author: Humphreys, J.

text:
    Martin v. Pierce Petroleum Corporation.
    Opinion delivered October 17, 1927.
    1. Appeal and error — objection not preserved in motion for new trial. — The Supreme Court cannot determine whether evidence adduced on a motion to correct a judgment was sufficient to justify correction where appellants objected and excepted to the order correcting the judgment, but did not preserve the objection and exception, either in the supplemental motion for new trial or by amendment to the original motion for new trial.
    2. Appeal and error — conclusiveness of court’s finding. — The recital in the judgment by way of amendment that the trial court heard evidence on a question of fact is conclusive where the sufficiency of such evidence is not presented for review by a motion for new trial.
    3. Limitation of actions — variance between first and second complaint. — Where a suit brought within the period of limitation styled the plaintiff as the “J. H. Martin Company,” and a second suit was brought within a year by the “Martin Company” on the same cause of action, the second action was not barred since the first action was filed within the statutory period, the variance in the names being immaterial.
    Appeal from Arkansas 'Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.

      T. J. Moher and John L. Ingram, for appellant.

      Sam T. & Tom Poe, Floyd Sharp and McDonald Poe, for appellee.
   Humphreys, J.

This is an appeal by Fred W. Martin and Ida IT. Martin from a judgment rendered in the circuit court of Arkansas, County on the 24th day of August, 1926, against them, J, TI, Martin and Frank IT, Martin and’each of them, , in. fayor. \\qf \\app,elje5e.¡ for $1,123.33 with interest at the rate sjk ¡pe-r. cent. _ per annum from the date of the judgment. ;It was.alleged,in the amended and substituted complaint tha|e said .appellants were members of a partnership .trading’ under, thp name of “The Martin Company,”.to .whom appellee sol.d merchandise in the amount for which suit was brought. The original complaint referred to the partnership as J. H. Martin & Company, and did not allege that Prank II. Martin was a partner.

Appellants filed an answer, denying that they or either of them were partners in the Martin Trading Company. On September 15, 1926, they filed a motion for a new "trial on the ground that no proof was introduced in support of the issue raised, and that for such reason the, judgment was without evidence to sustain it. ’ Oh December 6, 1926, appellee filed a verified motion :i;pr correct the judgment entered on August 24, 1926, so as to show that, before the rendition of said judgment, proof was introduced to establish that appellants were members of the partnership of “The Martin Company.” After hearing testimony, the court corrected the judgment' so as to embrace a recital that proof was introduced before the original judgment was entered to show that appellants were partners doing business as “The Martin Company.”- The court then overruled the motion for a new trial, over appellant’s objection and exception.

Although appellants objected and excepted to the order of the court correcting the judgment, they did not preserve the objection and exception, either in a supplemental motion for a new trial or by amendment to their original motion for new trial. This court therefore cannot determine whether the evidence adduced by appellee on its motion to correct the judgment was sufficient to justify the correction. The rule is that this court will not consider alleged errors of the trial court unless embraced in a motion for a new trial. Van Hoozer v. Hendricks, 143 Ark. 463, 221 S. W. 378.

'The'recital in the judgment, byway of amendment, tb' the .effect-that 'the- trial court'heard-evidbhóé to show íj*-í ! / ¡ ' * ] ; *}' Ü-i-1 ! ‘ * i j 1' ‘ f j ¡¡ i»ni j j i ” * '4 (J ! t * ‘■’ü ,»/ I ri * that appellants, .wOrcí;iUQ2pDGrq oí r the partnership doing línslnesNas ^Tlíe 'Martin. ,Oon%anyM/mps.t!b'éiíaióceípWd bj-'tMs-cóüiH'ás''édncliiáiye of 'tná’t f'áct;1 !

Wb’Wbioli/.tbiiik^tbe'Nátíailee ftettfedir'títe^iiyiíiefe ^tT.^H/M’aárffiñ1 Fqnrjbany,!T 'siddf ‘^Tüé' M&Má’ ’ .boifíókíí^,s> ib! :tbé "tVb: homibihints'vis ¿lifficikht; to" !ébair'átíteibzé1'' 'th'é íattef'-éMÍ ■ás';a‘,sép!arate':ári'dí,diktitíct ’ihii't.1'* Bbdhih'ppeil.-laÍLts'iVé!rél :mádé' 'déféiídáíibs _ ib ;thfe flbát,;sñlt' j&'é -jfeWéfs the second, -alid"'the"‘saíne1 áe'eoüñt'1 wa's'íhttabhedí:áh“áíh ekhibi-hto botín com^'laínts^.bo'thbáccomitsvhavmghbeen made out against “The Martin Company. Vu.iTfeei fhjst gnit .-Map' fiied! within, the- 'statnt.bEy¡'pei’Í0d.í 0-f¡ .'Hpaithtions, and the aQeqnntThquefor.&ivas not ¡'baited^ c h->; r.m rr. /■>

No error appearing, the-'judgmept'lis: affibrnieflifl-;'i<>


source: Caselaw Access Project

license: Public Domain

text:
    Hill v. Brittain.
    Opinion delivered October 17, 1927.
    Moetgages — PREMATURE" foreclosure gf notes. — Error, ¿"rendering " judgment for the,full amount of notes'and in de.creping, a fore- • ' closure of ’a" mortgage, givfen toseéure" ‘ffiy’ñitóá'at ‘¿'time when a- large part of thé nótes’-'hadm'ót- ¡matured, ■keld,ííeversíbTé‘e^it¡t .wheréithere; was-no accelerating:claus:e, either dri'dhe, notes* ¡of ^ . , the;mortgage,, ,;j T,, j, í:¡ ,.¡!; j| ri'.v ¿-.mi
    ‘ Appé:ál'fi'oní'Cc>rL'wky!'éh‘anrcery!Coiiríí,lT’. Wr'AtMtó-són, Ohan'celTor;
    reversed,
    "' ’ Edw'ard'Gordon1and'De'anl íio'ó're &'í>'r’áklt¡loliñfetíeF lánt. ‘ N
    ; Gl'A. Holland' áiid’iJi W. 5?o ZíiíisV'f,oíJ 5^
   ‘HhMPSR,ETS-'T.-1

rhih'stiit'whs'bhoiight'p the'‘chancery -coñrt • of 'Conway; Ccitoity b^, appellee ,agaihs!lrS.,'!Fi Stobáti^’h/N; p.^Stqbahgk'iahd'hís rwifb‘:]kí 'J:¡r Sirobéíiigii; Fí B. C'dllins Tñvébtíhént;'Company !ahd/’T:'f]Vl.T‘Milléx^ Üpon.notés aggregát'iíi^ $2,73-8, 'si-gme.d^by'^.'Ñ.'Stó'b^ñgli áñd F. O. jStóban'gihj andbfo^fqrdcló'se aVimbittghgfe ceítain' redi' estate' in shid'-cotixit^' éxSÉhíe’íf'-by^F.'. 0. iStóbángh andhM.1J'.' '.Stobáugh t^f ’ seohre Üie 'last^foNr ndtesNa^fegating-thd'gtiin'bf $2“53Í7"!

It was alleged that prior mortgages had been given upon a part of said land to F. B. Collins Investment Company and T. M. Miller, but that the mortgage to F. B. Collins Investment Company was usurious and void, and that the mortgage given to T. M. Miller was without consideration, and void. The complaint alleged a mis-description of certain of the lands in the mortgage, and sought reformation of the mortgage so as to correctly describe the lands intended to be conveyed.

No answer was filed on behalf of B. F. Stobaugh. who had left the country.

