text:
    Williams v. Walker.
    Opinion delivered March 21, 1921.
    1. Appeal and error — amendment op pleadings to conform to evidence. — Pleadings will not be treated on appeal to conform to an issue raised by the evidence where it is apparent that the issue was not fully developed.
    2. Partnership — evidence.—A finding of the existence of a partnership held not contrary to the preponderance of the evidence.
    3. Limitation op actions — partnership accounting. — The relation between copartners does not create such a trust as will exempt a bill for an accounting and settlement from the operation of the statute of limitations.
    4. Limitation op actions — partnership accounting. — The statute of limitations of three years is applicable to an action for an accounting between partners.
    5. Limitation op actions — partnership accounting. — A suit for an accounting by one member of a partnership, formed to purchase collateral securities from a pledgee, was not barred where the partnership had not been dissolved, repudiated or settled at the time of filing of the suit.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      L. G. Going, for appellant.
    1. The findings of the court are against the clear preponderance of the evidence. The plaintiff’s claim was not established as the law requires.
    2. The claim is barred by the statute of limitations. 14 Ark. 62.
    The three-year statute of limitation is applicable to an action for an accounting between partners. 92 N. Y. S. 904; 102 App. Div. 589; 56 S. W. 418; 10 Ky. Law. Rep. 448; 10 O. C. D. 71; 161 Pac. 437; 14 Ark. 192; 20 R. C. L. 216, § 259. The burden was oh the plaintiff to show that his action was not barred. 69 Ark. 311; 64 Id. 26; 27 Id. 343, 500.
    An action is commenced when the complaint is filed and summons issued. 104 Ark. 627. Since no summons was ever issued on the cross-complaint of appellee, no action was commenced until appellant filed fiis answer on March. 5, 1920.

      J. W. Morrow, for appellee.
    1. The chancellor found that Walker was correct in his contention, and his finding is not against the clear preponderance of the evidence. Walker owned a half interest in the funds, as the evidence shows and as the chancellor found.
    2. Walker is not barred by any statute of limitations. Williams occupied toward Walker a position of trust, and the statute does not run. The law is so clear that authorities need not be cited.
   Smith, J.

This litigation was begun September 8, 1917, when the First National Bank of Forrest City filed a bill against Eugene Williams and George P. Walker, to foreclose a mortgage. No defense was made to the suit, but on November 18, 1918, Walker filed a cross-bill against Williams, in which he alleged that he and Williams had entered into a partnership whereby, for a consideration of $7,500, they had purchased from Cook, Gray & Co., of Memphis, Tennessee, certain collaterals of the J. W. Beck Company, of Forrest City, deposited with Cook, Gray & Company to secure an indebtedness of the Beck Company. Williams filed an answer to the cross-complaint on March 5, 1920, in which he denied the existence of a copartnership. In addition, Williams alleged that the cause of action sued upon was barred by the statute of limitations.

The issues are stated in appellant’s brief as follows: “The two questions raised by the pleadings may be concretely stated as follows:

“Did Williams, for the benefit of himself and Walker, as the result of a partnership arrangement, purchase from Cook, Gray & Co., the collateral of the J. W. Beck Company, and did appellee, Walker, own an undivided one-half interest in the profits arising from that partnership?

“Second. If any canse of action has existed in favor of Wallcer and against Williams on account of said partnership arrangement, has the statute of limitation barred the same?”

These were the issues raised by the pleadings, and, after thus stating them in his brief, appellant also questions the right of Walker to the relief prayed upon the ground that, if he was interested in the purchase of this collateral from Cook, Gray & Company, he concealed that interest from his creditors 'by taking an assignment of the collateral to Eugene Williams individually, instead of to himeslf and Williams.

But, as has been said, no such issue wa sraised in the pleadings. The deposition of 'Walker was taken a second time, and it was then that, upon his eross-examina-tioii, he stated that he was in financial difficulty and did not want anything in his name. But no attempt was made to develop the extent of his financial difficulty. He may or may not have ‘been insolvent. He was further asked on his cross-examination: “When did your financial condition get better,” and he answered, “‘Since 1916.” His solvency appears to have been conceded at the time of the trial. It appeared that he owed the Beck Company a personal indebtedness, and that he had endorsed for that company to Cook, Gray & Company; but it is not shown that he was otherwise indebted.

The creditor who sold the collateral was Cook, Gray & Company, and it must be assumed that company knew of Walker’s indebtedness to the Beck Company, and of his liability as an endorser for that company. In fact, Cook, Gray & Company had employed Walker to assist in the collection of the collateral, which was later sold, and it was while thus employed that the offer to sell to bim was made, and the offer to sell included his own indebtedness.

We think this testimony is not sufficient to require us to treat the pleadings as 'being amended to raise the issue that Walker’s purchase was in fraud of his creditors.

The testimony of Williams and Walker is in irreconcilable conflict, and numerous circumstances are pointed out contradicting and corroborating each of them. The testimony may be summarized as follows:

Beck & Company had borrowed money from Cook, Gray & Company, and had hypothecated certain collateral, mostly chattel mortgages, and Walker and other stockholders of the Beck Company had endorsed the paper of the Beck Company. The Beck Company went into bankruptcy, and N. B. Nelson was elected trustee. Immediately upon the adjudication in bankruptcy, Cook, Gray & Company employed Walker to assist them in the collection of the collateral. Cook, Gray & Company advised Walker that they would take $6,000 for the collateral they had, which included an obligation of Walker’s, secured by a chattel mortgage, for $4,000, and they would take $7,500 for the collateral and the open accounts of the Beck Company for which there was no security. Included in this last item was an account of Walker’s for several thousand dollars.

Up to this point there appears to be no contradiction in the testimony. The parties differ as to what thereafter occurred.

Walker testified that a copartnership between himself and Williams was formed to purchase the collateral and the open accounts. That he gave Williams a mortgage on his home for $5,750, which Williams at once sold to the bank of which he (Williams) was cashier, and that Williams himself advanced $1,750, and with the $7,500 thus raised they bought the collateral and the open accounts. That the Beck Company did a general furnishing business extending over both St. Francis and Cross counties, and much effort, labor and expense were required to realize on the securities the Beck Company had taken. That he (Walker) assumed the duty of realizing on this collateral as a part of the partnership agreement, and devoted five months of his time thereto. That his duty under the partnership agreement required him to collect up and sell various articles of personal property, and some live stock, and in some cases he took renewal notes. That all collections of money were turned over to Williams, and all renewal notes taken were made payable to Williams’ order. That his first note to Williams was dated January 23,1912, and at Williams’ request he executed a new note on April 29, 1914. That the partnership agreement with Williams was that this note should he satisfied out of the. collections which he (Walker) was making, and this should have been done, as more than enough money had been collected for that purpose, but .Williams explained that he had not been able to collect all the notes which he (Walker) had turned over to him (Williams), and that he (Williams) needed a new note to carry the account properly with the bank, and that no interest had been, or would be, charged on the note. No interest was charged, and the note was renewed and made payable directly to the bank. This is the note secured by the mortgage which this suit was brought to foreclose.

