author: Mehaffy, J.

text:
    Adkins v. Hoskins.
    Opinion delivered March 5, 1928.
    1. Cancellation of instruments — sufficiency of proof. — The cancellation of an executed contract is the assertion of the most extraordinary power of the court of chancery, which ought not to be exercised except in a clear case on strong and convincing proof.
    2. Cancellation of instruments — sufficiency of proof. — Courts will not decree a cancellation of an executed contract on the uncorroborated evidence of plaintiff, unless it is clear, unequivocal and decisive.
    3. Fraud — misrepresentations as to matters of law. — As a general rule, fraud cannot be predicated on misrepresentations as to matters &f law, nor upon opinions on questions of law based on facts known to both parties, nor upon representations as to what the law will not permit to be done, especially when the representations are made by the avowed agent of the adverse interest.
    Appeal from Johnson Chancery-Court; W. E. Atkinson, Chancellor ;
    affirmed.

      Jesse Reynolds, for appellant.

      Patterson & Patterson, for appellee.
   Mehaffy, J.

The appellants brought suit in the Johnson Chancery Court to' cancel and set aside deeds to certain property in Johnson County, Arkansas, which deeds were executed by appellant to appellee, George O. Patterson, Jr., at the instance of appellee, J. D. Hoskins. .

The plaintiff alleged that he Was a citizen and resident of Johnson County, and that defendant George O. Patterson, Jr., is a resident of Johnson County; that the defendant J. D. Hoskins is a resident of Greene County, and the defendant Gladys H. Adkins is a resident of Hot Springs, Arkansas.

The appellant alleged in his complaint that, prior to the second day of July, 1926, he was the owner of the land described in his complaint; that he and Gladys IT. Adkins were married in Texas, and lived together as husband and wife until recently; that they got along together as husband 'and wife, and never had any trouble of any kind. Gladys H. Adkins was a teacher in the city schools of Hot Springs, Arkansas, 'but returned home on the 21st day of April, 1926, and remained at home until the 20th day of May, when she received a telegram from her mother at Ploydada, Texas,, telling her to come to Texas at once; that she left on the train that afternoon, stating that she would return as soon as conditions would permit; that, when she arrived at her mother’s home, she wrote plaintiff a letter that she would return as soon as her mother’s condition permitted; that, during the month of June, while she was with her mother, she wrote appellant several letters, all of which were very affectionate, and appellant was expecting her to return home very soon; that, on the second day of July, 1926, she returned to Clarksville with John D. Hoskins, an attorney residing at Paragould, Arkansas; that, while appellant was busy at work, the said J. D. Hoskins came to his home, telling him that his wife had decided that she was not going to live with him any longer, and wanted a divorce and a division of the property, and he, Hoskins, had gone into the matter ’thoroughly, and that she had contributed certain funds from her own property in the amount of $1,400, which she was entitled to recover from him; that she had taught school at certain times, and did other work, from which she had earned $2,366, that she was entitled to recover from him this amount, with interest at 6 per cent., making a total of $3,766; that, in addition thereto, she was entitled to recover one-half of all his property, both real and personal; that Hoskins had looked up the value of their property, and that Mrs. Adkins was entitled to $7,500 or $8,000.

Plaintiff advised Hoskins that he was alarmed at the situation, did not understand this turn of affairs; that he. wanted to see his wife, and wanted to talk with her, and inquired where she was, at which the defendant Hoskins told him that she was at the hotel, and that he would bring her up at one o’clock, and that at one o’clock the defendant Hoskins returned, and told him that his wife said she would not talk to him, and restated the matter with reference to his property rights and the division of his property, and stated that she would recover this amount in any event, and, unless he settled it without going into court, that, in addition thereto, there would be between $700 and $800 court costs, which would be taxed to this plaintiff. Hoskins assured appellant that he, Hoskins, was an attorney, learned in the law, and that matters he had represented to him were true, and that the affairs would result as he outlined to him; that it would be a great saving to. plaintiff to make this character of settlement..

The appellant states that he had no knowledge of the law, and never had a lawsuit before, and was totally ignorant of the law; that he did not know his rights in the matter except as outlined by defendant Hoskins, and that, believing Hoskins’ statements and relying solely upon them, he had finally consented to a division of the property. He alleged that he has learned, or is advised and believes, and, so believing, alleges, that the statements of Hoskins as to the matters of fact therein contained are true and the matters of law as represented by the defendant Hoskins were false and fraudulent, and made for the purpose of deceiving and misleading this plaintiff, knowing that he was ignorant of the law and his rights in this particular case, and knowing that he was relying upon his statements.

The appellant stated that the defendant Gladys H. Adkins was not entitled to recover $1,400; that.she is not entitled to recover $2,366; and that she is not entitled to recover one-half of his property, real and personal, and that the court cost in all probability never would exceed $150. Appellant alleged that all of said statements were false and fraudulent, and made for the purpose of deceiving and misleading this plaintiff into a division of his property. Hoskins told him that, in order to divide his property, they must deed it to some third person, and it was customary to use some single person, and for that person to deed back to them severally their portions, and that this would clear the title to the property that they held, and that they could sell and dispose of the property as they saw fit. The appellant alleged that these representations were false and fraudulent, and that the statements were made for the purpose of deceiving, and did deceive, this plaintiff, and that he did execute deeds to all of the property to the defendant G. O. Patterson, Jr., and that said G. O. Patterson, Jr., then deeded back to this plaintiff a'forty-acre tract of land, and deeded to defendant Gladys H. Adkins the balance of the property, including their home. Appellant alleged that on the same date Gladys H. Adkins made and executed to the said J. D. Hoskins a mortgage on the property deeded to her in the sum of $2,019.25, and. that said mortgage was recorded in Johnson County, Arkansas.

Appellant stated that Gladys H. Adkins was not entitled to recover the amount of her earnings since their marriage; that she is not entitled to recover the $1,400; that no separate accounts have ever been kept .between them; that their affairs have all been as one up to the time of the separation; and that she is not entitled to recover from this plaintiff any portion of his property, for the reason that she is not entitled to a divorce.

Appellant stated that the statements of Hoskins were false and fraudulently made to deceive him, and did deceive him, and that the deed to Patterson was executed without consideration; that he would not have consented to a division of his property but for the fraudulent statements of the defendant J. I). Hoskins.

Gladys H. Adkins filed answer, admitting that she and appellant were lawfully married; denied all of the other material allegations in the complaint. She alleged that, during their married life, she delivered and supplied to the plaintiff the sum of $3,800, which was used by the plaintiff in the acquisition of the property involved in this suit; said money was advanced by her with the understanding that she was to have an .interest therein equal to the amount furnished by her. -She alleged that Hoskins did not deceive or attempt to deceive with reference to the legal rights of the defendant and his property and affairs.

J. D. Hoskins filed separate answer, denying all the material' allegations of the complaint.

George O. Patterson filed answer denying all knowledge of transactions, and alleging that said deeds were executed to .him as a matter of transferring the property, as he thought, at the request of both of them.

Defendant filed a demurrer, but it was never passed on.

Gladys H. Adkins filed a suit for divorce. Adkins filed answer, and then an amendment, in which he asked for a divorce on his cross-complaint.

The two suits were consolidated and tried together in the chancery court. The court -granted a decree for divorce to D. L. Adkins, dismissed the complaint of Gladys H. Adkins for divorce, and dismissed the complaint of D. L. Adkins against Gladys H. Adkins and others for cancellation of deeds for want of equity, and D. L. Adkins has appealed to this court.

Appellant’s contention is that he was induced to make the settlement with his wife and convoy his property on false and fraudulent representations as to the law. He does not claim there was any false representations as to any fact.

Attention is called by appellant to the statement in R-. C. L. where it stated, in substance, that if a party, acting in ignorance of a plain and settled principle of law, is induced to give up property, a court of equity will relieve him, especially if he had 'been led into his mistake of the law by the other party. The selction referred to by appellant in R. C. L. contains the following statement :

“It has already been pointed out that, in general, where the parties understand. the facts, an erroneous deduction of law is not cause for annulling a compromise, but, while relief will rarely if ever be granted merely on account of mistake of law, there are cases where there are other elements not in themselves sufficient to authorize the court to interpose, but which, combined with such a mistake, will entitle the party to relief.” 5 R. C. L. 898.

It is not urged in this case that any other elements entered into the agreement or brought about the agreement or compromise; but appellant’s claim of a right to rescind is based solely on false and 'fraudulent representations as to the law. Indeed, the appellant himself knew as much about all of the facts as anybody could know, but it is his contention that Mr. Hoskins came to him, representing that he was a lawyer and was learned in the law, and that, under the law, his wife would recover one-half of his property in addition to recovering costs, which he states was represented by Hoskins to be $700 or $800.' Hoskins went to appellant’s place about 10:30 in the morning, and he and appellant talked for about an hour, when Hoskins left, and told appellant he would be back at one o’clock.

