text:
    Arkansas Zinc & Smelting Corporation v. Silver Hollow Mining Company.
    Opinion delivered May 9, 1921.
    1. Accord and satisfaction — acceptance of check in full settlement. — Where a claim is in dispute, and the debtor sends to the creditor a check or other remittance which he clearly states is a full payment of the claim, and the creditor accepts the remittance or collects the amount of the check, without objection, this constitutes a good accord and satisfaction.
    2. Accord and satisfaction — evidence. — Letters exchanged between the parties relative to a change in the computation of the purchase price of the ore, which change was never consummated, do not establish that the acceptance of checks purporting to he in full settlement of claims was merely a tentative settlement pending final agreement.,

      Appeal from Marion Chancery Court; B. F. McMa-han, Chancellor;
    reversed.

      Daily & Woods and J. II. Blade, for appellant.
    According to the character of the ore shipped, the schedule of prices provided in sections 9 and 10 of the contract governed, and the payments made on each shipment were calculated on the correct basis, and there was an accord and satisfaction. The checks sent in payment were received and cashed.
    Where there is any ambiguity in the contract, then the parties are bound by the construction which they themselves have placed upon it. 134 Ark. 542; 104 Id. 474; 98 Id. 425; 95 Id. 454; 46 Id. 131; 55 Id. 417; 52 Id. 73; 88 Id. 363.
    Plaintiff received settlement sheets and received and cashed the cheeks in settlement, and this constituted an accord and settlement, and there was nothing due appel-lee, and the cause should be reversed and dismissed, as there was accord and satisfaction. 1 C. J., pp. 563-4, § 87: 94 Ark. 158; 98 Id. 269; 100 Id. 251.

      J. G. Floyd and Willia/ms & Sea/well, for appellee.
    If the contract is ambiguous and susceptible of more than one construction, it is the duty of the court to place that construction on it most favorable to appellee, as appellant prepared the contract. 74 Ark. 41; 84 Id. 431; 105 Id. 518; 112 Id. 1; 174 S. W. 136. Under these authorities the court properly construed the contract and held that appellee was entitled to settlement under the schedule in paragraph 14. Appellee is not estopped, and the contention is without merit. Prom the letters it appears there was no compromise or accord. 99 Ark. 260; 91 Id. 141. The evidence sustains the finding of the chancellor on every question involved, and should not be disturbed. 96 Ark. 434; 95 Id. 523.
   Humphreys, J.

Appellee instituted suit against appellant in the Marion Chancery Court to recover $2,-999.99 for an alleged balance due it on account of shipments .of zinc silicates and zinc sulphides under contract entered into between appellant and appellee on the 21st day of June, 1916. It was alleged that the payments made upon each shipment were erroneously calculated under the basis provided in sections 9 and 10 of the contract, instead of the basis provided in section 14 thereof; that the account between the parties is complicated, and that a correct accounting between them will require the aid of a master.

Appellant interposed two defenses, the first being that, according to the character of the ore shipped, the schedule of prices provided in sections 9 and 10 of the contract governed, and that the payments made on each shipment were calculated on the correct basis; the second being an accord and satisfaction.

The court found that, in ascertaining the correct amount due on each shipment, section 14 of the contract controlled, and that the amounts should have been calculated on a sliding scale, based upon an assay of sixty per cent, metallic contents of zinc sulphides and forty per cent, of zinc silicates, and, in accordance with the finding, entered a decree in favor of appellee for $1,662. From that decree an appeal has been duly prosecuted to this court, and the cause is here for trial de novo.

The contract in question was entered into between the parties on the 21st day of June, 1916. It provided for the purchase by appellant from appellee of 300 tons of zinc silicates per month and 700 tons of zinc sulphides per month, covering a period of three years. The contract contained apparently conflicting’ paragraphs for ascertaining the amounts to be paid for the ore — sections 9 and 10 provided for one basis to deduct smelting charges, and section 14 providing another. Something like fifty-six shipments were made by appellee from its mine at Rush to appellant’s smelting plant near Van Burén, covering a period of about ten months. Upon the receipt of each shipment appellant made an assay of the ore and calculated the value of the shipment on the basis provided in section 9, if zinc silicates, and .section 10, if zinc sulphides, and, in keeping with the assay and the calculations, made out a settlement sheet which it immediately mailed to appellee. Immediately thereafter appellant sent a check for the balance due appellee on the shipment, accompanied by a voucher reciting that the check was in full payment of the shipment. It appeared on each check sent appellee after January, 1917, that it was in full payment. Appellee retained and cashed each check. Each settlement sheet sent appellee by appellant disclosed the gross weight of each car, the per cent, of moisture therein, the net weight, the zinc contents, the total value, the amount which had been advanced on the car, the freight charges, the smelting charges, the net value thereof, the assay and the basis upon which the settlement had been calculated, as well as the character of the ore contained in the shipment. It is disclosed in the record that other mining companies in the Rush district shipped ore to appellant under appellee’s contract heretofore referred to. The Edith Mining Company, in charge of a Mr. Hirschler, shipped ore in this way. E. E. Schofield had charge of appellee’s affairs. P. W. Booking was one of the representatives of appellant’s affairs. Schofield and Hirschler visited appellant’s smelting plant, and, while there, had under discussion the question as to whether the price of ore shipped should be calculated on the basis provided in sections 9 and 10 or 14 of the contract. There is a conflict in the evidence as to the basis determined upon in that interview. On December 6 thereafter Booking, representing appellant, wired appel-lee as follows: “We will not accept Edith (referring to ore shipped from the Edith mine) unless settled for under schedule as we have settled with you in the past. Please have definite understanding before shipping.” Hirschler, representing the Edith Mining Company, replied to the wire as follows: “Your wire received. Thought my letter December 3 was clear. We fully understand that all shipments arranged for since my visit Van Burén are subject to charges mentioned in first part of contract and not as set out in schedule.” Hirschler’s wire was confirmed by a letter in part as follows: “We agree to the charges as set out in the first part of the contract, and not to those claimed by us on the strength of the second schedule, for all shipments made and arranged for after Mr. Hirschler’s visit to Van Burén, as to the previous shipments this matter has been referred to New York, and left to them to settle with your New York office.” On the next day Schofield, representing appel-lee, wrote a letter to appellant, which, in part, is as follows: “;We received your telegram, and the Edith people were already answering your wire that they would accept the old treatment charge that you had charged them before, and said he thought he had written you to that effect; but at any rate his wire will clear everything. Nothing like bringing a gentleman of his weight and caliber to his milk. You certainly have done the work properly.” Concerning the basis upon which the price of the ore should be ascertained, Mr. Schofield testified as follows: “I took it up with them when I was in their office in Yan Burén, and also when Mr. Booking came to Bush, and I wrote him several letters about it.” The record contains several letters written by appellant to appellee in relation to the two schedules contained in the contract, which, in part, are as follows:

“December 16, 1916.

‘ ‘ When you were here last, we talked the matter over in relation to the two schedules in our contract, and we both agreed that they were conflicting in many ways, and you suggested that we discard the first schedule and abide by the last schedule as written you by Mr. Hothorn on May 31,” etc.

“December 29, 1916.

“I expect in the near future to be in your district, and will then be glad to take up all matters with you pertaining to the change in the treatment charges on your ore as well as other matters,” etc.

“March 31, 1917.

“Under date of the 20th, I sent you several copies of an understanding relative to the two schedules in our contract, two of which I ask yon to sign and return and retain one copy, hut np to the present time I have not even received a reply, and I believe it is due us to at least have a reply of some kind stating what you wish to do.” This last letter was written about the time the last shipment was made under the contract.