Walker further testified that he did not press the matter of a final settlement, as he knew his own indebtedness to the Beck Company had been paid through his co-partnership with Williams, and while he knew he had some additional profits he supposed, when all the collections were- finally made by Williams, a final settlement would be had, and that Williams had never told him he was through liquidating the notes which he (Walker) had turned over to him, or that he was prepared to make a final settlement, and it does not appear that all the notes were ever collected..

Williams testified that there was no partnership, and that the purchase from Cook, Gray & Company was for his own benefit, and that he alone advanced the entire consideration for the purchase. That Walker at the time owed the Beck Company something over $9,000, which be permitted Walker to settle by executing the note for $5,750. That he was the cashier of the bank, and opened a new account at the bank, which was carried in the name of “Eugene Williams — Beck Company Note Fund.” That the $7,500 was paid by himself alone'. That the last item of the account was collected on October 28, 1913, and the account at the bank was checked out and closed by him on January 1, 1914, and that he never knew Walker claimed an interest in the purchase until the foreclosure suit was brought.

The assistant cashier of the bank, and the man who succeeded Williams as cashier upon his retirement from the bank, testified that he had frequently heard Walker and Williams discussing* the various accounts included in the Cook, Gray & Company collateral, but did not know anything about the respective interests of the parties.

Walker was very strongly corroborated by Nelson, the trustee in bankruptcy. The claim of Cook, Gray & Company was filed by Williams and Walker, and Nelson testified that Williams and Walker had discussed the purchase many times in the office of the Beck Company in his presence. That Walker was the active man in the matter, and he had on more than one occasion heard each of them, in 'the presence of the other, speak of the transaction as a partnership affair.

The testimony shows that the last item collected was not on October 28, 1913, as stated by Williams.

Among the accounts purchased was that of a man named Switzer, whose account was secured by a life insurance policy, which had been assigned to the Beck Company. This policy was for a thousand dollars. Switzer died, and an attorney was paid a fee of $25 for assisting in the collection of the policy, and the balance of $975 was collected July 12,1916, and was credited on Walker’s note to the bank. In his first deposition, when asked why he had given Walker credit for the proceeds of the policy, Williams answered: “Simply because his note was past due at the time, and I was undertaking to help him pay it, and at that time he was not in a position to pay it.” Williams’ deposition was taken a. second time, when he explained that, upon further investigation, he found that the Switzer note was not included in his purchase, and that he had not bought the insurance policy, and that “the insurance policy either belonged to Walker by virtue of his having bought the book accounts of Beck & Company, or belonged to the First National Bank as collateral against their notes — I don’t know which.” Nelson testified, however, that the Switzer account and policy was sold and transferred to Williams along with all the other collaterals.

The court found the facts to be that Williams acquired possession of the collateral and accounts by virtue of a partnership agreement, and that he had collected thereon the sum of $12,246, and that the partnership had not been dissolved, repudiated, or settled at the time of the filing of this suit, and entered a decree based upon that finding. The court’s direction upon that finding is not questioned; but it is insisted that the finding itself is contrary to the preponderance of the evidence; and that Walker’s cause of action was barred by the statute of limitations.

Upon a consideration of all the testimony in the case, we are unable to say that the court’s finding is clearly against the preponderance of the testimony. Nor do we agree with counsel for appellant that the cause of action was barred.

In the case of Adams v. Taylor, 14 Ark. 626, this court held that the relation between copartners does not create such a trust as will exempt a bill for an accounting and settlement from the operation of the statute of limi-ations. And it is also true that the three years’ statute of limitations is applicable to an action for an accounting between partners. But that statute does not begin to run until the cause of action has accrued.

In the ease of Luke v. Rhodes, 117 Ark. 605, which was a suit for an accounting between copartners, we said, in disposing of a plea of laches and of limitations, “Of course, the right to sue for an accounting would continue as long as the partnership continued, and no plea of limitations or laches could be made against such suit while the partnership continued.” And we have here an express finding of fact that “the said partnership had not been dissolved, repudiated, or settled at the time of the filing of this suit. ’ ’ If this' be true as a matter of fact, then it necessarily follows as a matter of law that the suit was not barred. See, also, Lasker-Morris Bank & Trust Co. v. Gans, 132 Ark. 402.

In the case of Pearce v. Mann, 10 Ky. Law Rep. 448, it was held by the Kentucky Superior Court that “limitation does not begin to run against a claim by one partner against another, growing out of the partnership transaction, until the termination of the partnership. And where a partnership was entered for the purchase of certain notes, the profits to be equally divided, the partnership did not end until the completion of the adventure by the collection of the notes in full. ’ ’

Decree affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Guaranty Loan & Trust Company v. Helena Improvement District.
    Opinion delivered March 28, 1921.
    1. Eminent domain — condemnation for levee purposes. — In a proceeding under Crawford & Moses’ Digest, §§ 3933 et seq., to condemn land for levee purposes, a proceeding not strictly in accordance with the statute, in that there was no appraisement, may be a substantial compliance therewith where defendant was served with process and appeared and filed answer.
    2. Eminent domain — right of plaintiff to dismiss. — Under Crawford & Moses’ Digest, § 3933 et seq., one seeking condemnation of land for levee purposes can. not withdraw from the proceeding after having taken advantage of the process of the court to obtain possession of the land, and the owner, on demand, has the right to a trial for the purpose of recovering damages without having to institute a separate action for that purpose.
    3. Deeds — reservation or exception in favor of a stranger. — A reservation or exception in favor of a stranger is void or inoperative, and the grantee is not estopped to deny its efficacy.

      Appeal from Phillips Circuit Court; J. M. Jades on, Judge;
    reversed.

      Moore & Vineyard and Fink & Dinning, for appellant.
    1. The court erred in dismissing the action. There is nothing indefinite or uncertain as to the meaning of the deed known as Exhibit A, and it clearly shows on its face that the clause relied on by appellee applies only to the ground that was taken or being taken at the time of its execution, which was on November 30, 1898, and that it did not grant or undertake to grant or reserve for the benefit of any one whomsoever any future right to impair the integrity of the lots by taking or appropriating additional parts thereof. The words of the deed itself indicate this. “Now located and occupied” can have no other meaning or application than to the lease then located and placed on the premises. “To connect the levee on said premises with the line of levee now constructed and to be constructed” can mean only the same thing that there was a continuous levee of which the one across the premises formed a part and that on each side of .the premises the levee connected up. The consideration mentioned in this deed is $7,500, and it is inconceivable that a purchaser would pay such a price and take nothing for it, which would be the case if the court’s construction of the deed is correct. According to the contention of appellee, the grantees, Wiley and Crebs, took absolutely nothing by the deed of conveyance to it from the Cotton Oil Company. However, if the contention of appellant as above set forth as to the meaning of said deed is not correct, then the court erred in denying -appellant the right to show by proof that the clause had reference solely to the date of its execution, that the levee intended had already been construed and connected, though this may not have been known to the grantor. There was a latent ambiguity and parol proof was admissible to explain. 10 R. C. L. 1067; lb. 1065; 22 C. J. 1270; 40 Ark. 237; 98 Id. 544; 106 Id. 83; 93 Id. 191. Parol evidence is admissible to explain something indefinite. 92 Ark. 504; 94 Id. 195; 78 Id. 586; 129 Id. 473.
    2. The clause relied on by appellee, and upon which construction this action was dismissed by the court, is absolutely void. 30 Ark. 640. Nor was the cause a reservation, .as it is repugnant to the granting and habendum clauses of the deed itself. 131 Ark. 103; 82 Id. 209.
    3. Appellee being a stranger to the conveyance from the 'Cotton Oil Compai^r to Wiley and Crebs, it has no legal right to make anjr claim for additional levee purposes out of the property in controversy, even if the deed had specifically provided for the taking of the same. A reservation to a stranger to a conveyance is void. Washburn on Real Property, § 2354; Devlin on Deeds, § 979; 100 Pa. St. 84; 11 Me. 278; 26 Am. Dec. 525.
   McCulloch, C. J.