F. 0. Stobaugh and his wife, M. J. Stobaugh, denied every material allegation in the complaint, and, by way of affirmative defense, alleged:

“That no part of the indebtedness alleged to be due by plaintiff for which the notes were given is an indebtedness due this plaintiff bj^ these defendants, but that whatever indebtedness is due plaintiff on notes sued on herein was created and is the indebtedness of the defendant, B. F. Stobaugh; that defendant, B. F. Stobaugh, is an adult person, a son of these defendants, F. 0. Stobaugh and M. J. Stobaugh; that, during the year 1923, the defendant, B. F. Stobaugh, was living in Faulkner County, Arkansas; that he had various and sundry dealings with the plaintiff, A. J. Brittain, during said year, the exact amount and the kind these defendants are unable to set out, but a part of same was created by plaintiff selling' to said defendant, B. F. Stobaugh, a lot of personal property, including mules, wagons and plow tools, and also by selling to defendant, B. F. Stobaugh, a tract of land in Faulkner County, Arkansas, the exact amount and the price to be paid by defendant, B. F. Stobaugh, to plaintiff these defendants are unable to set out, but -whatever indebtedness due by defendant, B. F. Stobaugh, to plaintiff for said personal property and lands was included in the notes purported to be signed by these defendants to plaintiff, A. J. Brittain, and for which the mortgage sought to be foreclosed by plaintiff was given to secure; that defendant, B. F. Stobaugh, on or about August, 1924, disappeared from this county, and, so far as these defendants are informed, he has left the State of Arkansas; that these defendants do not know the whereabouts of defendant, B. F. Stobaugh, and they are unable to locate him; that, after the said B. F. Stobaugh suddenly left the State of Arkansas, which was before any of said notes were due, the plaintiff, A. J. Brittain, took possession of all the personal property and the lands sold by him to said B. F. Stobaugh, and has unlawfully, surreptitiously and illegally disposed of same without process of law, which action is a fraud on the rights of these defendants. That the proceeds of six bales of cotton of defendant, B. F. Stobaugh, were received by plaintiff, for which credit has not been given, and, about December' 1, 1924, R. E. Hill, a son-in-law of the defendant, paid plaintiff $300, for which credit has never been given. Wherefore defendants pray that plaintiff, A. J. Brittain, be required to produce to this court all his books, ledgers and accounts pertaining to the dealings with defendant, B. F. Stobaugh, and he be required to give an account of all personal property taken by him and of the real estate now in his possession which was conveyed by him to said B. F. Stobaugh, to the end that these defendants and this court might know the exact amount due, if any, by these defendants on notes for which the mortgage sought to be foreclosed secured, and that, upon a failure to produce said accounts and books showing the business transactions between him and B. F. Stobaugh, plaintiff’s complaint be dismissed, and for all other proper and equitable relief.”

Appellee filed a reply to the answer of appellant, making a general denial of the allegations of the answer, and stating that he was ready and willing to surrender all books, papers and notes he had for the inspection of defendants and court.

During the pendency of the suit F. 0. Stobaugh died, and the cause was revived in the name of R. E. Hill, administrator of his estate. The cause was submitted to the court upon the pleadings and testimony, resulting in a judgment and decree of foreclosure for the full amount óíjfii’e-iití'féá á|íáliÍ!tbi,0Wtí'M,GÍMMI,’fr'b¿x,^'Iiicli4iíifá[)l[iüiü iiás ^beirbTúiy'p'i’o^bútilé^ td!’tlii;s b'b.ürt:'-’'1 '* Uii

,7íH!/TÍíbs ju'dgTOéiil^'áíA^'dOtíléb Pf;'*fórebfoM'í;é‘ whs'i'bií-¡7 //tK/í 7 Ai'? 7 l-t ' (-'-¡-/T i' ‘: ó YVíl-n ílf- .¡ A'P * 4-IVA 7' .viV--* Ú iv'/V 1 !s '■ <Í CÍOC' clerfed 'at ¡ or ^líéí4>!t^ás\ííB:!kíTO¿iérátííaíg; 'feiáti.ye} bith'bí'ái* tlie!‘i__ ‘ihoítgd^é;‘ ‘áíM,' xór'^tHkt‘ ’réás'ó'li; .‘tlid1 -'B'otfft cóintíiítted tr8fe¿síbré’ yfrókV!i[ní í;biícl'e'rj.ng'‘'a jüiíg;niéílt!Í!á!iíd!.d!é6rée!'!ót 'm B! &r 6#¿Wd 'é$$é$tj Í^IM'JL / (A í 3^l| ííííf í .í S ¡i <;) >h'í ¡ a) hí vjíi’/v'í

'.Olí‘;,á!([oóuíít oí .tlVe 'éjrí‘0,5?’' m’&cdífecl’*'fice "},c(4(ér^"ífe iev'ersé'cíj '‘áfid!* tH'é1, ¿Huse' l^i^maíid'éd !íórt‘íiirtlieír'ipr6-ceetlííi^k ííot inconsistent5 with: thjs’ ppiííiólif


text:
    Davis v. Watson.
    Opinion delivered October 17, 1927.
    ■LE’STEÉSíHtépitÁt pif s.tí'écrÁLBSTATümlóActs í923;}Np-, “130,'¡which'is v'o.-sSpec-i^lí^Qt app Jy jn¡g-jto '\ppje Bivei?¿Leyfif Distinct in,certa.in..coupj- ,,, ties,. ^Zct.repealed -by ^.ete ,1927/ p. 38,8^ wW^b4?,a ge^ral, covering thp same'subject.' ’.‘77 .“•
    ~IS~p~p~a1. ~ ~hauce~y. i~Zk~iittj ~QUthO]YT1 Di&~ici;; )AI ~11o~i;~ r~ver~ed:
    ~j E~
    jsOn;if~r Ross appe~I1e~e~
    Ross M�~l~s;~f appe~I1e~e~
   .!-iíl!0TOjiPtoBfrs>//>Ji,»¡

íA.ppeliaut¡ ie <a ilkúdoTOuerrjáud á taxpayeriú 'the-¡White Riveii :L"eyÍ3eiDi'stLict'of<’Wo.odi1uf4 Píamenand Méíiroe!.counties; He■iiistiiated'lttós buit in théjcliancéry! couiít 'of -'Woodruff Ooxintyv iaiíthebSoiithh ern District, to enjoin the directors ioBsaidfdistildhff'ofa Üsstfing..iai4i.>,lMnldiú,|' iqt>. refuhding'Ponds- under«act No. ¡IB®! ofi'íhéí G'enejjal'iAssfeinDMyi-iof' ¡1923;; y?hichr/a,llo,w'Ml the hoárdilof''director's" ofi-.s-afid'1 district. tdífre-fimxiíifñeMhoimícfe yiithoififti.-any; firestfictiiohsoiwhatfeyet,-; alégúngu thafensaM aotohadllMeuik’epeatechihy'.'acf INoíí‘126, !oifii;the,iG;ehe]:al Assembly of 1927,, which allowed the districts in the State to refund their respective indebtednesses under certain restrictions, .provided fifty-one per cent, of the landowners in the particular distinct should evidence a desire to do so by petition.

A demurrer was sustained to the complaint and a consequent judgment rendered, dismissing same, from which an appeal has been duly prosecuted to this court.

• The only question presented by the appeal is whether act No. 126 of 1927 repeals Act No. 130 of 1923. Act No. 130 of 1923 is a special act and act No. 126. of 1927 is a general act. Both relate to the same subject, the earlier act applying to White River Levee District of Woodruff, Prairie and Monroe counties and the later act purporting to apply to all districts in the State. By reference to the later act it will be observed that it is exclusive in the sense that it covers the general subject-matter to which it relates, and, under the rule announced by this court in the case of Hampton v. Hickey, 88 Ark. 324, 114 S. W. 707, necessarily repeals the earlier act by implication, even if act No. 130 of 1923 is a special statute.

On account of the error indicated the decree is reversed, and the cause is remanded with directions to overrule the demurrer to the complaint, and for further proceedings not inconsistent with this opinion.

Mr. Justice Smith dissents.


text:
    Ivy v. Edwards.
    Opinion delivered October 17, 1927.
    1. Counties — levy op tax to pay for courthouse. — An order of the quorum, court levying a tax to pay installments on warrants issued for constructing a courthouse was not invalid under Amend. 11 to the Constitution, where it affirmatively appeared that, .after paying the necessary expenses for the county, there will be ample revenue each year to pay installments due on the contract for the courthouse.