There is no dispute about these facts, but there is considerable dispute about what was said between appellant and Hoskins during their conversations. Nobody was present but Hoskins and appellant, and the appellant testifies that he lives at Clarksville, was born and raised in that county, and is 53 years of age, and a schoolteacher. His wife was also a teacher. About ten o’clock Mr. J. D. Hoskins came to appellant’s home, representing himself as being an attorney for Mrs. Adkins. Up to this time appellant had had no notice from any one that his wife contemplated bringing a suit for divorce. He was running his canning plant. Hos-kins said he wanted to have a talk with appellant. Witness said: “We went to the house, and Hoskins said he was up there, that my wife had decided to leave me and not live with me longer, and that she had employed him to sue for divorce, and his business there was to talk about a property settlement.” Witness told him he was surprised at the turn of affairs; that his wife was in Texas, visiting her sick mother. Witness said Hoskins told him that Mrs. Adkins was in town, and witness, kept insisting on seeing his wife, and Hoskins kept talking about property. Hoskins finally said that he thought that whatever he said she would be willing to do, and that he would come back at one o’clock. Witness asked Hoskins the terms of settlement, and Hoskins told him. One item was $1,400 that Mrs. Adkins received from selling some property in New Mexico, and Hoskins demanded in settlement $3,700. Adkins said that his entire property was worth not more than $4,000. Hos-kins promised to bring appellant’s wife up to the house, but she did not come. Hoskins came back at.one o’clock. He said he was an attorney at law, that he had been practicing law some ten or twelve years, and that he knew the law in the matter thoroughly, and, unless witness made settlement, he would bring suit at once, and that there was no doubt but what the court would allow the claim and, in addition thereto, $700 or $800 court costs. Hoskins told witness what the grounds for divorce were, and that he had the complaint drafted; had a copy of the complaint. He stated that he had the complaint prepared to file in case a settlement was not made. The charges in the complaint were the same as were later filed. He said in addition he had charges that he was prepared to make and prepared to prove in case appellant did not make settlement, and said that he would file the complaint that he had if they settled, and if they did not, he would file another complaint with additional charges. He represented that his statement about the property was the law, and that Mrs. Adkins could absolutely recover. He referred both to his personal and professional experience. Witness then said that he made the settlements on the basis of deeding away his entire property to a third person, and that was suggested by Hoskins, and then there was deeded back to him 40 acres' of land and to Mrs. Adkins the rest of the land. He testified that the 40 acres of land was worth $2,500.

Hoskins testified that he was an attorney at law, and formerly lived at Paragould, Arkansas, but now lived in Little Rock; that Mrs. Adkins had employed him to bring suit for divorce, and by correspondence they ag'reed to meet in Clarksville. That he got to Clarksville one night, and next morning, about 10:30 or 11, saw Adkins; told Mr. Adkins his business; that his wife had employed him to represent her in recovering property and to bring suit for divorce. That the thing Mrs. Adkins was interested in was the recovery of $3,766 that she put in the property. He- testified that Adkins said he realized she put the money into the property, admitted that he owed her that much money. Hoskins suggested that Adkins get him an attorney; that he could talk to his lawyer better than he could to him; told him that he was not representing him, but representing his wife, and told him what, in his judgment, the wif e was entitled to. That lie went to the hotel, after they had talked a while, and went back at one o ’clock. Witness put the figures down, at the suggestion of Adkins; $4,000 for the home place, $2,500 for the 40 acres, and some other property, which witness said totaled $8,650. Adkins admitted that he owed $3,766. Hoskins told Adkins that, after the settlement was agreed on, he would go down to Mr. Patterson’s office and get deeds and papers drawn up, and Adkins said his deeds were at the Bank of Clarksville, and he would meet Adkins at the bank. They did meet at the bank, and went to Patterson’s office. The only connection that George O. Patterson, Jr., had with the transaction was that they were merely using him in transferring the property. Hoskins swore that he told Adkins he was an attorney at law, but did not tell him he wias learned in the law; never told him anything except that he was an attorney. He did not represent to Adkins to make the settlement.

There was a good deal of testimony both by Adkins and Hoskins about the wife, but that is immaterial' on this question. They were the only witnesses as to the conversation that led up to the compromise, and their testimony is conflicting. The appellant admits, that his wife sold some property and that he took the $1,400 and put it in the bank in his own name; told her about it; that it was an error to deposit it in his name. He also admits that she sent him $500 at one time. It appears that he was a man of intelligence and education, and had been teaching school for a number of years. He concluded to quit teaching, and the ¡arrangement was that he should work about the home and the canning factory until he got where that would be a paying business, and that his wife would teach school, and she did teaieh for several years. It appears from the testimony that, a good de’al of the property was accumulated by the efforts of both of them. Both of them worked, and what they, made went into a common fund, according to the testimony of appellant. When it is conceded that she put $1,400 in at one time, $500 at another, and then that both of them contributed to make the living and accumulate a portion of the property, this shows that she was entitled to a considerable sum as her own property; not as much, perhaps, as she got, but quite a considerable sum..

While the appellant states that he was stunned or dazed by the information that his wife had decided not to live with him any more, yet, as we have said, he was a man of intelligence and education, was in the town where he had lived a long while, had many friends, knew all the lawyers in town, and, of course, knew all the facts. He knew how much his wife had contributed, how much money he had received from her; he knew the value of his property, and his wife’s ¡attorney left him in the forenoon to come back-at one o’clock, and, on Hoskins’ return at one o’clock, the settlement was made. There does not appear to have been any representations made, even according to Adkins ’ testimony, except what he says that Hoskins told him a court would do with reference to the property. And, after having this interval between the time Hoskins left in the morning and when he came back in the afternoon, it does not appear that he consulted anybody, but made the deed to the property, and a deed to 40 acres was made back to him. He now asks that these instruments be canceled, but it has been said that the cancellation of an executed contract is an assertion of the most extraordinary power of a court of equity and that it ought not to be exercised except in a clear case upon strong and ¡convincing proof, and a court would not be justified in canceling a contract unless the proof was clear, strong and conclusive.

In this case there is no corroboration of appellant’s testimony at all. The only persons to testify about the contract and what led up to the contract are the appellant and Hoskins, and courts will not decree a cancellation of an executed contract on the uncorroborated evidence of the plaintiff, unless the evidence is clear, unequivocal and decisive. McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Ammonette v. Black, 73 Ark. 310, 83 S. W. 910; McNutt v. McNutt, 76 Ark. 14, 88 S. W. 589.

“As a general rule, fraud cannot be predicated upon misrepresentations as to matters of law, nor.upon opinions on questions of. law based on facts 'known to both parties alike, nor upon representations as to what the law will not permit to be done, especially when the representations are made by the avowed agent of the adverse interest. Reasons given for this rule are that every one is presumed to know the law, both civil and criminal, and is bound to take notice of it, and hence has no right to rely on such representations or opinions, and will not ■ be permitted to say that he was misled by them. Pursuant to this it has been held that fraud cannot be predi-' cated on misrepresentations as to the legal effect of a written instrument, 'as, for example, a deed, or a Federal land warrant, or a contract of insurance.” 12 R. C. L. 295.

It is not contended in this case that the facts were not known to both parties alike, or rather, it is not contended that the appellant did not know all the facts. He does not claim any misrepresentations as to facts, but claims misrepresentations as to the law.

There are some exceptions to the above rule, for instance, where a relation of trust or confidence exists between the parties. Or if Hoskins had misrepresented the law, knowing that Adkins was ignorant of it, and had taken advantage of him through such ignorance, and Adkins had relied upon the superior knowledge and experience, and the other party had advised him that it was unnecessary or inadvisable to consult a lawyer. None of these things, however, existed in this case. That is, they are not shown by a preponderance of the evidence to exist. There is ia. .conflict as to what took place, as we have said, but Hoskins swears positively that he told Adkins to get him a lawyer, and it is nowhere contended that he told him it was unnecessary or inadvisable to get a lawyer. 'Since the appellant knew all the facts, and knew how much money his wife hlad contributed, and was at his home in a town where his friends lived, where he knew all the lawyers in town and had friends that he could have consulted, it was his duty to make some effort and exercise some diligence to inform himself.

We cannot say that the evidence in this case on the part of the appellant is clear and convincing’, and the decree of the chancery court will therefore be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Clark v. Imperial Council of Jugamos.
    Opinion delivered March 5, 1928.
    Insurance — evidence showing mistake. — In an action on a policy of fraternal benefit insurance, in which the amount of the recovery depended on deceased’s age at the time the policy was issued, it was error to refuse to permit plaintiff to show that the age inserted in the policy was inserted either by mistake or wrongfully.
    Appeal from Ouachita Circuit Court; W. A. Speer, Judge;
    reversed.

      Thos. W. Hardy, for appellant.

      Haynie, Parks & Westfall, for appellee.
   Mehaffy, J.

The appellant brought suit in the Ouachita Circuit Court, alleging that her mother, Hettie Clark, died on July 29, 1925; that the appellee is a fraternal order, organized under the laws of Arkansas and engaged, as part of its work, in the insurance of its members upon the payment of certain dues, assessments and premiums. That Hettie Clark, deceased, was a member of the order, held a certificate of membership or policy of insurance in said order, which she had carried for several years, and had paid dues, assessments and premiums up to the time of her death. That the value of said policy at her death was $300. Proof of death was made in August, 1925. That, after the death of the said Hettie Clark, the certificate of membership or policy was sent to the company at Forrest City, Arkansas, and that defendant has possession of said policy, and appellant is unable to exhibit it. Appellant is the administratrix, and the policy is made payable to the estate of Hettie Clark. She alleged that appellant refused to pay, and prayed judgment for $300.

The appellee answered, admitting that it was a fraternal order, admitting that Hettie Clark, deceased, was, at the time of her death, a member of said order, and held a policy upon which the dues, assessments and premiums had all been paid. But it denies that the policy was, at the time of the death of Het'tie Clark, of the value of $300, but states that it was of the value of $100; that that sum was due; that it had heretofore been tendered, and rejected by the appellant; that defendant has continuously held itself ready to pay the amount, and offers to confess judgment for $100.

One of the policies, the one sued on, was issued in January, 1918, and the appellant testified that that was the only policy her mother ever had. She knew that was the policy, because her mother, before she died, told her where to find it, and it was the only policy found where her mother told her it was, and it was the policy that she returned to the company, and she knew it was the one because of a stain on‘the back of it.

