author: Smith, J.

text:
    Davis v. Wells.
    Opinion delivered May 21, 1923.
    1. CARRIERS — CHANGE OF CARS — NOTICE TO PASSENGER. — Though a ticket purchased by a passenger showed on its face that a change of cars at a certain station is required, the carrier is liable for carrying the passenger beyond such junction point unless the passenger knew, or in the exercise of reasonable, care ought to have known, that it was necessary to change cars at such junction point.
    2. Carriers — carrying passenger beyond junction point — damages. — Where plaintiff, as passenger on defendant’s train, was carried 4 miles beyond her junction point, was compelled to wait an hour or two, was brought back on a work train and was compelled to walk a quarter of a mile, carrying one child and leading another, a verdict of $200 was not excessive.
    Appeal from Crittenden Circuit Court; W. W. Bandy, Judge;
    affirmed.

      T. 8. Buzbee and II. T. Harrison, for appellant.
    The evidence fails to show any negligence on the part of the defendant, and also fails to show any damage suffered by appellee in consequence of being carried by her station. At most she suffered annoyance and inconvenience incident to the delay at Madison and walking a few blocks in returning to Forrest City. 122 Ark. 584. The verdict is excessive. If she ©an recover at all, the amount should be limited to nominal damages.

      J. G. Brookfield, for appellee.
    Tike jury found, under proper' instructions, tliat appellee kad no notice tliat tke junction point where change of cars was necessary liad been readied,' and tke case is unlike tliat of 122 Ark. 584, cited by appellant. Tke verdict is not excessive. 94 Ark* 324; 81 Ark. 429.
   Smith, J.

Tke plaintiff alleged that on tke 8th day of May, 1919, she and her husband and their two children, of tke ages of two and three years, were traveling overland from Oklahoma into-this State by way of the town of Hazen, a station on the line of defendant’s road. That, on account of the public highways becoming bad, she purchased a ticket .at Hazen for Wynne, where she ivas to remain until the arrival of her husband in the automobile. She boarded one of defendant’s passenger trains at Hazen, with the two children and a suitcase. She was not informed by either the station agent who sold her the ticket or the conductor on the train, or any of the employees of the defendant company, that she would have to change cars at Forrest City; neither was she so advised when she reached Forrest City, although her ticket was taken up by the train auditor immediately after leaving Hazen.

Plaintiff was carried by Forrest City to Madison, a town four miles east of Forrest City, where she was picked up by a work-train and carried back to Forrest City, or to a point near there, from which place she had to walk and carrjr her children, and later caught a train to Wynne, where she arrived eight hours later than she would have done had she been told to change cars at Forrest City.

Plaintiff’s testimony supported all these allegations, except the delay in arriving at Wynne. The testimony disclosed the fact that she departed on the train she would have taken had she not been carried by Forrest City, unless she had been willing to make the trip, to Wynne on a local freight train leaving Forrest City earlier in the afternoon.

Plaintiff testified that the train on which she was a passenger stopped at Forrest City for a sufficient length of time for her to have left the train safely, but she did not leave* it for the reason that she did not know she should have changed cars there. She testified that, after leaving Forrest City, a trainman came through the car and asked her rudely why she had not changed at Forrest City, and stated that she should have had sense enough to do so. Except for this rudeness she was treated very courteously by the defendant’s employees with whom she came in contact. The conductor of the train which carried her by Forrest City saw the conductor of the work-train at Madison and asked him to assist plaintiff back to Forrest City, and the conductor of the work-train performed that service very courteously. He did not run his train up to the station, because his train did not have the right-of-way on the track leading there, but he stopped his train in the yards near Forrest City, and carried plaintiff’s suitcase to the depot. Plaintiff says the distance she had to walk was about a mile, and that she carried one child and led the other, and was much exhausted and fatigued when she arrived at the depot. Plaintiff was evidently mistaken as to the distance she walked, but she did walk a distance of from a quarter to half a mile, and she testified that she was much perturbed by the experience.

The court refused to give, at defendant’s request, a peremptory instruction in its favor. The court gave, at the instance of the defendant, an instruction to find for the defendant if the jury found that plaintiff failed to exercise ordinary care on her own behalf in respect to changing cars at Forrest City.

The defendant asked an instruction, numbered 3, which reads as follows: “The jury are instructed that, if you find from the evidence in this case that the ticket purchased by the plaintiff was a coupon form ticket, one portion of which read from Hazen to Forrest City, and the other portion of which read from Forrest City to Wynne, and showed on its face that it was by way of the Missouri Pacific from Forrest City to Wynne, and that this would have been sufficient, under the circumstances, to put a reasonably intelligent person on notice that it was necessary to change ears at Forrest City, your verdict should be for the defendant.”

Tlie .court gave this instruction after adding the following qualification: “If you further find from the evidence that plaintiff knew, or could have known by the exercise of ordinary care, when the train she was on reached Forrest City, that she had reached the place where it was necessary for her to change trains in order to go to Wynne.”

An exception was saved to this modification. After modifying the instruction as indicated the court gave, over defendant’s objection, the following instruction: “2. You are instructed that, if you find from a preponderance of the evidence that the plaintiff bought a ticket from Hazen which entitled her to transportation from there to Wynne, and that under that ticket she became a passenger on defendant’s train, and that it was necessary for her, in order to reach the place of her destination, which was Wynne, that she should make a change of cars at Forrest City, then it became the duty of the railroad company to notify her when the train reached Forrest City, and that that was the junction of its railroad with the Missouri Pacific, the one she would have to travel on to reach Wynne; and if you find from the evidence in this case that the defendant failed to give notice, then your verdict should be for the plaintiff, if you find that the plaintiff in fact suffered any damage because of the failure of the company to give said notice.”

To the giving of this instruction the defendant made the specific objection that it, in effect, imposed an absolute duty on the defendant to give notice of the change of cars at Forrest City,, and left out of consideration tlie fact that due and reasonable notice was given to the plaintiff by the form of the ticket which she had purchased.

We think the court properly refused to direct a verdict in defendant’s favor. And we are also of the opinion that, as modified, defendant’s instruction numbered 3 declared the law as favorably to defendant as it had the right to ask. And we think no error was committed in giving instruction No. 2 set out above.

The instructions should, of course, be read together; and, when so read, they advised the jury that plaintiff could not recover if she knew she should change cars at Forrest City, or, in the exercise of ordinary care, should have known it. In other words, the court submitted to the jury the question whether plaintiff had notice of the change of cars, and told the jury to find against her if she had notice. Of course, if she had this notice, she should have acted upon it, regardless of the manner in which she obtained the notice. But in instruction numbered 2 the court properly told the jury that she was entitled to notice; and so she was.

Plaintiff was not entitled to personal notice, and the instruction does not so declare the law, but she was entitled to notice, and the instruction did not leave out of consideration the fact that she might have had this notice from the form of her ticket, because the third instruction so declared the law.

The instant case is very similar to that of St. L., I. M. & S. R. Co. v. Needham, 122 Ark. 584. There, as here, the plaintiff took passage on one road for a station on another, and was carried by the station at which she should have changed cars. In that case, as in this, the train auditor testified that he advised the passenger of the necessity of changing cars when lie took up the ticket, but that fact was denied in each case by the passenger. In that case the brakeman testified that, as the train approached Kensett, the station at which the plaintiff should have changed cars for ITeber Springs, her destination, a station on the M. & N. A. railroad, he called out in the car in which plaintiff was riding for all passengers to “Chang*e cars for 'Searcy and Eureka Springs,” these being important stations on the M. & N. A. railroad; but the brakeman did not announce that the change should be made for Heber Springs and other intermediate points; but the plaintiff denied having heard the announcement which was made. We there said: “It is clear that if there was an announcement made, as claimed by the flagman, giving notice of the necessity for a change of cars to points north on the. Missouri & North Arkansas Railroad, the plaintiff was bound to take notice of her route and make the necessary change. She was an adult, apparently of ordinary intelligence, and in full possession of her senses, therefore the carrier was not required to give her special notice of the necessity for a dhange of cars. All that the law required was that a suitable regulation be made for the convenience of passengers, and that reasonable steps be taken to bring those regulations to the attention of the passenger, no further individual notice being required.” A number of cases were cited in support of the doctrine announced. It was there also said that “while the defendant (railroad company) had the right to assume that the plaintiff had informed herself as to the route to her destination, yet the obligation rested upon the carrier to give some notice of the arrival at the junction point, and of the fact that it was the junction point applicable to the route plaintiff was traveling.”

In other words, it is the duty of the carrier to give passengers notice of the arrival of trains at junction points for connecting railroads, and the court properly so directed the jury, and, while it is true that no individual notice is required, the instruction complained of did not impose that exaction, and, if it was thought susceptible of that interpretation, a specific objection to that effect should have been made.

