author: Hart, J. R. R.

text:
    Noyes v. State.
    Opinion delivered December 10, 1923.
    1. Intoxicating liquors — transportation—evidence.—In a prosecution for transporting liquors, there was no error in permitting a witness to state that he searched defendant’s garage two or three months before the transaction in question, and found 53 gallons of intoxicating liquors there, and that defendant refused to explain how it came to be there.
    2. Witnesses — impeachment op accused. — When defendant becomes a witness in his own behalf, he is .subject to all the rules applicable to other witnesses, and his testimony may be discredited and impeached like that of other witnesses.
    3. Witnesses — cross-examination op accused. — In a prosecution for transporting intoxicating liquors, where the State introduced evidence of finding liquors in defendant’s garage 'three months before the alleged offense, there was no error in permitting cross-examination of defendant as to such liquors.
    4. Witnesses — cross-examination of accused. — A 'defendant, on cross-examination, may be asked, on cross-examination, concerning his recent conduct and associations in matters involving moral delinquencies on his part.
    5. Criminal law — misleading instruction — specific objection.— Where an instruction was thought to be misleading as to the particular time and transaction relied on for conviction, defendant should have asked a specific instruction thereon.
    6. Criminal law — instruction—exception.—Where no .exception was saved to the giving of an instruction, and it was not made the ground of a motion for new trial, alleged error therein cannot be reviewed.
    7. Witnesses — bad reputation of accused. — Where the accused took the stand in his own behalf, there was-no error in permitting the State to show his bad reputation for truth, under Crawford & Mioses’ Dig., § 4187, though his character had not previously been put in issue.
    8. Criminal law — remark of court. — Where, during a trial for transporting intoxicating liquors, a jury in a similar case returned a verdict of not guilty, prompt action of the court in instructing the jury not to consider his facetious remarks which tended to ridicule the verdict, but to try the case before them on the law and evidence, removed any prejudice which might have resulted to defendant.
    9. Criminal law — improper argument.. — In a prosecution for transporting intoxicating liquors, where the only basis for- the prosecuting attorney’s argument that the officers knew that defendant had been dealing in liquors was that they had .searched his garage and found whiskey, a short time before, any prejudice . that mig'ht have resulted therefrom was cured by instructing the jury to decide according to the evidence and instructions, without regard to what the counsel may have «aid.
    Appeal from Pulaski Circuit Court; John W. Wade, Judge;
    affirmed.

      Murphy, McEaney & Dimaway, for appellant.
    N. Utley, Attorney. General, and John L. Garter, Assistant, for appellee.
   Hart, J. R. R.

Noyes prosecutes this appeal to reverse a judgment of conviction against him for transporting intoxicating liquors, in violation of the provisions of § 6165 of Crawford & Moses ’ Digest.

The first assignment of error is that the court erred in allowing a deputy sheriff to testify that he had obtained a search warrant and searched the garage of the defendant, in the city of Little Bock, two or three months before the transaction involved in this case happened, and found fifty-three gallons of. intoxicating liquors there, and that the defendant refused to explain how it came to be there. We do not think that there was any error in admitting this testimony. Two deputy sheriffs testified that they saw the defendant, about dark, one evening, throw a sack out of his automobile, which, upon examination, was found to contain three jugs of moonshine whiskey, and that the defendant jumped out of his car and ran off with a jug of moonshine whiskey in each hand.

It appears that, when his garage was searched by the officers, the defendant lived in the city of Little Bock, and that he had subsequently moved into the country and lived near where the officers saw him with the moonshine whiskey in his automobile, which is the transaction involved in this case.

The fact that the defendant, two or three months before the transaction in question, had fifty-three gallons of whiskey stored in his' garage, was a circumstance tending to shed light on the transaction involved in this suit. The jury might consider the fact that he kept snch an unusual quantity of whiskey about his premises as shedding light upon the question of whether or not he was guilty of transporting intoxicating liquors, in violation of the statute. Larkin v. State, 131 Ark. 445; Lowery v. State, 135 Ark. 159; Casteel v. State, 151 Ark. 69, and Springer v. State, 129 Ark. 106.

The next assignment of error is that the court erred in allowing the witness to be cross-examined on this same question. On his cross-examination the defendant admitted that the officers had found fifty-three gallons of moonshine whiskey in his garage, but he stated that he had bought the whiskey for the purpose of drinking it, and not for any illegal use. This assignment of error is not well taken. It has been repeatedly held by this court that, when a defendant becomes a witness in his own behalf in a criminal case, he is subject to all the rules applicable to other, witnesses, and his testimony may be discredited and impeached like that of any other witness. Rhea v. State, 104 Ark. 162, and cases cited, and Shinn v. State, 150 Ark. 215. Under the authority of the cases just cited, and many others, this court has repeatedly held that a defendant on cross-examination may be asked concerning his recent conduct and associations in matters involving moral delinquencies on his part.

The next assignment of error is that the court erred in giving to the jury instruction No. 3, which is as follows:

“If you find that this defendant, at any time within twelve months next before the filing of this information, in this county and State, transported any intoxicating liquors of any land, in any amount, from one place to another, in this county, or from outside the county into this county, beyond a reasonable doubt, then you should convict him.”

The objection to the instruction is that it is faulty because it is not made clear that the twelve months within which the jury might have found the defendant guilty of transporting intoxicating liquors, under the statute, was given solely for the purpose of fixing the. statute of limitation governing misdemeanors.

We do not think that the instruction is ambiguous. If the defendant, however, thought that the instruction was likely to mislead the jury about the particular time and transaction relied upon for his conviction, he should have asked a specific instruction upon this point, and, not having done so, he is in no attitude to complain on appeal.

It is next insisted that the court erred in giving instruction No. 4. No exceptions were saved to the giving of this instruction, and it was not made the ground of a motion for a new trial. Hence, under our rules of practice, we cannot review this alleged error. Bullen v. State, 156 Ark. 148.

The next assignment of error is that the court erred in allowing the State to show the bad reputation of the defendant for truth. This assignment of error is not well taken. When the defendant took the stand in his own behalf he became like any other witness, and, under the statute, his character for veracity could be impeached, though his good character may not have been previously put in issue. . Section 4187 of Crawford & Moses’ Digest, and Paxton v. State, 108 Ark. 316; and cases cited.

The next assigmhent of error is that the court erred in making certain remarks during the progress of the trial. It appears that, during the course of the trial, another jury came in and returned a verdict of not guilty in another case where another defendant was charged with unlawfully transporting liquors. The court made some facetious remarks which tended' to ridicule the verdict. Upon objections being made to the remarks, the court at once admonished the jury not to consider them, but to try the case solely and alone upon the law and the evidence, and not to be influenced by what the court or anybody else may have said or done in any other case, at the same time mentioning the case about which the remarks had been made. We think that the prompt action of the court in this respect removed any prejudice which might «have resulted to the defendant from the remarks of the court concerning the other case.

Another assignment of error relied upon for a reversal of the judgment is that the prosecuting attorney, in his closing argument, went out of the record and referred to the fact that the officers knew that the defendant had been dealing in whiskey.

It appears that the only basis for this remark was that they had searched his garage for whiskey two or three months before the time the present transaction occurred, and that they were watching him on the occasion in question. At the conclusion of the prosecuting attorney’s argument the court told the jury that it must decide the case according to the evidence and instructions of the court, without regard to anything which counsel on each side or the court had said to the contrary, or what the court might have said to the other jury.

We think this action of the court had the effect to remove any prejudice that might have resulted from the remarks of the prosecuting attorney. It will be noted that the court specifically told the jury twice to decide the case solely according to the law and the evidence, and not to pay any attention to the remarks of the court or of the prosecuting attorney, except as applied to the argument of the instructions and the evidence. Any jury of good judgment and ordinary experience would not be misled by the argument in question, after receiving this admonition from the court.