      2. Counties — -validity op appropriation foe courthouse. — An order of the quorum court levying a tax to pay installments on warrants issued for courthouse, the legal effect of which was to appropriate the maximum amount to build the courthouse, payable in installments, and not merely an attempt to make specific levies for future years, held not invalid for failure to specifically state that the maximum sum is appropriated to pay for a courthouse.
    3. Counties — construction of courthouse — payment in installments. — The quorum court is authorized to contract for the construction of a courthouse in an amount not to exceed $200,000, and to appropriate such amount payable in 20 annual installments by a one-mill levy on assessed valuation of property in the county, though the levy would have to be made and enforced annually.
    4. Counties — validity of order providing annual levies. — An order of the quorum court providing for appropriation for the construction of a courthouse, payable in annual installments by an annual levy on county property, was not invalid because future quorum courts could not be bound by any specific appropriations provided for by a prior court, where a reasonable estimate disclosed that there would be sufficient funds left after paying necessary expenses to build the courthouse on installment plan.
    5. Counties — construction of courthouse — authority of quorum court. — In the construction of a county courthouse, the extent of power of the quorum court is to determine whether the courthouse shall be built, the cost thereof and the manner of payment, and thereafter the courthouse is to be constructed under the orders of the county court, without the necessity of the quorum court directing the county court to proceed and let the contract for the courthouse.
    6. Counties — issuancb of noninterest-bearing warrants. — The contract for the construction of a courthouse, made under the order of the quorum court, appropriating the total sum to be paid in annual installments, held not invalid because of proposed issuance of noninterest-bearing warrants, when the courthouse has been accepted, instead of issuing annually the amount of installment due for the current year.

      7. Counties — when noninterest-bearing warrants may be issued. —Noninterest-bearing warrants may be issued as evidence of indebtedness existing under the- contract for the construction of the county courthouse, to cover the work as it progresses and the balance when the courthouse is completed according to the plans and specifications.

      8. Counties — appropriation for courthouse — general 'county fund. — Where the quorum court appropriated a maximum sum for building a courthouse, requiring the 1-mill levy to be paid out of the levy of 5 mills and by levies to be paid each year covering all expenses of government, and not in excess of 5-mill levy, there was no continuing levy of 1 mill annually for courthouse construction, and warrants should not be drawn on a specific fund, but on the general county fund out of which the appropriation was made.
    9. Counties — construction of courthouse — priority of warrants. —Warrants issued as evidence of the indebtedness for county courthouse to be paid out of the general county fund, should not contain a provision that they shall take precedence over other warrants, issued against the general fund for the current year, since the necessary expenses of government as well as courthouse warrants are binding obligations, and must be paid.
    10. Counties — authority of quorum court. — Under Crawford & Moses’ Dig., §§ 1933-1935 and Acts 1917, p. 1184, as amended by Acts 1919, pp. 144, 394, the county court is authorized to select and purchase a site for courthouse if necessary, and the quorum court is only authorized to determine when the courthouse shall be built, the amount of expenditure and the manner of payment.
    11. Counties — sale of old courthouse. — The county court is empowered to sell the old site of the county courthouse after a new site has been acquired.
    Appeal from Benton Chancery Court; Lee Seamsier, Chancellor;
    affirmed.

      Jeff B. Rice, for appellant.

      L. H. McGill, for appellee.
   Humphreys, J.

This suit was brought in the chancery court of Benton County by appellant, a resident citizen and real estate property owner in said county, to enjoin W. it. Edwards, county judge of said county, and his successors, and appellees Joe Beasley, W. E. .Patton and Kit Phillips, as commissioners of public buildings in said county, and their successors, from making any contract or taking any further steps toward carrying out the resolutions of the quorum court to build a new courthouse. The questions necessary to a determination of the issues involved on this appeal are, in substance, as follows:

: ' N ¡The quorum court, at its regular term in October, 1926," made-separate specific levies in mills for six county Í|itirp‘fis'éís?':á^g<leg,ating!3% mills, and a levy of 1% mills for .general cqunty . purposes.

.--..>2. ‘ A-motion-was then passed directing the county judge' and á- committee, to be appointed by'him from 'íá'emb’efs 'Of 'the’guofuin court," to, ihake investigation of the question of remodeling the" present courthouse or Building a'newpne, and to report to the quorum court at .9,11 ftdjpnrhed term to be held.

3.'■•■■This' committee was appointed by the county judge, and made the investigation and filed its report at said adjourned term. The report, in substance, stated that the courthouse was in such bad condition that it could not be remodeled; that it was necessary to build a new courthouse; that a new courthouse, fire-proof and modern and of sufficient size and capacity to meet the needs of the county for a great many years, could be built for approximately $200,000, and that such an amount could bo appropriated and paid out of the five-mill levies for general county purposes, leaving sufficient revenue to take care of the general county expenses, and that the couiity would get out of debt from the levies already made for the fiscal year 1927. The committee recommended that a new courthouse be built.

4. The quorum court at such adjourned term, Dec. 1, 1926, took up for consideration and action the matter of making an appropriation and levy for the building of a new courthouse, to be paid for out of successive levies to be made in the year 1927 and the following years, and authorized the building of a new courthouse, and adopted the following resolution and order: “Whereas, the quorum court has under consideration the necessity of building a courthouse for Benton County and the issuance of not exceeding $200,000 of noninterest-bearing warrants of the county for said purposes; and whereas, it is deemed to be to the best interests of the county that provision be made for the issuance of said warrants by the levying of a tax to pay them as they mature: and whereas, it had been calculated, that the amount of money necessary to pay said warrants as they mature in twenty installments of $10,000 each will be realized by levying a tax of one mill; be it Benton County, Arkansas: That a tax of one mill on the dollar of he assessd value of all taxable property within the sais warrants in the total amount of nor exceeding $200,000, maturing serially $10,000 per year for twenty years, beginning in the year 1928; that, during each of the years while ay of said warrants are outstanding and pais thereon, there shall be calculated the amount of money necessary during each of said years to pay the current installment maturing during said years, and a tax at a rate sufficient to raise said sum of money shall be levied by the quorom court, ans shall be assessed and collected during each of said years, and is hereby ordered levied, and is levied in so far as this court is authorized to do so, and said money when collected, shall be used for the purpose named and for no other purpose; and the full faith and credit of Benton Couty is hereby pledged for the payment of the same in the several amounts and in the successive years above stated.

5. Thereafter the following proceedings were had and done in the county court.

(a). the building of (lie courthouse. (b). Thu commissioners reported to tlie court ilmt they liad determined tliat it was necessary to procure a new site and that they had selected and purchased such a site, located on the east side of the public square at Bentonville. (e). The county court approved and conlirmed the finding's of the commissioners and ratified and approved their selection and purchase of a new site. (d). The commissioners also employed A. 0. Clarke as architect and made a contract with him, and his selection and the contract made with him were approved by the county court. The architect submitted plans and specifications for the building- of the courthouse, which were approved by the commissioners and the county court, and the commissioners were ordered to proceed to let a contract for the building as provided by law.

(6). The report made by the committee to the adjourned term of the quorum court, which is an exhibit to the complaint, shows that they held a number of meetings and had before them a number of architects, who examined the present courthouse, and who submitted proposed plans for a new courthouse and estimated costs, and one submitted a plan of remodeling the old courthouse, with estimated cost thereof, and all were of the opinion that it was not practicable or advisable to attempt to remodel the old courthouse. The court details the reasons on which the opinions are based, also details of proposed plans for a new courthouse.

The report of the building commissioners on the question of selecting a new site, which is also made an exhibit to the complaint, also goes into details as to the reasons therefor.

Appellees filed a demurrer to the complaint, which was sustained over the objection and exception of appellant, and, upon his election to stand upon the complaint without amendment, same was dismissed for want of equity, from which is this appeal.

The validity of the order of the quorum court is first assailed upon the ground that said court had no right to appropriate any revenue except that of the current year to build the courthouse. This court ruled, in the case of Kirk v. High, 169 Ark. 152, 273 S. W. 389, 41 A. L. R. 782, that. Amendment No. 11 to the Constitution did not inhibit a county from building a courthouse because it could not be fully paid for in one year, but that it might contract for the construction of a courthouse and appropriate the payment of the cost over a number of years; however, in doing so the other necessary expenses of government must be taken into account, so that the annual payment, together, with the other necessary expenses of government, should not exceed the revenues for the current or any succeeding year. It affirmatively appears from the complaint that, after paying the necessary expenses of government, there would be ample revenue each year derived from the five-mill levy permitted by the Constitution to pay the annual installment to become due upon the proposed contract for the construction of the courthouse.

The validity of the order of the quorum court is next assailed because it does not say, in so many words, “that the sum of $200,000 is hereby appropriated to pay for the building of a new courthouse in Benton County.”