Appellee, Helena Improvement District, is an improvement district created by a special statute enacted by the General Assembly.of the year 1897 for the purpose of constructing a levee to protect property in and near the city of Helena. Later, other statutes were passed enlarging the powers of the district, but those statutes have no bearing on the present controversy, which is an action instituted by appellee against appellant to condemn a right-of-way across certain lots owned by appellee in the city-of Helena for the purpose of “enlarging and strengthening the levee now surrounding said Helena Improvement District.” The action was instituted in March, 1914, and after service of process on appellant the circuit judge made an order, on the application of appellee, fixing the amount of $500 to be deposited by appellee pending the final hearing of the cause. The amount so fixed by the circuit judge was deposited in accordance with the order, and appellee proceeded to appropriate the lands sought to be condemned.

Appellant filed an answer, alleging’ that it was the owner of the lots mentioned in the complaint, that the appropriation thereof by appellee for the purpose of enlarging and strengthening the levee would totally destroy tlie value of the whole of the lots, and that appellant would, by reason of said appropriation, suffer damages in the sum of $10,000, for the recovery of which the answer contained a prayer.

At the October term, 1915, of the court, appellee filed an amendment to its complaint, alleging that appellant acquired title to said lots from G. W. Willey and I). H. Crebs, who obtained title under a deed to them from the Arkansas Cotton Oil Company, dated November 30, 1898, executed "subject to the right of public authorities to construct and maintain a levee over said lots as then constructed, located and occupied.” Appellant answered the complaint as amended,«denying that it acquired its title from Willey and Crebs or that under the terms of said deed appellant had acquired any rights to the use of the property.

The cause came on for hearing at the October term, 1920, of the Phillips Circuit Court, and, while the jury was being impaneled, counsel for appellee moved the court that the action "be dismissed on the pleadings and the deed exhibited with the complaint,” referring to the deed from the Arkansas Cotton Oil Company to G. W. Willey and D. H. Crebs. Appellee was then permitted to introduce the deed in evidence, and the court, over the objections of appellant, rendered judgment dismissing the action.

It was expressly agreed by counsel for appellee during the proceedings that appellee had already taken possession of the property in controversy and constructed a levee thereon, after the institution of this action. Appellant filed its motion for a new trial, which was overruled, and prosecuted its appeal to this court. There is a bill of exceptions in the record reciting the proceedings before the trial court.

Condemnation proceedings by levee districts are regulated by a statute-enacted by the General Assembly of the year 1905, now found in Crawford & Moses’ Digest, § 3933 et seq. We held in the case of Young v. Red Fork Levee Dist., 124 Ark. 61, that this statute was general in its operation, and that it governed condemnation in all drainage and levee districts in the State, whether created under general statutes or by special statutes. Appellee does not seem to have proceeded strictly in accordance with this statute, but the proceedings are substantially in conformity therewith, except that there is no provision in the statute referred to for a preliminary deposit of an amount of damages estimated by the circuit judge. The statute in question provides, in substance, that there shall first be an appraisement by the appraisers appointed by the circuit judge, which said appraisement becomes final unless excepted to within the time prescribed by the statute. In this case there was no appraisement of the damages by a board of appraisers, but appellant was served with process and appeared and filed its answer, asking for the recovery of damages by reason of the appropriation of its property.

The statute provides that, “in case exceptions are filed by either party within the time herein prescribed, it shall be the duty of the clerk to docket the cause,” and that “the award of the appraisers shall constitute all necessary pleadings in such procedings, and, in case a trial is demanded or requested by either party, the question shall be tried as other common law cases are tried, and the owner, or owners, of the land shall be entitled to recover the value of the land appropriated, or intended to be appropriated.”

The judgment in the present case was literally one allowing* the dismissal of the action, but it was in substance a judgment on the pleadings and exhibits. Treating it simply as an order permitting appellee as plaintiff to voluntarily dismiss the action, it was erroneous. Under the statute referred to, the party seeking the condemnation of property can not withdraw from the proceedings after having taken advantage of the process of the court to obtain possession of the land. The owner had, on demand, the right to a trial for the purpose of recovering damages, and this right is given in that action without having- to institute a separate action for that purpose.

Nor is the judgment correct if it be treated as a final one on the pleadings and exhibits. The deed executed by the Arkansas Cotton Oil Company to Willey and Crebs contained the following- recital: “But this deed is made subject to the right of public authorities of the city of Helena, Arkansas, to maintain a levee over and across lots twenty-three (23), twenty-four (24), twenty-five (25), twenty-six (26), twenty-seven (27) and twenty-eight (28), as now located and occupied, a,nd connect the levee oh said lots with the line of levee now constructed and to be constructed, and tq remove such portion of the said building as may be necessary to make such connection.”

It does not anywhere appear in the pleadings or proof that appellant was privy to that deed, and it must be assumed, in the absence of a showing to that effect, that appellee was a stranger to it. A rule, apparently universal in its application, seems to be that “a reservation or exemption in favor of a stranger to a conveyance is void or inoperative,” and that a grantee in a deed “containing a reservation or exception in favor of a stranger to the conveyance is not estopped to deny its efficacy.” Beardslee v. New Berlin Light & Power Company, 207 N. Y. 34, 32 Am. & Eng. Ann. Cas., 1287.

In order to establish the right on the part of ap-pellee to the use of the land in controversy without compensation to the owner, it would be necessary to show that it obtained said right from the owners in the chain of appellant’s title prior to the conveyance to Willey and Crebs.