Plaintiff introduced the policy, dated the 15th day of January, 1918. In this policy Hettie Clark’s age was shown to be 37. The plaintiff called Joe Holmes as a witness, and he was -an officer of the local lodge, and testified that the policy issued oh January 15 had lapsed •because of the nonpayment of dues and assessments, but that there had been issued after that time another policy, dated Oictober 15, 1918. This policy had never been delivered to her, but it was held by the lodge, waiting for her to return the policy issued January'15, 1918, which she never did.return. But she continued to pay her dues, and the insurance company conceded that she was entitled to recover $100 on the policy of October 15, 1918. The age in this last policy was stated to be 60 years, and the plaintiff asked permission to show that the age was inserted wrong, that the age as given in the last policy was wrong, that she was not 60 years of age, and that, if the age had been correctly stated, she would have been entitled to $300 instead of $100.

The plaintiff in the suit thought that was the only policy that was ever issued or that her mother ever held, but the undisputed proof on the part of the company shows that that first policy was lapsed and that the other one issued. And the only question in the case was whether she was entitled to recover $100 or $300, and, since this depended entirely upon the age of the deceased at the time the policy was issued, plaintiff should have been permitted to introduce proof- to show that, the ag*e of 60 was inserted by mistake, or wrongfully inserted. If that age was correct, she w'as only entitled to recover $100. If her age was as contended by plaintiff, she was entitled to recover $300.

The court should have permitted the plaintiff to show the age of Hettie Clark, and, for this error, the case is reversed, and remanded for new trial.


author: McHaney, J.

text:
    Shackleford v. State.
    Opinion delivered March 5, 1928.
    1. Witnesses — cross-examination.—In a prosecution for manufacturing liquor, it was competent to cross-examine defendant as to his being at a certain place with liquor and gun, as affecting his credibility.
    2. Criminal law — motion to exclude testimony. — Where no _ objection was made to testimony at the .time it was offered, a motion to exclude cannot be insisted on as a matter of right, but addresses itself to the discretion of the court.
    3. Criminal law — discretion as to excluding testimony. — Where defendant did not object to the testimony introduced by the State tending to impeach the defendant, and thereafter cross-examined a State’s witness at great length, the trial court did not abuse its discretion in refusing to exclude the testimony on defendant’s motion.
    4. Criminal law — matters not shown by bill of exceptions. — -An assignment of error as to receiving a verdict in defendant’s absence, assigned in the motion for new trial, but not otherwise appearing in the record, will not be considered on appeal.

      5. Intoxicating liquors — sufficiency of evidence. — In a prosecution for manufacturing liquor, evidence held to support a conviction.
    .Appeal from Washington Circuit Court; J. S. Maples, Judge;
    affirmed.

      George A. Hurst, for appellant.

      H. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee.
   McHaney, J.

Appellant, was convicted for manufacturing liquor, and sentenced to one year in the penitentiary. Appellant was a witness in his own behalf, and, on cross-examination, he was asked if he remembered being down at Hattabaugh’s place with a fruit jar of liquor and a gun, at which time he was about to get into a fight with the Hattabaughs, and he denied being there with liquor, or that he had any gun, or any trouble with the Hattabaughs. Upon objection, the court held that the witness could answer whether he had any liquor there.

This testimony was competent, as affecting'the credibility of the witness. In the recent case of Jim Bowlin v. State, 175 Ark. 1115, 1 S. W. (2d) 533, where the assignment of error was that the court had erred in permitting the prosecuting attorney to ask the appellant, on cross-examination, if he was the same Jim Bowlin that had been sent to the penitentiary from Newton County for cutting a preacher up, and also what he was convicted of, and why he had served a jail sentence at Dardanelle about a year before, we there said: “Appellant was a witness in his own behalf, and the above questions were asked on cross-examination, and it is well settled in this court that the defendant may be asked on cross-examination about other crimes committed by him, whether he has been in jail, the penitentiary, or any other place that would tend to impair his credibility”; and we there quoted from the leading case of Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41, as follows: “It has always 'been held that, within reasonable limits, a witness may, on cross-examination, be very thoroughly sifted upon his character and antecedents. The court has a discretion as to how far propriety will allow this to be done in a given case, and will or should prevent any needless or wanton abuse of the power. But, within this discretion, we think a witness may be ásked concerning* all antecedents which are really significant, and which -will explain his credibility.” See also Whittaker v. State, 171 Ark. 762, 286 S. W. 937.

The cases cited by appellant, to the effect that a witness may not be asked concerning mere accusations of other crimes, are not in point here. Here the witness was asked concerning* a fact peculiarly within his knowledge, that is, whether he had had a fruit jar with liquor in it at a certain place, and brandished a gun. There was no error in permitting this cross-examination.

After the conclusion of the appellant’s -testimony, the State called Henry Lollar as a witness in rebuttal, who contradicted appellant regarding* the fruit jar with liquor in it, and the brandishing of a gun in connection with the Hattabaughs, and appellant contends that the questions asked Earle Shackleford were on collateral matters, and that the admission of Henry Lollar’s testimony in contradiction thereof was erroneous and prejudicial. A sufficient answer to this assignment is that no objection was made to the admission of the testimony of Henry Lollar, who was fully cross-examined by counsel for appellant, both with regard to the liquor and the brandishing of a pistol.

At the conclusion of this witness’ testimony, counsel for appellant moved the court to exclude the testimony of the witness, Henry Lollar, which was overruled by-the court, and he excepted. This court has many times held that, where no objection is made to the testimony at the time it is offered, a motion to exclude cannot be insisted upon -as a matter of right, but addresses itself to the discretion of the court. See Middleton v. State. 162 Ark. 530, 258 S. W. 995, where the court said: “A defendant is not permitted to sit by and allow testimony to be developed against him and then,; as a matter of right, have it withdrawn from the jury. The exclusion of the testimony, after it had been offered, was a matter in the discretion of the court, and it does not appear to us that the court abused its discretion in this regard.”

So here appellant not only sat by and permitted Henry Dollar’s testimony to be developed by the State without objection, but he cross-examined him at length, and we cannot say that the court abused its discretion in not excluding the testimony, on motion of the appellant. Stone v. State, 162 Ark. 154, 258 S. W. 116; Stevens v. State, 143 Ark. 618, 221 S. W. 186; Farris v. State, 133 Ark. 599, 203 S. W. 4; Warren v. State, 103 Ark. 166, 146 S. W. 477, Ann. Cas. 1914B, 698.

The next error assigned by counsel is, “because the jury brought in its verdict at about 10 o’clock at night, and turned the same into the court in the absence of the defendant and his attorney, and the court discharged the jury in the absence of the defendant and his attorney, and, so far as he knows, without making any effort to locate him or his attorney; and that said verdict was read to him by the court, on the next day, after the jury was discharged.” These allegations of fact on this assignment do not appear in the record. There is nothing to support this assignment in the record, except that the error is assigned in the motion for a new trial and the affidavit of counsel for appellant, filed with the record in this case. It does not appear in the bill of exceptions. These matters should have been set out in the bill of exceptions, and if the court refused to sign the bill of exceptions as prepared, appellant could have then established his assignment and incorporated it in the bill by bystanders, as provided by § 1322, O. & M. Digest, or have proved same on his motion for a new trial, if counsel for the State would not stipulate with him. as to the bill. This assignment of error in the motion for a new trial, being supported only by the affidavit of counsel for appellant, is not sufficient to contradict the record, which appears regular on its face, and we therefore overrule this contention.

It is .finally insisted that the verdict is not supported by sufficient testimony; in other words, that there is no substantial testimony in tlie record tending to show appellant’s guilt. We have examined the testimony carefully. Appellant was found at the still, and the witnesses testified that they saw him and another, jointly indicted with him, carrying water to the still, and performing other duties about the still, which was in operation at the time of their arrest. Without setting the testimony out in full, or going into the matter further, there was sufficient testimony to support the verdict, and the judgment is accordingly affirmed.


text:
    Johnson v. Harpole.
    Opinion delivered March 5, 1928.
    Bankruptcy — liability of purchaser of bankrupt’s interest. — A husband and wife, tenants by entirety, executed a mortgage to secure a note; the husband’s interest was sold by the trustee in bankruptcy, and after maturity of the note the wife paid the principal and interest; held, there being- no obligation on the part of the purchaser at the trustee’s sale to pay the note, or any part, except to protect his interest in the land, he was chargeable only with half of the note and interest paid.
    Appeal from Olay Chancery Court, Western District; J. M. Futrell, Chancellor;
    reversed.

      F. G. Taylor, for appellant.

      C. T. Bloodworth, for appellee.
   McHaney, J.

For some years prior to November 12, 1921, appellee and her husband, M. L. Harpole, were the owners as tenants by the entirety of the land in controversy. A short while prior to said date, M. L. Harpole was adjudged a bankrupt, and on said date all his interest in said land was sold b3;r the trustee in bankruptcy to appellant, who received a deed therefor from the trustee, subject to a mortgage on said land in favor of W. D. Polk in the sum of $1,000, given to secure a note to said Polk in said sum, dated February 14, 1921, due February 14, 1923, with interest at 10 per cent., both the note and mortgage being signed by M. L. Harpole and appellee. After appellant purchased the interest of M. L. Harpole, appellee refused to recognize any right or interest therein of appellant, she holding possession, receiving and using all the rents and profits therefrom. She made some improvements, paid some taxes, and refused to make any accounting to appellant for his interest therein. On the 3rd day of May, 1924, some months after the maturity of the note, appellee paid to Polk, the holder of the mortgage, the principal-sum and interest due thereon, and he made the following indorsement on the mortgage: “For value received I hereby assign and transfer the within note, together with 'all security, without recourse, to Paralee Harpole, this 3d day of May, 1924. W. D. Polk.”