We think that, when the entire resolution of the quorum court is read, the legal effect of the language used was to appropriate not to exceed $200,000 to build the courthouse, to be paid in twenty annual installments of $10,000 each, the payment to begin in 1928. It was clearly the intent, from the language used, to appropriate $2.00,000 for that purpose, and not merely an attempt to make specific levies for future years.

The validity of the order of the quorum court is next assailed because the court was without power to make a specific levy of one mill extending over succeeding years, beginning- with a levy of that amount in 1927. What the quorum court really did was to authorize the construction of a courthouse, not to exceed $200,000, and to appropriate that amount for the purpose, payable in twenty annual installments, and estimated that a one- ~~(1~i1it ~llar~~ ~ Bi ~b~I thad~ a;i~ii~ ~i~e1ôf tlici~1 ~ S:'Wu 362~~'~ `"~``

~ ~)t~ :`~ ~ `~Ili~ikr~*htE~t'1ib of the levying

coui~f~th ~ a~Oii~bTh~ t~e.~" ~O~I-~1 j~j~ ~ ~ ~

~ bf~~~r v. DoW~1l,h168rXW~2~29, 2~9 ~ W~ 5'8'8,~ ~87 quo Tun~ i~s next :ooftF~. be p~r6'vided b~1Me ,TJ~I~I

( I boimd~b1 o~ r~ei~lie 1~b~nf~ ~ ~f~I1~ff±iu~1 ii~t~1m!~t' I~h'Mh1 ~sVb~1~!f~11 di~ ~fl1dei~ `t1~iO~ tr~c~fff~i' 1~g~tidii~ of th~ be~~ the �ii~lidr~Od~. ti~~t~d `th~t~~th fcftir ihiflron~ They s~d ei~t~ 1ii~ t]~e cO~t~F~h$i1id~ `i'ai~� 4O Fa `Oii1~P rhe ttpI~ t~t~k� f&(~t{Ae~ess�~r *pOR~~ df r~vei ei.t;3~hd tIa�~t !w i {1~~1ev~ f�r 1~dtisC~ r~o'~~ v~cii~1d~ �ai~�

$tO;b~YO~vhibh Mild1i~' a~m~1� f~I1~ff�iu~1 ii~t~1m!~t' I~h'Mh1 sVb~1~!f~11 di~ fl1dei~ `t1~iO~ tr~c~fff~i' •thp cftBstrj.ictip.xL of ttie courthouse,'. It,. would bftimpos-.siblq,to, build a courthouse if • speculation and:conjecture .merply .should be allowed, to ,ehfer jii making the .estimates •as,to the-amounts.nepessary to p.ay the necessary;go,ve,rn-¡menh expenses,.;;In. other wwls,- a mere suggestion, that if .plight 5 take, all of .the .rpyenue in any, .cBr.rpD-f, jmr,. jto pay the necessary government expenses should, lip.f ..preclude (thp quo rum. court from authorizing^ the construction, of 'the cpurthouse,' if a'sáñé'an&'reasonable pstimate Ilis’closecl that there would be sufficient left to Touilcl'a courthouse, on the installment plan, after paying the necessary expenses of government.

The validity of the order of the quorum court is next assailed because the court made no special order directing the county court and commissioners to make a contract to build a courthouse. It is not necessary, in order ‘to build a courthouse, for a quorum court to direct the county court to proceed and let a contract to build a courthouse. The extent of the power of the quorum court is to determine whether a courthouse shall be built, the cost thereof, and manner of payment. After this has been done the courthouse is to be constructed under the orders of the county court. Lawrence v. Coffman, 36 Ark. 641.

It is also contended by appellant that, if the order of the quorum court is valid, the contract proposed to be made by appellees would be invalid, because it is proposed to deliver and issue all of the warrants when the courthouse has been accepted, instead of issuing annually the amount of the installment due for the current year.

The warrants do not bear interest, so the time of issuance places no additional burden upon the county. They are simply the evidence of an indebtedness which will' exist under the contract, whether the warrants are issued or not. There is no constitutional or statutory provision inhibiting the issuance of noninterest bearing-warrants as evidence of the-indebtedness, or against all of them being issued when the courthouse is coiftpleted. The most common and practical method for handling transactions' of this character is to issue warrants for tlie contract price, if the comity is without cash to meet the obligation. We see no objection to issuing warrants to cover the work as it progresses and to issue and deliver the balance of them when the courthouse is completed according to plans and specifications. Shoffner v. Downell, supra.

It is- also insisted that the warrants would not be .valid if made payable out of a specific levy or fund, because the quorum court can only make an appropriation out of a general levy for the current year, and because the quorum court provides that the. warrants shall be paid out of a specific fund arising- out of a specific levy.

We understand that the order of the quorum court was an appropriation of $200,000 to be paid out of a levy of five mills in 2926 and by levies which are to be made each successive year to cover all of the expenses of government and not in excess of a five-mill levy. In other words, there was not a continuing levy of one mill annually for courthouse construction. The warrants should not, in that view, be drawn upon a specific fund, but should be drawn on the general county fund out of which the appropriation was made.

It is also insisted that the warrants will be void if the contemplated provision is inserted therein that they shall take precedence over other warrants issued'against the general county fund for the current year. No such provision should be inserted in the warrants, as the necessary expenses of government, as well as these warrants, are binding obligations, and must be paid.

Lastly, it is insisted that the quorum court should have determined whether the new site should be acquired, and that no new site can be purchased if the county already owns a site, although the old courthouse would have to be removed. ‘Sections 1933-5 of Crawford & Moses’ Digest authorize the county court to select and purchase a site for the courthouse, if necessary, and the only power vested by act of 1917 in tlie quorum court is the matter of determining when a courthouse shall be built, the amount of the expenditure therefor, and the manner of payment. Thompson v. Mayo, 135 Ark. 143, 204 S. W. 747.

There can be no question about the power of the county court to sell the old site after the new site has been-acquired. State v. Baxter, 50 Ark. 447, 8 S. W. 188; Little Rock Chamber of Commerce v. Pulaski County, 113 Ark. 439, 168 S. W. 848.

No error appearing, the decree is affirmed.


author: Kirby, J.

text:
    Johnson v. Union Bank & Trust Company.
    Opinion delivered October 17, 1927.
    1. Husband and wife — foreclosure of mortgage on wife’s property. — Where a mortgage on a married woman’s separate parcels of land provided that it should he security for any extensions or renewals of the whole or any part of the indebtedness thereby secured, and for any other liability from the mortgagor contracted to the mortgagee, and undisputed testimony showed the money thereby obtained and other advances obtained was used for building on the wife’s property, on foreclosure it was proper to require the sale of the wife’s property, in view of the fact that all payments on notes were made by the husband out of his own funds, and the undisputed testimony showed that the loan was never reduced below the amount of the original note.
    2. Husband and wife — loan to wife — evidence of non-payment.— In an action to foreclose a mortgage secured by a wife’s separate property, where the money obtained was used in building on the wife’s property, evidence held to support a finding that the original loan had not been paid.
    3. Husband and wife — advancement.—In a suit to foreclose a mortgage secured by the wife’s separate property, given to obtain money for building on the wife’s property, evidence held not to show that the loan was a gift or advancement by the husband to the wife.
    Appeal from White Chancery Court; W. P. Beard, Special Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    This appeal is prosecuted by the heirs of Susie Crab-tree, deceased, from a decree foreclosing the mortgage of the appellee bank against her lands for payment of debts secured thereby.
    The Union Bank & Trust Company brought suit on May 1,1926, for foreclosure of the trust deed against A. A. Crabtree and tlie appellants, tlie heirs at law of Susie Crabtree.
    On the 20th day of May, 1921, A. A. Crabtree and his wife, Susie Crabtree, executed their note to the Union Bank & Trust Company for $882, payable six months after date, with 10 per cent, interest, and, to secure the payment thereof, executed a deed of trust to James E. Lightle, as trustee, conveying five lots in the city of Searcy, owned by Susie Crabtree, and 80 acres of land in Jackson County, owned by A. A. Crabtree. The indebtedness was renewed from time to time and additional sums of money borrowed, until there was due December 9, 1924, on the indebtedness $1,676.42, with interest. At no time was the indebtedness to the bank ever reduced below the original amount borrowed, according to the undisputed testimony of the president of the bank. The money originally borrowed was all used in reconditioning and repairing the house, which had been burned, on the lots in Searcy owned by Susie Crabtree, and no part of the original loan was used for the benefit of A. A. Crabtree, as the court below found.
    Susie Crabtree died intestate, leaving as her heirs the defendants, against whom the suit was brought, the appellants' herein.
    The deed of trust contained the following clause:
    “It is also agreed that the foregoing' conveyance shall stand as a security for the payment of any extensions or renewals of the whole or any part of said indebtedness in lieu thereof; also as security for the payment of any other liability or liabilities of the grantor already or hereafter contracted to the said Union Bank & Trust Company, until the satisfaction of this mortgage or deed of trust upon the margin of the records thereof, together with interest at the rate of ten per cent, per annum.”
    Crabtree testified that it was necessary to borrow the money for reconditioning the house that had burned upon the. lots in Searcy, that more than the amount borrowed wias required and was used, the $1,000 insurance collected, and $600 of his own money was put into the improvement.