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


source: Caselaw Access Project

author: Hart, J.,

license: Public Domain

text:
    Jerome Hardwood Lumber Company v. Consolidated Underwriters.
    Opinion delivered December 10, 1923.
    1. Insurance — construction of policy. — In constructing contracts of insurance or indemnity, the courts will resolve all doubts as to the meaning of the language used in favor of the insured.
    2. Insurance — liability for injury to employees.' — A policy which undertook to indemnify an employer against liability for injury to employees receiving compensation for their services does not bind the insurer to indemnify the employer against liability to any persons not receiving compensation for their services.
    Appeal from Drew 'Circuit Court; Turner Butler, Judge;
    affirmed.
    STATEMENT OP PACTS.
    The Jerome Hardwood Lumber Company brought this action against the Consolidated Underwriters to recover $5,055 alleged to be due on a contract to indemnify it against liability to its employees for bodily injuries sustained while in the employment of the plaintiff by reason of its negligence.
    The material portions of the policy sued on are the following:
    “ Consolidated Underwriters do hereby severally agree:
    “With the subscriber named in the warranties hereof, that whenever, within the contract period, any person employed by the subscriber, whose compensation is regularly included in the pay-roll statements made as provided in the schedule of warranties hereof, shall accidentally suffer bodily injuries (including deaths resulting therefrom) by reason of the business operations described in the schedule of warranties and conducted at locations named therein, then, in that event, the Consolidated Underwriters will indemnify the subscriber against loss, subject to the following conditions:
    “Employer’s Liability. A. By reason of the liability imposed by law upon the subscriber for damages on account of such bodily injuries so sustained, within the limits expressed in condition N of this contract, but no action shall lie against the Consolidated Underwriters or any subscribers thereat, to recover for any loss under this condition, unless it shall be brought by the subscriber himself for moneys actually paid by him, in legal tender of the United States, in satisfaction of a final judgment, after actual trial of the issue. * * * ’ ’
    “Indorsements.
    “5. The estimated compensations include that of all persons employed, whether compensated by salary, wages, for piece work, overtime or allowances, and whether paid in cash, in whole or in part, in board, store certificates, merchandise, credits, or any substitute for cash, at the above locations, for the purpose of the trade or business described herein, to whom compensation of any nature is paid,, and also including president, vice-president, treasurer, and clerical force, contractors and subcontractors, except as follows: All executive officers, office clerical force and contract logging.
    “6. The subscriber shall file at 'Consolidated Underwriters, not later than the twentieth day of each calendar month, a complete and accurate written report of all compensation earned during the preceding month by all employees ■ not herein specifically excluded. If such report is not received, our attorney shall consider our pay-roll as an amount equal to our average monthly pay-rolls for the preceding twelve -months, or such portion thereof as we have been subscribers hereat, plus twenty per cent, for any month delinquent. Nothing herein, however, shall be held to waive our attorney’s right to make audits of our pay-rolls or our obligation to pay for any excess pay-roll, subject to the conditions of the contract to be based hereon.”
    The contract provides that the insurance shall begin on April 30, 1921, and end on April 30, 1924. The contract also provides for notice of accidents and of claims and suits to be given to the insurer, and for an examination of the insured’s books by the insurer, in so far as they relate to the compensation earned during the contract period, or one year thereafter.
    It appears from the record that the contract of insurance was executed on the 27th day of April, 1921, and continued in force during the balance of that year. The premium was fixed on the monthly pay-roll of the plaintiff, and amounted to about $250 per month.
    Tim Ezell was employed by the plaintiff, and suffered an injury which happened on April 18, 1921. He was never afterwards able to do any work for the company. He was carried to the hospital after he received his injury, and advances were made by the plaintiff to his family. During the month of May, 1921, his account was overdrawn to the amount of $108.65. During the month of June following, $68 was‘advanced to .him. In July $36 in credit coupons and $29 in cash were advanced to him. Amounts of money were also advanced by the plaintiff to Ezell during the month of July, 1921. On the 20th day of July, 1921, Tim Ezell was severely injured in the boiler room of the plaintiff by a slab pile falling over on him and crushing his left leg. At the time Ezell was not actually employed by the company, but was convalescing from the injury to his arm which he had received during the previous April. He had just returned to the sawmill from the hospital on that morning. He was told to watch the engine room as closely as'possible in order to learn the work and be able to help fix anything in there that might be necessary. He was injured in the afternoon of the same day. About two months after he received the second injury, Ezell brought suit against the plaintiff for damages, and recovered judgment against it in the sum of $4,500. The defendant was notified to defend the action, but denied liability under the terms of the policy, and refused to do so.

      Ezell was not carried on the pay-roll of the company as an employee after he received his first injury in April, 1921. The advances made to take care of him after he received this injury were not paid him as wages, and the plaintiff intended to deduct the same from whatever amount of money it should pay him as damages on account of the first accident. The premium on the policy in the defendant company was determined monthly by the amounts paid the employees in the actual service of the company. Ezell was not included in this report.
    The above are substantially the facts proved before the jury.
    The court directed a verdict in favor of the defendant, and from the judgment rendered in its favor the plaintiff has duly prosecuted an appeal to this court.

      Williamson & WilUamson and Rose, Hemingway, Cantrell & Loughborough, for appellant.
    Since a verdict was directed, the rule is that the testimony in favor of appellee must be given its strongest probative force. 95 Ark. 360; 111 Ark. 172. The judgment against appellee in favor of Ezell is conclusive on the question as to whether or not he was employed, and also conclusive of other facts essentially involved in the outcome of the controversy. The insurer was given notice of the pending suit, and refused to defend, and he is bound by the judgment, even though it was by consent. See 22 Cyc. 106; 75 Ark. 1; 161 Fed. 709; 14 R. C. L. 62; 53 Ark. 333. The questions involved in the litigation, as between the indemnitor and' indemnitee, may be shown by the pleadings and testimony in the case tried. 161 U. S. 316. However, the proof in the instant case is sufficient to show that Ezell was legally employed within the meaning of the policy. See 92 Ark. 306 and 115 Ark. 473. Ezzell’s compensation was regularly included on the payroll within the meaning of the policy. The policy provided for audits of the books, and the premium was based on such amounts shown to have been paid. Companies writing this class of insurance have not been slow to take advantage of this provision of the policy, and call for additional premiums. See 95 Ark. 140; 92 Ark. 306; Cooley’s Brief on Ins., vol 2, 921. The denial of liability was equivalent to notice of the pending suit. 139 N. W.; 355 108 N; E. 127.

      E. B. Kinsworthy, B. B. Kinsworthy, for appellee.
    The risk was not covered by the policy. Appellant accepted the policy, and it is binding. 143 Ark. 369; 92 Ark. 276. The term “regularly reported on the payroll” has been held to be plain and unambiguous. See 120 N. E. 78; 145 N. C. 114, 48 S. E. 906. The ease cited by appellant at 178 111. App. 54, is not in point; the facts are different. The advancements to Ezell could not be classed as wages earned, and a premium could not have been forced on these credits, and the cases relied upon by appellant at 95 Ark. 110 and 92 Ark. 306, are therefore not in point. Under the facts of this case, Ezell’s testimony in the damage suit was not admissible. See 104 Ark. 236. Besides, appellant made no effort to show that Ezell could not have been present at this trial. 118 Ark. 377. A recital of facts in judgment in Ezell suit is not conclusive in this suit. A judgment is evidence of nothing in a subsequent action between different parties, except that it has been rendered. 35 Ark. 450; 52 Ark. 171; 140 Ark. 636; 150 Ark. 594.
   Hart, J.,

(after stating the facts). We think the conclusion of the circuit court was correct. It is true that, in passing upon contracts of insurance or indemnity like the one now in hand, courts will resolve all doubts as to the meaning of the language used in favor of the insured. The reason is that the contract of insurance is made upon the written form of the insurer, and the insured has nothing to do with the language of the contract. Home Mutual Benefit Assn. v. Mayfield, 142 Ark. 240.

We do not think, however, that the terms of the contract in the instant case are ambiguous, and are of the opinion that the claim of the plaintiff does not fall within the liability provided for in the contract of insurance as expressed by its language.

It will be noted that in section 5 of the contract of insurance, which is copied in our statement of facts, the estimated compensation includes that of all persons employed, whether compensated by salary, wages, for piece work, overtime, or allowances, and whether paid in cash or otherwise.

The evident purpose of the contract was to include within the terms of the policy all employees employed by the plaintiff to whom compensation of any kind was paid. The word “compensation” is evidently used as an equivalent for recompense for services rendered to the plaintiff in the operation of its business by its employees. Ezell was first injured in April, 1921. We do not think he thereafter received any compensation at the hands of the plaintiff for services rendered it in the operation of its business. It is true that the representative of the plaintiff speaks of his being employed after that time, but he also explains what he meant by the use of this expression. After he was' injured in April, 1921, Ezell was sent to the hospital and kept there at the expense of the plaintiff until the morning before he was injured in the following July. Advances were made to him from time to time to support his family, and the representative of the plaintiff states that It was its intention to deduct these advances from the sum it should pay him as damages for his injury.

According to the testimony of Ezell, he left the hospital and went to the mill of the company on the morning of the day in July when he received his second injury. He was told to go in the boiler room and watch the work there, in order to familiarize himself with it. While watching the work there, on the afternoon of the same day, he was injured by a pile of slabs falling on him. He was not being paid for the services that he was rendering the plaintiff on that day. According to his testimony, he was merely there at the invitation of the plaintiff to watch the work. Hence he was not receiving compensation, within the moaning of the policy, at the time lie received his second injury.

As we have already seen, the evident intention of the parties as expressed by the terms of the contract was to insure the plaintiff from liability by reason of injuries which its servants might receive in the operation of its business and while they were being paid a compensation for their services. Ezell was not working for the company and receiving compensation therefor at the time he received his second injury in July, 1921.

Therefore the defendant was not liable, under the policy sued on, for the injury to Ezell, and the circuit court properly directed a verdict in its favor.

It follows that the judgment of the circuit court was correct, and should be affirmed.


author: Smith, J.

text:
    Collman v. State.
    Opinion delivered December 10, 1923.
    1. Indictment and information — error in overruling demurrer— waiver. — Any error in overruling a demurrer to an indictment was waived by striking on defendant’s motion the portion of the indictment claimed to render it defective.’.
    2. Banks and banking — receiving deposits while insolvent.— Crawford & Moses’ Dig., § 730, making it unlawful for an insolvent bank to receive deposits of the kind there named, was repealed by the later statute, Id., § 697, making it unlawful to receive any deposits, without naming particular kind, or to create any debt, and prescribing a different punishment from that prescribed by the prior act.
    3. Criminal law — statute specifying minimum punishment.— Crawfo-rd’ & Moses’ Dig., § 697, making acceptance of deposits by an insolvent bank punishable by imprisonment for not less than one year, without specifying the maximum imprisonment, is not violative of Const.', art. 2, § 9, prohibiting cruel or unusual punishment.

      4. Banks and banking — .receiving deposits while insolvent. — • Under Crawford & Moses’ Dig., § 697, prohibiting the acceptance of deposits by an insolvent bank, the president of an insolvent bank is guilty and indictable as a principal offender where he either accepts or receives the deposit, or is accessory to its receipt or acceptance by standing by aiding or assisting in the receipt or acceptance.
    5. Banks and banking — receiving deposits while insolvent — ■ accessory after fact. — The president of an insolvent bank, indicted as principal offender for receiving deposits while the bank was insolvent, under Crawford & Moses’ Dig., § 697, cannot be convicted on proof that, though he was not present at the time of the acceptance of the deposit, he, as president of the bank, knew that it was insolvent.
    6. Banks and banking — when bank insolvent. — A bank may be insolvent, under Crawford Ss Moses’ Dig., § 697, prohibiting the receipt and acceptance of deposits in an insolvent bank, even though the assets, in addition to the stockholders’ liability under § 702, are sufficient to discharge all liabilities.
    7. Banks and banking — indictment—variance.—Under an indictment of a bank president for receiving gold, silver and paper money as deposits in an insolvent bank, in violation of Crawford & Moses’ Dig., § 697, proof that only bank drafts were received held not to be a variance where the drafts were received as money.
    Appeal from Union Circuit Court; Richard M. Mann, on exchange, Judge;
    reversed.