This suit was brought by appellant for an accounting on the 31st day of January, 1925, in which he claimed that he was entitled to one-half the rents and profits from said land for the year 1922 and subsequent years, less his share of the taxes and the mortgage paid by appellant, if any, the exact allegations in the complaint being as follows: “Plaintiff further states that said defendant has received all the rents and profits from said land since he became the joint owner of the same, that the reasonable rental value of said land per year is $800, which, to include that year, would amount to the sum of $2,000 for his share of the rent of said land; that if said defendant has paid any taxes on said land or any part of the. mortgage due thereon, she is entitled to credit for same.”

On a trial the court found the rental value of the land to be $225 per year for the years 19'22 to 1926 inclusive, and that appellant was entitled to one-half thereof for each year, with 6 per cent, interest from the first day of January of each year subsequent to the year in which the rent was due. Appellant was charged with one-half the taxes for each year, with 6 per cent, interest from the date of payment, $150 for repairs, and further charged with the whole amount of the amount of the mortgage with interest at 10 per cent, from February 14, 1921, and a lien was fixed on his interest in said land to secure the payment thereof. A decree was entered in accordance with these findings, from which is this appeal.

The only question we find it' necessary to determine in this case is whether the court correctly charged appellant with the full amount of the mortgage indebtedness existing against the land at the time he purchased M. L. Harpole’s interest therein. This is an estate by the ■ entirety.' The whole estate was mortgaged to secure the indebtedness to Polk, and both the note and mortgage were executed jointly by M. L. Harpole.and appellee. Each testified that it was the debt of the other. They were both jointly liable for this debt. Appellant, by his purchase at the trustee’s sale, did not assume or agree to pay this indebtedness. He merely bought M. L. Harpole’s interest in this estate, subject to this indebtedness. Appellee did not pay this note when it was due, and neither did her husband'. It was’ paid after maturity. It is a general rule, supported by a unanimity of authority, as well as by our statute, that “a negotiable instrument is discharged when the principal debtor becomes the holder of the instrument at or after maturity in his own right.” See 7885, C. & M. Dig., sub. 5. See also Harding v. Hagler, ante, p. 146. The first subdivision of the above section of the Digest also provides that “a negotiable instrument is discharged by payment in due course, by or on behalf of the principal debtor.” The attempted assignment by Polk to appellee amounted to no more than a cancellation of the instrument, as, under the law, the instrument was discharged when she became the holder of it in her own right, after maturity. There being no obligation on appellant to pay this note, or any part thereof, except to protect his interest in the land, we are of the opinion that fairness and equity will only require him to be chargeable with one-half of the amount of the note and interest paid by appellee. It was paid for the protection of their joint interest, each being equally interested in one-half the net profits from the land, and both interests being equally •imperiled by the mortgage thereon, and that he should be charged with interest on one-half of the interest payments made by appellee, as well as one-half the principal debt from the date of such payments, at 6 per cent, per annum.

The other questions raised with reference to the amount of taxes paid, both general and special, may be adjusted between counsel on a remand of the case, as seems apparent from the brief of counsel for appellee.

The cause will therefore be reversed, and remanded with directions to enter a decree in accordance with this opinion. It is so ordered.


text:
    Stifft v. W. B. Worthen Company.
    Opinion delivered March 5, 1928.
    1. Gifts — effect-of gifts inter vivos. — Gifts inter vimos are gifts between the living, and are perfected and become absolute during the lifetime of the donor and the donee.
    2. Gifts — validity of gifts inter vivos. — To constitute a valid gift inter vivos, the donor must be of sound mind, must actually deliver the property to the donee, and must intend to. pass title immediately, and the donee must accept the gift.
    3. Gifts — taking effect in future. — A gift inter vivos cannot be made to take effect in the future, as such a transaction would only be a promise or agreement to make the gift, and, being without consideration, would be unenforceable and void.
    4. Contracts — consideration of promise to make gift. — Considerations of blood or love .and affection are not ‘sufficient to supr port a promise to make a gift in the future.
    5. Gifts — sufficiency of evidence to establish gift. — .Evidence that a memorandum was found in decedent’s safety deposit box, to which his wife had keys, to the effect that certain bonds mentioned were the property of his wife, but no bonds were found therein, and that, while decedent had made declarations that he had given such bonds to his wife, he continued to exercise acts of ownership over them and pledged them as his own, and finally sold them, collected the money and deposited it to his credit, held not to show delivery of an intended gift necessary to make the gift complete.

      Appeal from Pulaski Circuit Court, Third Division; Marvin Harris, Judge;
    affirmed.

      Frauenthal & Johnson, Rose, Hemingway, Cantrell & Loughborough, for appellant.

      G. DeMatt Henderson and Cockrill & Armistead, for appellee.
   McHaney, J.

Appellant is the widow of Chas. S. Stifft, deceased, and appellees are the executors of his estate. Some time after the death of Mr. Stifft, appellant presented her claim to the probate court of Pulaski County, 'alleging that she was the owner of $21,700 of the bonds of the Arkansas Diamond Corporation, by virtue off a gift thereof from her husband, and that he had sold said bonds for the sum of $14,647.50 and had deposited said sum in the bank of appellee, W. B. Worthen Company, in his own name, and that he had drawn checks for his own use against said account, leaving a balance therein of $9,027.02 at the time of his death. .She prayed that said sum be delivered to her, and that she have judgment against the estate for the remainder of the sale price of the bonds, with 6 per cent, interest from the date of sale, July 26, 1926. She later amended her demand, claiming that there was an additional $1,000 of bonds belonging to her which her husband had sold and converted to his own use, the exact sale price being unknown to the claimant, but which she presumed were sold at the same price, 67% cents on the dollar, and asked judgment for $675 additional. The probate court allowed the claim as a fourth-class claim, and both parties appealed to the circuit court, where the.cause was submitted to the court sitting as a jury, on substantially the following facts:

A large envelope was found in Mr. Stifft’s desk, entirely empty, bearing the indorsement: “Within bonds of Arkansas Diamond Corporation, $22,700, are the property of my wife, .Sophia Leon Stifft. June 16, 1923. Chas.S.Stifft. Witness: L. J. Gribson.” Appellant saw this envelope in Mr. Stifft’s desk with the bonds in it, but just when she saw this, or how many bonds there were in the envelope, is not shown. No bonds were in it at the time of his death, nor is it shown how long it had been since there were any bonds in it. After Mr. Stifft’s death, his safety deposit box in the American Southern Trust Company was opened in the presence of the executors and appellant, and a slip of paper was found therein with the following writing thereon: ‘ ‘ The within bonds of the Arkansas Diamond Corporation are the property of my wife, Sophia Leon Stifft, without liability on her part. The amount of the bonds is $22,700, more or less. Chas. S. Stifft.” This writing- was likewise' dated June 16, 1923. Both writings were in the genuine handwriting of Chas. .S. Stifft. No bonds were found in the safety deposit box. It is not shown that these bonds were ever in the safety deposit box, except as it may be inferred from this writing, and except the testimony of Mrs. Lally, the custodian of the safety deposit vault of the American Southern Trust Company, who stated that Mr. Stifft told her that there were bonds in the box, and that everything in the box belonged to Mrs. Stifft. Appellant and Mr. Stifft each had a key to this box.

Mr. Stifft stated on several different occasions to Mr. and Mrs. Leon, brother and sister-in-law of appellant, and in her presence, that he had given all the stock and bonds he owned in the diamond mines to appellant, and referred to them several times as her property.

On July 25,1923, Mr. Stifft borrowed from appellee, W. B. Worthen Company, $3,500, and deposited as collateral to his note therefor $3,500 of these bonds. These same identical bonds remained in the possession of the W. B. Worthen Company from that date until January 11, 1926, when they were delivered by it to the .Union Trust Company. On December 27, 1923, Mr. Stifft borrowed a sum of money from the Union Trust Company and deposited $10,000 of these same bonds with it as collateral for said loan, and on December '28, 1925,’ he deposited the remainder of said bonds, $8,200, with the Union Trust Company, making a total amount of $18,200 of these bonds then in the hands of the Union Trust Company, where they remained, together with the .$3,500 it received from the W. B. Worthen Company, until June 15, 1926, when the whole amount thereof, $21,700, was shipped by the Union Trust Company to Mr. Samuel W. Reyburn in New York, in completion of.a sale of said bonds by Mr. Stifft to Mr. Reyburn. On July 26, 1926, Mr. Reyburn issued his check in payment of said bonds in the sum of $14,647.50, payable to Chas. S. Stifft, which check was delivered to Mr. Stifft in New York, who sent same direct to the W. B. Worthen Company for deposit and credit to his personal account, which was done, and he thereafter checked against same up to the date of his death. He also collected the interest coupons attached to the bonds, and used the mohey as his own. Mr. Stifft left a will, dated March 30,1926, containing the following provision: “I also give to my said wife, Sophia Leon Stifft, all money which I have to date of my death paid in the American Building’ & Loan Association, also twenty-one thousand seven hundred dollars ($21,700) bonds of the Arkansas Diamond Corporation.”'

Based on these facts, the circuit court found that the evidence did not establish a gift of said bonds by Chas. ' S. Stifft to appellant, and entered a judgment disallowing the claim of appellant, and she has appealed.

Was the court eorxect in finding “that the evidence does not establish a gift of the bonds aforesaid by the said Charles S. Stifft.to the said Sophia Leon Stifft?” This is the question we are called upon to decide. The facts are undisputed.

