loughborough, for appellee.
   Hart, C. J.,

(after stating the facts). The first ground relied upon for a reversal of the decree is that the chancery court had no jurisdiction. It is the settled rule in this State that a court of equity will not entertain suit brought solely for the purpose of interpreting a will, or to interpret a will disposing of purely legal estates, but it is equally well settled that equity will take jurisdiction when trust relations are created with reference to the property devised under the will. Williamson v. Grider, 97 Ark. 588, 135 S. W. 361; Heiseman v. Lowenstein, 113 Ark. 404, 169 S. W. 224; Booe v. Vinson, 104 Ark. 439, 149 S. W. 524; Le Flore v. Handlin, 153 Ark. 421, 240 S. W. 712; Gaines v. Arkansas National Bank, 170 Ark. 679, 280 S. W. 993; and Norris v. Johnson, 151 Ark. 189, 235 S. W. 804.

In the instant case it cannot he said that only legal rights are involved. The executors are specifically designated as trustees of the will, and are expressly given the power to dispose of any part of the property when it is for the best interest of the estate to do so. The legacy to the widow was first made a charge on certain real property, and the income from this property failed to pay the legacy. Then it was made a charge upon the partnership property, and the net income from it was not sufficient to pay the legacy. The widow demanded payment out of the body of the estate, and her demand caused actual litigation in respect to matters which were purely of equitable cognizance. It required the intervention of a court of chancery to enforce the trust in favor of the widow under the will, and, as an incident to the exercise of that jurisdiction, the chancery court was required to interpret the will in order to properly enforce the trust. So it will be seen that the performance of the duties of the executors as trustees under the will was directly affected, and this gave jurisdiction to the chancery court.

This brings us to a consideration of the clauses of the will giving a legacy of $5,200 annually, payable quarterly, to Mrs. Sophia Leon Stifft, the widow of the testator. Her rights under the will directly involved the interpretation of items two and six, which are set out in full in our statement of facts, and which need not be repeated here.

Counsel for appellants rely for a reversal of the decree upon the ground that the legacy of Mrs. Stifft was payable solely out of the net income to be derived from the real property designated in item two of the will, or, in event there was a failure or deficiency from that source, from the net income of the partnership business of the Charles S. Stifft Company. On the other hand, counsel for Mrs. Stifft seek to uphold the decree on the theory that the will ga,ve to Mrs. Stifft a demonstrative legacy, and that, upon the failure to pay the legacy out of the net income of the property upon which it was charged, the legatee will not be deprived of her legacy, but will be permitted to receive it out of the general assets.

The three different kinds of legacies are clearly defined in 3 Pomeroy’s Equity Jurisprudence, 4th ed., 1130-1133 inclusive, and in 2 Page on Wills, 2d ed., 1230-1231.

In other words, it is contended that this was a demonstrative legacy, payable out of the net income from certain designated property; but, like a general legacy, it is payable out of the general assets of the estate if the particular fund should fail or there should be a deficiency in it. The authorities bearing upon the question are very numerous, and many illustrative cases on the subject are cited and reviewed in the briefs of counsel for the respective parties. The most important of these cases are collected and reviewed in a case-note in 4 Ann. Cas. 163. No useful purpose could be served by reviewing and distinguishing many of them from the case at bar. An examination of the cases shows that no positive rule applicable to every case can be laid down, but each case must be determined upon a consideration of the material provisions of the will to be construed and the extrinsic •circumstances as they probably present themselves to the testator, which may be brought to bear in arriving at his intent. The authorities seem to be clear in holding that whether a legacy is to be treated as a demonstrative legacy or as one dependent upon a particular fund, is a question of construction to be determined according to what may appear to have been the general intention of the testator. Where the language of a will is clear and unambiguous, all the courts hold that the will must be construed so as to ascertain the intention of the testator, and, when that is done, his intention must be carried out. So each case must depend upon the meaning* of the lan-guag*e used by the testator in his will.