      McNally, Kitchen & Harris, for appellant.

      J. S. Utley, Attorney General; John L. Carter, W. T. Hamonoclc and Barden Moose, Assistants, for appellee.
   Smith, J.

Appellant was convicted under an indictment which reads as follows: The grand jury of Union County, in the name and by the authority of the State of Arkansas, on oath, accuse the defendant, A. Coliman, of the crime of receiving deposits in an insolvent bank, committed as follows, to-wit: The said defendant, on the 20th day of November, 1922, in Union County, Arkansas, did unlawfully, wilfully, knowingly and feloniously accept and receive on deposit in the Guarantv Bank & Trust Company, a corporation organized and doing a banking business under the laws of Arkansas, of El Dorado, Arkansas, from one W. J. Sinclair, the sum of $12,519.62 in gold, silver and paper money, the said A. Coliman then and. there being president of said Guaranty Bank & Trust Company, and acting as such, and said sum of $12,519.62 then and there being the property of said W. J. Sinclair and said deposit consisting of gold, silver and paper money (batik bills, or notes, or United States treasury notes, gold or silver certificates, or currency, or other notes, bills or drafts, circulating as money or currency), said bank then and there being insolvent, and said defendant then and there well knowing same to be insolvent, against the peace and dignity of the State of Arkansas.”

There was a demurrer to this indictment, which was overruled, but defendant did not stand on the demurrer. It was the theory of the court that the italicized words inclosed in parentheses were surplusage. The defendant thereafter filed a motion to strike these words from the indictment. When' this motion was made, the prosecuting attorney reminded counsel for defendant that an indictment could not be amended, whereupon counsel for defendant said: “If the court please: It is only to save confusion, in order to make the indictment certain, so we know what we are being tried upon, and it ought to be stricken, and we urge that it be stricken.” We conclude therefore that any error in overruling the demurrer was waived by striking out, on defendant’s own motion, the portion of the indictment which was said to render it defective.

This observation also disposes of the assignment of error that the court erred in overruling a motion in arrest of judgment.

Sinclair, the man who made the deposit set out in the indictment, testified that on February 14, 1922, he deposited in the bank, to his account, two checks, properly indorsed, amounting to $12,519.62, one of which was for $11,000, and the other for the balance. Witness testified that “a man by the name of Taylor took the deposit, and Medley was standing opposite him when he accepted it.” Objection was made to this answer, and counsel for defendant asked that the answer be stricken ont, for the reason that it was not responsive to the charge in the indictment, and was a variance from the charge contained in the indictment. Exceptions were duly saved to the refusal of the court to strike out the question and the answer. It appears that defendant was not present when the deposit was made, and was not, in fact, in the State at that time, although he was president of the bank and kept a desk there.

A few days after this deposit was made a run started on the bank, which continued for several days, and resulted in the bank closing its doors. The State Banking Department took charge, and gave the officials of the bank five days within which to meet certain prescribed conditions and reopen for business, but the conditions were not met, and the bank did not reopen, and the banking department continued in charge, • and was engaged in winding up its affairs at the time of defendant’s trial.

Defendant returned home while the run on the bank was in progress, and he endeavored to reassure depositors that the bank was solvent, and on two successive days he assured Sinclair that the bank was solvent, and that he would incur no loss on account of his deposit.

The testimony shows that Sinclair not only received credit to his account, which was noted on his passbook, but that the bank itself actually received thé cash on the checks from the bank on which the checks were drawn.

The deputy bank examiner who took charge of the bank detailed at great length the character and value of the different assets belonging to the bank at the time he took charge, and, without reviewing this testimony, it suffices to say that the testimony is sufficient to support the finding that the bank was in fact insolvent when the denosit was received; and we think the testimony also sufficient to support the finding that defendant was aware of its insolvency.

The statement was made during the progress of the trial that the prosecution was under § 730, C. & M. Digest; and this section authorizes the imposition of a sentence in the penitentiary for a period of not less than three years and of not more than five years, and defendant’s sentence was fixed by the jury at four years. This section is a part of an act of 1901, and it is insisted that it was repealed by § 31 of the Act of March 3, 1913, which section of that act appears as § 697, C. & M. Digest, and which provides a punishment of imprisonment in the penitentiary for not less than one year, and it is insisted that, under this § 697, the maximum punishment is imprisonment for a period not exceeding one year.

It is in order to first determine whether § 730, C. & M. Digest, was repealed by the later statute, and we answer this question in the affirmative. A careful study of the two sections makes it apparent that the whole subject-matter to which the older statute relates is fully covered by the later statute. The first statute makes it unlawful for an insolvent bank to accept or receive deposits of the kind there named. The later statute, without naming the various kinds of deposits which might be made, makes it unlawful for an insolvent bank to receive any deposit, and, in addition thereto, makes it unlawful for such a bank to create any debt, and, after doing so, changes the punishment and makes the amended provision in regard to the punishment applicable alike to the receipt of deposits and the creation of debts. This being true, it must be held, in accordance with numerous decisions of this court, that, by implication, the earlier statute has been repealed. Hampton v. Hickey, 88 Ark. 324; C. R. I. & P. Ry. Co. v. McElroy, 92 Ark. 600; Lawyer v. Carpenter, 80 Ark. 411; Western Union Tel. Co. v. State, 82 Ark. 302; Milwee v. Board of Directors, 105 Ark. 77; Eubanks v. Futrell, 112 Ark. 437.

Counsel insist that, if § 697 is the applicable statute, his punishment could not exceed one year’s imprisonment in the State Penitentiary, for the reason that this statute imposes a penalty for its violation of “not less than one year,” the insistence being that this language should be interpreted as meaning one year, neither more nor less; and that if the statute is otherwise interpreted it leaves the jury free to impose a sentence of any length, and would therefore offend against § 9 of article 2 of the Constitution, which provides that cruel or unusual punishment shall not be inflicted, and is .therefore void.

The courts do not, however, so construe such statutes. A leading case on the subject is that of Frese v. State, 2 Sou. 1. In that case it was contended that a statute of the State of Florida, which provided that a person convicted of selling intoxitíating liquors without license should be punished by a fine of not less than double the amount required for the license, but which did not prescribe a maximum fine, violated the provision of the Constitution of that State that “excessive fines shall not be imposed.” In the opinion in that case it was said: “The same provision against excessive fines is to be found in the English bill of rights, and we learn from Blackstone and other authorities that it was not necessary for a statute fixing the punishment of an offense by fine or imprisonment to do more than declare the general nature of the punishment, viz., by fine or imprisonment. The duration and quantity of each must, says' Blackstone, frequently vary from the aggravation, or otherwise, of the offense, the quality and condition of the parties, and from innumerable other circumstances, and ‘the guomtwm, in particular, of pecuniary fines neither can nor ought to be ascertained by an invariable law;’ and he says the -statute law has not often, and the common law never, ascertained the quantity of fines. The bill of rights (which, according to Blackstone, was only declaratory of the old constitutional law of England) restrained or regulated, by the provision referred to, the discretion of the judges in adjudging the quantity of the punishment.” It was there pointed out that, though it was custofnary in that State for either the maximum, or the minimum and the maximum of fine or imprisonment with which an offense can be punished, to be declared by statute, yet there was no constitutional provision expressly providing that such limit or limits should be declared by statute, nor any provision, the effect of which was to make an omission by the legislative department to fix or prescribe a maximum punishment, fatal to a statute which prescribes only the minimum. The court then proceeded to say: “The mere failure to fix the maximum of a fine is not the imposition of an excessive fine. In the absence of a statutory declaration of a maximum, the courts are regulated or restrained by the same provision of the bill of rights that the citizen relies upon for protection against the infliction by them of excessive fines within the maximum, where such a maximum has been prescribed by statute. It cannot be denied that a fine imposed by a court upon a person may, upon the facts and circumstances of the particular case, be excessive, though within the maximum. Though such a statute may be clearly free from the charge of unconstitutionality, yet it might be that a judge, in fixing, or in approving or sustaining a fine fixed 'by a jury, would err in the qucmtvm of the fine inflicted. He may go too far above the minimum, where both a minimum and a maximum were specified, or too close to the maximum, where only a maximum was prescribed by the statute. In such case the citizen’s reliance for an enforcement of the provision of the bill of rights is upon the appellate courts, and upon the executive power to remit fines, commute punishment, and to grant pardons. This reliance is the same where the statute merely prescribes the minimum fine. The statute in question, when judged by the well-known rules governing in such cases, and which reauire that there must be a clear antagonism to some constitutional nrovision, violates no provision of our Constitution. While we deprecate such legislation, and deem it better, and more in accordance with well-established custom, that at least the maximum of any possible fine should be fixed by the Legislature, we can find no authority that makes it necessary. The following authorities sustain the conclusions reached above: 2 Bl. Comm. 377-379; Toml. Law Dict. ‘Fines’ 796; State v. Danforth, 3 Conn. 112; Cooley, Const. Lim., 402 et seq.; Pervear v. Com., 5 Wall. 475.”