It is also urged that the verdict, which was for $200, is excessive. Upon this question it may be said that full compensation was allowed, but we do not find that it was so excessive that it must be reduced. It is true that, while plaintiff'spent the day in Forrest City, she resumed her journey on the train she would have taken had she transferred properly, unless she had taken passage on a local freight train, which she might have done; but she did have an experience which was highly annoying- and which, no doubt, caused her much mental distress. Until the conductor of the work-train took charge of her, she was incumbered with a suitcase and had the care of two small children, and, thus incumbered, she waited for an hour or more at Madison, and she was compelled to carry one of these children and lead the other along the railroad track for a quarter of a mile or more after reaching Forrest City. Upon arriving at the hotel where the conductor escorted plaintiff, she was compelled to take a room and stay the remainder of the day, and, under the circumstances, we do not think the verdict is so excessive that it can he said to he unsupported by the evidence. Hines v. Witherspoon, 143 Ark. 131.

Judgment affirmed.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    Firemen’s Insurance Company v. Hays.
    Opinion delivered May 21, 1923.
    1. INSURANCE — waiver op FORMAL PROOF of LOSS.-^Where a fire insurance company, by an authorized agent, requested an estimate of the cost of replacing a building which had been destroyed by fire, and received such estimate and delivered it to its adjuster, it will he held to have waived the formal proof of loss required by the policy.
    2. Insurance^-authority to waive proof of loss. — An insurance company, by vesting its agent with authority to make request for and to receive estimates of the cost of replacing buildings and to issue and deliver policies, conferred apparent authority to adjust losses and waive proof of loss.
    3. Insurance — waiver of proof of loss.' — Where an insurance company dealt with the mortgagee of property destroyed by fire as the party in interest by attempting to adjust the loss with him, it cannot thereafter, in an action on the policy, avoid liability upon the ground that the mortgagor to whom the policy was issued had failed to make proof of loss as required by the policy.
    4. Insukance — warranty as to use of premises — waiver.—Insurance agents possessing the power to issue policies and collect premiums may waive warranties therein as to title, character and occupation of the property insured by accepting applications for insurance, delivering the policies and collecting the premiums; and where an agent, at the time he received an application for a policy, collected the premium and delivered the policy, knew that the building was constructed for a hall arid was used as such, the insurer was bound by such knowledge, and cannot insist upon a forfeiture because the policy was intended to cover a dwelling house.
    Appeal from Cross Circuit Court; W. W. Bandy, Judge;
    affirmed:

      Roscoe R. Lynn, for appellant.
    The insurance company had the right to fix the terms and conditions upon which it would insure ap-pellee, without interference from the courts in varying them. 65 Ark. 295; 142 Ark. 374; 122 Ark. 219. There was no waiver of proof of loss which was not dispensed with. 67 Mo. App. 76; 108 Ark. 261. Can he no waiver after time for furnishing has expired. 88 Ark. 120. No action on part of representatives of the company calculated to mislead insured. Proof does not bring case within rule announced in 87 Ark. 171; 122 Ark. 380. The ugent made no representations that he had authority to adjust the loss, and had no such authority. 36 N. E. (N. Y.) 191. The refused peremptory instruction and instruction No. 8 raised this question. The court erred in refusing appellant’s requested instruction No. 9. Clement on Insurance, 209, rule 20; 145 Fed. Ben. 77; 14 R. C. L., § 506; 1 Clement on Insurance, 26, rules 16 and 17; same, 380, rule 25. Mortgagee may make proof of loss, under certain conditions. 14 R. C. L., § 264; 1 Cooley Insurance 776. This is dwelling house policy, and there was no waiver of the different character of occupancy. Vacancy of building in violation of terms rendered policy void. 119 Ark. 597. The court erred in giving appellee’s instructions 4 and 6 and in refusing appellant’s request for instructions 6, 11, 13 and 15, submitting its theory of the case. The jury were misled by instructions 1 and 2, given on the court’s own motion.

      Mann & Mann, for appellee.
    Loss payable clause gave mortgagee an interest in policy, and it was not required to furnish proof of loss. 175 Ill. 115, 51 N. E. 717; 44 Fla. 568, 33 So. 473; 115 Mo. App. 21, 90 S. W. 747. Mortgagee not bound by conditions of policy not referred to as incorporated into the mortgage clause. 47 Neb. 717, 36 L. R. A. 673; 55 L. R. A. (Wash.) 165; 76 Miss. 702, 26 So. 691. Contract construed most strongly against insurer. 113 Ark. 174. Mortgagee has right to make proof of loss, though not required to do so. 14 R. O. L. 1336; 196 Mass. 230, 13 Ann. Cas. 433; 14 L. R. A. (N. S.) 436; 13 Ann. Cas. 433; 14 L. R. A. (N. S.) 436; 80 Me. 100, 12 Atl. 880; 94 Md. '545, 51 Atl. 184. Mortgagee authorized by insured to settle loss for him. Letters sufficient to lead it to believe no proof- of loss necessary. 128 Ark. 528. Local agent, having power to issue policies and collect premiums, has apparent authority to adjust losses and waive proof of loss. 100 Ark. 212; 122 Ark. 357; 151 Ark. 561. Instruction 4 properly stated law on this point. Policy for dwelling’ house not avoided because house of different kind insured. Agent of insurance company was notified of fact when policy was issued, and question submitted to jury in instruction 6. 81 Ark. 508; 63 Ark. 187; 88 Ark. 507; 65 Ark. 64; 39 L. R. A. 789; 79 Ark. 315; 128 Ark. 528; 108 Ark. 261. Not necessary for building to be kept occupied as a dwelling. 52 L. R. A. (N. J.) 344.

      Roscoe R. Lynn, in reply.
    No mortgage clause contained in this policy, as in those of cases cited by appellee. Nothing as “loss payee” clause to show appellee was a mortgagee. E. C. Dalton was not an agent of the local agent at Wynne.,
   Humphreys, J.

Appellees instituted suit against appellant in the circuit court of Cross County to recover $600 and interest, the face value of a fire insurance policy, and statutory penalty of $72, -and a reasonable attorney’s fee. The policy was issued by appellant to ap-pellee, Charlie Hays, and contained a loss payable clause in favor of appellee, Wilkinson & Carroll Cotton Company, as its interest may appear. Wilkinson & Carroll Cotton Company held a mortgage from Charlie Hays on the property. It was alleged that on or about April 1, 1921, during the life of the policy, the building was totally destroyed 'by fire; that appellee,- Charlie Hays, was indebted to the Wilkinson & Carroll Cotton Company in the sum of $880 and interest secured by mortgage upon said property; that, in addition to the right of recovery on the policy, appellees-were entitled to recover twelve per cent, penalty and a reasonable attorney’s fee. Appellant filed an answer denying any liability under the policy upon the ground, first, that ap-pellees failed to furnish proof of loss; second, that the building was insured as a dwelling, when it was a hall; third, because the building was unoccupied and vacant prior to and at the time it burned, contrary to certain provisions in the policy.

The cause was submitted upon the pleadings, testimony introduced by the parties, and instructions of the court, which resulted in a judgment against appellant for $600 and interest, and penalty of $72 and an attorney’s fee of $150, from which is this appeal.

Appellant’s first insistence for reversal is that there was no waiver of failure to furnish proof of loss as required by the policy. The policy contained a provision requiring written proof of loss by the insured if the building should be injured or destroyed by fire. The loss clause specified what the written notice of loss should contain. The written notice complying with the loss clause was not given by either the insured or the mortgagee. Immediately after the fire the insured orally notified R. C. Dalton, the agent' of appellant at Parkin, of the loss. The mortgagee, Wilkinson & Carroll Cotton Company, heard of the fire, and on April 1 and 4, 1921, notified- the East Arkansas Land & Abstract Company, of-Wynne, Arkansas, of the loss, and called its attention to the fact that the amount due on the policy was payable to it by special provision in the policy. The East Arkansas Land & Abstract Company was the agent of appellant with power to issue policies and collect premiums thereon. It issued the original and renewal policies to Hays on the property in question and delivered same to him through R. C. Dalton, who collected the premiums on both policies. When the land company received the letter of the cotton company notifying it of the fire, it replied claiming Hays liad not paid the premiums on the policies, although pressed by them- to do so. The letter contained the following paragraph:

“It will be necessary for some one to have a competent contractor to make an estimate of the cost of what it will take to rebuild the building, basing his figures on light material that was in the original building.”