We deem it unnecessary to set out the evidence responsive to the issue joined in the pleadings as to whether the paragraphs governing the basis upon which the price of the ore should be calculated are in conflict, and, if so, which paragraph should govern, as the issue of an accord and satisfaction tendered by appellant as a defense is sustained by the undisputed facts in the case. If it be conceded, as contended by appellee, that the basis upon which the price of the shipments should be determined was in dispute between the parties, the case is ruled by the doctrine announced in Longstreth v. Halter, 122 Ark. 212, which is as follows: “When a claim is in dispute and the debtor sends to the creditor a check or other remittance which he clearly states is a full payment of the claim, and the creditor accepts the remittance or collects the amount of the check, without objection, this constitutes a good accord and satisfaction.” Bach settlement sheet shows on its face that it was intended by appellant as an account stated concerning the particular shipment, and disclosed the basis upon which the net amount due appellee was calculated. The balance due appellee, as shown by the settlement sheet, was covered by a check and voucher showing the check to be in full settlement of the shipment. The check was received and cashed in each instance by appellee. While there is evidence tending to show that there were conflicting paragraphs in the contract in relation to the method by which to ascertain the price for the ore, and that there was some discussion as to which should govern in fixing the price, it is perfectly clear that the price on each shipment was calculated upon the basis provided in either sections 9 or 10 of the contract with the full knowledge of both parties, and the payment was made and accepted in full settlement on that basis. We can not follow appellee’s suggestion that appellant’s letters of date December 16 and 29, 1916, and March 31, 1917, show that the settlements were tentative, pending a final compromise as to which schedule should control. Appellee’s own letter of December 7, 1916,.in answer to a telegram sent to appellee by appellant on December 6, would conflict with the construction appellee places upon appellant’s letters. Appellant’s letters relate to a contemplated change in the treatment of the ore, if an’ agreement between the parties could be reached to that effect. The change appellant had in mind was incorporated in writing and enclosed to appellee on the 20th of March, 1917. The proposed written changes did not meet the approval .of Scho-field, and he destroyed them. We think there is nothing in appellant’s letters to the effect that the settlements-made from time to time were tentative and subject to a future agreement. Each settlement covered by a check for balance due, which was accepted and cashed by ap-pellee, constituted an accord and satisfaction. The bills should have been dismissed.

The decree is therefore reversed, and the cause dismissed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Parsley v. State.
    Opinion delivered May 16, 1921.
    1. Homicide — assault with intent to kill — burden of proof.— Crawford & Moses’ Dig-., § 2342, providing that in homicide cases if the killing is established the burden of proving mitigating circumstances justifying or excusing the homicide shall devolve on ■accused, has no application in a case of assault with intent to kill, and the burden is on the State to prove every allegation of the indictment beyond a reasonable doubt.
    2. Homicide — burden op PROOF — instruction.—It.is improper in a murder case to charge that it devolves on defendant to prove circumstances in mitigation or justification without adding the statutory qualification “unless by the proof on the part of the prosecution it is sufficiently manifest that the pífense was manslaughter or that the accused was justified or excused in committing the homicide,” or without stating that the burden on the whole case rests on the State.
    3. Criminal law — instruction—general objection. — On a trial for assault with intent to kill, a general objection to an instruction placing the burden on plaintiff to prove circumstances in mitigation or justification was sufficient.
    4. Homicide — assault to kill — justification.—Language, however insulting or slanderous, does not justify an assault.
    5. Homicide — abusive language as justification. — On a trial of an assault with intent to kill, it would have been correct to tell the jury that, if defendant fired the shot merely because of abusive language and without any assault or overt act, he would be guilty of the offense charged.
    6. Homicide — threatening attitude of person assaulted'. — If the prosecuting witness used abusive language toward defendant and was advancing on him in a threatening attitude when the latter fired the shots, so as to lead defendant to believe that his life was in danger, or to arouse a sudden, irresistible passion, this would reduce the grade of the offense, even though shooting was not justified.
    7. Homicide — assault to kill. — In order to constitute the crime of assault with intent to kill, the evidence must he such as to warrant a conviction of murder if death had ensued, and there must have been a specific intent to kill.
    8. Homicide — assault to kill — instruction..—On a trial for assault with intent to kill, defendant was entitled to an instruction that, if the assault was committed upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible, so that the offense would have been manslaughter if. death had ensued, he would not be guilty of the offense charged.
    9. Homicide — assault to kill — instruction.—On a trial for assault with intent to kill, an instruction that if the assault was committed by defendant while acting’ under the influence of passion or excitement caused by provocation apparently sufficient to make the passion irresistible, defendant should be acquitted, was properly refused, since, though the assault was made under those circumstances, this would not justify it, but would only reduce it to a lower grade.
    Appeal from Lonoke Circuit Court; George W. Clark. Judge;
    reversed.

      Williams & Hollotvay and Trimble & Trimble, for appellant.

      1. The court erred in its instructions. They as a whole fail to give the defendant’s theory of the case, and do not correctly define the law of self-defense. 179 S. W. 1013; 100 Ark. 209; 161 S. W. 186; 91 Ark. 582; 100 Id. 132; 85 Id. 179; 121 S. W. 1070'-; 107 Id. 677.
    2. It was error to give the oral instruction. Constitution, art. 7, § 23, and cases cited; 139 S. "W. 289. The exception to same was properly taken. 95 Ark. 71; 128 S. W. 562; 16 Id. 1081. See, also, 58 Ark. 277; 78 Id. 132.

      J. S. Utley, Attorney General, and Elbert Godwin and W. T. ilmvmoch, Assistants, for appellee.
    There was no error in the instructions given or refused, and no proper exceptions were saved. 101 Ark. 95. The controverting affidavits were not filed in time to make them part of the record. 87 Ark. 463; 95 Id. 72.
   McCulloch, C. J.

Appellant was convicted of the crime, of assault with intent to kill, committed by shooting and wounding Prank Gassoway. The alleged assault was committed in the town of England, Lonoke County, where both of the parties to the encounter resided. They had been on bad terms for several years, and in July, 1920, about a month before the shooting occurred, Gas-soway went to Faulkner County on a visit to his father and remained there about a month. He returned to England a day or two before the assault occurred and heard of a report being circulated about him to the effect that he had been confined in jail in Faulkner County on a charge of stealing an automobile. Gassoway traced this report, as he claimed, back to appellant’s wife, and he went to see appellant about it, but the latter claimed that neither he nor his wife were responsible for the report. There was abusive language passed between the two parties in regard to this incident, and appellant went into his house and came out with his shotgun and threatened to shoot Gassoway. They were both arrested and tried before the mayor for disturbing the peace, and during the trial there were manifestations of bad feeling between them. The trial before the mayor occurred early in the morning, and about 5:30 o ’clock on the same afternoon the parties met in front of a livery stable and the controversy between them concerning the rnmor about Gassoway having been in jail again arose and rough language was again used by each of the parties.

Gassoway testified that he went over to the livery stable and found appellant and one Sheridan sitting on a bench in front of the stable; that appellant got up and said: ‘ ‘ Whoever told you I said that told a damn lie, ’ ’ and started to walk away when he (witness) spoke to appellant, saying, “You could be too fast; you could be a damn liar yourself;” that appellant turned and drew his pistol and said, “You are always making a gun play. That isn’t the first time you have, and, God damn you, I am going to kill you if I go to hell in three minutes.” He testified that at appellant’s first attempt to fire the gun the charge did not explode, and that he (witness) said, “Parsley, don’t shoot me,” and that appellant replied, “God damn you, I am going to kill you,” and continued to shoot as the witness backed away. There were two or three shots fired, and Gassoway was severely wounded, being shot through the arm and through the liver and lungs. His left arm was broken, and his left leg' was shot through. Gassoway testified that he was not making any demonstrations toward appellant at the time the latter fired the shots.

Appellant testified concerning the prior trouble with Gassoway and also gave the details of the final encounter between them which resulted in his shooting Gassoway. He testified that he and Sheridan were sitting on a bench in front of the livery stable when Gassoway came up; that he and Sheridan were discussing the alleged report about Gassoway at the time the latter came up, and that Gassoway inquired what they were talking about, and he answered that they were talking about the report, and that he had had nothing to do with it; that he got up from the bench and started away, and as he started up-pellant said, “Wait a minute, you God-damn lying son-of-a-bitch, you told it;” that he (.appellant) turned around and saw that Gassoway was advancing toward him with his hand under his arm, and that Gassoway said, “Get your gun, you cowardly son-of-a-bitch, you haven’t got nerve enough to use it.” He testified that he thought Gassoway was attempting to draw his gun from under his arm, and that he began firing and shot three times. There were numerous other witnesses in the case, some of whom corroborated Gassoway mid some corrobrated appellant, and there were several versions of the affair.