      Mr. Lightle, its president, who made the loan for the bank, stated that it was handled by Mr. Crabtree and secured for the purpose of repairing the house belonging to Mrs. Crabtree, which had burned. The note was executed by Mr. Crabtree and Susie Crabtree, his wife, for $882; that he never saw Mrs. Crabtree any more after she executed the note and mortgage; that after-wards Crabtree obtained other advances, and the notes •were renewed once or twice, the renewals including the interest, and all payments that were made on the notes were made by Crabtree, who alone executed the renewal notes, the bank not regarding it necessary for them to be signed by Mrs. Crabtree after her execution of the mortgage. He stated that the loan had never been reduced below the amount the original note was executed for.
    The chancellor found' that all the money for which the original note was executed was used in reconditioning the improvement on the lots of Susie Crabtree in Searcy, and that no part of it was for the benefit of A. A. Crab-tree; that all payments made on the indebtedness had been made by defendant, A. A. Crabtree, out of his own funds; that there vras $1,676.42 due, with interest, for payment of which the bank had a lien under its mortgage. The decree charged the lots in Searcy, which belonged to the heirs of Susie Crabtree, with payment of $882 of the debt, with interest, and the proportionate parts of the costs of the suit, and that the lands of A. A. Crabtree in Jackson County should be charged with the remainder of the debt and costs, and ordered that the Searcy lots should be sold first and separately, and, if they brought more than the ¡said sum of $882, interest and costs, that the Jackson County lands should be sold for the balance due under the decree, and the surplus arising from the sale of the Searcy lots over and above the amount charged to them shall be paid to the defendants, and from this decree the appeal is prosecuted.
    On October 2, 1926, the Searcy lots were ¡sold by the commissioner for $1,605. The sale was objected to by appellants, and exceptions filed by them, so far as it affected the Searcy property, and the sale was set aside, the defendants being given 30 days in which to pay into the registry of the court the amount adjudged to be due under the mortgage and secured by the lien upon the property. The plaintiff and the purchaser excepted to this ruling, and prayed an appeal.

      John E. Miller and Gulbert L. Pearce, for appellant.

      Brundidge é Neelly, for appellee.
   Kirby, J.

The undisputed testimony shows that the loan was procured and- the money used for the benefit of the property of Susie Crabtree, which was mortgaged to secure the payment of it. The president of 'the bank stated that they knew the amount of insurance collected, and that it was necessary to have this money for completing the improvement in addition to the insurance and the amount of money advanced by A. A. Crabtree.

Crabtree stated that all of said sum of money was borrowed from the bank for the purpose of making the improvement on Mrs. Crabtree’s property and so used, in addition to the insurance collected and the $600 he had advanced, for which no claim was made; that the money could not be borrowed upon the security of the Searcy lots only, the property of his wife, but, in addition, he had to include the 80 acres of his land in Jackson County.

The testimony also shows that all payments made were made by Crabtree out of his own funds, and that the amount of the indebtedness was never reduced below the amount of the original loan. .The mortgage provided that it should be security for the payment of any extensions or renewals of the whole dr any part of said indebtedness in lieu thereof, and also for the payment of any other liability or liabilities of the grantor already or thereafter contracted to the said Union Bank & Trust Company, until the satisfaction of the said deed of trust upon the margin of the record thereof.

This provision is inclusive, and only needs interpretation according to its plain meaning and intent, and must be interpreted to mean what it says. Certainly there is no inequity in requiring the sale of the property belonging to Mrs. A. A. Crabtree for the payment of her debt- .secured by it, which the undisputed testimony in fact showed never to have been reduced below the amount of the original note. Howell v. Walker, 111 Ark. 362, 164 S. W. 746; Word v. Cole, 122 Ark. 457, 183 S. W. 757; Hollam v. Amer. Bank of Commerce & Trust Co., 168 Ark. 939, 272 S. W. 654.

There was some testimony indicating that the original note had been marked paid and delivered to Mrs. Crabtree. The testimony shows, however, that moneys paid to the bank had been paid by Crabtree, and that the amount of the indebtedness had not been reduced below the amount of the original note, which had been renewed several times, ¡and may have been marked “Paid” on renewal. The president also testified that Mrs. Crabtree was never in the bank after the execution of the original note and mortgage there. The testimony supports the chancellor’s finding that the original loan had not been paid off; ¡and, even though it had, the mortgage could have been kept alive and necessarily continued to be an existing security for any and all renewals of the original note and any other indebtedness secured by it, so far as the rights of -the parties and privies are concerned. It could have been kept alive for other purposes' where the intention of the parties was, as here, that it should be, no rights of third persons or creditors having intervened. 41 Corpus Juris 787.

We do not think there is any merit in appellant’s contention that the loan should be considered a gift or advancement by the husband to the wife, within the doctrine of the cases cited. A contrary intention was shown by the evidence on the part of the parties resulting in the mortgage given, charging the separate property with a lien for the payment of the loan, which the chancellor correctly found had not been, in fact, paid. Only the amount of money borrowed and used in the improvement of the wife’s property was charged against it, as secured by the lien under the mortgage, and we do not find it necessary to determine from the state of the record whether or not the wife’s separate property mortgaged to secure present and future indebtedness could be held to tbe payment of other moneys than the original loan, thereafter borrowed.

We find no error in the record, and the judgment is affirmed.


author: Kirby, J.,

text:
    Mutual Relief Association v. Forrest.
    Opinion delivered October 17, 1927.
    1. Equity — bill of review — laches.—A bill of review filed nine months after a judgment by default, which alleged that defendants believed plaintiff had abandoned the original suit, and that their demurrer, answer, and cross-complaint had been stricken without their knowledge, was properly dismissed, in the absence of allegations of fraud, material newly-discovered evidence, or errors of law appearing on the face of the record, where it appears that the pleadings were properly stricken, and defendants had ample time to discover that plaintiff was still pressing the suit after filing of plaintiff’s amended complaint.
    Appeal from'Benton Chancery Court; Lee Seamsber, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    This is an appeal from an order and decree sustaining a motion to dismiss las a demurrer to a bill of review. It seeks to set aside a decree of the chancery court, rendered by default against the petitioners upon errors of law apparent upon the face of the record.
    It was alleged that the judgment was rendered b}7 default against them after their demurrer, answer and cross-complaint was 'stricken from the files, without their knowledge. Petitioners stated that, some time after the filing of the complaint for the amount alleged to be due upon two policies of insurance issued by a mutual assessment company and the sureties on its- bond, they'filed a motion to require the plaintiff, who was a nonresident of the (State, to execute a bond for costs; that they never received or had any information that plaintiff had complied with the motion and filed a bond for costs, and believed that he had abandoned his suit, and had no further information relative to judgment being rendered against them until shortly before the filing of the bill, when a copy of the judgment was served on them. They alleged that they have a valid defense to the cause of action, as set out in their original answer and cross-complaint,which they ask to be made a part of and considered with the petition or bill of review. Alleged that the plaintiff conspired with one D. 0. Shannon to defraud the defendant by taking a life insurance policy on one James A. Little; that R. F. Forrest, plaintiff, made a false answer to questions in the application for insurance in order to secure the policy, and said false answers were well known to said Shannon, who, together with Forrest, * * * conspired together for the purpose of defrauding the defendants, the Mutual Relief Association, Charles X. Williams, W. T. Roberts and John P. Roberts, the petitioners herein.”
    The petitioners, Charles X. Williams, W. T. ’and John P. Roberts, ask the court to set aside the judgment against them for the reason that said judgment was without authority of law, and was rendered by default against said petitioners, without their knowledge and consent. “And they believed that plaintiff, R. F. Forrest,' had abandoned his suit upon the filing of the motion to require plaintiff to give bond for cost, for the reason that he was a nonresident of the State of Arkansas.” Prayed that the judgment rendered against them at the October term of court be set aside, and that their demurrer, answer and cross-complaint be considered, and that they be allowed to take depositions and present proof thereof, that the complaint be dismissed, for costs, etc. Copies of the pleadings were also exhibited with the complaint. The motion to strike out the answer and cross-complaint filed in the original suit, because they were not filed in the time allowed by the court, and did not have the copies of the exhibits attached as the law required, and because they were not filed in good faith, that they did not controvert plaintiff’s allegation of insolvency and other allegations of the complaint.