The cotton company immediately notified the land company that it had a receipt for the .premium on the renewal policy, signed by R. C. Dalton. On the 16th day of April, 1921, the land company informed the cotton company that its representative, N. B. Martin, had made, two rinsuccessful trips to Parkin to see Hays, for the purpose of obtaining necessary information’to report the loss of appellant. Martin visited the premises, saw the ash-pile, and made the following request of the cotton company: “If you have some estimate made showing the labor, material, etc., necessary to replace the building, also the date the fire occurred, so that nroper report can be made to the company, I will endeavor to place this in line for adjustment.” The cotton company mailed the land company an estimate by a good firm of building contractors, showing the cost of labor, material, etc., necessary to replace the building, receipt of which estimate was dnly acknowledged by the land company. The letter containing the acknowledgment also contained the following paragraph: ‘£I have furnished the information to the adjuster, who has charge of this settlement. He was in Parkin last week, but at that time could find no one that lived in the house at the time of the fire, or any one that could give any information.” Immediately after being notified of the fire, the land company sent appellant a regular form of notice of loss and mailed a copy thereof to its State agent, R. M. Smith, who resided at Fayetteville. R. M. Smith employed T. R. Smallwood, an independent adjuster residing at Little Rock, to visit Parkin and investigate the loss. He called at the office of the land company and examined all the correspondence between the cotton company and the land company, and took possession of the estimate of labor, material, etc., necessary to replace the building, which had been furnished the land company by the cotton com-. pany. The adjuster spent a day at Parkin, and visited the premises. He was unable to find. Hays, and made no effort to see the cotton company, and made no request of either for further information concerning the loss.

We think the correspondence led the mortgagee to believe that appellant would adjust the loss and make a settlement without the necessity of making formal proof of loss under the loss clause in the policy. Appellant, through its agent, requested an estimate of the cost of replacing the building, from the mortgagee, accepted and placed same in the hands of its employed adjuster. The agent had the authority to make the request for and receive the estimate, for it had power to issue.policies and collect premiums. By vesting this authority in its agent, appellant conferred apparent authority upon said agent to adjust losses and waive proof of loss. Citi zens’ Fire Ins. Co. v. Lord, 100 Ark. 212; Concordia Fire Ins. Co. v. Mitchell, 122 Ark. 357; National Union Ins. Co. v. Crabtree, 151 Ark. 561. The facts in the instant case responsive to the issue of waiver bring it within the rule announced in Liverpool & London & Globe Ins. Co. v. Payton, 128 Ark. 528. In support of the rule and its application reference is also made to National Union Fire Insurance Company v. Whitted, 157 Ark. 515. Appellant insists, however, that under the terms of the policy the mortgagee of the property was simply an appointee to receive the loss, and that its rights were dependent upon whether the insured himself made proof of the loss, or was exempted therefrom by the conduct of appellant. It is unnecessary to determine the status of said mortgagee under the loss-payable clause in the policy, for, in the negotiations looking to settlement of the loss, appellant, through its duly qualified agent, treated the mortgagee of the property as a party in interest. After attempting to adjust the loss with the mortgagee, appellant cannot he heard to say said mort•gagee was not a party to the contract, and that therefore the negotiations with it were of no effect.

Appellant’s next insistence for reversal is that the policy covered loss by fire to a dwelling house only, and that the failure to occupy same for residential purposes avoided the policy by the express terms thereof, and that R. C. Dalton had no authority to waive warranty clauses relative to the occupation of the property as defined therein. The undisputed testimony showed that the building was constructed for a hall; that the upper part was leased to a lodge, and the lower part was used for public gatherings. Hays testified that he informed Dalton, when the first policy was written, that it was rented to and occupied by a lodge. R. C. Dalton was appellant’s licensed agent, residing in Parkin at the time the policies were written. He received the application for the policies, forwarded them, and, when returned, delivered them and collected the premiums for them. The undisputed testimony shows that he was endowed with authority to do this. Appellant was bound 'by such information as Dalton received during his employment concerning the character and occupation of the building. Capital Ins. Co. v. Montgomery, 81 Ark. 508. This court is committed to the doctrine that agents, possessing the authority Dalton had, waive warranties in policies relating to the title, character and occupation of the property insured by accepting applications for insurance, delivering the policies and collecting the premiums thereon. State Mutual Ins. Co. v. Latourette, 71 Ark. 242; Phoenix Ins. Co. v. Amusement Co., 63 Ark. 187; Phoenix Ins. Co. v. Fleming, 56 Ark. 64; Commercial Fire Ins. Co. v. Belk, 88 Ark. 507; Peopled Fire Ins. Assn. v. Goyne, 79 Ark. 315. The issue of fact as to whether R. C. Dalton, the licensed agent of appellant, knew that the building was a hall at the time the policy sued upon was issued was submitted to the jury for determination by instructing them as follows: “If you find from the testimony that R. C. Dalton, at the time this policy was issued and delivered, knew that the property insured was not a dwelling, and that he received this information from the plaintiff at the time the policy was requested, this knowledge is the knowledge of the company, and the provision' in the policy that the building should be occupied as a dwelling is waived.”

Appellant is therefore concluded by the adverse verdict of the jury upon that issue. That being so, the warranty clauses in the policy governing vacancies and the character of occupation are eliminated under the doctrine of waiver. In this view of the case it becomes unnecessary to discuss the alleged infirmities of the instructions given or the refusal of the court to give instructions bearing upon these questions. The instructions submitting the issue of whether appellant waived written proof of loss were more favorable than appellant was entitled to. The court should have held, as a matter of law, that written proof of loss was waived under the undisputed facts. In all other respects the issues were ■ submitted to the jury under proper instructions.

No error appearing, the judgment is affirmed.


text:
    Williams v. State.
    Opinion delivered May 21, 1923.
    t. Intoxicating liquors — evidence op manfacturing. — Evidence that defendants, when arrested, were preparing to make whiskey, together with their confession of guilt and their ownership of a still which had been in use many years, held to support a conviction for making whiskey.
    2. Criminal law — instruction as to circumstantial evidence.— An instruction which erroneously assumed that the State relied wholly upon circumstantial evidence was properly refused where the State did not rely wholly upon that character of evidence.
    S. Criminal law' — instruction as to reasonable doubt. — An instruction that a reasonable doubt “is not an imaginary doubt or far-fetched doubt, but is a reasonable doubt growing out of the testimony in the case,” is not objectionable as not including the idea that a reasonable doubt may arise from lack of evidence, as a doubt growing out of the testimony in a case necessarily relates to a lack of testimony as well as to testimony g-ivén in the case.
    Appeal from Clark Circuit Court; Jam.es II. Mc-Collum, Judge;
    affirmed.
    , John D. Hoskins, for appellants.
    . Evidence is insufficient to support the verdict. Shows at most some preparation toward manufacture. Patterson v. State, 140 Ark. 236; 141 Ark. 376; 151 Ark. 559; 4 Words and Phrases, 3736, “Intoxicating Liquors.” There being no evidence that the offense of manufacturing liquor had been committed, the alleged confessions were not sufficient to support conviction. 107 Ark. .568; 111 Ark. 457.. Court-erred in referring, appellant’s requested instruction numbered 3. 2 Wharton’s Criminal Evidence, 127, sec. 3. Also in giving the instruction as to reasonable doubt.

      J. S. Utley, Attorney General, John L. Garter and Wm. T. Hmnmock, Assistants, for appellee.
    Appellants 'were convicted for violations of § 6160, Crawford & Moses’ Digest, and the evidence is sufficient to support the verdict. 135 Ark. 159; 149 Ark. 501.
   Humphreys, J.

Appellants were indicted, tried, and convicted in the circuit court of Clark County for making whisky, in violation of § 6160 of Crawford & Moses ’ Digest, which is as follows:

“It shall be unlawful for any person, firm or corporation to manufacture, sell or give away, or be interested, directly or indirectly, in the manufacture, sale or giving away of any alcoholic, vinous, malt, spirituous or fermented liquors, or any compound or preparation thereof, commonly called tonics, bitters or medicated liquors, within the State of Arkansas.”

While the cases were tried together'for convenience, separate verdicts were rendered against the parties. From the respective Judgments of conviction each has duly prosecuted an appeal to this court. The respective appeals will be treated in one opinion, as the same questions are involved in the cases.