Among the numerous instructions given by the court the following was given over appellant’s objections:

“You .are instructed that the defense relied'on in this case is self-defense, that, is, that the defendant contends that the reason he shot Gassoway was that it was necessary to shoot the witness Gassoway in order to save his own life, or prevent Gassoway from inflicting .a serious bodily injury upon him. This is a legal defense under the law if established, and the burden of proving same is upon the defendant, but, before the law of self-defense can be invoked, -the defendant must be without fault or carelessness upon his part in provoking the difficulty, and must have used .all means within his power consistent with his safety to avoid the danger, and avert the necessity of taking human life. And you are further instructed that the law of self-defense begins in necessity and ends in necessity; if the defendant could with safety to himself [have] avoided this difficulty, and failed or refused to do so, then the law of self-defense can not avail him. ’ ’

In an oral instruction subsequently given the court also reiterated the statement that, appellant having admitted the shooting and .also that he intended to kill Gas-soway, the burden was on him to prove that the shooting was justifiable. We are of the opinion that this instruction was erroneous and calls for a reversal of the judgment. There is a statute which provides that in homicide cases, if the killing be established, “the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by the proof ,on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.” Crawford & Moses ’ Digest, $ 2342.

This statute, however, has no application to the trial of any offense except homicide. It is improper, therefore, to give this statute, either in form or substance, in any other kind of case, for the burden is on the State to prove beyond a reasonable doubt every allegation in the indictment. Even in cases which fall within the statute, it is improper to instruct the jury that it devolves upon the defendant to prove circumstances in mitigation or justification without stating the further qualifications contained in the statute “unless, by the proof on the part of the prosecution, it is sufficiently manifest,” etc., or without stating that the burden of the whole case rests upon the State. Cogburn v. State, 76 Ark. 110; Tignor v. State, 76 Ark. 489; Childs v. State, 98 Ark. 430. The objection made to the instruction was general, but we think that no specific objection was required.

The giving of the following instruction is also assigned as error:

“You are instructed that words, be they ever so insulting or slanderous, can not justify even a simple assault, and you are instructed, if you find from the evidence or circumstances that, because of any insulting or abusive language used by Gassoway, the defendant shot him, and at the time he shot the said G-assoway he intended to take his life, you will find the defendant guilty of .an assault with intent to kill and fix his punishment at some period of not less than one or more than twenty-one years at hard labor in the penitentiary.”

This instruction is in bad form, but it is unnecessary to determine whether it is prejudicial. The first part of the instruction is correct in saying that language, however insulting or slanderous, does not justify an assault, and it would have been correct to tell the jury that if appellant fired the shot with intent to kill merely because of abusive language on the part of Gassoway and without any assault or other overt act, appellant would be guilty of the offense charged; but it is doubtful whether the jury understood this instruction to mean that it is only in the absence of such overt act that abusive language will not reduce the grade of an offense below assault with intent to Mil.

There was testimony in the case tending to show that Gassoway used abusive- language toward appellant, and that he was advancing on appellant in a threatening attitude, when the latter fired the shots; and if the jury believed that to be true, then appellant was not necessarily guilty of assault with intent to kill, even though the shooting was unjustified. In other words, if the jury found that there was such a threatening attitude on the part, of Gassoway as to lead appellant to believe that his life was in danger, or to arouse a sudden, irresistible passion, this would'reduce the grade of the offense. To say the least of it, this instruction was confusing, and we call attention to it in view of another trial without determining whether or not it constitutes reversible error.

The court’s refusal to give the following instructions is separately assigned:

“No. 1. The jury are instructed if you find from the evidence in this case that the assault was committed by the defendant while acting under the influence of passion or excitement, caused by provocation apparently sufficiently to make the passion irresistible, defendant should be acquitted.”

“No. 2. The jury are instructed that if you find from the evidence the defendant at the time he assaulted the prosecuting witness, by his acts and conduct, caused the defendant to honestly believe, without fault or carelessness on his part, that he was in danger of great bodily harm, and that in order to protect himself from such bodily harm, then the defendant would have the right to protect himself even in shooting his assailant.”

In order to constitute the crime of assault with intent to kill, the evidence must be such as to warrant a conviction of murder, if death had ensued from the assault, and there must have been a specific intent to kill. Lacefield v. State, 34 Ark. 275; Davis v. State, 115 Ark. 566. Appellant was therefore entitled to an instruction telling the jury that if the assault was committed “upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible,” so that the offense would have been reduced to manslaughter if death had ensued, then he would not have been guilty of assault with intent to kill. However, the instruction requested by appellant was not in correct form, and the court properly refused to give it. In the first place, the instruction does not follow the language of the statute, Crawford & Moses’ Digest, § 2355. In the next place, it is erroneous in telling the jury that, if the assault was made under those circumstances, appellant should be acquitted. The indictment embraced the lower degrees of assault, and, even though the assault was made upon a sudden heat of passion, this would not justify it, but would only reduce it to a grade lower than assault with' intent to kill.

Instruction No. 2 was correct, but it seems to have been covered by another instruction given by the court on its own motion.

For the error found in instruction No. 1 the judgment is reversed and the cause remanded for a new trial.


author: Wood, J.

text:
    Biscoe v. Deming Investment Company.
    Opinion delivered May 16, 1921.
    1. Brokers — unilateral contract. — A contract authorizing- a broker to negotiate a loan on lands on specified terms for designated compensation, without obligating the broker to render any service in procuring the loan, was unilateral and could not be enforced unless the broker performed the service which it was employed to render.

      2. BROKERS — right to commission. — Where a real estate broker employed to procure a loan on lands procures a person who is ready, able and willing to make the loan on the specified terms, and the owner refuses to accept the loan, the broker is entitled to his commission.
    3. Brokers — escrow agreement — evidence.—In a broker’s action for compensation for procuring a lender, ready, able and willing to make a loan, on failure to consummate transaction because of ■ owner’s refusal to deliver papers to be recorded prior to delivery of the proceeds of the loan to a depositary in compliance with an escrow agreement, evidence held insufficient to prove that the broker’s agent was without authority to bind the broker by such agreement.
    Appeal from Prairie Chancery Court; John M. Elliott, Chancellor;
    reversed.

      Moore, Smith, Moore & Trieber, for appellants.
    1. The contract sned on was void for want of mutuality. 96 Ark. 184-5; 21 So. 233; 44 N. W. 669; 102 Ark. 621-624; 100 Id. 510-14; 124 Id. 354-9; 30 Id. 186-194.
    2. Appellee did not procure a lender on the terms required by the contract. 4 R. C. L. 303. Before a broker is entitled to his commission, he must produce a purchaser ready, able and willing to purchase and able to purchase on the terms and price designated by the principal. 27 Pac. 882-3; 4 So. 180; 9 N.- W. 784; 1101 N. W. 719-21; 83 N. Y. 378-382-3; 92 N. W. 413.
    3. The law, as well as the express provisions of con-traót, required appellee to notify appellant of the acceptance of the loan. The broker must produce the customer, ready, willing and able to take the property on the terms stipulated, and the broker must perform the duties assumed within the time limit of the contract. 99 Pac. 867; 46 N. W. 673; 67 Id. 1148;.94 Am. Dec. 541-3; 9 N. W. 784-5; 29 N. E. 154.
    The contract is unilateral and void for want of mutuality. The time had been extended, and appellee given every opportunity to procure a customer. 83 N. Y. 378, 382-3; 112 Ark. 227-232.'

      4. Tlie agency was terminated. Parol evidence was admissible to show that a written contract was executed upon the condition that certain changes were to be made in the writing before it should become the real agreement of the parties. 88 Ark. 383; 98 Id. 10-12.
    Parol proof is admissible to show that certain sureties signed upon condition that the bond should be signed hy certain other sureties 57 Ark. 64, 78; 78 Id. 588; 82 Id. 225; 76 Id. 140-2.
    If the copies relieved appellee of the application and the loan contract were not corrected through the neglect of appellee’s stenographer, this case falls within the rule in 135 Ark. 609.
    The effect of the extensions agreed on was to limit the agency to the period of time named in each of them. No action on the part of appellant was necessary to the termination of the agency. The authority of appellee expired ipso facto at the expiration of the period of extension. 112 Ark. 227, 232.
    The escrow agreement of May 3, 1915, was entered into to keep alive and extend the agency which expired on that day and giving appellee further time to discharge its duties as agent. The deposition of Mr. Deming is not of persuasive force and is inconsistent with his attitude and the statements in his first deposition, and he by his acts and conversations ratified Long’s acts.
    When an alleged principal accepts a partial benefit from the act of an agent, he will be held to have ratified the agent’s authority throughout. He can not repudiate in part and ratify in part, but must repudiate or ratify the entire transaction. 114 Ark. 12. Any evidence is competent which tends to establish the agency. 93 Ark. 603. It is permissible always to prove a previous course of dealing. 21 R. C. L., p. 820, 855, par. 34.
    If the escrow agreement is void for want of authority in Long, the agency of plaintiff was terminated, and it has no right of action.