For the error in dismissing the action, the judgment is reversed, and the cause remanded for further proceedings not inconsistent, with this opinion.


author: Wood, J.

text:
    Brown v. Epperson.
    Opinion delivered March 28, 1921.
    DRAINS — COUNTY treasurer’s commissions. — Under Acts 1913, No. 177, § 17, the treasurer of a county is not entitled to any commissions on sums deposited with him by the county collector, but which the commissioners of the district had deposited in a bank.
    Appeal from Arkansas Circuit Court, Southern District ; W. B. Sorrels, Judge;
    affirmed.
    J. M. Henderson, Jr., for appellant.
    The trial court erred in its construction of the law. The county treasurer was entitled to a commission of 1 per cent, on the drainage taxes paid over to him by the collector under 'act 279 of 1919 and act 177 of Acts of 1913, act 279, Acts 1909, p. 829, §§ 10, 11, act 177, Acts 1913, § 17. This is an amendatory act, and the two acts should be construed together as one act. If there is doubt as to the meaning, or apparent repugnancy, we must look to the intention of the Legislature. 102 Ark. 205; 30 Id. 135; 31 Id. 119-127; 89 Id'. 378; 22 Id. 369. The spirit and reason of the law should prevail over its letter. 36 Cyc. 1108; 186 Ark. 578; 11 Id. 44. The judgment was without authorhy of law, and the court erred in refusing a new trial.

      Robert E. Holt, for appellees.
    Construing the original and amendatory acts together as one act, it is clear the court below properly decided this case on the law and the' evidence, and there is no error. C. & M. Dig., § 1906. Under the circumstances of this case the treasurer was not entitled to any commission.
   Wood, J.

This action was brought by the appellees as commissioners of J. B. Wulffi Drainage District No. 4 of Arkansas County against the appellant, who was the treasurer of such county, to recover the sum of $243.53, which the appellees alleged were commissions on drainage taxes turned over by the collector of Arkansas County to the appellant as county treasurer. The appellees alleged that appellant was unlawfully retaining the above amount for his commission.

The appellant, in his answer, admitted that he was retaining the above amount, which was one per cent, of the drainage funds which the collector had turned over to him. He alleged that he received the drainage funds and had the same in custody for a period of from ten to sixty days, and during that time was responsible for same under his bond as treasurer of the district. He denied that he was unlawfully retaining the amount claimed as his commission, but averred that he was lawfully entitled to same. The cause, by consent, was submitted to the court siting as a jury, and the court found that for four years in succession the treasurer of the district each year had retained a commission of one per cent, of the drainage funds which the collector had turned over to him amounting in the aggregate to the sum claimed in the complaint; that the retention of said commissions, under act 177 of the Acts of 1913, was unlawful. The court, thereupon entered a judgment in favor of the appellees for the amount claimed hv them, and from that judgment is this appeal.

The only question presented for our consideration is whether or not the appellant was entitled to the commissions retained by him as found by the court. This question involves the construction of section 10 of act 279 of our general drainage laws of the Acts of 1909, p. 839, which is as follows: “The amount of the taxes herein provided for shall be annually extended upon the tax hooks of the county, and collected by the collector along with the other taxes ® * *'; and the same shall by the collector be paid over to the county treasurer at the same time that he pays over the county funds.” And section 11, which provides: “The treasurer shall pay out no money, save upon the order of the board, and upon a warrant signed by the chairman thereof. He shall be allowed a commission, not exceeding one per centum, upon all sums lawfully paid out, to be fixed by tlie board; and lie shall give special bond in a sum to be fixed by the couifiy court as treasurer of each drainage district. * * * If the commissioners deem best, they may • require the treasurer to deposit the funds of the district in a solvent bank, which will pay interest thereon at not less than three nor exceeding four per cent., and shall give a good bond, conditioned that said funds shall be safely kept, and paid out iu accordance with law. Said order shall relieve the treasurer and his bondsmen from liability from loss for such funds through the insolvency of said bank and its bondsmen; but no such order shall be effective unless in writing, and entered on the minutes of the board before said funds are deposited with such bank.”

Also section 17 of act 177 of the Acts of 1913, which amends act 279 of the Acts of 1909, supra, and also act 221 of the Acts of 1911. The only part necessary to set forth of act 177 of the Acts of 1913 is as follows: “Section 17. If the commissioners deem best, they shall deposit the funds of the district in a solvent bank which will pay interest at not less than three nor exceeding four per cent., and shall give a good bond, conditioned that said funds shall be safely kept and paid out in accordance with the law. Said order shall relieve the treasurer and his bondsmen from liability for loss of such funds through the insolvency of said bank and its bondsmen, and no commission shall be paid the treasurer on ’sums so deposited, and said bank shall pay out the funds only on warrants drawn upon it as prescribed for funds in the hands of the treasurer.”

The above provisions of the respective statutes are in pari materia. When so construed, it is manifest that the lawmakers intended that the treasurer should not be allowed any commissions on sums which had been deposited -with him by the collector, but which the commissioners of the district, under authority of the last act, had the discretion to and had deposited in a bank upon terms and conditions therein prescribed. When the acts are read in connection with each other, it appears that when the commissioners deposited the money in bank, the treasurer was to be relieved of all the duties and responsibilities connected with such funds which had been imposed upon him under the provisions of act 279, supra, except the mere duty of acting as a conduit for the passing of the money from his hands into the hands of the commissioners and the depository bank, which they had selected. This duty is not a complex or onerous one, and it is clear it was not the purpose of the Legislature to allow him any commission for the performance of that duty. Since he was relieved of the duties and responsibilities incident to the handling and disbursement of the funds as provided by act 279, supra, it was the intention of the lawmakers as expressed in section 17 of act 177, supra, that “no commission shall be paid the treasurer on sums so deposited.”

It will be observed that section 11 of act 279, supra, and section 17 of act 177, supra, are almost precisely the same, except section 17 of the latter act contains the words “no commission shall be paid the treasurer on sums so deposited,” above quoted. These words are significant, and they must be construed to mean that the treasurer was not to receive any commission on moneys of the drainage district which bad merely passed through his hands as a conduit from the collector of the district to the commissioners and the depository selected by them. If this construction results in imposing upon the treasurer a special duty of temporarily holding and turning over funds for which no specific compensation is awarded him, nevertheless such is the law, and many duties are required of nearly all public officers as incidental or connected with their official positions, for which no specific remuneration is allowed. Public officials can only receive such compensation as is expressly allowed them by law. The construction of these statutes by the trial court was correct, and judgment is therefore affirmed.


text:
    Scott v. Wisconsin & Arkansas Lumber Company.
    Opinion delivered March 28, 1921.
    1. ”i?RIAL — directed verdict. — If there is any evidence tending to establish an issue in favor of a party, it is error to direct a verdict against him.
    i. Master and servant — directed verdict — -contributory negligence. — It was error to direct a verdict against the administrator of an employee who was killed while in performance of duties, upon the ground that the undisputed evidence showed that the death of the deceased was caused by his own negligence, if reasonable minds might differ as to whether the manner in which the deceased was doing the work was so obviously and imminently dangerous that no prudent man would have undertaken it.
    3. Master and servant — negligence—jury question. — Evidence held to present a question for the jury as to whether a lumber company was negligent in failing to exercise ordinary care to furnish a safe place to an employee employed in unclogging a conveyor trough, and, if so, whether the defective condition of such place was the proximate cause of the death of deceased who was caught on a shaft while engaged in unchoking the conveyor.
    4. Master and servant — assumed risk. — When a master is negligent in having a projecting set screw where it might catch in the clothes of one engaged in unclogging a conveyor, of which condition deceased had no knowledge, he did not assume the risk therefrom unless such dangerous condition was so open and obvious that, in the exercise of ordinary care, he should have discovered it.
    5. Master and servant — contributory negligence. — Where an employee, in obeying the express commands of his superior and in the customary way, undertook to unclog a wood conveyor while the belt was running and was caught on a shaft and killed, the question whether deceased was negligent held under the evidence to be a question for the jury.
    Appeal from Howard Circuit Court; James 8. Steel, Judge;
    reversed.