In the case of In re Yell, 65 N. W. 97, an attack was made on a statute of the State of Michigan which prescribed only a minimum fine, and the Supreme Court of that State, in upholding a conviction under it, said: “There is no express constitutional requirement that the Legislature shall, in enacting penal statutes, fix the maximum penalty. It is true that this is generally done, but when it is not done the power to impose a fine is limited by the constitutional provision that excessive fines shall not be imposed. The only case to which our attention has been directed in which the constitutionality of a statute fixing the minimum and not the maximum punishment has been considered, is Frese v. State (Fla.) 2 Sou. 1. In a well-reasoned opinion the constitutionalitv of such a statute is maintained, and it is pointed out that the precise penalty is not usually fixed in a penal statute, but, where there is a constitutional provision that excessive fines shall not be imposed, the statute is to be read in connection with it, and such constitutional provision limits the power of the court which administers the law.”

In the case of State v. Stumbaugh, 132 N. W. 666, the Supreme Court of South Dakota reviewed a. judgment in which the appellant had been convicted under a statute of that State which provided that “every person guilty of manslaughter in the first degree is punishable by imprisonment in the State prison for not less than four years.” In upholding a sentence of twelve years it was there said: “It was competent for the Legislature to impose such penaltv as it might deem proper, and leave it discretionary with the trial court as to the term of imprisonment the trial court might impose in excess of four vears, in view of all the circumstances of each particular case. The Legislature therefore, in limiting the trial court to four years as the minimum term, necessarily left it discretionary with the trial court to impose any reasonable term of imprisonment, not in violation of the constitutional provision which prohibits ‘cruel’ punishment. And, in view of the evidence in the case at bar, this court cannot say that the term of 12 years, as designated by the trial court, constituted cruel punishment. Article 6, § 23, St. Const.; State v. Becker, 3 S. D. 29, 51 N. W. 1018.”

A similar conclusion was reached by the Supreme Court of Oklahoma in the case of Baysinger v. Territory, 82 Pac. 728, where a sentence of twenty-five years was imposed on a defendant for manslaughter in the first degree, the statute providing for a punishment of not less than four years for the commission of that offense. See also State v. Kight, 119 N. W. 56; State v. Pearson, 34 Sou. 575; Southern Express Co. v. Com., 92 Va. 59, 41 L. R. A. 436; Latshaw v. State, 59 N. E. 471; State v. Williams, 77 Mo. 310; State v. Fackler, 74 N. W. 1029.

The indictment alleges that defendant “accepted and received” the deposit, and, as we have said, the testimony shows that he was not present when the deposit was received. This offense, like any other, might be committed by one’s own act in accepting or receiving the deposit, and the words “accepting or receiving” have been held to be synonymous (Morris v. State, 102 Ark. 513); or by being an accessory to the receipt, or acceptance by standing by, aiding or assisting in the receipt or acceptance. In either of these events he would be a principal offender, and should be indicted as such. ¡But there might be a case when the accused, not being present, had advised or encouraged the acceptance of the deposit, in which event he would be an accessory, and should be indicted as such.

Section 730 of C. & M. Digest appears to have been copied verbatim from the Kansas statutes (Laws 1891, ch. 43, §16), and before the enactment of our statute the Supreme Court of that State had construed their statute. In the ease in which this was done, it was charged that the accused (the president of a bank) had received and accepted the deposit, while there, as here, there was no testimony showing that the accused had done so, or was present standing by, aiding or abetting the receipt and acceptance of the deposit. The Supreme Court of Kansas held that the testimony' did not support the allegations of the indictment, and in so holding said: “It must be borne in mind that the Baxter Bank was a corporation. The connection of the appellant with it was that of an officer. He is not charged with being the owner. The other persons connected with the bank were its officers and employees. Possibly a private banker, who employed clerks and servants to receive deposits, might be bound, even in a criminal case, by their acts, where their possession immediately became his; but the statute, as framed, seems to denounce its' penalties against the individual who shall take deposits -into the bank when he knows it to be insolvent, and also against all others who knowingly permit’ or connive at their reception (Citing State v. Wells, 35 S. W. 615). Whether the evidence given at the trial in this case was sufficient to uphold a charge against the defendant of having permitted or connived at the receipt of the deposits, we need not decide. The charge is that he accepted and received. The word ‘accepted’ implies that the bank received, and that he agreed and assented to the reception. He could not accept without at least knowing what was received. The proof being insufficient to sustain the conviction under these counts of the information, the motion for a new trial should have been sustained. The judgment is reversed. All the justices concurring.” State v. Warner (Kans.) 55 Pac. 342.

As we have said, § 730 has been superseded by § 697, but the legal principle announced in the Kansas case above is applicable to a prosecution under either § 730 or § 697.

Section 697 provides: “* * * And if any such officer, employee, member of firm or individual shall knowingly receive a deposit or cause a debt to be created, or assent thereto, or in any manner is accessory to such crime, he shall be guilty of a felony, and, upon conviction, shall be punished by imprisonment in the penitentiary for 'not less than one year.”

The principal and the accessory are made equally guilty, but there appears to be nothing in the statute which changes the rule of criminal pleading that only a principal can be indicted as such, and that one guilty as an accessory must be indicted as such.

The decision of the Supreme Court of Missouri in the case of State v. Wells, 35 S. W. 615, construing a similar statute of that State, gives full support to the views expressed above.

Defendant sought, by numerous objections to questions asked, and by objections to instructions given at the suggestion of the prosecution, and by requests for instructions which he asked himself, to raise the question that a conviction could not be had under the allegations of the indictment, without showing that he either accepted or received the deposit, or stood by and aided, abetted or assisted in its receipt or acceptance; but.the court charged the jury, in effect, that it was not necessary that defendant be present at the time the deposit was made, but that he would be criminally liable for the reception of such deposit if he were shown to be president of the bank and knew at the time that the bank was insolvent. This was error, because the allegations of the indictment charged defendant as a principal. Wood v. State, 159 Ark. 503; Harper v. State, 151 Ark. 338; Gill v. State, 59 Ark. 423; Friend v. State, 109 Ark. 498; Hughey v. State, 109 Ark. 389; Williams v. State, 41 Ark. 173; Smith v. State, 37 Ark. 274.

The State cites and relies upon the case of Wilkin v. State, 121 Ark. 219. .But that case does not conflict with the views here expressed. There the accused was charged with knowingly accepting and receiving the deposit, and of permitting and conniving at the receipt and acceptance on deposit of money in the bank of which he was president when the bank was insolvent.' Under these allegations we held that it .was no defense that the deposit was received while the accused was out of the State, this being done on the theory that a conspirator is criminally responsible in any place where any overt act is done by any of his co-conspirators. In that case the instructions ignored the theory of the defendant that he did not conspire with the cashier, who received the deposits, to receive them while he was not present,- and, for the refusal to submit this defense to the jury, the judgment was reversed, and the cause remanded with directions to submit that issue. ,

The defendant requested a number of instructions on the subject of insolvency, and objected to those given by the court which defined that term. The court appears to have committed no error in this respect, and we will not review this question, as the law of the case was reviewed in the recent case of Hanson v. State, 160 Ark. 329.

Appellant raises the question, however, that a bank could not be deemed insolvent if the assets of the bank, in addition to the stockholders’ liability under §702, C. & M. Digest, are sufficient to discharge all liabilities. This section imposes a liability on the stockholders ratably, and not one for the other, for all contracts, debts, and engagements of such bank to the extent of the amount of their stock therein, at the par value thereof, in addition to the amount invested in such stock. But this additional liability cannot be taken into account in determining* solvency, under the definitions of that term- which we have approved in the Hanson case, supra, and in the cases of Wilkin v. State, supra, and that of Skarda v. State, 118 Ark. 176. This stockholders’ liability is not an asset available in the usual and ordinary course of business; indeed, as to manv stockholders, this liability-might never become an available asset, through the unwillingness or the inability of the stockholders to discharge it.

It is insisted that there is a variance as to the deposit made, inasmuch as the testimony shows that no gold, silver nor paper money was received on deposit, but that only bank drafts were received. But these drafts were received at their face value as money, and were cashed by the bank, and thereby converted into money, and there was therefore no variance between the allegations of the indictment and the testimony. Gurley v. State, 157 Ark. 413; Sharda v. State, 118 Ark. 176.

There are other assignments of error, but they relate to matters which are not likely to become important upon a second trial, and for that reason they are not discussed.

As defendant was indicted as a principal, and the testimony shows that, if guilty at all, he was guilty as an accessory, the judgment must be reversed, and it is so ordered.


text:
    Alexander v. Williams-Echols Dry Goods Company.
    Opinion delivered December 10, 1923.
    1. Customs and usages — interpretation op contract. — Where the written contract of employment of appellant, a traveling salesman, failed to define his duties explicitly, it was not error to admit evidence of a general custom for traveling salesmen to make collections in their territories, and that appellant had done so under his previous oral contract with his employer.
    2. Appeal and error — instruction—failure to object. — The fact that an instruction failed to mention certain defenses was not error where no specific objection was made and the defenses were covered by other instructions.
    3. Evidence — testimony of bookkeeper. — Testimony of a bookkeeper that he made certain book entries in the usual course of business, knowing, at the time, that they were correct, held sufficient to justify admission of statements taken from such books.
    Appeal from Sebastian Circuit Court, Fort Smith District; John Brizsolara, Judge;
    affirmed.