From these cardinal rules it seems clear that, when an annuity is given out of the net income of certain designated property, and such income turns out to be insufficient for full payment, the deficiency cannot be made up from the corpus of the estate.

On the other hand, if the will itself provides for the payment of the deficiency from the body of a certain designated part of the estate, that shows a clear intention on the part of the testator that the legacy is not to be paid out of the general assets of the estate.

In the application of these well-settled rules to the case at bar, the terms of the will of Charles S. Stifft must be examined in the light of the circumstances surrounding him at the time he executed the will. The primary rule of construction in the interpretation of a will is to ascertain the intention of the testator according to the meaning of the words he had used, deduced from a consideration of the whole will and a comparison of its various clauses in the light of the situation and circumstances which surrounded the testator when the instrument was executed. Wooldridge v. Gilman, 170 Ark. 163, 279 S. W. 20.

When this is done, we perceive no difficulty in arriving at the intention of the testator. He was a successful business man, and in partnership with some'of his children by a deceased wife, when he desired to marry again. He entered into an antenuptial contract with the woman he intended to marry. He promised to give her certain personal property and also to provide an annuity of $5,200 per year for her, in case she outlived him, and to make the payment of it a charge upon the income of certain designated property. After his marriage, he executed the will which we are asked to interpret. Under item two of the will, he devises certain business property in the city of Little Bock to his executors in trust with directions to apply $5,200 of the net income quarterly to Sophia Leon Stifft, pursuant to and for the purpose of carrying into effect an antenuptial agreement entered into between said parties on January '22, 1921. Item six provides that it is the intention of the testator that the provisions in item two directing that $5,200 of the net income of a certain designated apartment house shall be paid in quarterly installments of $1,300 to Sophia Leon Stifft. It further provides that, if the net income from said property should not ¡be sufficient to pay his wife said sum of $5,200 per year or to meet any one of said quarterly installments of $1,300, said deficiency shall be made out of the net earnings of the Charles S. 'Stifft Company. It further provides this shall be a first charge on said net earnings, and, if said earnings are not sufficient to meet said charge, or if said 'business 'be discontinued, such deficiency shall become a first charge upon all the property and assets of said Charles S. Stifft.

•Continuing, the clause reads: “And, if necessary, that a sufficient amount of the assets of said company be set apart and invested by my trustee to secure a suffi-' cient sum out of which to discharge any such deficiency or deficiencies, the amount of the fund so necessary to be set apart and invested for such purpose and the necessity for setting the same apart to be determined by my said trustee, and my .said trustee’s determination as to the setting apart of such a fund from said business and the amount thereof to be final, conclusive and binding on all the beneficiaries of my will.”

Item seven gives the residue of his property to his children. , ; ¡ ■ ¡ M'j

We think it is plain that it was the intention of the testator, from the language used, that he only intended that any failure or deficiency in the payment of the legacy to his wife, after the failure of the particular fund, should be made up out of the corpus of the prop-; erty of the Charles :S. ¡Stifft Company, a firm of which the' testator was a member, 'and not out of the general assets of his estate.

In other words, it is our opinion that the quarterly payments of the $5,200 annuity should be paid, first, out of the net income of the designated apartment house; and, if that income' should not be sufficient, then out of the net earnings of the Charles S. Stifft Company; and, if the net income from both of these sources should not be sufficient, the deficiency shall be paid out of the interest of the testator in the corpus of the property of the Charles S. Stifft Company, which, under the terms of the sale of the executors, amounts to $32,500.

The result.of our views is that the decree of the chancery court should be modified, and, to that end, the decree will be reversed, and the cause remanded with directions to enter a decree in accordance with this opinion. The costs will be paid by the executors out of the general assets of the estate.


author: Mehappy, J.

text:
    Bank of Alpena v. Meyers.
    Opinion delivered May 14, 1928.

      Festus 0. Butt, for appellant.