      Andrew I. Rowland, D. D. Glover and J. G. Sain, for appellant.
    The testimony here warranted the submission of the controversy to a jury, and it was error to direct a verdict for the defendant.

      When a servant enters the employment of the master, he only assumes the usual and ordinary risks of the employment, and does not assume the negligence of the master, or the master’s servants unless he knew and appreciated it. There is no testimony that deceased knew that defendant’s servants had put this setscrew in the lineshaft. The testimony shows that this set screw was of unusual and dangerous .length and not intended for a small shaft of this kind. Deceased did not assume the risk, and whether he did or not was for a jury, under proper instructions. 86 Ark. 508, 515; 97 Id. 347; 102 Id. 646; 105 Id. 353; 111 Id. 9; 113 Id. 45; 123 Id. 119; 90 Id. 555, 226; Labatt on Master and Servant, §§ 7-14.
    It is the duty of the master to make reasonable inspections to see that the place of work and appliances are safe. 90 Ark. 227. It is his duty to exercise ordinary care in discovering defects and in repairing them, and he is liable if he fails to exercise due care in selecting a safe place to work and safe appliances for the servant to work. 91 Ark. 389; 87 Id. 321; 92 Id. 502.
    In determining whether or not a verdict is properly directed, plaintiff’s evidence should be given the strongest probative force.
    A case was made for a jury here. 105 Ark. 401; 79 Id. 53; 86 Id. 244; 87 Id. 321.
    Ordinarily the question of assumed risk is one of fact for a jury, unless the facts are undisputed. 98 Ark. 29; 91 Id. 102; 92 Id. 502, 554; 95 Id. 291; 89 Id. 372; 96 Id. 451; 104 Id. 267; 99 Id. 490; 120 Id. 208. See, also, 124 Ark. 588; 132 Id. 385; 134 Id. 136; 77 Id. 458; 86 Id. 329, 507; 88 Id. 28; 88 Id. 556; 82 Id. 86; 102 Id. 460.

      W. R. Bonham and T. B. Wynne, for appellee.
    The alleged negligence was not the cause of the injury. The proof must establish a causal relation between the negligence complained of and the injury sustained. A master may be guilty of negligence in operating defective machinery, yet the proof, may show that the negligence existing Avas not the cause of the injury sustained. 76 Ark. 440. There can be no recovery if the evidence tends to prove that the accident was not caused by the defect complained of. 4 Labatt on M. & S., par. 1570. The /uncontradicted proof here is that the defects complained of were not the cause of the injury, and the court properly directed a verdict for defendant.
    Before a servant is relieved of the assumption of risk by reason of complaint and promise to repair, it must be established (1) that the servant complained of the identical defect which caused the injury; (2) that the complaint was made because of a fear that a continuation in the employ of defendant with the defects complained .of would jeopardize the employee’s personal safety, and (3) that the employee continued in the work because of the promise to repair having* been made. Applying the facts to these fundamental principles, the court properly directed a verdict.
   Wood, J.

The Wisconsin & Arkansas Lumber Company, hereafter called appellee, is a corporation having a mill plant and engaged in the business of manufacturing lumber and other timber products at Walco, Arkansas. Boy Scott, hereafter called deceased, had been in the employ of the appellee for more than eight years. For more than two and a half years prior to his death, he was employed in the capacity of lath mill foreman. While in the discharge of his duties as such foreman on the 30th day of January, 1920, his clothing was caught on a line shaft, and he was killed. The deceased was twenty-nine years old and left surviving him a widow and five children. This suit was brought by his father, hereafter called appellant, as administrator, against ap-pellee, to recover damages for the benefit of the widow and children of the deceased.

In addition to the .above facts, which are undisputed, the testimony on behalf of the appellant tended to prove the following facts: In connection with the mill plant arid situated on or near the first floor of the lath mill is a machine called the “hog” which cuts up slabs into small particles. This material is used to furnish the greater part of the fuel of the furnaces for eight boilers which supply power for the entire mill plant, which had a cutting capacity from one hundred to one hundred and thirty-five thousand feet of lumber a day, log scale. This fuel material was discharged from the hog into conveyor boxes or troughs about eighteen inches or two feet wide and fourteen or sixteen inches deep. The bottom of these troughs were lined with sheet iron along which run endless conveyor chains, which convey the fuel to the furnaces. About eighteen or twenty feet from the lath mill floor was a line shaft. The box conveying the fuel material ran from the hog to near this line shaft up an incline at an angle of about twenty degrees and a distance of one hundred or one hundred and thirty feet. The conveyor trough from the hog was operated by a belt and pulley located on a line shaft which is about two feet from the elevated end of the conveyor trough. From the end of the conveyor trough to the sprocket wheel which pulled the conveyor chain was about two and a half or three feet. About two and a half feet beneath the elevated end of the trough and the sprocket wheel which moved the conveyor chain was another trough and a conveyor chain which carried fuel into the boiler room. These troughs and chains ran at right angles to each other at the elevated end of the trough from the hog. Near the elevated end of the trough conveying fuel from the hog there were holes in the lining of the trough. Pieces of the fuel would catch in these holes and in the sprocket wheel. This had caused the conveyor chains to stop frequently. In order to reach the machinery at this elevated point, a ladder about five or six feet long extended from the floor to a running board ten or twelve inches wide, which ran. by the side of the trough from the hog to a point within two or three feet of the end of that trough. When the conveyor chain and sprocket wheel became clogged, this stopped the conveyance of the fuel from the hog. To unclog the conveyor chain and sprocket wheel .at that elevation, one had to ascend the ladder and walk over the plank walk and stand with one foot on the end of the plank and the other on the top of the trough running to the fuel house. When one went up the walk way to the end thereof, he was in a position about two feet from the line shaft and pulley to his left and .about two feet from the sprocket wheel pulling the conveyor .chain from the hog on the right, and in front of him was a brick wall at a distance of three or four feet. When one stood with one foot on the plank walk and the other on the side of the conveyor trough running to the fuel room, the line shaft and pulley were to his back, and the sprocket wheel and end of the conveyor trough from the hog would be in front of him and the brick wall to the left. Whatever position he assumed he was surrounded on one side by the revolving shaft, on the other by the brick wall, and on the other by the sprocket wheel. The above was the customary way of unchoking the conveyor chain and sprocket wheel, whether done by the foreman or some one else. There was no other way provided, and it was the custom to do it while the machinery was going. If the belt had been thrown, it would have stopped the shaft, the lath mill and the hog, and the supply of fuel from that source would have been cut off. There was a set-screw near the upper end of the line shaft nest to the cog-wheels on the collar about opposite where one would have to stand to unchoke the conveyor chain as indicated above. This set-screw was not sunk, but protruded about an inch or an inch and a half from the shaft.