      James B. McDonough, for appellant.
    The court erred in construing the contract. 117. Ark. 173; 46 Ark. 210; 9 111. App. 183; 107 111. App. 32; 65 So. 696; 101 Ala. 368; 19 Okla. 429; 42 W. Ya. 430; 164 Mass. 490'; 39 Fla. 523; 69 So. 992. A contract must be construed most strongly against the one who drew it. 73 Ark. 338; 115 Ark. 166; 112 Ark. 1; 151 Ark. 81; 12 Pa. C. Ct. Rep. 363; 126 Fed. 831; 173 Fed. 855; 195 Fed. 731; 94 Ark. 493; 78 Ark. 202. It is a well-settled rule of this court that it is the duty of the court to construe a written contrast. 101 Ark. 353. The court erred in admitting testimony showing the custom of wholesale grocers. 91 So. 784; 132 Ark. 197; 72 So. 548; 159 Pac. 1084; 59 Atl. 607, 104 111. App. 165 ; 119 Iowa 702; 49 S. W. 462. A custom is only admissible when the contract is doubtful. 186 Mass. 589; 44 N. Y. S. 271; 55 N. Y. S. 583. Custom or usage cannot be substituted for the will of the parties, as expressed in the contract. 48 So. 927; 181 111. App. 113; 129 N. W. 54; 150 Iowa 169; 148 Mich. 271; 159 Mich. 583; 125 S. W. 238; 157 N. Y. S. 147; 31 Ohio Cir. Ct. R. 557; 102 Pac. .750. The court erred in admitting the testimony of J. E. Freeze. 136 Ark. 554; 65 Ark. 316; 57 Ark. 402. It was self-serving evidence, and not admissible. 12 Ark. 775; 14 Ark. 159; 94 Ark. 183.

      Daily do Woods, for appellee.
    The court did not err in submitting the question of “custom” to the jury. 109 Ark. 276; 13 Wall. 363; 34 Law ed. 568; 29 Pac. 463; 114 N. Y. 140; 21 N. E. 737; 33 Mich. 348; 69 Ark. 313. The existence of a usage or custom is generally regarded as a question of fact for the jury. 27 R. C. L. 196. The testimony of J. E. Freeze was properly admitted. 136 Ark. 554; 65 Ark. 316; 57 Ark. 402.
   Smith, J.

Appellant was employed as a traveling salesman by appellee, Williams-Echols Dry Goods Company, under a written contract covering the year beginning October 15, 1920, and ending October 15, 1921. This contract reads as follows: “This agreement entered into this 15th day of October, 1920, at Fort Smith, Arkansas, by the Williams-Echols Dry Goods Company, of Fort Smith, Arkansas, and O. A. Alexander, of Fort Smith, Arkansas, as follows: For the compensation of 3 per cent, commission on the total amount of goods sold by 0. A. Alexander, as traveling representative for the Williams-Echols Dry Goods Company and shipped by said company, 0. A. Alexander does hereby agree to give his undivided service to said company for a period of one year, beginning October 15, 1920', and ending October 15, 1921. It is further agreed that this 3 per cent, commission shall not be paid by the WilliamsEchols Dry Goods Company on goods they ship other than those shipped from the stocks of said company. It is also agreed that the amount of all goods returned to the Williams-Echols Dry Goods Company having been sold by 0. A. Alexander shall be deducted from the sales of 0. A. Alexander as they are returned, and no commission shall be allowed thereon. It is also agreed that goods sold by 0. A. Alexander, such as samples and defective merchandise, shall not be included in sales on which a commission shall be paid. The Williams-Echols Dry Goods Company agrees to pay all traveling expenses of 0. A. Alexander in performance of his duties as their traveling representative, and agree to pay 0. A. Alexander $300 per month for twelve months beginning October 15, 1920. The total of these payments shall constitute a part payment óf the 3 per cent, commission to be paid on the total amount of sales made by 0. A. Alexander as above described, and shall be deducted from the total amount of commissions earned when full settlement of commissions shall be made on October 15, 1921. Any sum paid to 0. A. Alexander during the above stated twelve months in excess of commissions actually earned shall be returned by him to the Williams-Echols Dry Goods 'Company.

“Williams-Echols Drv Goods Company,
“J. B. Williams, president.
“0. A. Alexander.”

Prior to the execution of this contract, appellant had been employed by appellee under a verbal contract for a guaranteed salary and a contingent commission. At the expiration of the year covered by the written contract the parties thereto differed as to the sum which appellant had earned under it, the difference arising chiefly out of the different interpretations placed upon the written contract, and for that reason we have copied it at length.

It was contended by the company that appellant had sold during the year goods amounting to $73,844.95, and that his commissions thereon amounted to $2,215.35, and no more, and, as the company had paid appellant during the year covered by the contract, $300 each month, it claimed to' have overpaid appellant the difference, amounting to $1,384.65, on which there was a credit for services rendered after the expiration of the contract, leaving the net amount due it of $1,224.65, and this suit was brought to recover that sum.-

Appellant answered and denied owing the company anything. He alleged in his answer that he had been employed as a salesman, and that it was his duty, under the contract, to devote his entire time to the sale of goods, but the company wrongfully required him to devote a large part of his time to making collections, thus interfering with sales which he would • otherwise have made and on which he would have earned commissions, and that the company breached the contract by failing to carry a full line of goods such as he had been employed to sell.

Hiere was a trial upon these issues, and a verdict and judgment in favor of the company, from which is this appeal.

Appellant contends that the contract is an unambiguous instrument, and should have been construed by the court, and that a proper construction of the instrument is that he was required only to sell goods, and that any other duty imposed upon him was in violation of the contract, and that he was entitled to compensation for such services, and was entitled also to the commission which he would otherwise have earned, including the amount which he failed to earn because of the company’s failure to carry a proper-line of goods.

The court took the view that the contract did not define the duties of a traveling representative, and permitted testimony to be introduced showing what these duties were. This testimony was to the effect that it had long been the custom for traveling representatives to make collections in the territory .covered by them, and it was shown also that appellant had previously made these collections. This last testimony was objected to specifically upon the ground that appellant had been previously employed under a different contract, and that, whatever the custom may have been, it could not control the express terms of the written contract.

We think no error was committed in the admission of this testimony. The contract does not expressly define appellant’s duties. It does employ him for one year as the company’s traveling representative, and did require him to give his undivided services to the company for the'period of one year, and it required the company to pay all expenses incurred by appellant in the discharge of his duties. It will be observed that the commission was not to be paid upon all orders taken by appellant, but only on those orders which were filled by shipping the goods, and it is therefore obvious that it was to the interest of both parties that the bills should be paid, thus insuring, so far as the appellant was concerned, the . filling of future orders. The testimony also shows that appellant was only required to collect in the territory which he covered as a salesman and from the customers to whom he sold, and that he was given credit for all goods sold in his territory, whether the orders were received by the company through him directly or not.

Inasmuch as the contract did not specify what appellant’s duties as traveling representative were, it was not improper to prove the general custom in relation thereto as a means of interpreting the terms of the contract, and the court did not err in submitting to the jury the questions of fact relating thereto.

In the case, of Robinson v. United States, 13 Wall. 363, 20 L. ed. 653, it was said by the Supreme Court of the United States that: “If a person of a particular occupation, in a certain place, makes an agree: ment by virtue of which something is to be done in that' place, and this is uniformly done in a certain way, by persons of the same occupation, in the same place, it is but reasonable to assume that the parties contracting about it, and specifying no manner of doing it different from the ordinary one, meant that the ordinary one and no other should be followed. Parties who contract on a subject-matter concerning which known usages prevail, by implication incorporate them into their agreements, if nothing is said to the contrary.” Numerous other cases are cited in the brief of counsel for appellee, including our own cases of Walsh v. Frank, 19 Ark. 270: McCarthy v. McArthur, 69 Ark. 313; Meyer v. Stone, 46 Ark. 210.

The question of the failure of the company to carry a proper line of goods was submitted, under instructions prepared and offered by appellant, and the jury was also told to find the value of appellant’s services in'making collections, if he was not required by the custom to make these collections as a part of his duties as the company’s traveling representative.

The court submitted these issues under instructions prepared and offered by appellant, but appellant says these instructions were in conflict with instruction numbered 1, given at the request of the company; and, as we have said, appellant also insists that the questions should not have been submitted to the jury at all.

Appellant asked a number of other instructions, which the court refused to give. These we have carefully considered, and have concluded that they either do not correctly declare the law applicable to the issues joined, or were fully covered by other instructions which correctly stated the'law applicable to the relevant issues.

The instruction numbered 1, to which we have just referred, reads as follows: “1. The court instructs the jury that, under the terms of the contract between Williams-Echols Dry Goods Company and O. A. Alexander, the said 0. A. Alexander was to draw three hundred dollars per month for 12 months, but said contract further provided that, if 3 per cent, commission on the total amount of goods sold by said Alexander and shipped by the company from its own stock, exclusive of samples, defective merchandise and returned goods, amounted to less than $3,600, then the said Alexander agreed to pay back the deficiency to Williams-Echols Dry Goods Company. So, if you find from a preponderance of the evidence that Williams-Echols Dry Goods Company complied with said contract, and that 3 per cent, of the total amount of goods sold by Alexander and shipped, after deducting the exceptions mentioned above, amounted to less than $3,600, then Williams-Echols Dry Goods Company is entitled to recover the difference between such amount and $3,600.”

It is now urged that this instruction leaves out of account the defenses interposed by appellant, and which were covered by the other instructions given by the court. But no specific objection to that effect was made, and we are of the opinion that this objection to the instruction, if it was thought defective in the respect stated, should have been specifically pointed out. The instruction does not undertake to tell the jury what appellant’s duties were — other instructions directed the jury to determine that fact; but it does tell the jury that, if the company complied with the contract, that is, imposed no duties not required by the contract, and kept a proper stock of goods — a question which was, as we have said, also covered by other instructions — the com-pan}^ was entitled to recover the excess, if any, paid to appellant over the commissions earned by him. In the absence of the specific ‘objections indicated, we think no error was committed in giving instruction numbered 1.

Objection was made to the testimony of J. E. Freeze, the bookkeeper for the company. This witness produced a number of statements which he had taken from the books of the company, showing sales made and goods shipped to and goods returned by customers. The objection to this testimony was that Freeze had no personal knowledge of the items embraced in the statement which he had copied from the books. We think no error was committed in the admission of this testimony. Freeze testified that he made the entries in the books from which the statements were made, and that the entries were made by him in the usual course of business, and that he knew at the time he made the entries on the books that they were 'correct, having been made as the orders were received and the goods shipped out and as goods were returned, and that he had previously made copies for appellant, and which were delivered to and received by him without objection, and that these statements were identical with the monthly statements which he had furnished each month to appellant, and, further, that appellant had personally, from week to week, checked up his commissions with the books and had made no objection to the accuracy of the books. Bush v. Taylor, 136 Ark. 554.