      G. A. Fuller, for appellee.
   Mehappy, J.

C. 0. Lamb, one of the appellees, was indebted to O. C. Meyers, the other appellee, and gave him a check for $384 on the Farmers’ & Merchants’ Bank of Green Forest, dated July 18, 1926, and Meyers deposited the check on the same day in the Bank of Alpena. The amount of the check was credited to his account. Said check was then forwarded in the usual course and the usual way to its correspondent bank for collection, finally reaching the First National Bank, of Green Forest, and on the same day the First National Bank of Green Forest presented it to the Farmers’ & Merchants’ Bank of Green Forest for payment, and payment was refused.

There is no icomplaint or charge of negligence because of the manner in which the check was sent to the bank on which it was drawn. The bank called on ap-pellees to pay the amount of the check, and they refused, their contention being that the Bank of Alpena, the appellant, had not notified them as required by law, and the only contention or controversy is as to whether they are discharged because of failure to receive notice from appellant.

The circuit court directed a verdict in favor of ap-pellees, and appellant has properly prosecuted this appeal.

Appellant, Meyers, himself testified that the Bank of Alpena never did notify him until the 13th of August, but that he had learned on the very day that payment of the cheek had been refused from the cashier of the First National Bank of Green Forest.

A check was sent by another bank to the National Park Bank of New York for presentment to the Columbia Trust Company and for collection. The court said:

“The National Park Bank might have given notice to the parties liable upon the note or to its own principal. * * * Both the Park Bank and the Whaling Bank used due diligence, and the defendant received all the notice of dishonor he was entitled to, either under the Negotiable Instruments Act or under the common law of New York, which, so far as the giving of notice of dishonor is concerned, does not differ from our own .common law. As this notice was sufficient, we need not inquire as to the sufficiency of the notice directed to the defendant at'New London.” Gleason v. Thayer, 87 Conn. 248, Ann. Cas. 1915B, 1069.

In the above case the Park Bank, to whom the check was sent for collection, just as it was sent to the National Bank of Green Forest in this case, gave the notice throug’h a notary public, and the court held that that was sufficient notice.

It has been said: “From an examination of the question, we are o.f opinion that this branch of the law merchant is correctly stated in Ch. Bills, 527, where it is said: ‘It suffices if notice be given, after the bill is dishonored, by any person who is a party to the bill, or who would, on the same being returned to him, and after paying it, 'be entitled to require reimbursement, and such notice will, in general, inure to the benefit of all the antecedent parties, and render a further notice from any of those parties unnecessary, because it makes no difference who gives the information, since the object of the notice is that the parties may have recourse to the acceptor.’ This, however, must be taken with the qualification, elsewhere stated, that a stranger to the bill cannot give the notice. * * * It was impossible for the drawer not to have known from it that the bill was unpaid, and that it had been protested by the holder for the purpose of holding the parties liable.” Brailsford v. Williams, 15 Md. 150, 74 American Decisions, 559.

The National Bank of Green Forest was the bank to whom the cheek was sent for collection, and it had authority to collect, and, upon failure to collect, authority to notify all the parties, or it might have notified the bank which sent it to it. In this case, according to Mr. Meyers’ testimony, he was notified the very day that the check was dishonored. He testifies, however, that, if the Bank of Alpena had notified him, he could have protected himself on the 5th of August to the extent of $250, by reason of having in his possession a check made to him which belonged to Lamb. But he actually received the notice on the first day of August, and saw Lamb that day, and concluded that Lamb would make it all right. The notice served by the Bank of Alpena would not bave given him any information or knowledge of any facts that he did not get from the cashier of the First National Bank of Green Forest.

Our conclusion is that the court erred in directing a verdict in favor of the appellees. The judgment is therefore reversed, and judgment is ordered entered here for the appellant for the amount sued for.


author: Meiiaefy, J.

text:
    Missouri Pacific Railroad Company v. Greene.
    Opinion delivered May 14, 1928.