      The decree shows the demurrer to the answer was sustained, and also that the defendants had failed to comply with the orders made by the court and now of record, that the cross-complaint was not verified nor filed in good faith, and that defendants made default, and that the verified complaint should be taken as confessed, and rendered judgment accordingly.
    The judgment recites that all of the defendants had been legally summoned and had entered their appearance by the filing of their demurrer, answer and crossoomplaint; that the material allegations of the plaintiff’s amended and substituted complaint are uncontroverted and confessed in the answer, and those controverted in the answer are confessed in defendants ’ cross-complaint. After finding the facts necessary thereto, the court rendered judgment upon the policy for the balance claimed to be due thereon against the insurance company and the sureties on the bond.
    The court treated the motion to strike the petition for review from the files as a demurrer, and sustained the same, except as to the last paragraph, upon which the court had a hearing, and found from the record that the cause was filed on the 12th day of April, 1924; that the defendants filed a motion requiring a bond for costs, which was given, and that the plaintiff filed on December 22, 1922, an amended and substituted complaint, to which petitioners filed ah answer on February 16, 1925; that plaintiff filed a motion on the 25th day of February, 1925, to strike the answer of defendants from, the files. The court found that the cause had been pending from the time defendants filed their answer, February 16, 19’25, until the regular October term, and that the plaintiff had been asking for a hearing on different occasions, but the defendants had failed to appear, and that judgment Was rendered on the 9th day of October for the sum claimed; that the defendants made no effort to defend the suit, and, after judgment was rendered and term of court adjourned, made no complaint until July 19, 1926, when they filed this petition for a bill of review, which was denied, and from which judgment this appeal is prosecuted. ,

      JoImP. Roberts, for appellant.

      W. 0. Young, for appellee.
   Kirby, J.,

(after stating the facts). No contention is made that the defendants were not served with summons in the original action, and there is no allegation of the judgment or decree having been obtained by fraud practiced by the successful party, nor any allegation of fraud in the procurement of the judgment, but only in the original cause of action alleged as a defense to the suit. Although the petitioners may not have known that the plaintiff in the-original suit was still pressing same, they could easily have ascertained the fact, after the filing of the amended complaint on February 16, 1925, before the judgment at the following October term, and no complaint was made of the judgment having been rendered until July 19, 1926, when a bill for review was filed.

The court correctly held that no sufficient showing was made for granting the relief prayed. As already stated, no fraud was alleged in the procurement of the judgment, which -was not rendered until nine months after the amended complaint was filed, and was not complained about until the filing of a bill of review more than eleven months after the decree was rendered; this, notwithstanding the petitioners were duly summoned to appear, and had entered their appearance to the suit more than a year and a half before they seek this relief.

There was no allegation attacking the decree on the ground of error of law apparent on the face of the record entitling the petitioners to the relief sought, nor was there any allegation of any newly discovered evidence material to the issue involved in the original suit and of such character and weight that it might have changed the result.

The court committed no error in dismissing the bill of review and denving the relief prayed for. Long v. Long, 104 Ark. 562, 149 S. W. 662; Wood v. Wood, 59 Ark. 441, 27 S. W. 641, 28 L. R. A. 157, 43 Am. St. Rep. 42; and Killion v. Killion, 98 Ark. 15, 135 S. W. 452.

The petitioners neglected their opportunity to defend the suit against them and to prove their alleged defenses to the policies upon -which the suit was brought, and, having failed to show any sufficient grounds for relief from 'such judgment in their bill of review, the judgment of dismissal must be affirmed. It is so ordered.


text:
    Murphy v. Winham.
    Opinion delivered October 17, 1927.
    1. Corporations — stockholders’ agreement to pay share of losses OF indorsers. — A stockholders’ agreement, binding the signers to liability for contribution to pay losses of indorsers on corporation paper suffered by reason of such indorsements, did not bind the signers to payment of losses of corporation during any particular season.
    2. Corporations — agreement of stockholders to contribute to indemnify indorsers. — Evidence that a new corporation did, in express terms or by reasonable implication, assume the payment of the debts and liabilities of the old corporation held not to warrant the conclusion that it was not a separate corporation, but merely a continuation of the old corporation, so that stockholders of the-new corporation signing an agreement to be liable to payment of notes for indebtedness of the old corporation, secured by indorsement, should continue to all renewals, and until their discharge, were not precluded from requiring contribution from other signers of the agreement to stockholders of the old corporation, wherein losses alleged to have been sustained from the former’s indorsements of old corporation notes.
    S. .Corporations — substitution of notes of new corporation.— Evidence that the indorsers on paper of an old corporation took up such notes, and substituted notes signed by the new corporation, which were accepted by the stockholders in payment of the old notes, held, to amount to a satisfaction in payment of the indebtedness of the old corporation.
    Appeal from Miller Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      statement by the court.
    Tliis suit was brought in the Miller Chancery Court by Milton Winham, as plaintiff, against W. T. Murphy and fifteen other defendants, all stockholders In the Farmers’ Oil & Fertilizer Company, a Texas corporation, to enjoin the defendants from prosecuting certain suits then pending in the district court of Bowie County, Texas, brought against Winham and others, for contribution on account of the payment of indebtedness of the said corporation paid by the defendants, for payment of which all of the parties were alleged to be jointly liable.
    In October, 1917, the stockholders of the said corporation formulated a “stockholders’ agreement” for procuring necessary funds upon the indorsement of its stockholders, of high financial standing, to carry on the business of the company for the s.eason of. 1917-1918. The agreement was executed for the protection of stockholders who might indorse the company’s paper from loss on their indorsements, and is as follows:
    “■Stockholders’ Agreement. Whereas, the Farmers’ Oil & Fertilizer Company, a corporation, of which the undersigned are stockholders, is under -the necessity of borrowing large sums of money for the purpose of carrying on its business during the season of 1917-1918; and whereas, in order to secure said large sums of money, it is necessary for certain of the stockholders, who have proper financial credit and rating, to indorse the paper of said Farmers’ Oil & Fertilizer Company; now, therefore, to define the liability of each stockholder incurred by reason of the indorsement of said paper and to protect those who indorse said paper from inequitable loss by reason of their said indorsement, it is agreed' and understood as follows:
    “1. If loss shall accrue to the indorsers, or to any of them, by reason of the indorsement of any paper of said company, then the undersigned stockholders agree to bear the said loss with the said indorsers, said loss to be prorated between us and to be borne by each of us according to tlie proportion of stock owned in said corporation.

      “2. If any stockholders less than the whole number signing this agreement shall discharge any loss incurred by virtue of this agreement, then said stockholders so discharging said loss shall have the right to contribution against each of the other stockholders, whose names appear hereon, in proportion to the amount of stock so owned by each of said stockholders. Said stockholders less than the whole number who shall discharge said loss shall, as between themselves, bear the said loss according to the proportion of stock held by each, expressly reserving, however, the right of contribution against those stockholders signing this agreement who do not participate in discharging said loss.
    “3. The amount of stock owned by each of ns i-espectively at the opening of the season of 1917-1918 shall be taken as the basis for computing liability hereunder, and the said basis of liability shall continue against each, whether said stock shall hereafter be sold or held, until all of the indebtedness incurred under this agreement shall be entirely paid and discharged.