When the complaint was filed by the company, garnishment was issued and served on C. A. Goodwin, who answered and admitted that he owed appellant $485.15. On the same day appellant sued Goodwin for this amount. The two cases were consolidated, and, by direction of the court, the jury returned a verdict in favor of the appellant against Goodwin, but there was no direction to include the accumulated interest. It appears, however, that no objection was made to this failure, and that that error was not assigned in the motion for a new trial.

No error appearing, the judgment is affirmed.


author: Humphreys, J.

text:
    Bell v. Fritts.
    Opinion delivered December 10, 1923.
    1. Fraud — fraudulent representations — value of stock. — False statements made of material facts relating to the property or condition of a corporation, which necessarily affect the value of its stock, are not mere expressions of opinion upon which a purchaser of such stock has no right to rely, but constitute fraud if thereby one is induced to buy such stock.
    2. Fraud — scienter.—In an action for damages for fraudulent representation in the sale of bank stock, it was not necessary to show that misrepresentations were knowingly made; it is enough for plaintiff to show that defendant asserted them to be true of his personal knowledge, that he made them with intent to have plaintiff act upon them to his injury, and that they had that effect.
    3. Fraud — evidence.'—In an action for damages for fraudulent representation, evidence held to sustain a finding against defendant.
    4. Fraud — 'Evidence of knowledge. — In an action against a bank president for damages for fraudulent representations in the sale of bank stock admission of testimony that, prior to the sale, the bank had allowed another bank to protest two checks of a depositor, who had funds on deposit to pay same, and that this irregularity was called to defendant’s attention at the time, held admissible as tending to prove that defendant knew that something was wrong with the management of the bank.
    5. Fraud — evidence of knowledge. — In an action against a bank president for damages arising from his fraudulent representations in the sale of bank stock, testimony that, after the failure of. the hank, defendant told a witness that he had tried to keep matters quiet so that they could arrange the affairs of the bank so that everything would be all right, held admissible as tending to show that defendant knew the condition of the bank at the time he sold the stock to plaintiff.
    Appeal from Madison Circuit Court; W. A. Dickson, Judge;
    affirmed.

      Combs & Combs and Sullins & Ivie, for appellant.
    Before representations will be considered fraudulent in law, so as to give a right of action, they must be made relative to a matter susceptible of accurate knowledge, must be a statement importing knowledge on the part of the persons making them. 95 Ark. 375; 99 Ark. 438; 97 Ark. 268. Appellee, having been a director of the bank for four years, is chargeable with knowledge of conditions and the value of the stock,, and thereby waived his right of action herein. 180 S. ¡W. 754. No one can be held liable for a false representation who honestly believed it when made, however false it may be, but he is liable if he knew it to be false, or, knowing nothing about it, asserted it to be true. 97 Ark. 15. Appellant honestly believed that he had made a correct statement of the value of the stock, as only a short time before he had paid nearly as much for $1,500 of the stock. His statement therefore was a mere expression of opinion, and not actionable. 82 S. W. 433.

      .John Mayes and E. L. Pearson, for appellee.
    Appellant hád information that there was something wrong with the bank. He asserted the value of the stock, and that the bank was in good condition, representations upon which appellee relied to his injury, mid he is therefore entitled to recover. 101 Ark. 95; 95 Ark. 375. The representations were made with the intent to have appellee act upon them. 99 Ark. 438. The representation was fraudulent, whether he knew the statement to be untrue or not. 152 Ark. 135. Where the seller has peculiar means of knowing the truth of his assertions, the buyer may rely upon them. 99 Ark. 438; 12 R. C. L., p.,337.
   Humphreys, J.

This is an appeal from a judgment in the sum of $250 rendered against appellant in favor of appellee, in the circuit court of Madison County, in a suit between them wherein appellee claimed damages in the sum of $1,160 on account of an alleged fraudulent sale of $400 of stock in the Bank of Richland to him by appellant. He alleged he was induced to buy and pay $1,160 for the stock, upon false and fraudulent representations made by appellant, to the effect that the value of the stock was $1.90 on the dollar, or ninety cents above par; that the stock earned a dividend of 36 per cent, on the dollar during the year 1919; that it would earn a dividend of 40 per cent, during 1920; and that said hank was in good condition.

Appellant filed an answer denying the allegations of false and fraudulent representations.

The cause was submitted, and, at the close of appel-? lee’s testimony, appellant moved for an instructed verdict in his favor, which was refused by the court. The refusal of the court to peremptorily instruct the jury as requested is urged as reversible error. In other words, it is contended that, under the law applicable in the case, the proof is insufficient to support the verdict and judgment.

The general rules of law applicable in cases of' this character were well expressed by Mr. Justice Fraubnthal in the case of Hunt v. Davis, 98 Ark. 44, in the following words:

“If a representation is made by the seller which he knows to be false, it will constitute fraud, but a representation will also be fraudulent, even if he had no knowledge whatever, if it is made of a matter as truth of personal knowledge. Cooper v. Schlesinger, 111 U. S. 148; Kountze v. Kennedy, 147 N. Y. 124; Cole v. Cassidy, 138 Mass. 437.
“While, ordinarily, statements of the value of property are mere expressions of opinion upon which a purchaser is not entitled to rely, yet statements of fact which affect the value of the property, if false and made for the purpose of inducing the purchaser to rely thereon, are false representations, which will constitute fraud in law. False statements made of material facts relative to the property or condition of a corporation which necessarily affect the value of the stock of such corporation are not mere expressions of-opinion upon which a purchaser of such stock has no right to rely, but they are representations which will constitute fraud if by means of such misrepresentations the purchaser has been induced to buy suela stock. Clark & Marshall, Private Gorp. § 616b; 20 Cyc. 60.”

Appellant seeks to avoid the application of these principles of law in the instant case, for the alleged reason that the representations were' mere expressions of opinion, made in good faith.

Relative to the question of good faith there is testimony in the record from which the jury might have reasonably inferred that, at the time of the sale of the stock by appellant to appellee, he knew the bank was not in good condition and that it had not really earned a dividend of 36 per cent, during the year of 1919, viz.: the persistence with which appellant pressed the sale, the fact that he was a director and president of the bank, the short time after the sale of the stock until the failure of the bank, the extent of the insolvency of the bank when it did fail, and the irregularities in the conduct of the business.

Bearing upon the question of appellant’s good faith, appellee testified that he admitted to him, after the failure, that his son, Alfred Bell, who had' worked in the bank during the years 1917 and 1918, told him that something was wrong with the bank, and advised him to get out. However, under the rules of law announced above, it was not -necessary for appellee, in order to prevail in his case, to show that the misrepresentations were knowingly made. It was enough for him to show that appellant asserted the misrepresentations to be true of his personal knowledge; that he made them with intent to have appellee act upon them to his injury, and that they had that effect.

On the 10th day of February, 1921, when appellant sold appellee the stock, he was a director and president of the bank, or had been for several years. Appellee had owned one hundred dollars of the stock for about four years, but had never been a director or officer in the bank. Appellant’s son, Alfred Bell, who was a stockholder, worked as bookkeeper for the bank for about ■six months during the years 1917 and 1918, and after that, a day or so at a time, whenever the cashier was away. The bank was .small. Its capital stock was $10,000, and only $6,200 of the stock had been subscribed. The cashier wrecked the bank by withdrawing the funds in excess of the subscribed capital stock for the purpose of speculation. These withdrawals were for considerable sums, at intervals covering a part of a year or more prior to the failure. The bank failed, and was taken over by the Bank Commissioner of Arkansas on April 27, 1920, a little over two months after the sale of the stock by appellant to appellee. After assessing 100 per cent, against the stockholders, only enough was realized out of the assets to pay the creditors seventy cents on the dollar.

With reference to the sale and purchase of the stock, appellee testified, in substance, that appellant tried to sell him the stock on six or seven occasions; that on or about the 10th day of February, 1920, he stopped at appellant’s home and found him in conversation with Henry Ware; that he sent his little boy in the house for a certificate of deposit of $20 representing a part of the 36 per cent, dividend which had been declared on the $100 certificate of stock owned by him (appellee); that he handed him the deposit slip and remarked, “You see what the stock earned last year;” that the dividends declared in prior years had all been placed in the stockholder’s surplus; that on prior occasions, when trying to sell him stock, appellant had said to him that the bank would have to have a vice-president; that he then proposed to sell him, appellee, $400 and Henry Ware $500 of stock owned by him, at $1.90, stating that it was worth $1.95 on the dollar; that it had earned 36 per cent, during the year 1919 and would earn 40 per cent, during the year 1920; that the only reason it did not earn 40 per cent, during the year 1919 was because they had declared a dividend before all the interest due the bank had been collected; that the bank was in good condition; that the hank was insured against everything that a bank could be insured against; and that Earl Hill, the cashier, was under bond for good behavior; that if they - bought the stock the bank would elect him (appellee) a director and Harry Ware vice-president; that he would stand behind the stock for a year if they would agree to give him all over 8 per cent, the stock earned; that, in reliance upon appellant’s statement that the bank was in good condition and that the stock was gilt-edge and of the value of $1.90 on the dollar, he paid appellant $760 for a $400 certificate of stock, and, when the bank failed, was required to pay the 100 per cent, assessment thereon, or an additional $400 to the Bank Commissioner, making a total of $1,160 he. was out on the purchase of the stock. The testimony given by appellant was corroborated in the main by that of Harry Ware, and by a number of circumstances in the case.