Our statute, § 4876, C. & M. Digest, throws some light on the question. It is as follows: “Every gift of goods and chattels, and all other conveyances of the same, not on consideration deemed good in law, shall be void as against all creditors and purchasers; and all such gifts, grants and conveyances shall not be void even against the grantor unless possession really and bona fide accompany such gift or conveyance.” It cannot be said, under the above facts, that possession of these bonds did “really and bona fide accompany such gift or conveyance.” Appellant never “really” had the possession of said bonds — only a constructive possession thereof by virtue of having á key to the safety-deposit box wherein they may or may not at one time have been deposited. The only written evidence that they were ever in said box is the memoranda dated June 16, 1923, found in the box after Mr. Stifft’s death. It is shown beyond all controversy that, if they were in there at that time, less than thirty days thereafter, on July 5, he took $3,500 of them out, deposited them as collateral to a loan with W. B. Worthen Company, and never again did they find their way back therein. The s'ame thing is true with reference to the $10,000 of said bonds deposited with the Union Trust Company on December '27, 1923, and the $8,200 thereof deposited with the same company on December 28, 1925. No real possession, no actual possession thereof, was ever had by appellant, and, even though it be conceded that all the bonds were in the box on June 16, 1923, the constructive possession thereof by appellant did not continue long thereafter. ' Gifts inter vivos, or donatio inter vivos, iare gifts between the living, and are perfected and become absolute during the lifetime of the donor and the donee. Hatcher v. Buford, 60 Ark. 169, 29 S. W. 641, 27 L. R. A. 507. The elements necessary to constitute a valid gift inter vivos were stated by this court in Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030, to the effect that the donor must be of sound mind, must actually deliver the property to the donee, must intend to pass the title immediately, and the donee must accept the gift. It will therefore be seen that a gift inter vivos cannot be made to take effect in the future, as such a transaction would only be a promise or agreement to make a gift, and, 'being without consideration, would be unenforceable, and void, and considerations of blood or love and affection are not sufficient to support such a promise. 12 R. C. L. 930. This court, from Hynson v. Terry, 1 Ark. 83, down to' the present time, in an unbroken line of cases, has held that actual delivery is essential, both at law and in equity, to the validity of a gift, and that without it the title does not pass. Mere delivery of possession is not sufficient, but “ there must be an existing intention accompanying the act of delivery to pass the title, and, if this does not exist, the gift is not complete. McKee v. Hendricks, 165 Ark. 369-383, 264 S. W. 825, 952, and cases cited. In the case of Carter v. Greenway, 152 Ark. 339, 238 S. W. 65, it is said:

“Gifts causa mortis, as well as inter vivos, are based upon the fundamental right every one has of disposing of his property as he wills.. The law leaves the power of disposition complete, but, to guard against fraud and imposition, regulates the methods by which it is aiecomplished. To consummate a gift, whether inter vivos or causa mortis, the property must be actually delivered, and the donor must surrender the possession and dominion thereof to the donee. In the case of gifts inter vivos, the moment the gift is thus consummated it becomes absolute and irrevocable.”
See also the opinion of Judge Sanborn in Allen-West Com. Co. v. Grumbles (C. C. A.), 129 Fed. 287, where it is said:
“Among the indispensable [conditions, of a valid gift are the intention of the donor to absolutely and irrevocably divest himself of the title, dominion and control of the subject of the gift in praesenti at the very time he undertakes to make the gift (citing eases); the irrevocable transfer of the present title, dominion, and control of the thing given to the donee, so that the donor can exercise no further act of dominion or control over it (citing cases); and the delivery by the donor to the donee of the subject of the gift or of the most effectual means of commanding the dominion of it. This delivery must be an actual one £so far as the subject is capable of it. It must be secimdnm subjectam materiam, and be the true and effectual way of obtaining the command and dominion of the subject.’ 2 Kent’s Com. 439. If the subject of the gift is a chose in action, such as a bond, a note, or stock in a [corporation, the delivery of the most effectual means of reducing the chose to possession or use, such as the delivery of the bond, or the note, or the certificate of stock, if present and capable of delivery, is indispensable to the completion of the gift.” See also Chambers v. McCreery (C. C. A.), 106 Fed. 364.

Mr. Stifft wholly failed to consummate his intended gift. He did not divest himself of the title, dominion and control of these bonds on June 16, 1923, or at any other time thereafter. He thereafter continued to exercise acts of ownership, dominion and control over them, actually pledged and hypothecated them as his own, collected .the interest coupons attached to them as his own, made them the subject of a specific bequest to appellant in his will dated March 30, 1926, thereby negativing, if not completely repudiating, his former intention to make a gift inter vivos, and finally sold them as his own, collected the money, deposited it to his credit, and checked on it until his death. So, as was said by the court in Chambers v. McCreery, supra, it is “impossible to apply the facts as we find them to be in the case we have now to decide with the law we have just referred to, and thereby'sustain the contention of the complainants below. The ‘ constructive’ delivery insisted on 'by counsel for appellants is inconsistent with the conduct of the alleged donor from the date of the declarations made by him from which the delivery is said to be inferred to the day of his death.”

We must therefore overrule the contention’ of learned counsel for appellant, and the judgment will be affirmed.


author: Kirby, J.,

text:
    Wear-U-Well Shoe Company v. Armstrong.
    Opinion delivered March 12, 1928.
    Judgment — separate judgments for joint tort. — Where, in an action for malicious prosecution against an individual and a corporation, the jury returns separate verdicts against the individual defendant for $750 and against the corporation for $1,750, it was error to- render judgment against the corporation for an amount larger than the jury found against its individual joint tort-feasor.
    .Appeal from Benton Circuit Court; J. S. Ma/ples, Judge;
    judgment modified.
    statement op pacts.
    This appeal comes from a judgment for damages assessed in a suit for malicious prosecution.
    'The facts are substantially that the appellant, the Wear-U-Well Shoe Company, a corporation, with its principal place of business at Kansas ■ City, Missouri, operates chain stores in various places and parts of the country, and furnishes its shoes to different persons to sell on a commission basis, the shoes being sold by the persons to whom furnished and the proceeds- remitted to the company.
    On or prior to May 25, 1926, the appellee, Armstrong, was engaged in the selling of shoes for appellant in the city of Bentonville. He had notified appellant that he desired to settle up and quit, and they had requested him to wait until the auditor in the regular course reached his place. John Rule, who was sued jointly with appellant, was, at the said date, auditor of the company, and came to Bentonville about May 25, 1926, on his regular round of auditing the accounts of the various persons and agencies handling shoes for appellant, and, upon the audit.of Armstrong’s account, a dispute arose as to the amount he owed the appellant company, Rule demanding $68.20 and Armstrong insisting that certain credits, naming them, should be given him, and that he only owed $56.95, which he offered to pay.

      After some controversy Rule became impatient, and said that if the whole amount was not paid he would have him arrested for embezzlement as soon as he could hear from the company. Rule sent and received in reply the following telegram and answer thereto:
    “Western Union Telegram
    “Received at 2026 Broadway, Kansas City, Missouri.
    ‘‘Bentonville, Arkansas.
    “1114A May 26, 1926. ‘
    “Wear-U-Well Shoe Company, K. C. Mo.
    “■Shortage sixty-eight twenty gross tickets fifty-six ninety-five agent refuses to pay difference shall I • prosecute have signature on audit.
    “John Rule.”
    “1134A.”
    “Western Union Telegram
    “Received at 1221 South Main Street, Bentonville, Arkansas.
    “Kansas City, Mo. 1208P
    “May 26, 1926.
    “John Rule, Bentonville, Arkansas.
    “Collect cash in full or have party arrested embez- . zlement charge.
    ’ “Wear-U-Well Shoe Co.
    “1252P.”
    Rule showed the reply to his telegram to appellee, who still refused to pay more than $56.95 in settlement, the amount he conceded to be due. He then laid the whole matter before the prosecuting attorney with a view to having Armstrong arrested for embezzlement, and was advised by the prosecuting attorney, who refused to have a warrant issued, that he ought not to have Armstrong arrested. He persisted in the matter, and went to a justice of the peace and swore out a warrant for his arrest on a charge of embezzlement, and Armstrong was arrested, and, upon the examination or trial, discharged.
    Fred Wilson testified he was secretary and treasurer of appellant company, which had auditors to check up the affairs and accounts of its different sales agencies. That John Rule was the auditor of the company on the 25th and 26th of May, 1926, and that it had a contract with Armstrong, the appellee, under which he was employed as sales agent at Bentonville, Arkansas, for the disposal of the company’s goods, receiving a commission for making sales. That Armstrong advised the company, aoout the 20th of May, that he wanted to quit the busi-. ness, and asking that a man be sent to check him up. Rule went to Bentonville to make the audit, on his regular tour. He admitted that the company received the telegram and sent the reply thereto, as already set out, but said he 'thought it related to the agency at Nowata, Oklahoma, where there had been a shortage of which the company had been notified by Mr. Rule from Independence, Kansas, on the 19th of May, asking: “Please wire me at Bentonville what to do about the shortage of Boggs at Nowata, Oklahoma; will be there about the 25th.” He thought, in sending the telegram to Benton-ville, that he was ordering the arrest of Boggs in Oklahoma, and not Armstrong-. • While the company had understood that Boggs’ shortage was $198, he had none of the papers, and was not definitely informed, and they had no other report from Rule after he wrote from Independence, Kansas, on the 19th, until the telegram was received from Bentonville on the 25th.
    Appellee testified that he was a shoe repair man, and sold some shoes, and had resided at Bentonville, and had a contract with appellant company for the sale of its shoes, made August 16, 1924, under which they furnished him shoes amounting to $800 to sell on a commission basis. It was introduced in evidence. He continued to sell shoes for them until May 26, 1926, without any misunderstanding or unpleasantness. Settled with them once a year, and was checked up three times a year. The company made no objection to his method of keeping accounts. He kept tickets for each sale made, and sent them in with his report, and all the money received, and the house sent him his 10 per cent, commission from Kansas City. Said he notified them in May that he wanted them to take np the agency, and they sent Rule down to check him up. He was out of town, and, when he returned, Rule had the shoes all packed and ready to send out, and handed him a check-statement, which he signed without verifying’ it. “All of the stock was listed by numbers. The ticket showed I owed the company $56.95. He made up the statement, and I signed it. We tried to get a settlement o'f just how much I owed. After he figured it all up he figured I owed him $68.20, and a dispute arose. I claimed it amounted to $56.95. I claimed I was entitled to some credits for shoes he didn’t take up, but he would not allow them, and I offered to pay the $56.95, and made out a check for that amount. He wouldn’t take the cheek. The difference arose over some certain rubber-heel shoes Which I wanted them to take back, and Mr. Rule would not do it. He claimed that the shoes had been worn. He took up the stock of shoes I had, but wanted me to pay the $68.20, and I refused to do it! Mr. Rule had me arrested. He said he was going to wire the company and ask them about it. The deputy sheriff served the warrant on me on the 26th of May, charging me with embezzlement.”
    Witness had been selling the shoes for appellant for two years, made up his own statements, and never had any trouble with them or been complained about. Introduced a letter from appellant, in reply to his request for an audit of his accounts in the closing of his business, in which it stated that they would cancel his contract, if he desired it, but could not do so until they could get a man to Bentonville to check up his accounts and dispose of the shoes. Said they preferred to have it done by the regular auditor on his usual rounds. Expressed regret that witness found it necessary to terminate “their pleasant business relations,” etc.
    Beasley, the deputy prosecuting attorney, stated that he asked Rule to explain his case, had him go' over the whole case, and then advised him not to have the man arrested. “Told him I did not think he could convict, and that he might have a damage case. Buie said something about collecting debts that way, didn’t remember exactly what it was.”
    Buie made no answer, and was not present at this, trial.
    The jury returned two separate verdicts, one “against John Buie in the sum of $750,” and the other against appellant company “in the sum of $1,750,” each signed by S. B. Banks, foreman, and from the judgments thereon this appeal is prosecuted.