      “4. This agreement shall stand good for all legitimate and proper obligations of the Farmers ’ Oil & Fertilizer Company incurred by the officers and directors thereof in the conduct of the business of said company for the season of 1917-1918, and for any and all renewals of said obligations, and the liability herein prescribed shall stand as a personal liability.

      “5. In consideration of the foregoing mutual agreements, and for the purpose of securing each and all of us from inequitable loss.hereunder, as among ourselves, we and .each of us, respectively, in addition to our personal liability hereunder, pledge to the other or others the amount of stock owned by us and each of us at the date of the opening of said season of 1917-1918.
    “6. We each bind ourselves, our heirs, executors, administrators and assigns, to the prompt and proper discharge and performance of this agreement.

      “Witness our hands on this........................day of October,
    A. D. 1917.
    << a i (

    “Stockholders.”
    The company, when this agreement was executed, was an Arkansas corporation, but, in the fall of 1918, surrendered its charter and incorporated under the laws of Texas. At the end of the season of 1917-1918 the stockholders executed another agreement in the exact words and terms of the original agreement set out, except that it was for the season of the years 1918-1919. In the year 1919 another agreement was entered into, in the exact words as. of the first, except it covered the season of 19.19-1920. The same agreement exactly was re-executed for the years of 1920-1921, 1921-1922, 1922-1923, and 1923-1.924, all the agreements being alike except as to the years constituting the seasons.
    Under the agreement of 1917 notes of the company were executed for borrowed money, indorsed by a number of the stockholders of the company in the following form:
    “No.........................
    “Farmers’ Oil & Fertilizer Company, Texarkana, Arlc.-Tex.
    “$........................ ...................................., 19............
    “On or before ....................................months after date, we promise to pay to the order of ourselves.......................................... . dollars, for value, received, negotiable and payable without defalcation or discount, at the office of the Texarkana National Bank, of Texarkana, Texas, with interest at the rate of............per cent per annum, from date of said order of ourselves, as indorsed on back hereof, until paid.
    “Farmers’ Oil and Fertilizer Company
    “By..........................................President
    “By..........................................Sec’y.-Treas. Indorsed on back:
    “Pay to the order of..............................with interest from ...................................., 19.............
    “Farmers’ Oil and Fertilizer Company,-
    “By..........................................President
    “By ......................................... Sec’y.-Treas.
    £ £ £ £ 77

    These notes were indorsed by the stockholders at the beginning of the season and left with the president and secretary of the company to be issued for borrowing funds as the needs of the company required. The same form of note was executed under the subsequent agreements.
    Appellee, Milton Winham, was one of the signers of the stockholders’ agreements of 1917-1918, 1918-1919, 1919-1920, 1920-1921, and 1921-1922, and was also an indorser upon the notes of the company issued under the terms for the said years. In 1922 Winham declined to sign the agreements or to indorse any further notes. Appellees H. P. Fouke, Mrs. Scherer and Hooks were signers upon all the agreements, and the appellee C. W. Fouke was the signer upon the agreements of 1919-1920 and 1923-1924.
    At the dose of the 1923-1924 .season the company was indebted in the sum of approximately $232,000. 'The book value of its assets at the time was $269,000, and of the estimated value of $228,000. The indebtedness, consisted largely of notes indorsed by stockholders. All of the appellants, however, were not indorsers upon these notes.
    At a stockholders’ meeting on June 30, 1924, a resolution was passed to dissolve the corporation, sell its assets, pay its debts, and distribute the surplus, if any, to its stockholders. The resolution provided that the sale of the company’s property should be approved by the directors, but no minutes of the directors’ meeting-approving the sale was introduced in evidence. R. L. Bradshaw, one of the directors of the company, was appointed liquidating agent.

      On the day of the adoption of the resolution the appellants met and agreed that they would bid on and buy in the property of the company at the liquidation sale, if it could be had for the price of $100,000, and appointed W. T. Murphy, then president of the corporation, to act as trustee for them in buying in the property at the liquidation sale for said price of $100,000. The sale was duly advertised, and made by the liquidating agent on July 12, 1924, and the property purchased by W. T. Murphy, as trustee for the appellants, for the price of $100,000. All of the assets and property, tangible and intangible, of the Farmers’ Oil & Fertilizer Company were purchased at the sale.
    The appellants then organized a new corporation, known as the Farmers’ Cotton Oil Company, with a capital stock of $100,000, and subscribed and paid in the capital stock of the new company, the appellant, Bradshaw, subscribing for and paying in the sum of $7,300, and the appellant, Murphy, subscribing and paying in the sum of $16,000, the other appellants paying in the remaining amount of the purchase price. They then directed that the property bought in by the trustee for them be transferred by the liquidating agent directly to the Farmers’ Cotton Oil Company, the new company, and transfer was made accordingly on July 14, 1924. Each of the appellants received from the new company, for the money paid in, stock in the amount equal to the money paid by each of them.
    The testimony is not clear exactly as to how the paying in of the new money was done, but it is undisputed that the whole amount was paid apparently to Murphy, the trustee appointed to make the purchase, and by him turned over in payment of the purchase price to the liquidating agent for the sale made, and $100,000’ paid went into the treasury of the new company, and was paid out. upon its cheeks upon the obligations of the old company, mainly upon indebtedness held by the Texarkana National Bank in the sum of $85,000, with interest. Only the said $100,000 was new money paid in.

      There still existed of the indebtedness of the old company, after distribution of the $100,000 realized from the sale of its assets, the sum of approximately $139,000. In payment of this the new company gave its notes, indorsed by appellants, to the holders of this indebtedness, who accepted them and surrendered the notes of the old company to D. C. Harrington, the secretary of the old company. This arrangement for discharging the debts of the old company was not objected to by appellees.
    About two-thirds of the amount of the indebtedness discharged by the execution of the new notes in taking up the notes of the old company went to various appellants in payment of the notes they held of the old company.
    The appellants brought the suit in December, 1921, in the district court of Bowie County against appellee, Milton Winham, alleging payment by them as indorsers of the obligation of the old Farmers’ Oil & Fertilizer Company, and claiming the right to contribution from him under the stockholders’ agreement he executed for the years 1919-1920, 1920-1921, and' 1921-1922. At the same time they filed their separate suits in the Texas court against six other of the stockholders, claiming contribution.
    Winham, in 1925, brought suit in the chancery court of Miller County ag’ainst the appellants for an accounting, and enjoining the suit brought in Texas upon the stockholders’ agreement, alleging that an accounting, should be had between him and the appellants, under the agreement that he and all the appellants were citizens of Arkansas, and that the appellees should be enjoined from prosecuting the Texas suit until an accounting could be had, and prayed a temporary restraining order against the appellants, and that they be required to answer the complaint.
    After the filing of the complaint b}?- appellee, Win-ham, Joe Turner and Mrs. Ada Scherer, C. W. and H. P. Fouke and C. A. Hooks were allowed to become parties plaintiff with appellee Winham, on their application in the Miller Chancery Court, alleging that they were in like position and entitled to such relief ¡as he might obtain upon the accounting.
    Appellants answered, and with their answer filed a cross-complaint against the plaintiffs reasserting the demands made in the Texas suits, but increasing the amounts claimed as follows:
    Milton Winham ............................................................$6,190.88
    C. W. Fouke..................................................................... 2,425.55
    II. P. Fouke........................................................................ 3,111.81
    • Mrs. Ada Scherer............................ 2,376.28
    C. A. Hooks........................................................................ 1,096.76
    The case was heard by the Miller Chancery Court in January, 1926, and the plaintiffs’ complaint for an accounting was sustained, and upon such accounting held that the discharge of the indebtedness of the Farmers’ Oil & Fertilizer Company by notes of the new company, indorsed by appellants, amounted to payment of the -indebtedness by appellants as indorsers, and that they were entitled to contribution against the appellees as signers upon the stockholders’ agreement.
    The court found that the sale of the assets of the Farmers’ Oil & Fertilizer Company in liquidation of its affairs, by the liquidating agent, was free from fraud, and legally conducted and consummated under the laws of Texas; that, beginning with the fiscal year 1919-1920, and all times thereafter to July 12, 1924, the date of the sale of the assets of said company, the fair market value was $100,000, the amount realized at the sale thereof; that plaintiffs, except Q. O. Turner, executed the stockholders’ agreement as alleged in the cross-complaint, and thereunder notes of the corporation were indorsed and u-sed in obtaining funds necessary to operate, and in the operation of said plant during the fiscal years, as alleged, losses accrued in the operation of the plant under the stockholders’ agreements, indorsements of the paper of the corporation, beginning with the fiscal year 1919-1921, until the date of its liquidation; that, after application of the proceeds of the sale and cash on hand on the debts of the corporation, there remained an unpaid total loss, or indebtedness incurred in the operation of the plant, beginning with the fiscal year 1919-1920 and thereafter until the liquidation, in the sum of $139,522.33, designated the amount of the loss by operation for each of said seasons; that a small profit was earned in 1922-1923 of $2,502.37; that a loss in the operation of the plant was incurred for the fiscal year of 1923-1924 of $103,-425.23. That defendants' jointly paid said loss, $139,-522.23, to the holders of the notes representing said loss' and indebtedness, and said notes have been surrendered to said defendants, who are entitled to contribution against plaintiffs as follows: Against Milton Winham, signer of the stockholders’ agreement for three fiscal years, to-wit: 1919-1920, 1920-1921, 1921-1922.
    At the end of which time there were outstanding notes executed in the operation of said plant indorsed by Win-ham in the sum of $141,783.34. The said sum was reduced the following year by $16,500, leaving outstanding net indorsed notes of $125,083.34, or a percentage liability of $.05083 for each one dollar par value of stock held by him; that the amount of liability for non-signers, during that fiscal year amounted to $.01655 for each one dollar of par value of stock, making the total liability of Win-ham $26,738 for each share (par value $100) of stock owned by him, 83 shares in number; that his total liability amounted to $2,219.25, for which the defendants were entitled to judgment with interest, and decreed accordingly.
    The decree likewise shows the amount found to be due from each of the other appellees and the method of arriving at it.
    The finding of the chancellor was not for the entire amount sued for by appellants, and they and appellees both appealed from the decree. All questions as to the correctness of the temporary injunction and the orders and judgment of the court upon the preliminary proceedings have passed out of the case.