      Trimble & Trimble, Cooper Thweatt and Coleman, Robinson & House, for appellee.
    Only a question of fact is involved, and the evidence clearly sustains the decree, and no reason is shown for reversal.
   Wood, J.

During the year 1915 the Deming Investment Company, hereafter called appellee, was engaged in the business of negotiating loans on farm lands in Arkansas. On the 8th day of March, 1915, John E. Biscoe and Elizabeth- Biscoe, hereafter called appellants, executed and acknowledged an instrument addressed to the appel-lee, the material parts of which are as follows:

“I hereby appoint you my agent to negotiate and procure for me a loan of $70,000 on seven years’ time, bearing interest at the rate of six per cent, per annum, payable semi-annually on the first day of November and May in each year to be secured by first mortgage on land hereinafter described. (The description of the land in Lonoke and Prairie counties is then set forth.)

“As compensation for your services in negotiating this loan, I hereby agree to pay you or the assignee of this contract, the sum of $9,800, payable in four notes, as follows: (Here follows a description of the notes and a statement that they were to be’ secured by second mortgage on the lands herein described, and a statement that the appellants would pay all expenses incident to procuring abstracts of title and recorder’s fee.) •

“For value received, I do hereby promise and agree to pay such actual expenses as you may have incurred in the negotiation of the loan and examination of the property and title, if I do not obtain said loan by reason of defects in my title, or by reason of my being unable to remove all incumbrances from said land; and if you or any negotiator to whom you apply for me for above loan, notify me of acceptance of said loan, and I am unable to or refuse to complete the said loan, then I agree to pay five per cent, on amount of loan applied for, and all expenses you. or the assignee of this contract have incurred for such refusal or inability to complete said loan.

“It is understood that the lender to whom you apply shall have the right to impose 'all reasonable requirements and conditions in mating said loan, and I do hereby authorize you or the assignee .of this contract to receive all money due me on said loan and further authorize you or the assignee of this contract to pay off all incumbrances, leases, and liens of every kind on my said land, and pay for insurance, taxes on land, expenses of loan, and any other money necessary to be paid to perfect title to said land or any part thereof. And if the loan hereby applied for should not be sufficient to pay off all liens, I agree to pay the deficiency within ten days after said note and mortgage are executed. And if said land is rented or under lease, either verbal or written, at the time the loan applied for is closed, or if said premises are occupied by any other person or child over legal age, I agree to obtain and deliver to you the written disclaimer of said tenant or person in favor of lender. (Then follows provisions for insuring the buildings on the real estate and a provision for paying the expense of perfecting title to the property, if same should be found defective). And the lender may remit you or the assignee of this contract all money due me on said loan for disbursement or may remit to you part of said money and retain a portion of the same to pay off incumbrances as may be necessary to be paid to perfect my title and this shall be authority to you for the assignee of this contract to receive and disburse all moneys due me on said loan.

“It is also agreed that your authority to negotiate said loan shall be irrevocable for thirty days after I shall have furnished you complete and satisfactory abstract of title, showing perfect title in applicant.

“As security for the payment of any and all sum or sums of money to which you may be entitled under this contract, I hereby pledge and mortgage to you the above described real estate.”

. This action was instituted by the appellee against the appellants. The appellee alleged the execution of the above instrument and attached a copy as an exhibit and made it a part of its complaint. Appellee alleged that appellants, by the instrument, mortgaged to the appellee the lands described to.secure the appellee in any sums of money that appellants might be entitled to under the contract. It alleged that under the terms of the contract it proceeded to negotiate a loan for appellants in the sum of $70,000 -and did procure a client ready, willing and able to make said loan; that the appellants refused to accept said loan, and that the failure to complete the loan was due solely to the refusal of the appellants to complete the same under the terms of the contract. The appellee further alleged that they had incurred expense under the contract in the sum of $146.60, and that by reason of the breach of the contract on the part of the appellants it was due the appellee the sum of $3,500 and the amount of the expense above set forth, for which amounts it prayed judgment and that a lien be declared and foreclosed on the lands described.

The appellants answered, admitting the execution of the instrument, but denied that same created a lien on the lands described, and denied that appellee procured the money that was to be advanced on the loan in compliance with the agreement. They averred that, because of the failure of the appellee to furnish the money after repeated demands of appellants, the latter called the transaction off and on May 3, 1915, revoked the appel-lee’s authority. They further alleged that an agreement was then made by which the notes and mortgage executed to' secure the loan should be deposited in escrow to be delivered to the appellee by the 15th of May, provided the appellee should place the amount of the loan to appellants’ credit on or before that date; that the appellee-failed and refused to carry out the agreement, and the escrow agreement ceased to be operative; that the failure to carry out the contract was wholly the fault of the ap-pellee. The appellants also alleged in their answer, which they made a counterclaim, that the contract sued on had been filed in the offices of the recorders of Lonoke and Prairie counties for the purpose of creating an in-cumbrance upon 'appellants’ property and beclouding their title, and they prayed that the same be canceled.

The appellee is a Kansas corporation having its home office at Oswego and is engaged in business in this State. Robert 0. Deming was the president and general manager of the company. During the year 1915 and at the time the instrument upon which this suit was based was executed, M. B. Long was in charge of the appellee’s business in Arkansas. His authority was to take applications and contracts for farm loans in the State, to make inspections of property and report upon the securities for the loans offered, submitting his data to the home office for approval, and, if approved, to proceed with the completion of the loan under directions from the home office.

The appellee, under the authority of the above instrument, made application for a loan to the John Hancock Mutual Life Insurance Company of New York, and on April 23, 1915, the appellee wrote to its local agent, Freed Hutto, at England, Arkansas, to the effect that it had received his letter of April 20 in regard to closing the Biscoe loan; that the appellee was awaiting the decision of the insurance company and stating that action would probably be taken by the finance committee of that company that day, and further stating: ‘ ‘ All we can do is to wait on their movements, but certain that it will be hurried forward as rapidly as they can.” This letter was sent by Hutto to Biscoe.

On April 23, 1915, the insurance company wrote the appellee the following letter: ‘ ‘ The John E. Biscoe loans for $45,000 on 2,036.38 acres in Lonoke County, Arkansas, and $25,000 on 1,818.32 acres in Prairie County, Arkansas, have been recommended for approval by Mr. Hopkins, and they have now been accepted by the committee of finance, botli for seven years and at 6% per cent, interest rate. We await receipt of the completed papers.”

There is no testimony in tbe record that this letter written by the insurance company to the appellee was sent to the appellants or that the appellants were advised of its contents. The appellee wired its local agent, Long, to the effect that the Biscoe loan was approved by the insurance company, and that the papers were in Little Bock to he executed. It appears that this telegram was received by the agent while he was at Brinkley. With Long at the time was one Mr. Self, who had been appointed by the company as local agent and general manager Of appellee’s business in Arkansas in place of Long, and who was to take charge of-appellee’s business on the first of May, 1915. After receiving the telegram, Long and Self proceeded to Little Rock and finished up there on the last of April. On the next day, which was Saturday, May 1, Self went to England to see Biscoe to have him sign the papers for the loan. Biscoe informed Self that he wanted to take the matter up with Horace Cham-berlin, his attorney and agent, and would be in Little Rock Monday to get the papers signed. On Monday morning, May 3, the appellants and Chamberlin, Long, Mitchell and Hutto, met in appellee’s office in Little Rock. Long had the notes and mortgages that were to be executed by the appellants in triplicate. One on the Lonoke County land for $45,000, one on the Prairie County land for $25,000, and one on the lands in both counties for $9,800, the latter amount representing the commission that was to be paid the appellee for procuring the loan.