Appellants’ first insistence for reversal is that the facts are insufficient to support the verdicts. If, upon all the facts and circumstances in the case, the jury might have indulged 'a reasonable inference that appellants had manufactured whiskey in said county within three years next before the finding of the indictments, then the evidence was sufficient to support the verdicts. The facts and circumstances revealed by the record are, in substance, as follows; four barrels of mash were discovered on the farm of Len Williams by Tom Tollerson, city marshal of Amity, and IT. W. Chambers, deputy sheriff of said county. The mash was inspected every few days by the officers until January 22, 1923, at which time the fermentation liad progressed until it was ready for distilling, or ripe, as some of the witness said in describing its condition. On that day a part of the mash was removed from the barrels to a still located about seventy-five yards from Williams’ house, on Williams’ land. Early the next morning, before day, the officers concealed themselves from view at a point near the still, to watch for and catch the parties who came to the still for the purpose of operating it. Len Williams came before day, with a flashlight, and built a fire under the still. Just about daylight Oscar Wheeler came on horseback, carrying a coil and two jugs tied together with a rope, and, after holloing in a low tone to Williams, he approached the still from the opposite side of the fence, and placed the coil and jugs against the fence about three feet from the still. Wheeler went to the barn, put up his horse, and returned. It was quite cold, sleet being on the ground, so the officers came from cover and arrested appellants. In response to queries, they stated, in' substance, that, if the run had been successful, they would have been able to make about twenty gallons of whiskey ; that they owned the still and were the only parties interested therein; that they were making the whiskey to sell •to get out of debt; that the still was a good one but old, having been in use for thirty years; that they had not been making whiskey long. Oscar Wheeler stated to the officers, in the presence of Len Williams, that they were caught at the still, were guiltjr, and the best they could do was to submit. W. A. Denton testified that, in conversation with Len Williams, Len told him he was making whiskey for the dollars and cents, not to drink. Bob Allen testified that, after the arrest, he asked Oscar Wheeler what in the world he meant, to which Oscar replied, “Well, if I had had my way, I wouldn’t a pulled this stunt off. I saw some tracks two weeks ago that led me to believe I had better let it alone, but I was thinking it was a kind of a bad morning, thought maybe I could get by with it.” The justice of the peace testified that, when appellants were brought before him, they admitted their guilt, and wanted to throw themselves upon the mercy of the court.

Appellants make the argument that, because no whiskey was found, and because the particular run in process of making had not been distilled, there was no substantial evidence to show that they had manufactured intoxicating liquors within three years next before the finding of the indictment. It is not necessary to find whiskey or intoxicating liquors in the possession of moonshiners in order to convict them of manufacturing intoxicants. It is sufficient, if a reasonable inference may be drawn from all the facts and circumstances, that they have manufactured same within a period covered by the indictment. In the instant case, when appellants were arrested, they were admittedly engaged in making’ whiskey, but had not yet converted the particular mash in hand into a finished product. Mash which was ripe and ready to run had been placed in a still owned by appellants, where, by a heating process, it was being prepared to pass through a coil, which was on the ground ready to be attached. The still was a good one, and had been ' in use for thirty years. Appellants were asked how long they had been making whiskey and said, “Not long,” and that they were making it to sell. There is nothing in the record that this was appellants’ first attempt to make whiskey or that they were novices in the business. On the contrary, a reasonable inference might have been well drawn from the surroundings, facts, and circumstances, that appellants were and had been for' some time regularly engaged in the manufacture of intoxicating liquors. The preparations which had been .-made, the inclement morning selected to make the run, the early hour, the ownership of the still by the parties, and its age, all indicate that appellants were regularly engaged in the business. The facts are ample to support the verdict.

Appellants’ next insistence for reversal is tliat tlie court erred in refusing to give their request No. 3, which is as follows:

“You are instructed that, where the prosecution relies upon circumstantial evidence alone for a conviction, the jury must be satisfied beyond a reasonable doubt that the crime has been committed by some one in manner and form as charged in the indictment, and they must not only be satisfied that all the circumstances proved are consistent with defendant’s having committed the act, but they must also be satisfied that the facts are such as to be inconsistent with any other reasonable conclusion than that the defendant is the guilty person; and if the material facts necessary to constitute a chain of circumstances sufficient to authorize the jury in convicting the defendant under the other instructions herein are wánting in a single link in such chain, it is sufficient to raise a reasonable doubt, and the jury should acquit the defendant.”

It is unnecessary to determine whéther the instruction is a correct declaration of the law. It erroneously assumes that the State relied wholly upon circumstantial evidence, which is not borne out by the record. It was properly excluded for that reason. Griffin v. State, 141 Ark. 43; Jordan v. State, 141 Ark. 504.

Appellants’ last insistence for reversal is that the instruction given by the court upon reasonable doubt was erroneous. The instruction is as follows:

A reasonable doubt, gentlemen, is not an imaginary doubt, or far-fetched doubt, but it is a reasonable doubt growing out of the testimony in the case.”

The objection made to it is that it does not include the idea that a reasonable doubt arising from the lack of evidence should be resolved in favor of the defendant. The doubt growing out of the testimony in a case necessarily relates to a lack of testimony as well as to testimony given in the case.

•No error appearing, the judgment is affirmed.


text:
    Tolle v. Curley.
    Opinion delivered May 21, 1923.
    1. Deeds — certainty.'—A deed is not void for uncertainty of description if the land can be located from the description used.
    2. Deeds — surplusage.-—Deeds to land are not void for uncertainty, though they contain indefinite description of witness or bearing trees, where the calls are otherwise definite and certain; such indefinite description of frees being eliminated as surplus-age.
    Appeal from Polk Chancery Court; James D. Shaver, Chancellor;
    affirmed.

      Vaoi Hoy & Frederick, for .appellant.
    The demurrer should have been sustained, the description of the land in the complaint not being sufficient to identify it. 149 Ark. 417; 131 Ark. 335; 80 Ark. 458. Appellant’s exceptions to deeds offered in evidence should have been sustained. 35 Ark. 470.

      Norwood & Alley, for appellee.
    It was admitted that the title was good down to and including the deed to ,E. H. Poe, and appellee presented deeds as exhibits to the complaint showing conveyances in regular order down tÓ and-including this deed to ap-pellee, and the description of the land was sufficient to identify it. 8 P. C. L. 130, 128, 129; 68 Ark. 544; 40 Ark. 237; 111 Ark. 220; 112 Ark. 522. No error was committed in overruling the, demurrer to the complaint and the exceptions to the deeds.
   Humphreys, J.

Appellee instituted suit in the chancery court of Polk County to cancel an alleged void tax sale in 1918 for the taxes of 1917, assessed against á certain fourteen-acre tract of land owned by her, the deeds made pursuant thereto, and to recover possession thereof. Such tract of land was described in the bill and deeds exhibited therewith evidencing appellee’s chain of title, as being in Polk County, State of, Arkansas, and as "follows: • -

“Beginning east of the NW corner of the NW% of the SW1/^, section 1, township 5, range 32 yrnst, six chains and 33 links; thence south 10 chains and 20 links to a stake and whiteoak, fifteen inches in diameter, from said stake and whiteoak, south twenty degrees W. 40 links, also whiteoak seventeen inches in diameter S. 44 degrees, east 52 links; thence south 12 degrees and 43 minutes, east 5 chains and 14 links, from which whiteoak 15 inches in diameter N. 7 degrees, W. 10 links; thence south to the south line of said NW% of the SW34; thence east along said south line 6 chains and 42 links; thence north to the north line of said NW% of the SW^; thence west along said north line to place of beginning, containing fourteen acres, more or less.”

A demurrer was filed by appellant, attacking appel-lee’s title upon the ground that the description of the 14-acre tract in the bill and deeds was indefinite, uncertain, and insufficient to support the action. The demurrer was overruled by the court, over the objection and exception of appellant.

An answer was then filed, denying the material allegations of the bill, and the cause was submitted to the court upon the pleadings and testimony. When the deeds evidencing appellee’s title were offered in evidence, ap-pellee objected to their introduction upon the ground that the description of the land described in each was not sufficiently definite upon which to base the action. The court overruled the objectipn, to which ruling an exception was saved by appellant. A decree was rendered in favor of appellee for the land, and in favor of appellant for the value of betterments placed thereon by him. An appeal from that part of the decree adverse to appellant was perfected, and the cause is here for trial de novo.