On the morning of the 30th of January, 1920, the deceased, up to eight or nine o’clock, had unchoked the conveyor chain five times. About nine o’clock the general foreman of the appellee said to the deceased, “Roy, we want all the fuel pushed through that hog we can get.” The deceased replied, “I don’t know what about your fuel unless we can get something done to that conveyor.” The foreman said, “Don’t let that hog stop today. We are short of fuel; watch her close and beep her unchoked, and keep lier going steady. I will fix it tomorrow.” The deceased replied, “I will do my best,” About 1:30 o’clock p. m. of that day the deceased was killed while nnchoking the conveyor chain. His jumper was caught in the setscrew and wrapped around the line shaft, which was revolving from one hundred and twenty-five to one hundred and thirty revolutions per minute. It was rather dark at the place where the deceased was killed, but not so dark as to require a lantern in the day time to work by. The setscrew could not be seen when the line shaft was revolving. It was the duty of the deceased to look after the machinery in the lath mill and to keep the same going and to call attention to any repairs necessary to be done, but it was not his duty to make the repairs. That duty devolved on the millwright.

On behalf of the appellee, the testimony tended to prove that the proper way to make repairs on the sprocket wheel and to unclog the conveyor chain from the hog was to throw the belt off, which could be done by pushing it with the foot or with a stick. There was no danger in doing it that way. The general foreman testified that he didn’t remember the deceased making any complaint on the morning he was killed about the conveyor trough. Witness did not know that deceased was going, or had gone, to the place where he was killed until they reported that he was killed. It was the witness’ duty to see the repairs kept up, which he did as much as possible. Witness did not urge the deceased to keep the chain going or complain of the fuel being short. Witness did not promise to make any repairs. It was witness ’ duty to have repairs made. He had millwrights under him for that purpose. ' Witness did not know whether the conveyor troughs had any holes in them or not. Witness had not made any provision in there to get to the sprocket wheel and conveyor chain except the plank walk. On the morning that the deceased was killed, there was a piece of slab three or four feet long fastened in between the chain and sprocket wheel. Witness did not pay any attention to the set-screw before the injury. Witness was an experienced mill man, having been foreman of various large mills, and in his judgment it didn’t make any difference in a place like that as to whether the set-screw was sticking out an inch above the collar or not. According to the general custom among the best mills, some of them have the shaft screws counter sunk, -and some of them are left sticking out.

One of the witnesses for appellee, who was assistant foreman of the mill at the time the deceased was killed, testified that he had known the deceased all the time he was an employee of the appellee — seven or eight years. Witness had seen the deceased in the locality where he was killed a number of times before, Witness supposed he went up there on his own accord. Witness had been up there and caught hold of him and demanded that he come out of danger. Deceased would be pulling out the long sticks and slabs that would get up on that chain and stop the chain from moving. Witness went up there himself, but it was not witness’ place to have the deceased with him at all. When witness went up there to unelog the sprocket wheel, it was witness’ duty to disbelt the machinery in order to keep down danger, and witness took his foot or something and kicked the stuff out of the sprocket wheel and the conveyor chain. Witness generally kept a stick there to throw the belt. If there wasn’t any stick there, he would touch it with his foot, and it would fly right off. The deceased knew how the belt was thrown, for witness had told him, and the deceased had seen witness throw the belt a great many times. If anybody got in there with the belt running, they were putting up their lives as a sort of a joke. They were taking chances. Witness told the deceased when he saw him in there to come out; that if that shaft ever got caught in a man’s clothes.it would kill him. The sticks had been catching in the sprocket wheel under the conveyor chain ever since the mill had been running. They didn’t have any place for a man to work in there because it was not a place for a man to work. If the deceased got in there to unchoke it while the machinery was running, he would have to stand with orfe foot on the plank and the other on the edge of the conveyor bos. Witness supposed that the set-screw, from the way all the other setscrews are, would stick out from a quarter to half inch— not over five-eighths of an inch at the outside. It was the practice to shift set-screws from place to place and after the death of deceased the set-screw around which his clothes were wound was shifted to another place. Another witness who had eighteen or nineteen years’ experience as a millwright testified on behalf of the ap-pellee that it was not safe to run a line shaft with a setscrew sticking out of the collar five-eighths of an inch, unguarded or unshielded by anything.

There was testimony also on behalf of the appellee tending to show that the deceased’s clothing was not caught in the set-screw, but was wrapped around the line shaft and over the set-screw. Other witnesses testified on behalf of the appellee corroborating substantially the testimony of the above witnesses and showing that it was the duty of the millwrights .and not the foreman to make the repairs and adjustments that the deceased was making.

The appellant alleged that the appellee was negligent in failing to exercise ordinary care to furnish the deceased a safe place to work, .and set out in detail the facts which his testimony tended to prove, as above set forth. The appellee in its answer denied specifically the allegations of negligence in the complaint and set up as affirmative defenses contributory negligence and assumed risk on the part of the deceased. The appellant presented several prayers for instructions asking the court to submit to the jury the issues which he conceived were raised by the pleadings and sustained by the evidence in his behalf. The court refused all these prayers, to which ruling the appellant duly excepted. Thereupon the court on its own motion instructed the jury to return a verdict in favor of the appellee to which ruling appellant duly excepted. A verdict was returned as directed, and a judgment was entered in favor of the appellee, from which judgment is this appeal.

1. The recitals in the judgment show that the trial court directed the verdict in favor of the appellee on the ground that the undisputed evidence showed that the death of the deceased was caused by his own negligence. In directing the verdict the court told the jury that the deceased went into a place knowing it to he dangerous and knowing it to be absolutely unsafe. In St. L., I. M. & S. Ry. Co. v. Holman, 90 Ark. 555-567, we said: “The law is well settled that if the nature of the defects is such as to create an open, imminent danger such as no prudent man would encounter, and the servant continues at work in the face of this manifest peril, and is injured by reason of the defects, he is barred of any right of recovery because of his own contributory negligence. But where the nature of the defect is not so obviously dangerous as to impress the man of ordinary prudence with a feeling or consciousness of imminent danger in the place where, or in the machinery and appliances with which he has to do .the work, then he may continue in the performance thereof; and if he is injured while so engaged, the master will be liable.”

Since the trial court directed the verdict in favor of the appellee on the evidence, in testing whether or not its ruling is correct, we must give the evidence its strongest probative force in favor of the appellant. “If there is any evidence tending to establish an issue in favor of .a party, it is error to direct a verdict against him.” Barrentine v. Henry Wrape Co., 120 Ark. 208; Farmers’ Bank v. Johnson, 105 Ark. 136; McDonald v. St. L., I. M. & S. Ry. Co., 98 Ark. 334, and cases there cited. A directed verdict in favor of the appellee was proper only if under the evidence and all reasonable inferences therefrom the appellant in law was not.entitled to recover. Works v. Fort Smith Biscuit Co., 105 Ark. 526. The question here is whether reasonable minds, viewing the evidence in its most favorable light for the appellant, could have returned a verdict in his favor. If so, the court erred in directing the verdict. If not, then the ruling of the court is correct. St. L., I. M. & S. Ry. Co. v. Cone, 111 Ark. 309; St. L., I. M. & S. Ry. Co. v. Coleman, 97 Ark. 438, and cases there cited.