      Duty & Duty, for appellant.

      Rice & Dickson, for appellee.
   Kirby, J.,

(after stating the facts). Appellant contends that certain instructions qbjeeted to were erroneous, but a careful examination of them does pot disclose any error committed, and the court gave all the instructions asked by appellant, except the one for a directed verdict. It is insisted, however, that the court erred in returning judgment against appellant upon the jury’s separate verdict for a larger sum than the amount the jury found -against the joint tort-feasor, Buie.

In the case of Spears & Purifoy v. McKinnon, 168 Ark. 357, 270 S. W. 524, where the plaintiff was injured through the joint negligence of two surgeons, and recovered a judgment for damages in the total sum of $7,000, which recited that one-half thereof, or $3,500, be recovered against each of the defendants, the court modified the judgment pronounced thereon, limiting the total sum • recovered to $3,500, saying that the defendants were joint tort-feasors and liable as such, if at all, but, as there was only one tort and one damage, there could be only one recovery, and, as the jury had fixed the - liability of each tort-fepsor at $3,500, there could be no greater recovery against either or both of them than that sum.

So here there was only one tort committed and one damage resulting therefrom, and, since the jury fixed the liability of each tort-feasor and that of Buie, who 'actively committed 1 he wrong, his company only being liable therefor as having consented thereto and authorized his act, and since he was liable also for the whole damage resulting, there could be no greater recovery against either or both of the joint tort-feasors than the lower sum assessed by the jury against Buie, $750.

The lower court should only have rendéred a judgment upon the finding or verdict of the jury in the said sum of $750, which can and will be rendered here. See Coleman v. Gulf Refining Co. of La., 172 Ark. 428, 289 S. W. 2, 26 R. C. L., § 32, page 780; Marriott v. Williams, 152 Cal. 705, 93 P. 875, 125 Am. St. Rep. 87; Smithwick v. Ward, 52 N. C. 64, 75 Am. Dec. 453; and Nashville Ry. etc. Co. v. Trawick, 118 Tenn. 273, 99 S. W. 695, 10 L. R. A. (N. S.) 191, 121 Am. St. Rep. 996, 12 Ann. Cas. 532.

The judgment is modified accordingly as indicated, and, as modified, will be affirmed. It is so ordered.


author: Kirby, J.

text:
    Ogletree v. Smith.
    Opinion delivered March 12, 1928.
    1. Contracts — evidence.—In a suit to foreclose a mortgage on land in which defendants filed a cross-complaint for alleged breach of contract by one of the plaintiffs to build them a residence, the chancellor’s finding that the contract was made with said plaintiff held contrary to the preponderance of the testimony, where the building contract introduced in' evidence was not signed by such plaintiff, and the testimony did not show that he was in partnership with the contractor who signed it.
    2. Principal and agent-^-liability of agent. — Even though plaintiff negotiated a building contract as agent for his brother, who signed the contract, the principal being disclosed, the agent could not be held liable thereunder.
    3. Evidence — contradicting writing by parol. — Parol contemporaneous evidence is inadmissible to contradict, vary, or add to the terms of a valid and unambiguous written contract.
    4. Reformation of instruments — sufficiency of evidence.. — In an action to reform a contract by proof of its execution by the wrong party as by mistake or fraud, the proof must be clear, convincing and decisive.

      Appeal from Sevier Chancery Court; G. E. J ohnson, Chancellor.;
    reversed.

      Steel & Edwards and J. B. Campbell, for appellant.

      Lake, Lake & Carlton, for appellee.
   Kirby, J.

Appellant and the Bank of DeQneen brought this suit to foreclose a mortgage on certain parts of block 8, Locke Heights Addition to the city of DeQueen, given by appellee and wife to secure three promissory notes to appellant, Claude Ogletree, amounting to $140.22, and by him transferred in due course to the Bank of DeQueen.

Appellees admitted the execution of the notes and mortgage; denied any indebtedness to either appellant or the bank. Alleged they had entered into a contract with appellant by which he undertook to build for them a four-room residence, furnish labor and materials for an agreed price, all of which had been paid, except the amount represented by the three notes referred to in the complaint, and for payment of which the mortgage foreclosure was sought. Alleged that the materials used in the building were of an inferior quality, and not in accordance with the specifications; that the workmanship was poor, the roof defective, the concrete pillars defective and unfit, and that, by reason of such breach and violation of the contract in the furnishing of inferior materials and workmanship and failure to construct the house in accordance with the contract, they had been damaged in the sum of $400, for which judgment was prayed.

Appellant replied, denying the allegations of the answer and cross-complaint, and praying for foreclosure of the mortgage as in the original complaint.

Upon the hearing the chancellor found in favor of the hank upon its complaint for foreclosure and against appellant upon the cross-complaint of appellees, and rendered judgment in their favor for $400 damages as against him, from which this appeal is prosecuted.

There was much testimony introduced, some of it tending to show that defective materials and workmanship were used in the construction of the house, that it was not built in accordance with the specifications, nor like a certain other house, which it was claimed should have been used as a pattern for its construction, and tending to show that damage had resulted to appellees on account thereof. We do not find it necessary to go into this matter in detail, however, since the only question here is whether appellees had a contract by which appellant w-as bound to the construction of their house.

He testified that he had made no contract with appellees for building the house, but only represented his brother, H. M. Ogletree, with whom the contract was made, in the negotiations before its execution. Said that his brother was a carpenter and builder, not well acquainted in the city, having but recently arrived, and he was helping* him as much as he could in securing contracts for his employment. That the building contract was made by appellees with his brother, H. M. Ogletree; that it was written, with specifications attached thereto, and signed by the parties, H. M. Ogle-tree and Greer W. Smith. Said that he arranged to get the money from the bank to enable appellees to pay the balance clue for the construction of the house upon its completion, having taken the notes secured by the mortgage and transferred same to the bank in order to procure it.

Appellee, Greer Smith, testified that he made a contract with Claude Ogletree for the construction of the house. That he had a copy of it, but had lost it. Being handed, instrument which appellant contended was the contract, he examined it, and admitted that it was his signature at the bottom of it, but stated that $1,117 was not in the contract that he signed, which was only for $1,000. Admitted that the writing signed by him was the original contract, with that exception. Said he made the contract with Claude Ogletree, notwithstanding it was signed by H. M. Ogletree, whom he first saw when the building was commenced. Knew that the work on the building was done by H. M. Ogletree and under his direction, and Claude Ogletree’s name was not signed to the contract.

H. M. Ogletree testified that he was a carpenter and contractor and construction foreman, and had been for 35 years; that he built Smith’s house under a written contract which Greer Smith signed, and was signed by him. This contract was offered in evidence, and was the same one about which Smith was questioned and admitted the execution of. He. said that certain extras were agreed on before the execution of the contract, amounting to $117, which was inserted in the contract before it was signed by the parties. Denied that there was any defective material used in the construction of said house, and said that it could not have been better built with the materials specified; that the leak was not due to the shingles, but to the plan of the house, the pitch of the roof, as other witnesses also testified.

Appellant also stated in his testimony that the change from $1,000 to $1,117 for the construction was made in the contract and inserted before it was signed by the parties, and that he was not,in partnership with his brother at the time of the execution of the contract and construction of the house, and had no interest whatever in it, except as indicated.

The chancellor’s finding that the contract for the building was made with appellant is contrary to the preponderance of the testimony. The duplicate or copy of the' building contract executed by appellee and H. M. Ogletree, introduced in evidence, and, which appellee admitted was signed by him, only claiming it had.been changed in the respect of increasing the contract price $117, was not and did not purport to have 'been signed or executed by appellant.

It was not alleged that appellant was in partnership with H. M. Ogletree when the contract was executed and the building constructed, and there is no testimony showing such to be the case.