The land in question was forfeited and sold for the taxes of 1917 under the following description: “Part of the NW^ SW1/^, 1-5-32.” L. V. Simpson purchased the land at the tax sale for $3.49, and sold it to Younee, who sold it to appellant for six hogs. Appellant took possession of it 'and made .some substantial improvements ther.eon. The invalidity of the tax title is admitted, because the description under which the land was forfeited and sold was not. sufficiently definite to identify any particular land. The sole question therefore presented by this appeal is whether the description contained in the bill, und deeds evidencing appellee’s title, is sufficient to identify said fourteen-acre tract of land. The rule is that a deed is not void for uncertainty of description if the land can be located from the description in the deed. If the descriptive words in the deed furnish a means for identifying the land conveyed, nothing more is required. The beginning point of the description in question is definitely located. Proceeding from that point the first call is definite, certain, and complete down to and including the word “diameter.” The latter part of the first call, and the only part of the call in which uncertainty is claimed to exist, was clearly inserted to describe witness or bearing trees' of certain dimensions, in certain directions and at certain distances from the whiteoak tree at the end or terminus of the first call.' The first call was definitely described without witness or bearing trees, and if there is any uncertainty in tiie location of the witness or bearing trees, the location of such witness or bearing trees should be treated as surplusage in reading the call. The second call is definite, certain, and complete down to and including the word “links.” The last part of the second call was apparently thrown in for the purpose also of designating a witness or bearing tree near the terminus of the call, and is the only part of the call in which uncertainty is claimed to exist. The uncertainty or indefiniteness of explanatory terms, attempting to aid a description of land, should not be permitted to destroy a description already certain a,nd definite. The last parts of the first and second calls are meaningless unless they be treated as nn attempt to describe bearing trees or the termini of. the calls. They were certainly not intended as calls within themselves. They did not aid the definite and certain calls to which they were added, and, being indefinite, must be eliminated as surplusage in reading the calls. 8 R. C. L., 128. It is not contended that the other calls are indefinite and uncertain.

The decree is affirmed.


text:
    Felhauer v. Milam.
    Opinion delivered May 21, 1923.
    BROKERS — compensation—breach OP faith. — Where a broker employed to sell land concealed from his principal the amount of offers from purchasers and negotiated a sale for an amount largely in excess of the amount for which he was authorized to sell, and when he reported the sale to his principal claimed the excess above the authorized sale price as profits to himself, he was not entitled to a commission, on account of his withholding valuable information and attempting to make a gain for himself from the transaction.
    Appeal from Crittenden Circuit Court; W. W. Bandy, Judge;
    reversed.

      Berry & Wheeler, for appellant.
    The court erred in not directing a verdict for appellant. Appellee did not disclose the true ¡amount for which he had sold the lands, and had no contract for a commission beyond a fixed price. 94 Ark. 365; 76 Ark. 395; 126 Ark. 61; 8'2 Ark. 381. He lost right to commission by withholding valuable information from bis principal. Court erred in giving* instruction 5 and also in permitting McCorkle to serve as juror.

      Gautney & Dudley, for appellee.
    Evidence sufficient to sustain verdict, and appellant could not terminate appellee’s agency after sale effected, and deprive him of commission earned. 4 R. C. L-253; 84 Ark. 462; 91 Ark. 212. Cases cited by appellant have no application tó facts of this case. The question of good faith, was properly submitted to the jury in two instructions. No error in giving instruction 5. 117 Mass. 117, 35 L. B. A. 241; 110 Ark. 140; 135 Ark. 269; 131 Ark. 576.
   Humphreys, J.

Appellee brought suit against appellant in' the First Division of the Crittenden Circuit Court to recover $880 as commission for selling real estate for him. The complaint and answer, embraced in condensed form in appellee’s statement, are as follows:

COMPLAINT.
“The complaint alleges that appellant was the owner of the southeast quarter of section 2, township 8 north, range 7 east, and listed the same with appellee for sale, at a net price of $15,000. That appellee sold said land to j. E. Sheppard for the sum of $17,600, $7,600 in cash, the balance upon the terms proposed by the appellant; that appellee notified appellant of said sale, but appellant failed and refused to consummate the sale, although the purchaser was able, willing, and ready to purchase the land upon the terms and for the price agreed upon; that appellant was a nonresident of the State of Arkansas, and resided at Carlinville, Illinois. Prayer for judgment for the sum of $880, being a reasonable commission upon the sale price of said land, with 6 per cent, interest thereon from September 15, 1919.”
ANSWER.
“Appellant filed the following answer to this complaint : admits that he is the owner of the above described land; denies that he listed said land for sale with ap-pellee at any price at any time; denies that appellee sold said land to Sheppard for $17,600, or at any price; denies that appellee notified appellant of said sale; denies that appellee was appellant’s agent for any purpose, and appellant was therefore not required to execute deed to anyone at appellee’s request. Admits that appellant is a resident of Illinois; denies that appellant is indebted to appellee in any sum.”

The cause was submitted upon the pleadings, testimony, and instructions of the court, which resulted in a verdict and judgment against appellant in the sum of $880, from which is this appeal. At the conclusion of appellee’s testimony, appellant asked for an instructed verdict in his favor, which request was refused, over his objection and exception. This request was made upon the ground that, according to appellee’s own testimony, he did not sell the land for him to Sheppard for $17,600, $7,600 in cash and the balance upon terms proposed by appellant, or present a purchaser ready and willing to pay him that sum for said land upon terms proposed by appellant, and did not report such a sale to him, but, on the contrary, reported a sale of the land for $15,000 net to him, $5,000 cash and balance upon terms proposed by appellant.

Appellant’s main insistence for reversal is that the court erred in not peremptorily instructing a verdict for him on the undisputed facts. We agree with appellant in this contention. According to the undisputed facts, appellee wired appellant on September 9, 1919, who lived, 'at the time, in Carlinville, Illinois, that he had an offer of $15,000 for the land, $5,000 cash, balance one, two, three and four notes, 6 per cent. The contents of this telegram were confirmed by letter on the next day. When the telegram was sent and letter written, appel-lee had an offer of $16,000’ for the land. On the following day, September 11th, appellant wrote appellee as follows:

“Tour message received last night, in reply to the land, would take $15,000, but there is a lease on the land till January 1, 1921, and I would want $5,000 cash and the other $10,000 in two equal parts of $5,000 each 'at 6 per cent, interest, one payment in 1920 and one in 1921. If this appeals to you, let me know, as I cannot give possession till January 1, 1921, unless it would be so. mentioned in the deed that the man would have the right to all crops raised on the place in 1920, that is farming it now. Let me hear from you.”

Thereafter, on September 15th, appellee wired appellant as follows: “I have sol'd your land, price and terms accepted, letter following.” At the time this telegram was sent and letter written, appellee had sold the land to Sheppard for $17,600, and withheld the information from appellant. The following excerpt is taken from appellee’s testimony relative to this letter:

“Q. You never told him that you had sold his land for $17,600, did you? A. No sir; that would have been shown in the face of the deed.”

On December 29, 1919, appellee wrote the following letter to appellant: “Under date of September 15, 1919, I wired you acceptance of the land and that sale had been made as per your offer on the 10th of September, being $15,000 net to you. I sold this place at and for the sum of $17,600, or at a profit of $2,600 to me. You have ignored all letters and telegrams sent you since that time, and this is to advise you that unless you, upon receipt of this letter, or within ten days from this date, accept this sale and so advise me, I will bring suit in the Crittenden ‘Cir-ciut Court -to recover my commission or profit from you.”

Appellee did not earn a commission on the $17,600 sale to Sheppard, because he did not report it to appellant until December 27, and, at that time, did not report it as a sale for that amount to appellant. On that date he reported it as a sale of $15,000 net to appellant and $2,600 to himself as profits or commissions. Although authorized to sell the property for $15,000 net, it was his duty, in good faith and loyalty to his principal, to apprise him at once of the advantageous sale he had made to Sheppard. Appellant was entitled to the full purchase price on the sale, less a reasonable commission to appellee for making it. Appellee was .not entitled to the excess over the list price, for a real estate broker cannot take advantage of his agency to make gain for Mmself. Appellee clearly lost bis right to a commission. by withholding valuable information from his principal, and by demanding the excess above the listed price as a profit to himself. Taylor v. Godbold, 76 Ark. 395; Featherstone v. Trone, 82 Ark. 381; Bennett v. Thompson, 126 Ark. 61.

Other contentions are made by appellant for reversal of the judgment, but it is unnecessary to discuss them, as the judgment must be reversed and cause dismissed for the error indicated. It is so ordered..


author: McCulloch, C. J. Smith, J.,

text:
    First National Bank v. Evans.
    Opinion delivered May 28, 1923.
    Execution — growing CROPS. — Growing immature crops are not subject to levy and sale under execution issued by a justice of the peace.
    Appeal from Clay Chancery Court, Western District; Archer Wheatley, Chancellor;
    reversed.

      F. G. Taylor, for appellant.
    The justice’s execution created no lien on the crop till levied on May 24, 1922, before which time the tenant had executed .a mortgage thereon Nov. 29, which was filed on Dec. 1, 1921. No docket entries of issuance and renewal of execution. Secs. 6483, 6489, 6490, C. & M. Digest. Appellant had no knowledge .whatever of the execution until after the levy on May 24, 1922, and its mortgage is a superior lien. 17 Cyc. 1051-2, note 10. If a lien was created by delivery of the execution to the constable, it could not continue beyond return without a levy nor be revived by renewal. 123 Ark. 82; 23 »C. J. 495, § 343, and note 10. Renewed execution creates new lien instead of continuing old one. 40 S. C. 486, 19 S. E. 143; 85 N. Y. 130. Growing immature crops not subject to execution issued by justice of the peace. Sec. 6495, O. & M. Digest. 75 Ark. 336. Appellant should have a. decree here for proceeds of the sale of the mortgaged crops.