      E. B. Kmsworthy and R. E. Wiley, for appellant.
   Meiiaefy, J.

The appellee filed suit in the Hemp-stead Circuit Court, alleging that on February 9, 1927, defendant negligently with its train struck and killed plaintiff’s bird dog, of the value of $150, at a grade crossing between Hope and Guernsey, Hempstead County. The train was operated in a negligent manner, in that no whistle was blown or bell was rung in approaching the crossing. Defendant was further negligent in maintaining at said point a blind crossing which prevented the dog from -being able to see the train until it went on the track, and the killing was due to the maintenance of the blind crossing and because of earth embankment and trees on the right-of-way.

Defendant answered, denying the material allegations of the complaint. There was a jury trial, and a verdict for plaintiff for $50. Appellant prosecutes this appeal to reverse said judgment. Motion for a new trial was filed and overruled, and exceptions, saved.

E. A. T. Creeey testified, in substance, that he and plaintiff were hunting together on February 9, 1927, and, about the time it was getting dark, or about six o’clock, plaintiff’s dog was killed by passenger train No. 6. It was on a crossing on a public road running north and south across the railroad track. There is a hill there, and the railroad cuts through, the hill, a deep cut with an embankment on each side. One of the dogs was on the side of the railroad that witness and appellee were on, and the other dog was on the other side. Witness saw the dog and the dog saw witness and appellee, and came down the center of the road, and, when he got to the railroad, the train hit him and cut him in two, and killed him. Witness does not know whether the train bleAV any whistle or rang’ any bell.

The appellee testified, in substance, that he and Creeey were hunting, about two miles southwest of Hope, and testified to the killing of the dog substantially the same as the witness Creeey. Witness made experiments to see how close, when coming the way the dog was coming, one would have to get to the railroad before he could see the train. He would have to get so close it would be impossible to hardly stop to get off the track before the train got there. Even with a man it would be eig’ht or ten feet from the first rail, and with a dog it would be just practically on the track before he could see the train. There is a curve in the road that comes in kind of southwest, and the dog was coming from the south of the track, going north. Appellee and Creeey were on the north side of the track, and both dogs were on the left-hand side opposite from witness. Appellee heard the train whistle around the curve, and it caused him to look back and see 'where bis dogs were, and they were back on the left-hand side of the track. He did not hear the whistle after it passed the whistling post. He did not hear the bell ringing. Both dogs came down, and one barely got. across the track, and the other got there just in time to collide with the train. He evidently must have missed the eow-.catcher, as his head went under the wheels and they cut his head off. Witness did not have time to go back across the tracks and get his dogs. It was impossible to do anything. There is a right-hand curve at the place in the railroad.

C. Cook testified that Greene’s dog was worth about $125.

Charles Snodgrass testified that he was running the locomotive pulling train No. 6 on the 9th of February, 1927. Right after the date he had his attention called by the claim department to the fact that a dog had been struck at the crossing between Guernsey and Hope that day. At that time the incidents of that trip were fresh in his mind. At that point the railroad is on an up grade and a curve to the right, and comes, through a cut with an embankment on each side across a public road, which also is in a cut with an embankment on each side. It was getting dark when the train reached the crossing, and witness did not see the dogs. As he approached the crossing he was sitting on his seat box, looking ahead on the track and blowing the whistle. That was the proper place. He blew the regular road-crossing whistle for that crossing, and the sound hadn’t died away when the front of the engine went'over the crossing. The bell was ringing. The bell was turned on at Texarkana and was not shut off until they left Prescott. The locomotive was equipped with an air-ringer, operated by compressed air turned on from a cylinder. When it is started, it rings continuously until yon shut it off. That bell rang from Texarkana until they left Prescott. If the dog got on the track when he was nearer than 200' feet to it he would not see it. The headlight would be shining over it. It would be out of his vision. If a dog came on the track so shortly as to be injured by the wheels behind the pilot, then witness would not see it. The headlight was turned on at Texarkana.

Appellant’s contention is that the testimony is insufficient to support the verdict. The statute provides: “All railroads which are now or may be hereafter built and operated in whole or in part in this State shall 'be responsible for all damages to persons and property done or caused by the running of trains in this State.” C. & M. Digest, § 8562.