Even though appellant be regarded as having negotiated the building contract, as the agent for his brother, who signed it, his principal was disclosed on its execution, and no claim is made of his not being’ bound thereby, and appellant could not be held liable on that account as agent thereunder. Meier v. Hart, 143 Ark. 539, 220 S. W. 819; Rittenhouse v. Bell, 106 Ark. 315, 153 S. W. 1111.

Parol contemporaneous evidence is inadmissible to contradict, vary or add to the terms of a valid and unambiguous written contract. Bradley Gin Co. v. Means, 94 Ark. 130, 126 S. W. 81; Delaney v. Jackson, 95 Ark. 131, 128 S. W. 859; Armstrong v. Union Trust Co., 113 Ark. 509, 168 S. W. 1119; Luce v. Arkansas Brick & Mfg. Co., 125 Ark. 219, 188 S. W. 566.

Attempting to prove that the contract was in fact made with appellant, who did not execute it, would be a most material change, and, if the action be regarded as one to reform the contract by proof of its execution by the wrong party, as from'mistake or fraud, the rule requires that it must be done by clear, convincing and decisive testimony, and is in no wise met by the proof herein.

Whatever damages appellee may have been entitled to, if any, under his contract with H. M. Ogletree, appellant was in no wise liable to the payment thereof, and the court erred in holding otherwise.

The decree on the cross-complaint against appellant is therefore reversed, and cause dismissed for want of-equity.


text:
    Temple Cotton Oil Company v. Southern Cotton Oil Company.
    Opinion delivered March 12, 1928.
    1. Words and phrases — “soap stock.” — “Soap stock,” in the business of refining cottonseed oil, is the resultant product of the treatment of crude cottonseed oil with caustic soda solution.
    2. Words and phrases — refining loss. — The refining loss is the difference between the weight of the crude cottonseed oil and the weight of the refined oil produced therefrom.
    3. Words and phrases — crude cottonseed oil. — Crude cottonseed oil is the mill run oil pressed from cottonseed.

      4. Words and phrases — prime cottonseed oil. — Prime cottonseed oil is pressed from sound decorticated seed, sweet in flavor and odor, free from water and settlings, and, when refined, produces prime summer yellow oil with a loss in weight not exceeding 9' per cent.
    5. Contracts — intention of parties. — One of the principal rules in the interpretation of contracts is to ascertain the intention of the parties and to give effect to that intention if it can he done consistently with legal principles.
    6. Contracts — construction of parties. — In the interpretation of contracts the construction the parties themselves have placed on the contract is entitled to great weight.
    7. Customs and usages1 — construction of contract. — Local usages and customs of trade will not defeat the express terms of a contract, and the course of dealing between parties under similar circumstances cannot be invoked as a waiver of an express and unambiguous stipulation in a new contract.
    8. Compromise and settlement— conolusiveness of settlement.— When a complete settlement is made according to usage or custom or according to the terms of a contract, so far as that particular contract is concerned, no right of action thereafter exists in favor of either party.
    9. Compromise and settlement — effect of settlement.. — In all contracts where the terms are ambiguous, or where there is a dispute about its terms, a complete settlement between the parties is binding on them.
    10. Compromise and settlement — conclusiveness of settlement. —The seller of crude cottonseed oil is not entitled to recover from the buyer the value of excess soap stock, in view of complete settlement between the parties after each shipment of oil and failure of the seller to present any such claim at the time of such settlements.
    Appeal from Miller Chancery Court; C. E. Johnson, Chancellor;
    affirmed.

      Jones & Jones, for appellant.

      James D. Head, Dufour, Rosen & Kammer and Rose, Hemingway, Cantrell & Loughborough, for appellee.
   Mehaffy, J.

The Temple Cotton Oil Company, brought fourteen suits against the Southern Cotton Oil Company, in the circuit court of Miller County. These suits were consolidated, by order of the circuit court, and transferred to equity, over the objection of appellant.

Appellant owned and operated cottonseed-oil mills at' Little Rook, Arkadelphia, Hope and Ashdown, in Arkansas, and at these mills it crushed cottonseed and produced cottonseed oil, which it sold through brokers to cottonseed-oil refineries. Appellee owned and operated cottonseed-oil refineries, one of which was located at Gretna, in the State of Louisiana, and bought cottonseed oil from appellant. During the season of 1925-26 appellant sold and delivered to appellee 72 tanks of cottonseed oil, delivered to appellee in its tanks at. appellant’s oil mills.

These suits were brought by appellant to recover from appellee the value of soap stock carried in the crude oil sold by appellant to appellee. Soap stock is the resultant product of the treatment of crude cottonseed oil with caustic soda solution in the process of refining. Refining loss is the difference between the weight of the crude cottonseed oil and the weight of the refined oil produced therefrom. The weight of the soap stock is the weight of refining Joss plus the weight of the caustic soda solution used in refining crude oil. The fatty acid content of the refining loss runs from 90 per cent, to 98 per cent. The fatty acid content of the soap stock is reduced to about 50 per cent, by the addition of the-caustic soda solution used in refining the crude oil.

The contracts of sale under which the crude oil was sold and delivered -by appellant to appellee were all made subject to the rules of the Interstate Cottonseed Crushers’ Association. Rule No. 142 of that association, which was made part of the contract of-sale, provides for the payment of the value of the excess soap stock. These suits were brought to recover the value of the excess soap stock derived from refining the crude oil sold by appellant to appellee.

The 14 suits at law involved $30,710.72. All 'of these contracts sued on were made through brokers, except the contract upon which suit No. 2810 is brought, which contract is for five tank cars alleged to contain soap stock of the value of $2,387.39.

The total number of contracts involved in the suits is 26, of which 18 were made through Zimmerman-Alder-son-Carr, brokers, Memphis, Tennessee, covering 55 tank cars, of which 45 contained crude oil with excess refining loss, and it is alleged that the value of the soap stock in these 45 cars is $22,441.28. Four contracts were made through T. W. Brode, broker, Memphis, Tennessee, covering 13 tank cars, of which 11 contained crude oil with excess refining loss, and the value of the soap stock in those 11 cars is alleged to be $5,052.06. Four contracts of date in February, 1924, were made through Young Commission Company, brokers, Memphis, Tennessee, covering 8 tank cars, 6 of which contained crude oil with excess refining’ loss of the alleged value of $829.99. All of the contracts, except the four made through Young-Commission Company, were entered into and all shipments made thereunder during- the season of 1925-26.

The following is a copy of one of the contracts made through Young- Commission Company:

“Young Commission. Company
“Duplicate No. M-2513
Exhibit A
“Memphis, Tenn., January 9,1924.
“Seller: Temple Cotton Oil Company, Hope, Arkansas.
“Buyer: The Southern Cotton Oil Company, New York, New York.
“Dear sir: We confirm transaction today for your account as follows: .
“Quantity two (2) tanks, sixty thousand (60,000) pounds each. Commodity cottonseed oil.
“Quality basis prime crude flag settlement.
“Price nine and three-quarters (9%) cents per pound f. o. b. cars. ■
“Seller’s mill, Ashdown, Arkansas.
“Shipment last half January, 1924.
“Terms: Sight draft, B/L attached, free of exchange to buyer..
“Buies Interstate Cottonseed Crushers’ Association.
“Brokerage 13%c per barrel. To be paid by seller.
“Young Commission Company
“By W. S. Battaile.
“Seller’s acceptance
“Date
“Seller: Temple Cotton Oil Co. By F. O. Coliman, general ■ manager.
“Buyer’s acceptance
“Date
“Buyer: The Southern Cotton Oil Co. by M. W. Lyons.”
Eighteen contracts were made through brokers, Zimmerman-Alderson-Carr Company, and the following is a copy of one of them :
‘ ‘Zimmerman-Alderson-Carr Company Cotton Exchange
“Memphis, Tenn., Oct. 15, 1925.
“Ex. A. Number M-3350.
“Temple Cotton Oil Company, seller.
“The Southern Cotton Oil Company, buyer.
‘ ‘ Gentlemen: Per our exchange of telegrams and .telephone conversations between Temple Cotton Oil Company of Little Bock, Arkansas, and the Southern Cotton Oil Company of New Orleans, Louisiana, and ourselves, we beg to confirm having this day sold to the Southern Cotton Oil Company for the account of Temple Cotton Oil Company
“Five (5) tank cars, 60,000 lb. each, basis.
“Prime crude cottonseed oil, all atveight and three-quarters (8%) cents per pound f. o. b. buyers’ tank cars, Little Bock, Arkansas.
“Shipment, first half November, 1925.
“Exchange free to buyer.
‘ Terms: Weight and quality guaranteed at destination. Sight draft bill lading attached. Sale made subject to the rules of Interstate Cottonseed.Crushers’ Association.
“In case oil is off, settlement as described under the word ‘Flag’ in Yopp’s cipher code to govern.
“■Commission to be paid by seller, namely, 13 l/3c per barrel of 400 lb.
“Yours very truly,
‘ ‘Zimmerson-Alderson-'Carr Company
“As brokers only.
“Battaile.
“Accepted: Temple Cotton Oil Company, W. H. Doflin.
“M-3350
“Accepted: The .Southern, Cotton Oil Company. -
“M. W. Lyons.”
(On back) :. “Received, Temple Cotton Oil Co., Oct. 16, 1925, North Little Rock mill.”

Crude cottonseed oil is the mill-run oil pressed from cottonseed. To be prime it must be pressed from sound decorticated seed, sweet in flavor and odor, free from water and settlings, and when refined produce prime summer yellow oil with a loss in weight not exceeding 9 per cent. If the loss in weight is greater, but it would still make prime summer yellow oil, it may not be rejected, but shall be reduced in price by a corresponding per cent, of the contract price of the oil.

Yopp’s Cipher Code is a book got out in several editions by W. I. Yopp, to facilitate trading in cottonseed oil products.