      G. T. Bloodworth and Ftthr & Futrell, for appellee.
    The crops sold were subject to lien of the execution from its issuance and also from its renewal, and the lien of an execution extends to growing crops separate and apart from the soil. 1 Freeman on Executions, § 113; 23 L. R. A. 258, and notes; Benjamin on Sales, 126. A purchaser at execution sale acquires the right to gather the crops at maturity-. 40 Am. Dec. 240; 9 Johns. 108; 17 Johns. 128; 28 Am. Dec. 565; 79 Am. Dec. 147; 83 Am. Dec. 206. The 'burden was on appellant to show the execution had not been issued and renewed, as the law requires, the presumption being that the official discharged his duty. 4 Ark. 150; 7 Ark. 492; 25 Ark 311; 30 Ark. 69; 131 Ark. 273; 135 Ark. 353. In 28 Ark. 35 it was held that an execution in the hands of the constable constituted a lien on all the debtor’s property in the township from which it was issued, and the sections of G-ould’s Digest under which it was held have been reenacted in the Code. See 123 Ark. 82; 75 Ark. 336 not as authority against appellee’s contention.
   McCulloch, C. J.

This case involves the priority of claims of the respective parties to crops of wheat and oats, both claims arising just after the crops were planted, and while immature. The claim of appellant is based on a chattel mortgage executed by the owner of the crop, a tenant on the farm of a third person, and the claim of appellee is based on the levy of an execution on said crops while immature, the writ being issued by a justice of the peace. In other words, the controlling question is whether growing immature crops are subject, to levy and sale under execution issued by a justice of the peace. The crops were planted about the middle of October, 1921. The execution was issued and placed in the hands of the officer on November 23, 1921, and the mortgage was executed to appellant on November'29, 1921, .by the tenant who planted the crop.

It seems to have been the rule at common, law that growing crops, whether mature or immature, requiring periodical cultivation and technically classed as “fruits of industry,” were subject to levy and sale under execution as personal property, and a majority of the American cases declare that to be the correct rule of law. The rule is based on the theory that such crops are chattels, not forming a part of the realty, and, on the death of the owner, descend to the administrator and not to the heir. Many cases on this subject are collated in 15 Standard Proc. 892. Many of the decisions classed among those announcing that rule are based upon local statutes, and many of them merely declare the rule as applicable to the operation of the statute of frauds in the sale of such property. It must be conceded, however, that a majority of the eases declare it to be the rule that such crops are subject to sale under execution as chattels, but there are decisions to the contrary, and they appeal to us as being more reasonable and in harmony with our own statutes and decisions.

In Penhallow v. Dwight, 7 Mass. 34, the court draws a sharp distinction between mature and immature crops with respect to the right to levy an execution thereon, and holds that immature crops are not subject to execution because they cannot be immediately severed from the soil. The court in that case said:

“And we have no doubt that corn, or any other product of the soil, raised annually, by labor and cultivation, is personal estate, and would go to the executor and not to the heir, on the decease of the proprietor. It is therefore liable to be seized on execution, and may be sold as other personal estate. An entry for the purpose of taking unripe corn or other produce, which would yield nothing, but in fact be wasted 'and destroyed by the very act of severing it from the soil, would not be protected by this decision. ”

In Ellithorpe v. Reidesil, 71 Iowa 315, it was held that immature crops are not subject to levy under execution, and the court said:

“There is no pretense that the constable had any authority or power to levy on or sell any interest in the real estate. Nor is it claimed that he did so. The whole proceeding was on the theory that the crops were personal property, and could be. levied on and sold as such. But while they remained immature, and were being-nurtured by the -soil, they were attached to and constituted part of the realty. They could no more he levied upon and sold on execution as personalty than could the trees growing upon the premises.. This doctrine is elementary, and it has frequently been declared by this court. ’ ’

The same doctrine is declared in the case of Tipton v. Martzell, 21 Wash. 273. The decision in that case was based primarily on the ground that the crop was being grown by a share-cropper, and that a sale would conflict with the contract between the rights of the landlord, but the court recognized the general rule that the immature crop, while still being nurtured by the soil, was a part thereof, and could not be sold while in that condition.

The reason which appeals to us as favoring the latter rule is that a sale of chattels under execution contemplates an immediate separation - from the- estate of the judgment debtor and a delivery to the purchaser, and it is obvious that this cannot be done where the growing-crop is immature and n-ot ready to be -severed from the soil. It requires time and, in most instances, additional labor to bring the crop to maturity, hence the mere right of ingress and egress for the purpose of severing the crop does not eliminate the impediments to the sale.

The common law of England has been adopted as a part of the laws of this State to the extent that “the same is applicable and of a general .nature” and “not inconsistent with the Constitution 'and laws of the United States and’the Constitution and laws of this State.” Crawford & Moses’ Digest, § 1432. We are of the opinion, however, that the common-law rule with respect to sales of crops under execution is impliedly in conflict with our statute which provides that leasehold estates shall not he subject to sale under execution issued by a justice of the peace. Crawford & Moses’ Digest, § 4271. It may be that sales of immature crops under executions issued from courts of record may. be upheld on the ground that such a sale of the crop is to that extent a sale of the lease, but this cannot be so with reference to a sale under an execution issued by a justice of the peace. A sale under such an execution can confer no rights with respect to real estate or anything appurtenant thereto, and the right to enter upon land for the purpose of cultivating crops to maturity necessarily affects the land as much so as the removal of things which are appurtenant to and constitute a part of the land itself. It is otherwise, of course, where the crops are matured and only remain to be severed, for in such case the matured crop is in no different class than any other chattel situated on the land.

Our conclusion therefore is that it is inconsistent with our own statutes to hold that immature crops can be sold under an execution from a justice of the peace. There are other questions involved in this case, but as the one now decided is conclusive, it is unnecessary to discuss the others.

The judgment is therefore reversed, and the cause is remanded, with directions to enter a decree in favor of appellant for the proceeds of the sale of the mortgaged crop, which is being held by agreement to await the decision in this case.

Smith, J.,

(dissenting). The majority say that it seems to have been the rule at common law that growing crops, whether mature or immature, requiring periodical cultivation and technically classed as “fruits of industry,” were subject to levy and sale under execution as personal property, and that the majority of the American cases declare that to he the correct rule of law, yet this court has refused to follow that rule, notwithstanding the fact that it accords with both the common law and the weight of the American cases.

The majority say that many cases on the subject are collated in 15 Standard Encyclopedia of Procedure, page 892. So there are — two columns of them on that page, and the only discordant cases are the ones quoted from, and followed by the majority. The text on pages 892 and 893 of that authority to which the cases referred to are appended reads as follows:

“Fructus Industriales. — 'Generally annual produce and crops raised by industry, fructus industriales, are subject to levy and’ sale under execution as personal property; where a growing crop of peaches or other fruit requiring periodical cultivation is regarded as fructus industriales, it is subject to levy, though the weight of authority places fruit trees and their fruit in the class known at fructus naturales, which are not leviable. By statutes in some States a crop is not subject to execution until it has matured. And in other jurisdictions, independent of statute, it is held that immature crops are not subject to levy under execution as personalty.”

In 1 Freeman on Executions (3rd ed.), at page 439, it is said: “A growing crop, raised annually by labor and cultivation, is, as respects an execution against the owner, a mere chattel, and subject as such to be taken and sold. A purchaser, on such sale, acquires the right and interests of the defendant in execution to the crop, with the right of ingress, egress, and regress, for the purpose of gathering it and carrying it away. When a product of the soil is claimed not to be subject to seizure and sale under a fieri facias, the claim must be determined by ascertaining, whether such product is real or personal estate; and this last.question is, in turn, to be settled by inquiring whether the product is chiefly the result of roots permanently attached to the soil, or of the labor and skill of the defendant in sowing and cultivating the soil.”

I do not stop to consider which is the better rule, for I do not think we properly get to that question. I recognize the right of the court to follow the majority or the minority rule if that question only was involved; but the question is not merely whether we will follow the majority or the minority rule; the real question is whether we will follow the common-law rule, and this is not a question about which we have the right to exercise our judgment or discretion, .as the common-law rule is not inconsistent with the Constitution or laws of this State, and has not been altered or repealed by any statute of the State.