Applying the above familiar rules to the facts of this record, we are convinced that it should not be declared as a matter of law that the method pursued by the deceased in unclogging the sprocket wheel and conveyor chain subjected him to such an open and imminent danger that no prudent man, under the circumstances, would have undertaken it. True,- the’ testimony on behalf of the appellee tended to prove that it was dangerous for any one to undertake to unclog the sprocket wheel and conveyor chain in the manner it was being done by the deceased, unless the belt was thrown — “that if anybody got in there with the belt running they were putting up their lives as a sort of joke — they were taking chances.” But, on the other hand, the testimony on behalf of the appellant tended to prove that the deceased was unclogging the conveyor chain and sprocket wheel in the customay way; “that it was the custom to do it while the machinery was going.” There was no rule of the company forbidding employees going into the place where the deceased was killed to unclog the sprocket wheel and conveyor chain without first throwing the belt and stopping the line shaft and other moving machinery. Even if there had been such a rule, the testimony on behalf of appellant would have warranted the conclusion that same had been abrogated by a custom acquiesced in by the general foreman of the company, whose duty it would have been to enforce the rule. Witnesses for the appellant testified that the customary way of doing it was to unchoke it while it was running, and these witnesses "testified that about 9:00 o’clock on the morning of the day when the deceased was killed, the general foreman of the mill plant told the deceased ‘ ‘ not to let the hog stop that day — to watch her close, keep her unchoked — and keep her going steady.” It was shown that the conveyor chain had been stopped four or five times before that on that morning; that the general foreman knew that it was choking, and hence gave the deceased the orders indicated in order that there might not be any shortage of fuel for the boilers.

Now, in view of the fact that there was testimony tending to prove that the custom was to , unclog the sprocket wheel and conveyor chain while the machinery was running, and that the deceased when he was killed was pursuing that custom, and in doing so was obeying the orders of his superior, the general foreman, it occurs to us that reasonable minds might differ as to whether or not the danger incident to unclogging the conveyor chain and sprocket wheel in the manner indicated was so obvious and imminent that no prudent person would undertake it. In appellant’s complaint there is a general allegation that the appellee was negligent in failing to exercise ordinary care to provide the deceased a safe place to work, and the specific acts constituting such negligence are alleged to be the using of a line shaft with a set-screw of unusual length sticking up near the end of said line shaft without any shield or protection over it, and the using of a conveyor box in which the lining had become defective causing the same to choke with the slabs and fuel material being conveyed. The testimony tended to prove that this defective condition of the conveyor trough caused the conveyor chain to become clogged more frequently than would have been the case otherwise. The protruding set-screw on the line shaft, when the latter was in motion, undoubtedly enhanced the danger of unelogging the sprocket wheel and conveyor chain while the machinery was running. Under the evidence, it was a' question for the jury to determine whether or not the appellee was negligent in failing to exercise ordinary care to correct these conditions, and whether such, conditions were the proximate canse of the death of the deceased.

There was testimony on behalf of the appellant tending to prove that the place where the deceased was killed was rather.dark, and that the set-screw could not be seen when the line shaft was revolving. It was not the duty of the deceased to place the set-screws in the first instance, nor to shift them from place to place. The duty of construction and making repairs devolved upon the appellee and was intrusted to other servants. The deceased had no duty of inspection either, except to discover the repairs that were necessary to keep the lath mill running. The deceased, while unclogging the sprocket wheel and conveyor chain, was performing a servant’s duty, and he assumed all the ordinary risks incident thereto. But a servant does not assume any risk arising from the use of defective machinery caused by the negligence of the master, unless he knows thereof and appreciates the danger incident to its use; or unless the defect and danger are so patent that one, in the exercise of ordinary care for his own protection in the performance of his duties in the usual and ordinary manner with the machinery furnished him, would necessarily discover the defect and know and appreciate the danger. Therefore, if the appellee was negligent in having a projecting set-screw at the place where the same was located, and if the deceased had no knowledge of such defective condition and did not appreciate the danger thereof, and if the defect and danger were not so open and obvious that in the exercise of ordinary care in the performance of his duties he should have discovered same and have known and appreciated the danger, then he did not assume the risk if he was discharging his duty of unclogging the sprocket wheel and conveyor chain in the customary way acquiesced in by the appellee.

2. The primary duty of a servant is to obey the orders of his master. Central Coal & Coke Co. v. Fitzgerald, 146 Ark. 109. Therefore, if the general foreman of the appellee had directed the deceased “not to let the hog stop that day — to keep it going steady,” meaning thereby that the deceased should unclog the sprocket wheel and conveyor chain without throwing the belt, and while the machinery was in motion, then if the deceased was caught by the projecting set-screw on the revolving line shaft and thereby lost his life while carrying out the orders of his superior, he did not assume the risk, and the appellee would be liable, unless the danger of attempting to unclog the sprocket wheel and conveyor chain while the machinery was in motion was a danger so obvious and imminent that no servant in the exercise of ordinary care .and prudence would have undertaken it despite the directions if his master. If the danger was so obvious and imminent that no servant, in the exercise of ordinary care and prudence, would have encountered it notwithstanding the directions of the master so to do, then the deceased in undertaking to carry out the orders of the general foreman, if there were such orders, was guilty of contributory negligence. It occurs to us that the trial court erred in holding that the undisputed evidence proved such to be the case.

The above principles of law concerning the relation of master and servant applicable to the facts which the testimony in this record tended to prove are well established by the authorities generally and have been announced by this court in numerous cases. Most of the decisions of this court bearing upon the issues here involved are cited in the excellent briefs of counsel for the respective parties. An examination of the cases upon which appellee relies for an affirmance of the judgment will discover that the facts in those cases differ in essential particulars from the facts of the present case. It could serve no useful purpose and would unduly extend this opinion to review them.