Chamberlin suggested several changes in the terms of the mortgages, which were agreed to by Long, and these changes were made, and the mortgages and notes were executed by the appellants. Biscoe asked for the money and Long told him that he did not have it, but that he could have it there in a very few days — by the 10th. Bis-coe protested and stated that unless the money were forthcoming on that day he would call the loan off. At this juncture Chamberlin suggested that the appellants extend the appellee’s time for procuring the money until the 15th and on certain terms, to which appellants and Long'and the other agents, Hutto and Mitchell, agreed. This -agreement was evidenced by the following instrument signed by the appellants, and the papers described therein were placed in escrow in the Exchange National Bank, as evidenced by its receipt:

‘ ‘ May 3, 1915.

‘‘Exchange National Bank, Little Rock, Arkansas:

‘ ‘ Grentlemen: We hand you herewith one note in the sum of $25,000, payable to the Deming Investment Company on the first day of May, 1922, one note in the sum of $45,000, payable to the Deming Investment Company on May 1, 1922, and also one note in the sum of $1,400, payable November 1, 1915, and three notes in the sum of $2,800 each, payable to the Deming Investment Company on November 1, 1916, 1917 and 1918, respectively. We also inclose herewith a mortgage by John E. and Elizabeth K. Biscoe on Lonoke County land in the sum of $45,000 to secure the aforementioned note; also a mortgage by the same parties in the sum of $25,000 on Prairie County lands to secure the aforementioned note for $25,000. We also hand you herewith a mortgage executed by the same parties on Lonoke and Prairie counties lands in the sum of $9,800, being given to secure the aforesaid notes aggregating $9,800.

“Should the Deming Investment Company place to our credit in your bank on or before May 15, 1915, the sum of $70,000, or should we hand you by said date .our acknowledgment in writing of receiving the sum of $70,-000 from the Deming Investment Company, you will-kindly deliver the aforementioned papers to the Deming Investment Company, or its agent.

“Very truy yours,

“Received the above-mentioned papers to be held as requested. “Exchange National Bank,

“By W. B. Kennedy, Asst. Cashier.”

On the next day, May 4, Deming arrived in Little Rock and told Chamberlin that it would be necessary to have the mortgages filed for record and the abstracts re-dated to cover such filing before he could pay out the loan proceeds. Chamberlin would not consent to this. The appellee, through Deming and Self, insisted on it, stating that it was absolutely necessary to file the mortgages before payment; that it was the usual and customary method of closing loans. They appealed to Biscoe and stated that Biscoe yielded to their request and promised that he would write to the Exchange National Bank and to Chamberlin instructing that the mortgages be delivered to the appellee that they might be recorded and the abstracts redated to cover such filing before the money was paid over. Instead of doing so, however, after consulting with Chamberlin, he wrote to the appel-lee that he had decided to let the matter remain as per the agreement of May 3, 1915.

Deming contended and testified that during the month of May the appellee was ready, willing and able to furnish the appellants the $70,000 as it had agreed to do, and that it exhibited to Chamberlin and Biscoe drafts showing such facts and informed them that the appellee would furnish the cash if appellants so desired; that on May 13, 1915, Deming and Self had an interview with Chamberlin in which the.drafts were exhibited to him, and that later on the same day they had an interview with Biscoe and also exhibited the drafts to him; that Biscoe stated that he would see his attorney the next day and take the matter up further with Self at Little Rock; that, instead of doing this, however, he wrote the appellee a letter dated May 13, in -which he stated: ‘ ‘ Since your Mr. Deming and Mr. Self were here, I had a conversation over the telephone with Mr. Chamberlin, my agent in this deal, and he says you gentlemen were in his office and the deal was called off, as yon would not comply with onr agreement of May 3, and I ratify everything he does in the matter. In view of this, I will not call to see yon. ’ ’

Chamberlin, in his testimony, flatly contradicted the testimony of Deming and Self as to what took place in their interview with him on May 4. He stated in substance that, after he refused to consent to turn over the mortgages to the appellee and having informed them that the appellants would expect the appellee to abide by the agreement as to the escrow of the mortgages and notes executed on May 3, 1915, Deming emphatically stated that he would not do so; that on May 13 Deming and Self again interviewed him, and, after exhibiting to him drafts aggregating $69,900, witness asked what was the purpose of their visit. Deming said: “I want to see if you will change your escrow agreement.” Witness replied, “No, sir; we will not.” The testimony of the witness as to the conversations he had with Deming and Self at the interviews after the execution of the agree-, ment for escrow is exceedingly voluminous, but the substance of it is that the appellee’s agents desired that the appellants modify such agreement, withdraw the mortgages, and turn them over to the appellee so that they might be recorded and shown in the abstracts and the abstracts redated showing that the appellee had a first lien on the property before the money was paid over to appellants; that witness advised appellants not to consent to this, but to stand by the agreement of May 3, and that appellants acted upon his advice and refused to change that agreement. The last interview was concluded by witness asking Deming and Self if they finally refused to carry out that agreement, and Deming replied, “Absolutely. I would not give him a damn dollar unless he does as I want him to do. ’ ’ Witness then said, ‘ ‘ All right, sir. We will just consider this transaction closed, and I will withdraw the papers from the Exchange National Bank.” Witness did withdraw the papers, marked them canceled, and sent them to Biscoe.

The testimony of Biscoe as to what took place between him and Deming on May 4 and May 13, is also voluminous, but the substance of it is that Deming wanted him to modify the escrow agreement by taking the mortgages from the bank and leaving the notes, which he refused to do. He stated that in the interview on May 13 he did at first tell Deming that he would go to Little Bock and see Self, but after Deming left he had a conversation with Chamberlin over the ’phone in which Chamberlin informed him of what Deming had said to him on that morning, and that after receiving this information he wrote the letter of May 13 in which he told Deming that he ratified everything that Chamberlin did and would not call to see Self.

Both Deming and Self testified that they never had at any time called the loan off, but on the contrary stated in each interview with Chamberlin and Biscoe that they were prepared to close in accordance with the contract, and were desirous of doing so, and demanded the delivery .of the mortgages that the transaction might be completed. Deming testified that he did refuse to pay out the proceeds of the loan until the mortgages were filed for record and shown in the abstracts. He also testified that Long’s authority to represent the company ended on the last day of April; that Self was employed by the appellee to take Long’s place and began his duties on the first of May; that Long had no authority to represent the company on May 3; that the authority of Long and Self was precisely the same. He further testified that neither Mitchell nor Hutto had authority to make contracts like that of May 3, 1915.

Biscoe testified that on May 1 Self told him that he was Long’s successor, but that Mr. Long would remain with the company a few days to close up some details with which he was familiar, and that the Biscoe deal was one of them. He and Chamberlin both testified that in the conversation of Deming with them on May 4 Deming did not in any way deny authority of Long to make the escrow agreement.

We have not undertaken to set forth the testimony of the witnesses in detail, as it would unnecessarily extend this opinion to do so. The above statement presents the issues raised by the pleadings and the salient features of the testimony upon which a decree was rendered in favor of the appellee in the sum of $3,646.60, from which is this appeal.

The instrument which is the foundation of this action does not by its terms impose any obligation upon the appellee to render any service to the appellants in procuring the loan mentioned in the instrument. The contract is one purely unilateral, and it therefore can not be enforced unless the appellee performed the service which it was employed to render. See Grayling Lumber Co. v. Hemingway, 124 Ark. 354; Eustice v. Maytrott, 100 Ark. 510-514; El Dorado Ice & Planing Mill Co. v. Kinard, 96 Ark. 184-185.

In the case of El Dorado Ice & Planing Mill Co. v. Kinard, supra, we said: “Where a party, originally not bound, has executed the contract the doctrine relative to mutuality does not apply.” P. 189. The appellee invokes the latter doctrine and contends that it has fully performed the contract by producing a lender who was ready, willing and able to make the loan.

In the case of Murray v. Miller, 112 Ark. 227-232, this court held: “Where the authority of an agent or broker to sell land is limited to a specified time, he must produce a purchaser ready, willing and able to purchase within the time specified in order to be entitled to a commission on the sale, unless the owner does not act in good faith, or attempts to hinder the broker in making the sale.”

We have also held that “where a real estate broker procures a person who is ready, able and willing to purchase the property upon the terms under which the agent is authorized to negotiate the sale and the owner refuses to convey, the agent is entitled to his commission.” Poston v. Hall, 97 Ark. 23. These rules, of course, are applicable to brokers employed to procure a loan on real estate as well as to brokers who are employed to sell real estate.