The majority cites no statute changing the common-law rule on this subject, but do cite a statute which they say impliedly changes it. To show the lack of application of this statute I quote it:

“Sec. 4271. Every unexpired lease of land shall be subject to execution and sale as real estate; but shall not be subject to sale under any execution issued by a justice of the peace; neither shall an improvement on public lands be sold under an execution issued by a justice of the peace.” C. & M. Digest.

If this statute has any application at all to the question at issue — and I think St does not — it gives support to the common-law and the majority rule. It makes an unexpired lease subject to sale as real estate, and, being subject to sale, as such may not be sold under an execution issued by a justice of the peace.

“A term of years in real estate was always, by the common law, regarded as a chattel.” Freeman on Executions (3rd, ed.), § 119.

Our statute, quoted above, provides that a leasehold is to be sold, not as a chattel, but as real estate. The statute quoted does not purport to deal with growing crops, which, were subject to execution because they were “fruits of industry,” and they still are fruits of industry, and they grow not only on leaseholds but on other lands as well. A leasehold under the statute is sold as real ¡.estate, whether there is a growing crop thereon or not; yet, under the opinion of the majority, growing crops are exempted, whether they grow on leaseholds or other lands, simply because leaseholds are made subject to sale as real estate.

In other words, the court departs from the common-law rule because leaseholds upon which there might be no crop or a matured crop, if one at all,' are required to be sold as real estate, and now holds that growing crops cannot be levied upon, whether grown upon leaseholds or not. Non sequitur.

I find no authority for this ruling under the section of the statute quoted above.

In my opinion we should follow the majority rule, not simply because it is the majority rule, but because it is also the common law on the subject, and has not been changed 'by the statute quoted above.


author: McCulloch, C. J.

text:
    Azbill v. Lewis.
    Opinion delivered May 28, 1923.
    Bonds — Return op money. — Where a fund belonging to defendant was by agreement of the parties placed in the clerk’s hands to await the court’s decision, and subsequently a portion of such fund was 'by agreement delivered to plaintiff upon his executing a bond for its return unless he procured judgment against defendant for said amount, defendant is entitled to a return of the money upon the plaintiff’s failure to recover judgment therefor.
    Appeal from White Chancery Court, John E. Mar-tmeem, Chancellor;
    affirmed.

      W. D. Davenport, for appellant.
    The decree should he reversed. The jury would not have awarded appellant possession of the property and appellee damages as they did. Verdict would have been inconsistent. Sec. 4853-5, C. & M’s. Digest. No appeal was taken by appellee from the judgment allowing him “$2 as difference in settlement.” Judgment will be construed according to proper legal import of terms used. 129 N. G. 73. Title of the crop was in the landlord as against .share-cropper. 32 Ark. 435; 34 Ark. 179; 62 Ark. 133. The burden was on appellee to show that, under the jury’s verdict and the judgment thereon, he was the owner of the $551.84, and that his debts were paid to appellant, and he was entitled to recover on the bond from appellant the $301.84 they had received from the clerk, all of which he failed to do. The judgment should be reversed, and appellant should have judgment for the $250 turned over to appellee by the clerk of the $551.84 put into his hands.

      Avery M. Bloimt and John D. DuJBois, for appellee.
    The cnly question here is on appellee’s right to recover on the bond sued on. The burden of proof was' on appellants to show their right to the money for return of which bond was given, and this they failed to do. 96 Ark. 87.
   McCulloch, C. J.

Appellant, William Azbill, owned a farm in White County, and in the year 1920 he placed appellee, Harry Lewis, in possession as a share-cropper to cultivate and gather crops of cotton, corn and straw-oerries. In May, 1921, just before the strawberries were ready for picking, Azbill instituted an action of unlawful detainer against appellee to recover possession of the farm, and he secured possession under a writ issued in the action. Appellant proceeded to gather the strawberries and to market the same through an association in that locality, known as the McRae Strawberry Association. The crop bf strawberries was sold for a net price of about $1,400, after deducting the cost of gathering and marketing. Abont that time appellee instituted an action in the chancery court of White County against appellant for an accounting and to recover damages on account of alleged breach of contract with respect to the transactions between the parties. Appellee claimed in that action one-half of the proceeds of the sale of the strawberry crop, and also claimed damages for a large sum, composed of different items. One of the claims was for unpaid labor. That case was transferred to the circuit court, and was consolidated with the other action instituted by appellant against appellee to recover possession of the land.

At this juncture the parties agreed, acting through their respective attorneys, that the McRae Strawberry Association should pay over to appellant one-half of the funds on hand from the proceeds of the crop as his share therein, and that the remainder should be held as appel-lee’s share. Appellant was asserting a claim against ap-pellee on account, amounting to about $600, and was about to cause to be issued a writ of garnishment to sequester the funds belonging to appellee in the hands of the McRae Strawberry Association, and the attorneys for the respective parties agreed that, in lieu of a garnishment issued and served on the association, the funds should be paid over to the clerk of the circuit court, to be held awaiting the determination of appellant’s claim against appellee. The funds, in other words, were agreed to be treated as the property of appellee Lewis, but should be held by the clerk as upon a garnishment, subject to the claim that appellant was making against appellee.

On the trial of the consolidated actions in the circuit court each party asserted their respective claims against the other, and the jury returned a verdict in the following language:

“We, the jury,, find for the landlord, in that we giv.e him the possession of the property. Also for the tenant for the sum of $2 as difference in settlement.”

Thereupon the .court rendered a judgment in favor of appellant for retention of possession of the land, and also rendered judgment in favor of appellee for the sum of two dollars.

Prior to the trial in the circuit court, and while the consolidated cases were pending therein, appellant, through his attorney, agreed that the clerk should release to appellee two portions of the funds, $100 at one time and $250 at another, and it was also agreed that the clerk should pay over to appellant the sum of $301.84, upon the execution by appellant of a bond with security, conditioned that appellant would return the money “unless we prove our claim against the said defendant, Harry Lewis, for the amount above named, and procure judgment against the said Lewis for said amount.” The bond’was made to the clerk “for the use and benefit of Harry Lewis in the sum of $301.84.”

After the judgment was rendered in the circuit court demand was made upon appellant that he return the money to the clerk which .had been paid under the bond aforesaid, but appellant refused to pay, and this action was instituted by appellee against him -and his sureties to recover that amount. The chancery court rendered a decree in favor of appellee for the recovery of this money, and an appeal has been prosecuted to this court.

We are of the opinion that the chancery court was correct in its decree. It is unnecessary to analyze the pleadings and the proof in the action which was tried in the circuit court to determine the effect of the verdict rendered by the jury. There were conflicting contentions at.the trial of the present case as to what issue was involved in that action, but it is shown in the present case, by a preponderance of the testimony, that .the money in the hands of the clerk was conceded to he the property of appellee Lewis as his share of the proceeds of the sale of the strawberry' crop, and that this fund was by agreement turned over to the clerk, not as funds in dispute between the parties, but as funds belonging to appellee, sequestered for the purpose of satisfying any judgment which appellant might recover against ap-pellee on his asserted claim against the latter. Viewing the status of the funds in that light, it is clear that the verdict of the jury in the other case was merely a settlement of the conflicting claims of the parties against each other, and not a settlement of the title to the funds in the hands of the clerk. At any rate, the proof shows that this property in the hands of the clerk was treated as appellant’s property and that it belongs to him as his share of the proceeds of the crop that he cultivated, and, since appellant failed to secure any judgment against ap-pellee for the recovery of money, it necessarily follows that appellee is entitled to a return of the funds. Appellant received the money under an express agreement that he would return the funds unless he secured a judgment, and the chancery court was correct in rendering a decree against him and the sureties on his bond.

Affirmed.


text:
    McSpadden v. Leonard.
    Opinion delivered May 28, 1923.
    Contracts — public policy — validity.—A bond which, in consideration of the dismissal of a pending damage suit for alienating the affections of the obligee’s wife, bound the obligor to leave the county of his residence and not to return to that or an-adjoining county for 15 years, unless he should be called back on account of sickness or death of some member of his family or some urgent business that cannot be otherwise attended to except by his coming back, and required him, on coming- back on the above missions, to leave said counties as soon as his mission should be ended, held not void as requiring the obligor to leave his immediate family nor as against public policy in requiring him to remain away from the county of-his residence.
    Appeal from Independence Circuit Court, Dene H. Coleman, Judge;
    reversed.