Our conclusion is that the issues of the alleged negligence of the appellee, and of the assumption of risk and contributory negligence on the part of the deceased, should have been sent to the jury under appropriate instructions of the trial court. For the error of the court in directing a verdict in favor of the appellee, the judgment is reversed and the cause is remanded for new trial.


author: Hast, J.

text:
    Peel v. Lane.
    Opinion delivered March 28, 1921.
    1. Landlord and tenant — tenancy from year to year. — A tenancy from year to year may be created either by an express agreement or by a lease for one or more years and the holding over of the tenant after the period of such lease and the payment of an annual rental after the first year without a new contract.
    2. Landlord and tenant — tenancy prom year to year. — In an action of unlawful detainer where the landlord alleged a failure to pay an increased monthly rental under a tenancy from month to month, and the tenant’s testimony tended to prove that the tenancy was one from year to year at the original rental, it was error not to submit the tenant’s theory to the jury.
    3. Appeal and error — moot questions. — Where a landlord brought unlawful detainer, alleging tenant’s failure to pay an increased monthly rental under a tenancy from month to month after ten days’ notice to quit premises, and the tenant testified that the tenancy was from year to year, and the term had not expired at the time of appeal, so that a six months’ notice would be necessary to terminate the tenancy, the questions involved were not moot questions.
    4. Landlord and tenant — tenancy prom year to year — notice to quit. — Six months’ notice is necessary to terminate a tenancy from year to year.
    Appeal from Conway Circuit Court; A. B. Priddy, Judge;
    reversed.
    STATEMENT OE EAOTS.
    On June 18, 1920, Mrs. E. Cora Lane brought an action of unlawful detainer against Miss Jennie Peel to recover possession of a dwelling house which the former had rented to the latter.
    According to the testimony of Mrs. E. Cora Lane, in 1917 she rented to Miss Jennie Peel a seven-room dwelling house in Plumerville, Arkansas, for the term of one year with the rent payable monthly at the rate of $15 per month. In May, 1919, Mrs. Lane told Miss Peel that she intended to sell her place, and it was agreed between them that thereafter Miss Peel should become a tenant at will, paying Mrs. Lane the same rent by the month. On the 1st day of February, 1920, Mrs. Lane notified Miss Peel that she would have to come up on the rent and was going to charge her $20 per month. Miss Peel notified her that she would give her an answer by the first of May. Miss Peel later on declined ta pay $20 per month rent for the house, and on the 1st day of May, 1920, Mrs. Lane had served on her a notice in writing to vacate the premises on, or by, June 8, 1920.
    Other witnesses corroborated the testimony of Mrs. Lane.
    According to the testimony of Miss Jennie Peel, she rented the dwelling house in question by the year from Mrs. Lane during the first part of January, 1917, and agreed to pay the yearly rental at the rate of $15 per month. She continued, without objection, to occupy the premises at a yearly rental payable monthly in advance until the 18th day of February, 1920. At that time Mrs. Lane told her the taxes were so high that she was going to raise the rent $5 per month. Miss Peel replied that she was renting by the year, and that Mrs. Lane should have informed her that she was going to raise the rent before she started on the year. She reminded Mrs. Lane that she had made some repairs since the first of the year 1920. She never agreed with Mrs. Lane to increase her rent to $20 a month. The testimony of Miss Peel was corroborated by other witnesses.
    The case was tried on the 8th day of October, 1920, and the jury was instructed by the court to return a verdict for the plaintiff for the possession of the property, but the court, submitted to the jury to find from the evidence the amount of damages suffered by the plaintiff.

      The jury found for the plaintiff and allowed her $15 per month from June 8 to October 8, 1920, as rent. The case is here on appeal.

      Edward Gordon, for appellant.
    It was reversible error to direct a verdict for plaintiff for possession. The tenancy was one from year to year, and the notice given was sufficient. 65 Ark. 471-3-4; 11 Vroom 133; Taylor on Landlord and Tenant, § 478; Arclib. on Land. & T. 87. These authorities sustain the contention of appellant. Notice must he given at the end of a rental period. See, also, 131 Ark. 77; 99 Id. 260.

      C. A. Holland, for appellee.
    1. There is only a moot question before the court, and costs only are involved. It does not fall within the exceptions to the rule, as stated in 113 Ark. 24; 125 Id. 324. The rule as to holding over by a tenant is well settled. 16 ft. C. L. 1160, § 681. .
    2. The notice was sufficient.
    3. The doctrine of estoppel has no application here. The presumption that the tenant holds in accordance with the terms of the original lease is not conclusive and is rebutted by proof of a new contract differing from the original contract. 16 E. C. L., p. 1162, § 683. The cases cited by appellant on estoppel are not in point.
   Hast, J.

(after stating the facts). The court erred in directing a verdict for the plaintiff for the possession of the premises.

According to the testimony of the defendant, she rented the premises by the year in January, 1917, agreeing to pay the rent monthly in advance. She paid the rent as agreed upon and occupied the premises without objection until the 18th day of February, 1920, when she was told by the plaintiff that she would have to pay an additional rent of $5 per month, or quit the premises. She declined to pay the additional rent, and the plaintiff brought suit for the possession of the premises.

In Lamew v. Townsend, 147 Ark. 282, the court held that ten'ancy from year to year may be created, either by an express agreement, or by a lease for one or more years and the holding over by the tenant and the payment of an annual rental after the first year without a new contract.

There was a tenancy from year to year according to the testimony of Miss Peel, and her theory of the case should have been submitted to the jury.

It is-insisted by counsel, for the plaintiff that the judgment should not be reversed because it is not the policy of our law to decide moot questions. It is contended that the issue raised has ceased to be of any practical value because her tenancy has expired.

We can not agree with counsel for two reasons. In the first place, according to the testimony of Miss Peel, she was a tenant from year to year. Her tenancy commenced in the early part of January, and having held over until the 18th day of February, 1920, without objection on the part of the plaintiff, her term would not expire until the first part of January, 1921. The case was tried in the circuit court on the 8th day of October, 1920, and her tenancy had not expired at that time. In the next place, she received only a month’s notice to quit. Under the common law in case of a tenancy from year to year, the tenant was entitled to six months’ notice before his tenancy could be terminated. 24 Cyc. 1379, and cases cited, and 16 R. C. L., § 695, p. 1174, and cases cited. That the common law requires six months’ notice where the tenancy is from year to year was recognized by this court in Stewart v. Murrell, 65 Ark. 471. In that case the court held that, in the absence of a local custom to the contrary, a tenant from month to month must give thirty days’ notice of his intention to vacate the leased premises, but recognized that the common law rule was six months where the tenancy is from year to year.

Again the rule was recognized in Bromley v. Aday, 70 Ark. 351, where the court held that ten days’ notice to quit could not be considered reasonable in a tenancy from year to year.

In Reece v. Leslie, 105 Ark. 127, tbe court held that the notice for the length of time required by law before the bringing- of the suit must be given, and that the notice must end with the rental period.

In Currier v. Barker, 2 Gray, Mass. 227, the importance of giving notice was stated as follows: ‘ ‘ The notice to quit is technical, and is well understood. It fixes a time at which a tenant is bound to quit, and the landlord has a right to enter at a time at which the rent terminates. The rights of both parties are fixed by it, and are dependent on it. Should the landlord decline to enter, and the tenant quit according to the notice, the tenant could be no longer holden for rent, although he had given no notice to the landlord. The lease is ‘ determined’ by such notice, properly given by either party. It is manifest therefore that, when such consequences depend upon the notice to be given, the notice should fix with reasonable exactness the time at which these consequences may begin to take effect. ’ ’

There is no statute in this State changing the common-law rule with regard to notice where the tenancy is from year to year. Consequently the notice given by the plaintiff in this case was insufficient as to length of time and was also ineffectual because not terminating at the end of the yearly tenancy.

Therefore, the judgment must be reversed and the' cause will be remanded for a new trial.