The testimony introduced by appellant contradicted that introduced by appellee at the salient points, but it is unnecessary to detail the substance thereof, as the question to be determined by this court on appeal is whether there was any substantial evidence of a legal nature to support the verdict. The testimony, set out in substance above, which was introduced by appellee, is ample to support the verdict and judgment upon the theory that,- to entitle appellee to recover, it was only necessary for him to show that appellant misrepresented the financial condition of the bank and value of the stock to him, with intent to induce him to purchase same to his injury, and that it had that effect, even though ignorant of the condition of the bank and the value of the stock at the time he made the representation. The issue as to whether appellant misrepresented the condition of the bank and the value of the stock with such intent, was submitted to the jury under correct declarations of law.

Appellant makes the further contention that the court erred in giving instructions Nos. 6 and 7, upon the ground that they were abstract. Proof was introdueed tending to show the solvency or insolvency of the bank on the day the stock was sold, and so instruction No. 6 was not abstract, as it related to that issue in the case. Proof was also introduced pro and con as to whether appellant had knowledge of the bank’s insolvency at the time of the alleged sale, gained from other sources than the bank’s records, and, as instruction No. 7 related to that feature of the case, it was not abstract.

Appellant’s next insistence for a reversal of the judgment is that the court erred in admitting the testimony of Joe G-oolsby, to the effect that, prior to the sale of the stock, the Bank of Richland had allowed, the St. Louis clearing-house to protest two of his cheeks when he had money on deposit in said bank with which to pay the checks. This irregularity in the conduct of the business by the cashier was called to the attention of appellant at the time, and we think it admissible as a circumstance tending to show that he knew something was wrong with the manag’ement of the bank.

Appellant’s next and last insistence for a reversal of the judgment is that the court erred in admitting the testimony of Oreen McCoy, to the effect that, after the failure of the bank, Mr. Bell told him that he had tried to keep Mr. Hall quiet so that they could arrange the affairs of the bank so that everything would be all right. We think this testimony is also admissible as a circumstance tending to show appellant’s knowledge of conditions that existed in the bank at the time he disposed of the stock in question.

No error appearing, the judgment is affirmed.


text:
    Emerson v. E. A. Strout Farm Agency.
    Opinion delivered December 10, 1923.
    1. Brokers — right to commission on exchange of lands. — Though a broker’s contract stipulates that a money consideration shall be paid before the commission should be earned, a provision in the contract that, if a customer is produced by the agent at a price and upon terms acceptable to the owner, a commission will be paid, is broad enough to embrace an exchange of land, if acceptable to the owner.
    2. Brokers — purchaser able and willing to buy. — Under a contract contemplating a complete sale or exchange of defendant’s lands before plaintiff’s brokerage commission should be earned, it was only necessary for the plaintiff to produce a purchaser able and willing to comply with the contract and purchase, and, after the production of such a purchaser, the defendant could not refuse to sell, and thereby escape payment of the plaintiff’s commission.
    3. Brokers — commission—evidence.—-In an action by a broker to recover his commission for effecting an exchange of lands, evidence held to support a verdict for plaintiff.
    4. Appeal and error — conclusiveness of verdict. — Where the testimony is in substantial conflict upon an issue which was submitted to the jury with correct instructions, the verdict is conclusive.
    Appeal from Baxter Circuit Court; W-alter L. Pope, Juge;
    affirmed.

      Horton & George, for appellant.
    The court erred in not directing a verdict for the defendant. 71 Ark. 447 ;’57 Ark. 461. There was no evidence to warrant the verdict of the jury. 84 Ark. 462; 97 Ark. 23; 55 Ark. 574. The. contract did1 not contemplate the furnishing of a customer for the sale or exchange of Emerson’s land, but, if it did so, then Emerson produced his own customer, and the plaintiff earned no commission. 124 Ark. 512; 132 Ark. 24; 132 Ark. 396; 137 Ark. 23.

      Sam Williams, for appellees.
    There was no error in refusing to direct a verdict for the defendant. The court did not erf in allowing the contract between defendant and Boone to be introduced in evidence. 87 Ark. 506; 89 Ark. 289. Plaintiffs were entitled to their commission when they produced1 a purchaser acceptable to the landowner. 87 Ark. 506; 89 Ark. 195; 89 Ark. 289; 124 Ark. 512.
   Humphreys, J.

Appellees brought suit against appellant in the circuit court of Baxter County to recover a commission of $300 alleged to have been earned under a written contract for the sale of 160 acres of land in said county, owned by appellant. The contract was made an exhibit to the complaint, and in part is as follows:

“I employ you to sell the same for $2,500, and authorize you (or your agents) to make, in my name, a binding contract for the sale of same, in accordance with the terms as herein stated, and to accept and give a receipt for any money received in connection with said contract of sale.
“If a customer is produced through you or your ag’ents, on terms as herein stated, or at a price and upon terms acceptable to me, I will pay you forthwith a commission of $300 of the selling price.
“I reserve the right to sell said property by my own efforts, or through agencies other than yours, and, if sold, no commission or other charge will he due to you, but if sold to a customer produced through or by your agents, at a price and on terms acceptable to me, I will pay you your commission as provided -for above.”

Appellant filed an answer denying that appellees had earned any commission under the contract.

The cause was submitted upon the pleadings, evidence, and instructions of the court, which resulted in a verdict and consequent judgment for the sum claimed, from which is this appeal.

The record reflects the following undisputed facts: The contract listing the land for sale, and which contained the provision set out above, was entered into by appellant and appellees on the first day of December, 1920. Appellees placed an advertisement of. farms for sale in the Baxter County Bulletin, which was read by P. A. Boone of ICirksville, Missouri. As a result, on October 2,1921, Boone wrote appellees as follows:

“I see your ad in the Baxter Bulletin of farms for sale. Please send me your list of farms for sale, also prices of same, as I want to come down in that part of the country and get me a lióme. I want about 80 acres, mostly bottom land, with some timber. I would rather have land that doesn’t overflow. I may not get down till November, but I am coming, so please send me your list, and oblige.”

On October 6, 1921, appellees answered the above letter as follows: £<I am in receipt of your letter, and note that you are interested in Baxter County, and that you want list of farms on my list. I have some excellent bargains, and am sending you my folder with printed description of a number of farms on my list. Bead the folder carefully and you will get a fair idea of Baxter County and what is doing here. By reading the printed description you should find something that will appeal to you. I shall await your early reply with interest, and, when you are .ready to visit Cotter, be sure and let me know what day you will be here, so that I can meet you at the station and care for you.”

In January, 1922, Boone came to Cotter, went to the office of appellees, called attention to the correspondence, and requested them to show him some of the lands they had for sale in Baxter County. After viewing several farms, Boone informed them that he wanted to trade his Montana lands for Baxter County lands. Abner Deatherage, one of the appellees, showed Mm a description of the 160-acre farm which appellant had listed with them for sale. They drove out to the farm, and were shown over it by appellant. A written executory contract for an exchange of the farm for Montana lands was agreed upon between appellant and Boone, the same being reduced to writing and witnessed by Jack Ilornbuckle, who was present at the time. On February 10, 1922, the appellees wrote appellant inclosing a deed to the farm for appellant and his wife to execute. It was stated in the letter that Boone’s deed for the Montana lands would be ready by the time,the inclosed deed was executed and returned. On February 28 following they again wrote- appellant, stating that Boone’s papers were ready, and asked him to execute and mail them the deed for his farm so that the transaction might be closed. It does not appear that appellant ever answered this letter.

In addition to the undisputed evidence disclosed by the record, Abner Deatkerage testified that Boone sent appellees the deed and abstract for the Montana lands, and afterwards, at the request of Boone, the deed and abstract were returned to him. Appellant testified that, a few days prior to the date on which he and Boone entered into the contract for the exchange of lands, he met him on a passenger train in Missouri, at which time they got on a trade of their farms; that Boone promised to come to his place on the 28th of January, 1922, for the purpose of -continuing negotiations, but, instead, he came on the 27th day of said month, in company with Deatherage; that in a short time they entered into a written contract for the exchange of their lands; that Boone asked him if he wanted to go ahead and close the deal which had been proposed when they met on tie train in Missouri; that he signified a willingness to do so, and the written contract for the exchange of the lands was entered into in continuation of the'negotiations begun in Missouri; that the -contract of exchange was not made with Boone as a -customer produced by appellees under the commission contract of date December 1, 1920.

Appellant contends for a reversal of the judgment upon the ground that, under the law and according to the undisputed evidence, appellees were not entitled to a verdict.

His first insistence is that the commission contract contemplated a sale, and not an exchange of the land owned, and listed by him with appellees. It is true that the contract provided for a money consideration of $2,500 for the land, which appellant might have exacted before appellees could have earned the commission, but it also contained a provision broad enough to embrace the exchange of the land, if acceptable to appellant. The provision referred to is as follows:

“If the customer is produced through you or your ag’ent, on terms herein stated, or at a price and upon terms acceptable to me, I will pay you forthwith a commission of $300 of the selling price.”

His next insistence is that, even if responsible for a commission in the event of a sale or exchange of the lands acceptable to him, appellees were not entitled to a recovery because a completed sale or exchange was not effected. The import of the contract was to the effect that there should be a completed sale or exchange of the lands in order for appellees to earn their commission, but, even so, under the law it was only necessary for the agent to produce a purchaser ready, able, and willing to comply with the contract of sale and purchase. After the production of such a purchaser by the broker, the owner could not refuse to sell and thereby escape the payment of the commission. The testimony in the instant case showed that appellant failed to execute a deed for his land to Boone after Boone’s papers were all ready to complete the exchange. The exchange was defeated through appellant’s own fault.