Even if the contract contained mutual obligations, by its express terms appellants could revoke the authority of the appellee thirty days after they had furnished appellee abstract showing perfect title. Appellants did not elect to revoke appellee’s authority, but, on the contrary, at the request of appellee, continued its authority on the same terms until April 15, again until May 1, and again until May 3. During this time the appellee did not furnish a lender and procure a loan according to the terms of the contract. The contract requires that appellee “notify” appellants “of acceptance of said loan.” The insurance company wrote the ap-pellee on April 23, 1915, that the loan had been accepted for seven years at 6% per cent, interest, but this communication was not sent to the appellants, and appellants were not notified of its contents. Moreover, even if they had been so notified, the acceptance of the loan.was at a rate of 6% per cent, per annum, whereas the contract provided that interest should be at the rate of 6 per cent, per annum. Appellee wired its local agent, Long, that the loan had been accepted, but appellants were not notified -of this until May 1, and it is not shown that at that time the appellants were advised of the change in the rate of interest.

Therefore, the undisputed evidence shows that on May 3 the appellee had not procured-a lender who was ready, willing and able to make the loan according to the terms of the contract. On May 3, 1915, appellants entered into an agreement with the local agent, Long, who assumed to represent the appellee, the terms of which are set forth in the letter of May 3 addressed to the Exchange National Bank. The notes and mortgages executed on that day by the appellants show that appellants had waived the rate of interest provided for in the original contract, and the escrow contract shows that the appellants again, under the terms of that contract, continued appellee’s authority to negotiate the loan until the 15th of May.

The original contract provides “that the lender should have the right to impose all reasonable requirements and conditions in making said loan.” If it be conceded that the appellee would have the right under this contract to prescribe as a reasonable requirement that the appellants should turn over to appellee the mortgages for recordation before receiving the proceeds of the loan, nevertheless it is manifest that appellee would have no such right under the terms of the escrow agreement.

It only remains for us to inquire, therefore, whether or not Long was clothed by the appellee with authority to enter into the escrow contract. Deming testified that Long had charge of appellee’s business in Arkansas with authority to make applications and contracts for loans. Up to May first he had conducted the negotiations on behalf of appellee for this particular loan. When Self was employed and appeared on the scene to succeed Long, whose service ended April 30, Self, according to his testimony, informed Biscoe that he had taken Long’s place on May first and wanted to close up the loan. But according to the testimony of Biscoe, Self informed, him that he had succeeded Long, but that Long would remain with the company for a few days to close up certain loans which he had conducted up to that time, one of which was the loan to the appellants.

The burden was with the appellee to prove that Long did not have the authority to bind it by the escrow agreement. Appellee has not discharged that burden. The circumstances on this issue corroborates Biscoe rather than Self. On May first, Self interviewed Biscoe to have him sign the mortgage and notes, and Bis-coe told him that he would go to Little Bock on May 3 to see Chamberlin with a view to executing the papers and closing up the loan. Self, instead of meeting him there on that day, turned over the papers to Long, and Long and other local agents of the appellee appeared on May 3 tó conduct the negotiations for the appellee. A clear preponderance of the evidence therefore shows that the appellee had equipped Long with all the indicia of authority necessary to empower him to enter into the escrow contract on behalf of the appellee. The undisputed evidence showed that appellee refused to comply with the terms of this contract, giving as its reason therefor that it had already rendered the service for which it was employed and had earned its commission under the terms of the original contract, which appellants had failed and refused to comply with.

We are convinced that the court erred in sustaining this contention of the appellee. Its decree is therefore reversed, and the cause will be remanded with directions to the trial court to enter a decree dismissing the appel-lee’s complaint for want of equity and granting the prayer of appellants’ cross-complaint to cancel and expunge, from the record of mortgages in Lonoke and Prairie counties,- the instrument which is the foundation of this action.


author: Hart, J.

text:
    Stewart v. State.
    Opinion delivered May 16, 1921.
    1. Homicide — voluntary manslaughter — evidence.—In a prosecution for murder in which defendant claimed to have acted in self-defense, evidence held to sustain a conviction of voluntary manslaughter.
    2. Continuance — cumulative evidence. — A continuance asked for the absence of evidence that was merely cumulative in its nature was properly refused by the court.
    3. Homicide — defense of habitation — instruction.—In a homicide prosecution, refusal of an instruction submitting the issue whether defendant acted in defense of his habitation or property, under Crawford & Moses’ Dig., § 2367, held proper where there was no evidence upon which to base it.
    4. Homicide — self-defense—instruction.—In a prosecution for murder, an instruction on justifiable homicide approved.

      5. CRIMINAL law — repetition op instructions. — Refusal of instructions covered by those given by the court held proper.
    6. Homicide — dying declarations. — Dying declarations, to be admissible, must be made under a sense of certain and impending death. In determining this question, the court may consider all , the facts and surrounding circumstances, such as the character of the wound, the declaration of the deceased that he would not live, and the fact that he died shortly afterward.
    7. Homicide — dying declarations — weight.—It is the province of the jury to weigh dying declarations and the circumstances under which they were made, and to give them only such credit, upon the whole evidence, as they think they deserve.
    8. Homicide — admissibility op threats. — Threats of violence toward the defendant, alleged to have been made by the deceased, unaccompanied with overt acts showing an intent to carry them into effect, are competent in a homicide case to show deceased’s character for violence and his disposition of mind toward defendant, to be considered in determining who was the aggressor.
    Appeal from Randolph. Circuit Court; J. B. Baker, Judge;
    affirmed.

      Schoonover & Jackson, Smith & Gibson and Ponder & Gibson, for appellant.
    1. The court erred in refusing a continuance. The grounds set up the absence of witnesses whose testimony was material. There was an abuse of discretion by the trial court. 109 Ark. 407; 120 Id. 172. Threats has been made, and the testimony of the absent witnesses was material and vital. Ib.

    2. Instruction No. 1, asked by appellant, stated the law and should have been given.
    3. Instructions 2, 3 and 4 were the law and should have been given. They were in regard to threats, and correctly stated the law as ruled by this court. 79 Ark. 594; 82 Id. 595; 84 Id. 120.
    Instruction No. 7 should have been given as to dying declarations. 38 Ark. 498; 81 Id. 417; 58 Id. 47; 104 Id. 162; 113 Id. 142.

      J. 8. Utley, Attorney General, and Elbert Godwin and W. T. Hammock, Assistants;-for appellee.
    1. There was no error in refusing- the continuance. Crutchfield was not subpoenaed as a witness. Besides, all the .alleged testimony was merely cwnulative, and the continuance properly refused. 74 Ark. 444. It was not shown that the absent witness was within the jurisdiction of the court, nor what it was- expected to be proved by him. 93 Ark. 290; 120 Id. 562. The same rules apply to the testimony of Nannie Wilcutt and Jim McCluskey. There was no abuse of discretion by the court. 99 Ark. 394, cited by appellant, is not in point, as the facts are entirely different.
    2. There is no error in the instructions. The plea of self-defense was correctly stated, and the evidence sustains the verdict.
   Hart, J.

Bill Stewart was indicted for the crime of murder in the first degree and convicted of voluntary manslaughter, his punishment being fixed by the jury at two years in the State penitentiary. From the judgment of conviction he has duly prosecuted an appeal to this court.

On the 13th clay of August, 1920, Bill Stewart, about eighteen years -of age, killed Hubert Wilcutt, about twenty years of age, by shooting him twice with a shotgun loaded with large-sized shot. The killing occurred in a field where both parties were at work at about 8 o ’clock in the morning in Randolph -County, Arkansas. Elmer Wilcutt, a brother of the deceased, saw Harry Stewart standing in the corner of a patch of corn waiting for his brother. He then saw Bill Stewart come up to Harry Stewart with something in his hand. He started home and had gone about a half a quarter when he heard the report of a gun and looking around saw the smoke of it. After he had gone about ten feet he heard the gun shoot again and then saw the defendant and his brother riding across the field on the same horse in a long lope. Elmer Wilcutt went down to where .the shooting occurred and found Ms brother, Hubert, lying down on the ground. He bad been shot in the bead, neck, shoulder, thigh, and also in his private parts. Hubert Wileutt told his brother that he was going to die just as soon as he got to him. He did die from the effect of the wounds at about 12 o’clock of that day.