      8. M. Bone and Samuel M. Casey, for appellant.
    The 'Court erred in sustaining the demurrer to the complaint, the contract sued not being void as against public policy. Pittsburg- Ry. Co. v. Comody, 12 A. L. R., 473,13 C. J. 427; Steer v. M. W. of America, 17 A. L. R., 417, 6 R. C. L. 710-11; Sherrell v. Union Lbr. Co. 207 S. W. 149. Validity of contract should be determined by analogy to a contract in partial restraint of trade. Bloom v. Home Ins. Agency, 91 Ark. 367; H-amp-ton v. Galdivell, 95 Ark. 387; Wahenight v. Spear & Rogers, 147 Ark. 342. Contract herein limited as to both time and space. 13 C. J. 473, § 418; same 489 § 433. No consideration for dismissing suit that would probably have resulted in the recovery of large damages if contract held void. Brader v. Iliscox, 10 A. L. R. 316; Wallace v. McPherson, 197 S. W. (Tenn.) 565, a case in point; also Robinson v. Thurston, 248 Fed. 420. Contract effecting compromise of a suit for criminal conversation is void where in settlement of the injured party’s right of action for damages. McKenzie v. Lynch, 167 Mich. 583; Ann. Cas. 1913-A 704, and note.

      W. K. Ruddell and Cole & Poindexter, for appellees.
    Contract sued on void as against public policy. 2 Elliott on Contracts, 146, § 814; Freudenthal v. Espey, 26 L. R. A. (N. S.) 961; Tuscaloosa Ice Mfg. Co. v. Williams, 85 A. S. R. (Ala.) 125; Shapard v. Lesser, 127 Ark. 590. This case is analogous to those in restraint of trade. Cm-traot requires appellee to leave his wife and family. Bowers v. IhktcMnson, 67 Ark. 15; McConnell v. McConnell, 98 Ark. 193; 13 C. J. 490, § 435; Belton v. Anslee, 95 N. T. S. 481; Roberts v. Criss, Admx.. 11 A. L. R. 698. Case of Wallace v. McPherson, 197 S. W. 565, relied on by appellant, not applicable to facts in this case. The Arkansas cases cited in support of appellant’s contention that contracts in partial restraint of bids are valid all relate to ancillary proceedings and have no resemblance or analogy to the case. The contract provided a penalty, and not liquidated damages. Stillwell
      v. Paepke-LeicM Lbr. Go., 73 Ark. 432. Stipulation cannot be separated and part discarded as a penalty and remainder treated as liquidated damages. Wait v. Stanton, 104 Ark. 9; Conden y. Kempner, 13 L. E. A. (Kan.) 671; 1 Pomeroy/Equity Jurisprudence, §§ 443-4; Montague, v. Robinson, 122 Ark. 163; 17 C. J. 954, sec. 250; Wilhelm v. Eaves, 14 L. E. A. (Ore.) 297; 17 0. J. 951, § 247. The demurrer was properly sustained, and the judgment should be affirmed.

      S. M. Bone and S. M. Casey, in reply.
    Contract provides liquidated damages. Stillwell v. Paepke-LeicM Lbr. Co., 73 Ark. 432; For an v. Wisconsin & Arkansas Lbr. Co., 156 Ark. 346. No public interest to serve in permitting appellee to escape liability on bis contract. 14 Words and Phrases, 2d. S. 26. Contract should be upheld.
   McCulloch, C. J.

The court sustained a demurrer to appellant’s complaint on a bond exhibited therewith as follows:

“In consideration of Lawrence McSpadden dismissing, with prejudice, a suit which he has pending in the Independence 'Circuit Court for $15,000 damages against the undersigned, T. P. Leonard, the undersigned, T. F. Leonard, agrees as follows:
“First: That he will leave Independence County not later than September first, 1922, and not return to Independence County or to Stone County for fifteen years, unless he is called back to said counties on account of sickness or death of some member of his family, or on some urgent business that cannot be otherwise attended to except by his coming back, and, should he come back on either of the above missions, he agrees to leave said counties as soon as his mission is ended.
“Second: The undersigned agrees to pay all expenses of this suit, including the attorney’s fees incurred by Lawrence McSpadden.
“Should the undersigned violate any part of this agreement he agrees to forfeit to and pay to Lawrence McSpadden the sum of five thousand ($5,000) dollars. And the undersigned Yirgie Leonard hereby signs this bond for the consideration as surety.
“Witness our hands this April 4, 1922.
“T. F. LEONARD,
“Yirgie Leonard.

It is alleged in the complaint that appellee, T. F. Leonard, prior to the execution of said bond, invaded the home of appellant, seduced his wife and alienated her affections from appellant, and thereby greatly injured him; that he instituted an action in the circuit court of Independence County against Leonard to recover damages in the sum of $15,000, and that the bond exhibited with the complaint was executed in consideration of appellant’s dismissal of that action.

The ground upon which the court sustained the demurrer was that the bond was void because it involved an agreement contrary to public policy; at least this is the ground upon which the decision of the court is defended by counsel for appellees.

In the first place, it is contended that there is a fair implication, from the language of the bond, that appellee Leonard was required by its terms to leave his immediate family, that is, his wife and children, for the stipulated time, and not to return except in case of sickness. This contention is easily disposed of by mere reference to the language of the bond, which does not speak of the immediate family of Leonard, and there is no inference that he was required to desert them. The bond’is signed by Leornard’s wife as surety, and the implication would rather be that she would follow her husband in complying with its terms by absenting themselves from the territory mentioned. But, at any rate, there is nothing in the language of the bond which requires appellant to desert his family, the clause in question being put in there for his protection, to merely permit him to temporarily return in the event of an emergency arising on account of “sickness or death of some member of his family.” He is not compelled to leave any of his family there, but in the event he does so he is permitted to return in such an emergency.

It is next urged that the bond is contrary to public policy because it compels Leonard to leave and remain away from the county where he resides and from one of the adjoining counties. The contract is a peculiar one, and there is little authority bearing directly upon the question of its validity. The only case of this kind brought to our attention by counsel is the decision of the Supreme Court of Tennessee in the case of Wallace v. McPherson, 138 Tenn. 458, 197 S. W. 565. In that case the Tennessee court held that, where one of the parties to a contract, “in consideration of sums to be paid monthly, agreed to remove from the city and remain absent so long as the adverse parties maintained their residences in such city,” the contract was not invalid as contrary to public policy. In disposing of the question, the court said:

“There is, indeed, no question of the public health or public safety, and, so far as morality is concerned, such an arrangement seems promotive of it. Being pro-motive of private morals, the safety of individuals comprising a part of the public, and the peace of families, it seems to result in a distinct gain to the public welfare. The complainant was by the contract denied residence only in one city and county of Tennessee. Every other county in the State was open to him. He was not required to remove from the State; likewise the time was subject to his own control. He could resume his residence in Shelby County whenever he was willing to fore-go future payments. There was no forfeiture of sums previously paid, or any possibility of a claim for damages for breach of the contract. The condition imposed had no tendency to deprive complainant of any fundamental right of citizenship.”

Tbe validity of this contract should be determined, we think,, by analogy to a contract in partial restraint Of trade. It is the settled doctrine of this court that such a contract is valid, though it is equally well settled that the contract is not valid if it is so extensive in its scope as to amount substantially to a total exclusion of one of the contracting parties from the pursuit of any trade or avocation. Edgar Lumber Co. v. Cornie Stave Co., 95 Ark. 449; Shapard v. Lesser, 127 Ark. 590; Wakenight v. Spear & Rogers, 147 Ark. 342. The effect of those deoisons is, in other words, that such a contract is valid where the restraint is only partial as to time and place.' Reasoning by analogy, it follows that the contract in question is valid because it is limited in those respects. The time is limited to fifteen years, which is not unreasonable to accomplish the desired ends in completely eradicating the evil effects of the alleged misconduct of Leonard, and the place from which he is to be excluded during that time is limited to two counties. The dismissal of the pending action constituted sufficient consideration, and, as before stated, we think that the agreement on the part of Leonard to absent himself from the county and adjoining county for a period of fifteen years was not contrary to public policy.

It is also contended that the contract provides for a penalty and not for liquidated damages, and for this reason also it is unenforceable.

According to the test laid down in the cases cited by counsel for appellee, we think that the stipulation should be treated as one for liquated damages. The test as to the character of the stipulation has been prescribed by this court in the following language:

“Where the contract is of such a nature that the damages caused by its breach would be uncertain and difficult, of proof, the sum named by the .parties is generally held to be liquidated damages, if the form and language of the instrument are not unfavorable to that construction, and the magnitude of the sum does not forbid it.” Nilson v. Jonesboro, 57 Ark. 168; Stilwell v. Paepcke-Leicht Lbr. Co., 73 Ark. 432; Foran v. Wisconsin & Ark. Lbr. Co., 156 Ark. 346.

The court erred in sustaining the demurrer to the complaint, so the judgment is reversed, and the cause is remanded, with directions to overrule the demurer, and t‘or further procedings.