When the cars were shipped under contracts extending from January 9, 1924, until February 4, 1926, the appellant would load the tank-car at one of its mills, take a sample of the oil in it, and have it analyzed. When shipped to appellee, appellant would draw a draft on appellee with bill of lading* attached for the total or approximate total value of the car, based on the contract price for prime crude cottonseed oil, according to its weight and analysis at the point of shipment Appellee paid each draft immediately on presentation. When each car reached appellee, it would be reweighed, and a sample of the oil would be taken and analyzed, and the amount of deductions from the contract price according to the settlement terms in Yopp’s 'Code, under the proper code word, would be arrived at and communicated to appellant. Appellant would either agree by wire to the settlement at a reduction of the contract price, or request two' outside chemists to make other analysis. The parties would then settle on the analysis of the two chemists. The car was held on the track at its destination until settlement was agreed on, and no attempt made to unload it until the settlement was agreed on. When this settlement was reached, the car would be unloaded into the refinery, and the contents put in vats with the contents from other cars. When settlement was made, appellee would send appellant a statement of account on that car and close the transaction on that car with á draft on appellant if the balance was in favor of appellee, or a check to appellant if the balance was in favor of appellant.

The last contracts in suit were made on February 5, 1926, and the last settlement, March 26, 1926, for about $970, which appellant promptly paid. No claim was made by appellant and nothing said about any claim for soap stock until about the middle of May, 1926.

The abstracts and briefs in this case are very large and the testimony voluminous, but the principal question involved is the meaning of the contract, especially with reference to soap stock.

It is contended by the appellant that, under the contracts, the appellee was under obligation to pay for soap stock, because they say- that the clause in the contract, “sale made subject to the rules of Interstate Cottonseed Crushers’ Association,” requires a settlement to be made under rule 142 of the said Interstate Cottonseed Crushers’ Association, which reads as follows:

“Where a claim is made for excess loss in the refining of oil, the value of the excess soap stock, less any additional cost of handling such oil, shall be taken into consideration in settlement between parties at interest.”

A great deal of the testimony is given by experts, and is technical and conflicting. One of the principal rules in tlie interpretation of contracts is to ascertain the intention of the parties and. to give effect to that intention, if it can be done consistently with legal principles. This, may be said to be the principal rule, because parties should be bound for what they intended to be bound for, and should not be bound for a thing that they did not intend to be bound for. And courts will always hold the parties bound according to their intention, if that intention can be ascertained. Of course courts, in arriving at the intention of the parties, do so when it can be done from .the contract itself. In other words, the court undertakes to find out what was meant by the language used in the contract.

“The intention of the parties, which courts seek to discover in giving construction to a contract, is to be gathered, not from particular words and phrases, but from the whole context of the agreement.. In fact, it may be said to be a settled rule in the construction of contracts that the interpretation must be upon the entire instrument, and not merely on disjointed or particular parts of it. The whole context is to be considered in ascertaining the intention of the parties, even though the immediate object of inquiry is the meaning of an isolated clause. Every word in the agreement must be taken to have been used for a purpose, and no word should be rejected as mere surplusage if the courts can discover any reasonable purpose thereof which can be gathered from the whole instrument. The contract must be viewed from beginning to end, and all'its terms must pass in review; for one clause may modify, limit, or illuminate the other. Taking its words in their ordinary and usual meaning, no substantive clause must be allowed to perish by construction, unless insurmountable obstacles stand in the way of any other course. Seeming contradictions must be harmonized, if that course is. reasonably possible. Each of its provisions must be considered in connection with the others, and, if possible, effect must be given to all. A construction which entirely neutralizes one provision should not be adopted if the contract is susceptible of another which gives effect to all of its provisions. The courts will look to the entire instrument, and, if possible, give such construction that each clause shall have some effect and perform some office. Likewise, where a contract as a whole discloses a given intention, they will be construed, if possible, so as to be consistent with the general intent.” 6 R. C. L. 837.

Another important and well established rule in the interpretation of contracts is that the construction the parties themselves pla.ce upon the contract is entitled to great weight.

“In fact, where, from the terms of the contract, or the language employed, a question of doubtful construction arises, and it appears that the parties themselves have practically interpreted their contract, the courts will generally follow that practical construction. It is to be assumed that parties to a contract know best what was meant by its terms, and are the least liable to be mistaken as to its intention; that each party is alert to protect his own interests and to insist on his rights, and that whatever is done by the parties during the period of the performance of the contract is done under its terms as they understood and intended.it should be. Parties are far less liable to have been mistaken as to the meaning of their contract during the period while harmonious and practical construction reflects that intention, than they are when subsequent differences have impelled them to resort to law, and one of them then seeks a construction at variance with the practical construction they have placed upon it of what was intended by its provisions. It has even been said that the practical construction of the ambiguous terms of a contract will' be adopted, although the language used may more strongly suggest another construction.” 6 R. C. L. 853; Gauss v. Orr, 46. Ark. 129; Keopple v. National Wagon Stock Co., 104 Ark. 466, 149 S. W. 75; Ins. Co. v. Dutcher, 95 U. S. 269, 24 L. ed. 410.

The parties to these contracts were the buyer and seller. The seller would ship the cottonseed oil and draw a draft with hill of lading attached for the estimated value'of the car when it reached its destination. The amount of the draft was for the approximate value of the car, 'based on the contract price for the article purchased, according to its weight and analysis at the point of shipment. The purchaser would pay the draft drawn by the seller immediately on presentation. But, when the oar reached the buyer, it would be reweighed, a sample of the oil analyzed, and from that it would be determined what amount of deduction, if any, from the contract price should be made. The purchaser would immediately communicate with the seller, and they would agree on a reduction of the contract price according to the figures of the purchaser, or, if the seller was not satisfied, an analysis would be made by two outside chemists. The parties would then settle according to this analysis. The car1 was held on the track at its destination until a settlement was agreed on. In some instances the seller would have to send check to the buyer in settlement. In other instances the purchaser would have to pay a certain sum to the seller. In other words, at the time of the shipment a draft was made for what the seller assumed to be its approximate value. If the analysis at destination was different from that at the place of origin, the difference would be agreed to, and one would make payment to the other in settlement of the matter.

It is earnestly contended >by the appellant that local usages and customs of trade cannot be invoked to defeat the express terms of the contract, and also that the course of conduct under similar contracts cannot be invoked as a waiver of an express and unambiguous stipulation in a new contract.

Appellant is correct in its contention that the local usages and customs of trade will not defeat the express terms of a contract, and that a course of dealing between the parties under similar contracts cannot.be invoked as a waiver of an express and unambiguous, stipulation in a new contract. But we do not have that situation in this case. The authorities cited by appellant in support of this contention undoubtedly contain correct statements of the law. But they differ from the contracts in this case at least in this particular. In the instant ease there was a settlement, and we think a complete settlement for each car. And it is not contended that a settlement for one car, according to custom and usage, would bind the parties in a new contract if the seller, in making the new contract, had stated that he would not be bound by custom or usage, or that he expected to insist on the terms of the contract. If such notice were given, and the contract was unambiguous, the parties would have a right to insist on the terms of the contract, although the custom and usage might be different. But, when a complete settlement is made according to usage or custom, or according to the terms of the contract so far as that particular contract is concerned, no right of action would thereafter exist in favor of either party. But, in all contracts where the terms are ambiguous or where there is a dispute about the terms of the contract, a complete settlement between the parties is binding’ on the parties.

It is the contention of the appellant that, when a claim is made for excess loss in refining of oil, the value of the excess soap stock, less any additional cost of handling such oil, shall be taken into, consideration in settlement by the parties in interest. This is the rule of the Interstate Cottonseed Crushers’ Association, relied on by appellant as a basis for its cause of action. In the first place, if a settlement is made as was made in these contracts, and nothing said about pay for excess soap stock or additional cost of handling, there is no claim by either party because of additional cost of handling or because of excess soap- stock. And certainly.it cannot be said that the value of the excess soap stock, less any additional cost of handling, was not taken into consideration. The very fact that the parties settled, and that nothing was claimed until after all of the contracts had been settled, is a circumstance tending to show that these things were taken into consideration and that the settlement was final. And, while the authorities referred to by appellant hold that local usages and customs cannot defeat the express terms of .a contract, these authorities also hold that the usage may be resorted to to explain the meaning of a commercial term, although it can never be received to contradict the express terms of a contract nor to give words a meaning different from their settled legal interpretation.

There is no charge of any mistake or fraud, duress or coercion, but the parties themselves settled, drew drafts and gave checks in settlement, evidently taking into consideration everything that they regarded as necessary to a complete settlement of the contract. And when parties have settled under such circumstances, the settlement is binding on the parties. The parties had a right, even if the contract was not ambiguous, to make any settlement satisfactory to themselves. They had a right to make such settlement, although it might not be according to the terms of the original contract. They had as much right to do this as they did to make the original contract.

“Persons competent to contract can as validly agree to rescind a contract already made as they could agree to make it originally. However, as a contract is made by the joint will of two parties, it can be rescinded only by the joint will of the two parties. It is obvious that one of the parties can no more rescind the contract, without the other’s express or implied assent, than he alone can make it. But, if the parties agree to rescind the contract, and each ope give'up the provisions for his benefit, the mutual assent is complete, and the parties are then competent to make any new contract that may suit them. ” 6 R. C. L. 921.

There was a settlement for the first shipment in these cases in 1924. No suggestion was made that the settlement was not complete until after the last shipment, which was many months after the settlement for the first shipment. There is no better rule for ascertaining’ the intention of. a party in a contract than the rule that the construction the parties themselves have placed on the contract shall he considered.

Having reached the conclusion that there was a settlement by agreement of parties at the time of each shipment, it becomes unnecessary to decide the other questions discussed by learned counsel. The judgment of the lower court is correct, and is therefore affirmed.