Jim Hibbard also came up soon after the shooting occurred, and Hubert Wileutt told him that he was going to die. He told his brother, and also Hibbard, that Bill Stewart and Harry Stewart were both present when he was shot; that Bill Stewart said, ‘ ‘ I am going to put your light out,” and then shot him. After Wileutt fell Harry Stewart, who was standing by with a corn knife in Ms hand, said, “Shoot him again,” and Bill Stewart shot Wileutt again while he was lying down on the ground.

Two physicians attended Hubert Wileutt and testified that both wounds were necessarily fatal. Hubert Wileutt made a dying declaration to them about the killing in practically the same language detailed above.

According to the testimony of Jim Hibbard, he lived near the place where Bill Stewart killed Hubert Wileutt. Stewart came to his house on horseback between seven and eight o’clock on the morning of the killing and asked Hibbard for a gun, telling him he wanted it to shoot some rabbits that were eating his cabbage. Hibbard let him have his shotgun and five shells, telling him that the shells were loaded with shot too big for rabbits. In fifteen or twenty minutes thereafter he heard two shots down in the field, and upon going there found Hubert Wileutt lying on the ground fatally wounded.

Dick Tippett testified that on the morning of the killing he found Hubert Wileutt lying .on the east side of a ditch. Hubert Wileutt told him that he was going to dio. and that Bill Stewart had killed Mm. He said that Bill Stewart and his brother passed by, and that they had a few words. Stewart and his brother went off and slipped back again, and Bill Stewart said, “I am going to put your light out.” He then shot Hubert Wileutt and. came up closer to liim and shot him again. The ditch near where Hubert Wilcutt was found is about nine feet wide and two and a half feet deep. Bill Stewart and his brother were on the opposite side of the ditch from Hubert Wilcutt when he was shot.

Bill Stewart was a witness for himself. According to his testimony, he drove up near Hubert Wilcutt with his horse hitched to a plow. Wilcutt noticed that something was the matter with the horse and examined him. Then Stewart started on to where he was going to work. As he passed Hubert Wilcutt, the latter jerked him down and cursed and abused him. He followed Stewart through the field and told him that he would kill him and also his brother if he did not leave the farm. Stewart was afraid of Wilcutt and took his horse out of the plow and went to Mr. Hibbard’s to borrow a gun. Wilcutt followed him a piece and threw a chunk at him, which hit the horse. Stewart borrowed the gun from Hibbard and went back to work. When he got back, Hubert Wilcutt told him he should not go to work, and that if he crossed the ditch he would kill him. Stewart said that he was going to work and started to do so. Hubert Wilcutt then started toward Stewart and threw his hand to his hip. Stewart then shot him. Wilcutt kept going toward Stewart, cursing and abusing him, and Stewart shot him again. Stewart said that he never slipped up on Wilcutt and shot him because Wilcutt threw his hands to his hip pocket and started toward him. George Arnold and Russell Hinton both had told him that Wilcutt said that he was going to kill him.' Wilcutt had told Stewart that he had come back there to kill him. They had had a difficulty about a year before, and Wilcutt had beaten up Stewart and broken his leg.

G-eorge Arnold and Russell Hinton both testified that Hubert Wilcutt told them that he was going to kill Bill Stewart, and that they had communicated this threat to Stewart before the morning of the killing.

John Thornberry also testified that the deceased had told him that he intended to get a job of work on the farm where the defendant was working, and if he got a chance he was going to kill him.

Alfred Terry, a deputy sheriff, testified that Hubert Willcntt had told him that he was going to have revenge on Bill Stewart and his brother for the way they had treated him. It was also proved by the defendant that the deceased was a quarrelsome, .overbearing and dangerous man.

The evidence for the State showed that deceased had no gun in his pocket but had a pocket knife when he was killed.

It is not contended by counsel for the defendant that the evidence is not legally sufficient to support the verdict, and a mere reading of it shows that ib was amply sufficient.

Counsel for the defendant, however, earnestly insist that the judgment should be reversed because the court erred in refusing to grant him a continuance. The defendant asked for a continuance on the ground that three witnesses, including the wife of the deceased, would testify, if present, that the deceased bore the reputation of being a dangerous, quarrelsome and overbearing man, and that they had heard him threaten to take the life of the deceased; that his widow would testify that he had gone back there and secured work on the farm where the defendant was working for the very purpose of killing him. The record does not show that these threats were communicated to the defendant.

Other witnesses testified in behalf of the defendant to the effect that deceased had the reputation of being a man of quarrelsome, overbearing, and violent disposition, and that the deceased had told them that he was going to kill the defendant, and that they had communicated these threats to the defendant prior to the killing. One of the witnesses said that the deceased had told him that he had come back there and secured work on the farm where the defendant was working for the very purpose of getting a chance to kill him. Thus it will be seen that the continuance was asked for the absence of evidence merely cumulative in its nature and was properly refused by the court. Allison v. State, 74 Ark. 444; Rider v. State, 140 Ark. 1, and Snow v. State, 140 Ark. 7.

It is next insisted by counsel for the defendant that the court erred in not giving instruction No. 1 asked by the defendant The instruction is an exact copy of section 2369 of Crawford & Moses’ Digest. The killing was not in defense of the habitation or the property of the defendant. Therefore there was no evidence upon which to base it, and the court properly refused to give it. In this connection it may be stated that the court gave full and fair instructions on the question of justifiable homicide. •

It is also insisted that the court erred in giving instructions Nos. 2, 3 and 4, asked by the defendant. These instructions were all on the subject of justifiable homicide and were covered by instruction No. 5 given by the court, and we do not deem it necessary to set out the refused instructions.

Instruction No. 5 reads as follows: “You are instructed that the defendant in this case pleads self-defense in justification of his act in shooting and killing the deceased. Self-defense is a legal defense, and one which would entitle the defendant to an acquittal, if the jury finds from the evidence in this case that the defendant acted in self-defense at the time of the killing. And it need not appear, in order that the defendant may plead self-defense, that the defendant was actually in danger of losing his life, or receiving great bodily harm, at the hands of the deceased; but, if you believe from the evidence in the case that the defendant, acting in good faith, and without fault or carelessness on'his part, honestly believed, at the time he fired the fatal shot, that he was in danger .of losing his life, or of receiving great bodily harm at the hands of the deceased, then the defendant would be entitled to an acquittal, even though you should further find that the defendant was in no actual danger of losing his life or receiving great bodily harm at the hands of the deceased at the time he fired the fatal shot. ’ ’

It is apparent from reading this instruction that the court gave all that the defendant was entitled to on this phase of the case.

It is also insisted by counsel for the defendant, that the court erred in refusing to give instructions Nos. 5, 6 and 7, asked by the defendant. We do not deem it necessary to set out these instructions. They were on the subject of threats and the weight to be given to dying declarations. The refused instructions were fully covered by other instructions given by the court.

In Robinson v. State, 99 Ark. 209, the court said that dying declarations to be admissible must be made under a sense of certain and impending death. In determining this question the court may consider all'the facts and surrounding circumstances, such as the character of the wound itself, the declaration of the deceased himself that he could not live, and the fact that he died shortly afterward. See, also, Rhea v. State, 104 Ark. 162.

The court told the jury that' it was its province to weigh the dying declarations and the circumstances under which they were made, and to give them only such credit, upon the whole evidence, as they might think they deserved.

The instructions on this point were full and complete and in accord with the principles of law uniformly laid down by this court.

In Harper v. State, 79 Ark. 594, the court held that threats of violence toward the defendant, alleged to have been made by the deceased, unaccompanied with overt acts showing an intent to carry them into effect, are competent in a homicide case to show deceased’s character for violence and his disposition of mind toward defendant, to be considered in determining who was the aggressor. The testimony of this character was admitted by tlie court to go to the jury, and tbe jury was instructed upon this phase of the case in accordance with the rule just announced.

The court also instructed the jury on the question of reasonable doubt and fully and fairly submitted the respective theories of the State and of the defendant to the jury under proper instructions.