This statute has 'been construed by this court many times, and it has been held that the killing of an animal by the operation of a train is. prima facie proof of negligence on the part of the defendant. And this court,-in St. L. I. M. & S. R. Co. v. Fambro, 88 Ark. 12, 114 S. W. 230, said: “The court has held this presumption applicable in the following cases, which are indistinguishable from the case at bar: Barringer v. St. L. I. M. & S. R. Co., 73 Ark. 548 (85 S. W. 94); Kansas City So. Ry. Co. v Davis, 83 Ark. 217, 103 S. W. 603; St. L. I. M. & S. R. Co. v. Stell, 87 Ark. 308, 112 S. W. 876; St. L. I. M. & S. R. Co. v. Briggs, 87 Ark. 581 (113 S. W. 644).

Many cases- have been decided by this court involving the statute above quoted since the cases referred to, and all of them hold that, where it is shown that an injury is caused by a moving train, this is prima facie proof of negligence on the part of the defendant. The statute makes the 'killing of the animal by the operation of' the train proof of negligence, and this presumption created bv statute is all the evidence of negligence in this case. There is no other proof of negligence.

The engineer testified that he was keeping a lookout on the track; that it was, getting dark, and that, if the dog came on to the track closer than about 200 feet to the train, the light from the headlight would be above the dog and he could not see it; that the crossing was in a cut and near a curve.

While the engineer testified that he was on his box looking ahead on the track and blowing the whistle, he did not testify that he was keeping such a lookout as would enable him to see objects approaching the track or near the track. He says if the dog got on the track when he was nearer than 200' feet he could not see it; the headlight would have been shining over it; hut nowhere in his testimony does he say that he was keeping a lookout for objects near or approaching the track. This was a road crossing, and it was the duty of the engineer to keep a lookout not only on the track, as he testified he did, but along the side of the track, so as to ascertain whether any persons or animals were approaching the. track, in order that he might take such precaution as was necessary if he discovered any animals approaching the track. It may be, of course, that the engineer was keeping a proper lookout; that he could not see to the side of the track because of the cut or other obstructions, and if he had shown by his testimony that he was keeping a proper and efficient lookout not only on the track but for objects near the track as he .approached this crossing, and could not see them, this would have been a complete defense, if the jury had' believed his testimony. But the credibility of this witness, as well as all other witnesses, and the weight to be given to their testimony, was for the jury to determine. The evidence of the killing of the animal, which raises the presumption, or, as this court has said before, is proof of negligence, is submitted to the jury, together with all the other testimony offered, and the jury determines the credibility of the witnesses and the weight to be given to their testimony. The instructions given by the court properly stated the law to the jury.

There is no dispute about the condition of the crossing. All the witnesses say that there was a cut and an embankment on the side of the dirt road as well as. the railroad.

If the engineer had been keeping a lookout near the track as well as on the track, and had testified either that he could not see the dog, or that he did all that was possible to do after discovering it, it would bring it within the rule announced by Judge Hill in Jones v. Bond, 40 Fed. 281, in which he said: “I have, within my judicial experience, tried quite a number of cases, for injuries to persons and property, against railroad companies and receivers, from alleged carelessness and negligence on the part of employees operating railroad trains, and have read the opinions of the courts in many more cases, but this is the first dog case that has. been brought to my attention, and therefore I am at a loss to know what rule to apply. I presume the reason that other cases of like kind have not been before the courts is that the dog is very sagacious and watchful against hazards, and possesses greater ability to avert injury than almost any other animal; in other words, takes better care of himself against impending dangers than any other. He can mount an embankment, or escape from dangerous places, where a horse or cow would be altogether helpless; hence the same care to avoid injuries to an intelligent dog on a railroad is not required on the part of those operating the trains that is required in regard to other animals. The presumption is that such dog has the instinct and ability to get out of the way o'f danger, and will do so, unless its freedom of action is interfered with by other circumstances at the time and place. ’ ’