Appellant’s next and last insistence is that the purchaser or exchanger, Boone, was not produced by appellees, but, on the contrary, was secured through his own effort. The testimony was in conflict upon this issue. The disputed question of fact was submitted to the jury under correct declarations of law. The verdict is supported by substantial evidence of a legal nature, and is conclusive upon appellant.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Williams v. State.
    Opinion delivered December 17, 1923.
    1. Intoxicating liquors — indictment for making mash. — An indictment which charges that defendant unlawfully and feloniously made mash fit for distillation is defective in failing to state that the mash was fit for distillation of beer, wine, distilled spirits or other intoxicating spirits.
    2. Indictment and information — statutory offense. — It is generally sufficient to charge a statutory offense in the language of the statute.
    Appeal from Columbia. Circuit Court; L. 8. Britt, Judge;
    reversed.

      Henry Stevens, for appellant.

      J. S. Utley, Attorney General, John L. Garter, Won. T. Hammock and Darden Moose, Assistants, for appellee.
   McCulloch, C. J.

The indictment under which appellant was tried and convicted reads as follows (omitting the caption and formal part) :

“The said defendant, on the 13th day of February, 1922, in Columbia County, Arkansas, did unlawfully and feloniously make mash fit for distillation, said defendant not being such a person as is authorized under the laws of the United States to manufacture sweet cider, vinegar or other non-alcoholic beverages, or spirits other than beverage purposes.”

The indictment was an attempt to charge an offense under the first section of act No. 324 of the General Assembly of the year 1921 (General Acts 1921, p. 372), which reads as follows:

“No mash, wort or wash fit for distillation or for the manufacture of beer, wine, distilled spirits or other alcoholic liquor shall be made or fermented by any person other than a person duly authorized under the laws of the United States to manufacture sweet cider, vinegar, non-alcoholic beverages, or spirits for other than beverage purposes.”

There was a demurrer to the indictment, which the court overruled, and this ruling is the basis of the first and principal assignment of error.

We are of the opinion that the indictment fails to charge a public offense, in that it does not contain an allegation that the mash was “for distillation or for the manufacture of beer, wine, distilled spirits, or other .alcoholic liquor.” It is not unlawful, under the statute, to prepare mash for distillation, except for “beer, wine, distilled spirits, or other alcoholic liquor, ’ ’ and the use of the word “distillation” does not imply that it was for the purpose of producing any of the liquors named in the statute. There may be a distillation of non-alcoholic liquors, even the distillation of pure water. ■ The word “distillation” merely described the process of evaporation and condensation, or liquefaction of any substance which may be subjected to that process. Hotchkiss v. State, 156 Ark. 340. The lexicographers define the evaporation of water, its condensation into clouds and its precipitation as rain, dew, or frost, as a natural process of distillation. Surely the mere charge of distillation, without further explanatory words, is not sufficient to imply the preparation for the production of alcoholic liquor.

We decided in Logan v. State, 150. Ark. 486, that, under the statute, the intent to use mash, wort, or wash for the purpose of distillation or manufacture of the liquors mentioned was an essential element of the offense, but we did not decide that it was necessary to charge the intent other than in the language of the statute. We do not deem it necessary to decide, in the present case, whether it is necessary to specifically charge the intent in the indictment. It is generally sufficient to charge a statutory offense in the language of the statute itself, but we do hold that the.mere use of the word “distillation” is not sufficient to charge an offense without alleging that the mash is fit for the distillation of the kind of liquors mentioned in the statute. Other assignments need not be discussed.

The demurrer to the indictment should have been sustained, and the judgment is therefore reversed, .and the cause is remanded for further proceedings in accordance with this opinion.


text:
    McKnight v. Mitchell.
    Opinion delivered December 17, 1923.
    1. Highways — assessments.—Under Sp. Acts 1923, p. 218, § 15, . creating the Central District of Woodruff County, and providing that, in matters not otherwise provided for therein, such county shall he an entire county, the levy of assessments on lands in such district is not void because made by the county court in the Northern District, as provided by Act No. 183 of the extraordinary session of 1920, creating Road District No. 16, some of the lands of which were included in the Central District, subsequently created.
    2. Highways — approval of plans by county court. — Act of extraordinary session of 1920, No. 183, creating Road District No. 16 of Woodruff County, which requites that the plans and specifications be filed with the county clerk, does not require that they be approved by the county court, nor does the absence of such requirement invalidate the statute.
    Apneal from 'Woodruff Chancery Court, Northern District; A. L. Hutchins, Chancellor;
    affirmed.

      W. J. Dungan, for appellant.
    The levy of tax is void, because the county court had not approved the plans and specifications. 145 Ark. 279. There had been no levy of taxes on lands in the Central District, which are in District No.- 16. Mitchell v. Jimmerson, 160 Ark. 248.

      Roy D. Campbell, Harry M. Woods, J. F. Summers and Coleman, Robinson & House, for appellee.
    The approval of the plans by the county court was not necessary. 142 Ark. 52; 143 Ark. 270. The language of .the decision in 145 Ark. 279, relied upon by appellant, is dictum. There is no set form of approval by the comity court; the levying of the taxes would in itself show approval. 73 Ark. 342; 76 Ark. 146. Where a limited jurisdiction is conferred by statute, the construction ought to be strict as to the extent of jurisdiction, but liberal .as to the mode of proceeding. Lewis’ Stat. Con., vol. 2, p. 1249; 54 Ark. 178. The statute did not expressly require approval, and to now do so would cause the court to arbitrarily supply words to the act. See 106 Ark. 522. The case relied upon by appellant, Mitchell v. Jimmerson, set at rest his contention that there was no levy of taxes in the Central District. It is not necessary that they be levied in that disirict, but only collected there. The road1 district was not destroyed by the creation of a new judicial district.
   McCulloch, C. J.

This case is very closely akin to the recent case of Mitchell v. Jimmerson, 160 Ark. 248, involving road districts created by special statutes identical in terms, except as to the territory and the roads to be improved. The district involved in the present controversy is Road District No. 16 of Woodruff County, which was created by act No. 183 of the General Assemblv at the extra session of 1920. The statute is, as before stated, identical in terms with act No. 209 of the same session, under which Road District No. 15 of Woodruff County was created, and which was involved in the case of Mitchell v. Jimmerson, supra. The territory of both of the districts at the time of creation was situated within the Northern District of Woodruff County, and, since that time, the General Assembly, at the regular session of 1923, enacted a statute creating the Central District of Woodruff County (Special Acts of 1923, p. 210), and some of the territory in each of these two road districts is now situated within the boundaries of the Central District of Woodruff County.

The contention in the present case, as it was in the case of Mitchell v. Jimmerson, supra, is that the necessary effect of tiie statute creating the Central District of Woodruff County is to abolish the road districts on account of the fact that a part of the territory was taken into the new court district without any provision for levying and collecting taxes. In the former case it was held that such was not the effect of the statute merely because of the provision of § 19, requiring that separate taxbooks shall be made out in each court district, .and that the assessed benefits on lands in each district shall be extended on the taxbooks of the district in which the lands are located. The contention in the present case is that the levy of assessments on lands in Central District of Woodruff County is void because it was made by the county court sitting at Augusta, in the Northern District, and not by the court sitting at McCrory, in the Central District. This contention is unsound, for there is no requirement in either of the statutes — the one creating the road district or the later one creating the new court district — that the taxes on the lands in the new court district must be levied by the court sitting in that district. On the contrary, the statute creating the road district provides for the county court of the Northern District of Woodruff County levying the assessments. Hill v. Echols, 140 Ark. 474. The act creating the Central District of Woodruff County, as we have already said, contains no requirement for the levying of taxes of any kind by the court sitting in that district, and §15 of that statute provides that “in all matters not otherwise provided for by the provisions of this act, the county of Woodruff shall be one entire county.” This provision excludes from the terms of the act everything not included in it, and the levying of the taxes is not included.

Counsel for appellant rely on the decision in Mitchell v. Jimmerson, supra, holding that the taxes on lands in Central District must be levied by the county court sitting in that district, but such is not the effect of that decision. All that we held there was that the provision with reference to the extension of taxes on lands in the new district included improvement taxes, and that the lands might thus be included-without impairing the original statute creating the district.

We hold therefore that appellant’s attack on the assessment is not sustained.

The next contention is that the district should be enjoined from further proceedings because the county court of Woodruff County has not approved the plans and specifications adopted and filed with the county clerk by. the commissioners. The statute creating the district does not contain any requirement that the plans and specifications must he approved by the county court, and we have decided that such requirement in the statute is not essential to its validity. Easley v. Patterson, 142 Ark. 52; Gibson v. Spikes, 143 Ark. 270. There is, however, a provision in the statute creating this district which requires the commissioners to file the plans and specifications with the. county clerk, and it is insisted that this requirement implies that the county court must approve all plans and specifications before they can be acted upon. Counsel rely upon certain language found in the decision of this court in the case of Commissioners v. Quapaw Club, 145 Ark. 279. We were then dealing with a different question, namely, whether or not the statute under consideration in that case made it compulsory upon the county court to accept and maintain a bridge built through the agency of the district, and we said that the provisions for the plans and specifications to be filed with the county court implied authority on the part of the county court to pass upon these plans. We were then dealing with the Question of consent on the part of the county court, or the opportunity for the court to consent, before having the bridge and its maintenance imposed upon the county.' The question now presented is of a different character or nature, and we conclude that the mere reauirement for the filing of the plans and specifications with the county clerk does not impfy that it -is essential for the county court to make an order approving the plans before work can be begun under those plans. The requirement for the filing of the plans with the county clerk is for another purpose, that is, to afford.' landowners and others interested an opportunity to inspect the plans. But, since the approval of the county court is not essential as the exercise of a part of its constitutional jurisdiction, the statute need not contain any such requirement, and such a requirement will not he implied merely because there is a provision for filing the plans with the clerk.

This disposes of the last of the appellant’s contentions, and, as we find no error committed by the court in sustaining the demurrer to the complaint, the decree must be affirmed, and it is so ordered.