We find no prejudicial error in the record, and the judgment must be affirmed.


text:
    Malone v. Wade.
    Opinion delivered May 16, 1921.
    1. Tenancy in common — tenure.—Tenants in common hold by several and distinct titles, but by unity of possession.
    2. Tenancy in common — landlord’s lien. — Where two tenants in common leased land to defendant, and one of the cotenants advanced supplies to the lessee to make the crop, he will be entitled to a landlord’s lien therefor, under Crawford & Moses’ Dig., § 6890.
    3. Payment — landlord’s lien — application op proceeds op crop.— Where a landlord has a lien not only for rent but also for advances of supplies for the crop of his tenant, he may apply the proceeds of such crop first to the account for supplies.
    4. Landlord and tenant — breach of lease. — Where a tenant does not pay the rent when due and makes no effort thereafter to pay it on notice that the lessors did not intend to wait on him longer, this constituted a breach of the lease and warranted eviction.
    6. Landlord and tenant — damages por unlawful eviction. — A tenant unlawfully evicted by the landlord may recover the loss directly and naturally resulting therefrom, including the excess of the rental value over the agreed price and the expense of removal to another place.
    Appeal from Lonoke Circuit Court; George W. Ciarle, Judge;
    reversed.
    STATEMENT OE EAOTS.
    A. D. Malone and J. N. Harris brought a suit of unlawful detainer against W. T. Wade to recover possession of a tract of land wbicb the plaintiffs had leased to the' defendant.

      The defendant denied that the plaintiffs were entitled to the possession of the premises and' filed a cross-complaint in which he seeks to recover damages on account of being evicted from the land in question. The material facts are as follows:
    On the 9th of October, 1918, A. D. Malone and J. N. Harris leased to W. T. Wade and J. M. Bradford for a period of five years, beginning January 1,1919, a tract of land in Lonoke County, Arkansas, comprising 546 acres. The contract provided that the lessors should retain a lien on all crops on the place until the rents were fully paid each year, and that the rents should be paid as the cotton was gathered and to be finally paid by November 1 of each year. The lessees agreed to pay $15 per acre each year, or eighty pounds of lint cotton of middling grade, or better. The contract further provided that the lessees should deaden a certain amount of green timber during the summer of 1919, and clear certain lands before the close of the year 1921. It was further provided that the lessees should keep open all the ditches on the place and keep clean all the turn rows.
    The lessees were unable to procure any one to furnish them supplies to make the crop for the year 1919, and reported that fact to the lessors. A. D. Malone agreed to, and did, furnish them with supplies to make the crop for the year 1919. In the late summer, or early fall, of 1919, the lessees admitted that they were not able to run so large a place, and it was agreed that the lease contract should be canceled except that each party should retain 160 acres and execute a new lease contract for that amount identical in terms with the original contract.
    Malone furnished Wade with merchandise and sup-' plies to the extent of about $7,000 with which to make a crop during the year 1919. Wade failed to pay his rent and supply account, and on the 5th day of February, 1920, A. D. Malone brought suit against him in the chancery court to foreclose his lien for rent and supplies. J. N. Harris was appointed receiver to take charge of the crop and acted in that capacity without pay. On March 11, 1920, there was a decree by default in favor of Malone against Wade'in the sum of $3,460, less the proceeds of the crop in the sum of $2,619.12, leaving a balance due Malone by Wade of $840.88.
    According to the testimony of Malone, Wade failed to comply with the contract by cleaning the turn rows and. keeping the ditches open. The lessors caused notice to be served on Wade in the manner provided by the statute on the 6th day of February, 1920, to vacate the premises. Wade refused to vacate and was evicted in the manner provided by statute. Malone and Harris denied that they, or either of them, promised to furnish Wade for the year Í920, and stated that they told him he must pay his rent and supply account or get off the place. They waited for him to do so until the 6th day of February, 1920, and, finding that he had made no effort to pay his rent and account for supplies for the year 1919, or to supply himself for the year 1920, they caused notice to be served on him to vacate the premises as above stated.
    W. T. Wade was a witness for himself. According to his testimony, Malone first left the impression on lfim that he was going to take his “stuff,” and he thought that, if he did not do something, Malone would “clean him up.” Wade then went to see J. J. Scroggin and told him about his condition. He made' arrangements with Mr. Scroggin to pay Malone for him. He did not pay Malone because Scroggin went to Florida without letting him have the money. ’ ’ When Wade first told Malone .and Harris that Scroggin would “fix him up,” Malone left the impression on Wade that he would carry over his account, until after Mr. Scroggin had gone away. Wade testified that he would have worked the land in 1920, if he had not been put off. Other evidence was adduced by him tending to show the damages suffered by him on account of being evicted from the land.
    Other facts will be stated or referred to in the opinion.

      The jury returned a verdict for defendant, and from the judgment rendered the plaintiffs have appealed.

      Morris, Morris & Williams, for appellants.
    The verdict is not only -without evidence to sustain it, but is directly against the clear and conclusive evidence in regard to which there was no conflict. 24 Art. 227; 15 Id. 109; 8 Id. 155; 7 Id. 435. See, also, 10 Ark. 309; 7 Id. 462; 5 Id. 640. Failure to pay rent and to quit possession after demand in action of unlawful detainer are good grounds of action, independent of their being made grounds of forfeiture in the contract of lease. 57 Ark. 301; C. & M. Digest, §§ 4838, 4842.
    The complaint complied with these sections, and the verdict is contrary to the law and the evidence, and a new trial should be granted.

      Williams & Holloway, for appellee.
    There is substantial evidence to support the verdict, and the damages are not unreasonable or shocking to any court. The great preponderance of the evidence sustains the verdict.
   Hart, J.

(after stating the facts). It is earnestly insisted by counsel for the plaintiffs that the evidence is not legally sufficient to support the verdict, and in this contention we think counsel are correct. Under the terms of the lease contract, the rent was to be finally paid on the first of November of each year. This provision was for the benefit of the lessors and might be waived by them. According to the testimony of the defendant, they waited on him until some time after the first of the year to pay the rent and supply account. Wade had been unable to supply himself, and,.some time after the execution of the lease contract, he made an agreement with A. D. Malone to furnish him with merchandise and supplies with which to make a crop in 1919. Malone waited for Wade to pay him his account for supplies and the amount due as rent until the 5th day of February, 1920. Malone and Harris owned the land as tenants in common. Tenants in common hold by several and distinct titles, but by unity of possession. The reason is, that none knoweth his own severalty, and therefore they all occupy promiscuously. Firemen’s Insurance Co. v. Larey, 125 Ark. 93.

Therefore, under section 6890 of Crawford & Moses ’ Digest, Malone would be the landlord of Wade, and as such landlord would have a lien upon the crop raised upon the demised premises for the value of advances made by him to Wade to make a crop during the year 1919. Malone brought suit in the chancery court to foreclose his lien for the amount of his supply account and the rent due. A decree was rendered in his favor against Wade for the balance due of $840.88. Wade made no defense to the foreclosure suit and made no effort to finish paying his supply account or the balance of the rent due for the year 1919. Having a lien for the rent and supplies, Malone had a right to apply the proceeds first to the payment of the supply account, and this left a balance of over $800 on the rent. These facts are established by the undisputed evidence and constituted a breach of the lease contract which warranted the lessors in evicting the lessee from the premises. -

It is true Wade testified that Malone led him to believe that he would carry him over, and that Scroggin had promised to pay off his indebtedness to the plaintiffs. Wade knew, however, when notice to quit was served on him on the 6th day of February, 1920, that his lessors did not intend to wait on him any longer, and it devolved on him to make arrangements to pay his rent, or to forfeit his right to longer occupy the premises. Yet, after this time, he made no effort to get into communication with Scroggin, or to carry out his contract with the plaintiffs. He did not even make any defense to the foreclosure suit. Therefore, the undisputed facts, as disclosed by the record, warranted the plaintiffs in evicting him from the premises.

Complaint is also made by the plaintiffs as to the instruction given by the court on the measure of damages. We do not deem it necessary to set out this instruction. Suffice it to say that the instruction complained of follows the rule laid down in McElvaney v. Smith, 76 Ark. 468. In that case the court said:

“When a landlord unlawfully evicts a tenant from the premises, the tenant is entitled to recover as damages whatever loss results to him as a direct and natural consequence of the wrongful act of the landlord. If the rental value of the place from which he is evicted is greater than the price he agreed to pay, he may recover this excess and, in addition thereto, any other loss directly caused by the eviction, such as the expense of removal to another place.”

For the error in not directing a verdict for the plaintiffs, the judgment will be reversed and .the cause remanded for a new trial.