The appellant in its brief says: “There is no reasonable basis for any inference that a dog’ which runs into a train after the front end of it has passed by him would have been prevented from so doing by the ringing of a bell upon an approaching train while the train was out of sight of the dog. There is no reasonable ground for imputing to the dog running on a public highway the power of reasoning from a bell ringing that a train was coming which was then out of his sight. ’ ’

We agree with this statement of the appellant, but, if the engineer had seen the dog and sounded the stock alarm, we think it cannot be said as matter of law that the dog, exercising the ability and watchfulness suggested by Judge Hill, might not have avoided getting killed,

There is no proof in the case as to how far the hill was from the track, and no proof in the case as to whether the engineer could have seen the dog if he had looked elsewhere than on the track. The fireman did not testify, and there is no testimony about the performance of the duty by the railroad company’s servants, except the engineer’s. And, as we have said, there is no proof of negligence other than the statutory presumption, but a majority of the judges are of opinion that it was proper to submit the question of negligence to the jury, and the finding of the jury is conclusive on us.

The judgment is therefore affirmed.


author: Kirby, J.,

text:
    Old City Iron Works v. Belmont.
    Opinion delivered May 7, 1928.

      J. R. Wilson, for appellant.

      Coulter & Coulter, for appellee.
   Kirby, J.,

(after stating the facts). Appellant contends that there was no express or implied warranty of the condition of the second-hand drilling rig sold to appellee, and that the court erred in holding otherwise and awarding appellee damages for ¡breach of an implied warranty, and offsetting the award against the amount which appellant was entitled to and allowed to recover upon its claim.

The note sued on recites that it is given for the purchase price of the following described property, this day delivered to H. B. Belmont, itemizing it, a reservation of title in the property till paid for, permitting it to be moved to a described location, but not elsewhere without written consent of appellant; also that, as additional security for the obligation, the maker is assigning to the appellant company an interest of $9,000 in a judgment and decree recovered in the Ouachita Chancery Court in the case of Belmont v. Johnson, 172 Ark. 851, 291 S. W. 77, on appeal to the Supreme Court; and “it is further stipulated that said assignment of an interest in said judgment as additional security for the above obligation shall be executed as a separate instrument;” purports to contain the entire contract or agreement of sale, and was signed and acknowledged by appellee, and contains no mention of a warranty of the .condition of the property sold. There is no allegation of the pleadings or claim made by appellee that the warranty was omitted by mistake, nor of misrepresentations made or fraud practiced inducing appellee to sign the contract, and the warranty cou'ld not be incorporated in the contract by parol evidence. Schneider v. Fairmon, 128 Ark. 425, 194 S. W. 251.

It is undisputed that the property, the drilling rig, was second-hand, known to be such by the parties; that it was examined and inspected by appellee before his purchase thereof, and, under the circumstances, there was no implied warranty as to the condition or quality of the property purchased. Yellow Jacket Mining Co. v. Tegarden, 104 Ark. 573, 149 S. W. 518; Case Threshing Machine Co. v. Bailey, 89 Ark. 108, 115 S. W. 949; Hartin Com. Co. v. Pelt, 76 Ark. 177, 88 S. W. 929; Colchord Machinery Co. v. Loy-Wilson Foundry & Machinery Co., 131 Mo. App. 540, 110 S. W. 630; note 29 A. L. R. 1231; 24 R. C. L. 1705; 35 Cyc. 408.

It follows that the court erred in holding otherwise and in adjudging damages to appellee for a breach of an implied warranty and setting-off the amount of such recovery against appellant’s judgment for the balance of the purchase money due on the drilling rig and open account for machinery and supplies furnished the appel-lee.

The judgment on the cross-complaint is accordingly reversed, and the cause dismissed, and a judgment in appellant’s favor for the said amount found to he due is affirmed, and judgment will he entered here accordingly. It is so ordered.