      No issue is raised by appellees as to tlie signing of the stockholders’ agreements by them for the years set out in the decree. Q. (). Turner took no cross-appeal, and, the decree of the chancery court being in his favor, appellants are not claiming anything against him, and the case as to him should be affirmed.

      Will Steel, for appellant.

      Frank S. Quinn and Shaver, Shaver $ Williams, for appellee.
   Kirby, J.

Appellants insist that the chancellor adopted an erroneous method for determining, the liability of Milton Winham, and that the corporation losses for each of the years or seasons for which he executed the stockholders’ agreements should have been taken into consideration proportionately to the entire amount of indebtedness incurred by the corporation during its operation under the stockholders’ agreements and remaining unpaid upon its liquidation. The stockholders’ agreement, however, did not bind the members executing it to the payment of the losses of the corporation during the particular season, but only to liability for contribution to the payment of the losses of the indorsers on the corporation paper suffered by reason of their indorsements.

The undisputed testimony shows that the total losses sustained in operating the plant for the years during which the stockholders’ agreements were executed to liquidation amounted to $179,940.93; that, after crediting the proceeds of the sale of the plant made in liquidation, $100,000, there remained an unpaid indebtedness incurred during the period of operation under the stockholders ’ agreements, $139,934.23, which had not accrued in any particular year. The notes or indebtedness being renewed from year to year until the liquidation of the corporation, and also that the defendants, appellants, paid the said balance.

Winham signed the stockholders’ agreements for each of the three seasons, the 1921-22 season being the last, and the indorsed notes outstanding, executed and renewed, for the corporation indebtedness, at the end of that period, for contribution to the payment of which the signers of the stockholders’ agreements were liable upon its payment by the indorsers, Winham among the number, amounted to $141,733.34. While it is true that, during the season of 1922-23, for which Winham did not sign the stockholders’ agreement, the last signed by him being for the season of 1921-1922, the corporation earned only ¡a small profit of $2,502.37, it is also undisputed that the amount of the indorsed notes outstanding, executed and renewed, for which he was liable to contribution upon payment under the last stockholders’ agreement executed by him, had been reduced to $130,351.15, in the amount of $16,500, without loss to or payment thereof by the indorsers, necessarily relieving' him from liability to contribution under the stockholders’ agreement to the payment of the said sum of the reduction for which the indorsers could not suffer a loss.

Each stockholders’ agreement signed by Winham provided that the liability to contribution to payment of the notes and indebtedness secured by indorsements should continue to all renewals and until their discharge. The last agreement executed bound him to contribution to the payment of the losses suffered by the indorsers of the amount due thereunder to the end of the term, less the amount of reduction of said indebtedness thereafter made by the corporation. He could not, of course, be held for contribution under the stockholders’ agreement to the payment of indebtedness incurred in the operation of the plant after the termination of the last contract signed by him.

The court correctly held that the sale of the assets of the corporation was duly made and free from fraud, and that the price obtained, $100,000, was. the reasonable value thereof, and also that that amount constituted the fair market value of the assets of the corporation at the termination of the last stockholders’ agreement executed by Winham. Deducting the amount of said sale price, $100,000, with the amount of reduction of the indorsed liability for the season of 1922-23, $16,500, from the whole amount of the indorsed indebtedness existing at the end of the last season for which Winham executed the stockholders’ agreements, $141,733.34, leaves a balance of $25,083.34, for which Winham is liable to contribution and must pay his proportionate share as fixed by said stockholders’ agreement, amounting to $2,219.25, with interest, as held by the lower court.

Appellees insist that the method of liquidation of the old corporation and of payment of its indebtedness by the indorsers amounted to but a reorganization of the corporation with the liability of the new corporation to the payment of the old indorsed indebtedness, no part of which they claim has, in fact, been paid by the indorsers; and that therefore appellants are not entitled to any contribution from Winham and the other signers of the stockholders’ agreement for any losses alleged to have been sustained by reason of their indorsements of the old corporation’s notes, for contribution to the payment of which by the indorsers Winham bound himself by the execution of the stockholders’ agreement. We find no merit in this contention.

The circumstances of the organization of the new corporation are not such as to warrant the conclusion that it is not a separate and distinct corporation, but merely a continuation of the old corporation. It did not in express terms or by reasonable implication assume the payment of the debts or liabilities of the old corporation. While it is true that some of the former stockholders of the liquidated debtor corporation, through a trustee, purchased its entire property and assets at the liquidation sale, which the court properly held duly made and free from fraud, and organized a new corporation, taking stock therein to the amount of the cash contributed by each to the payment of the $100,000 fund used in its purchase, there was no such taking over of the entire property, rights and franchise of the old by the new corporation, nor any such continuation of the business or adoption of the contracts of the old corporation, as warrants the conclusion that the old corporation was reorganized into the new.

Although the property and assets of the old corporation, purchased by their trustee at the liquidation sale for the individuals, who were some of its stockholders, with the $100,000 contributed by them to the purchase fund, was conveyed directly to the new corporation organized by the said purchasers of the assets of the old corporation by their direction, for convenience in saving a transfer through the trustee to the new corporation, it constituted, under the circumstances of this case, no reorganization of or continuation of the old corporation.

The indorsers on the paper of the old corporation, liable to the payment of its debts as such, and for loss to whom by such indorsement the stockholders’ agreement for contribution was made, paid off all the indebtedness for which they were liable by substituting notes signed by the new corporation and indorsed by them individually, taking up the old notes and discharging their liability thereunder by the new notes, which were accepted by the holders in payment of the old. This amounted to a satisfaction and payment of the indebtedness, of the old corporation for payment of which they were liable upon their indorsement, and for which loss because thereof appellees were liable to contribution, so far as they are concerned. As to them, those liable to contribution, said debts were paid and extinguished, the holders having consented thereto and accepted the new obligations in lieu of the old surrendered and delivered to the makers. Viser v. Bertrand, 14 Ark. 267; Elkins v. Voght Machine Co., 125 Ark. 6, 187 S. W. 663; and Harrison v. Walker, 124 Ark. 555, 188 S. W. 17.

It can make no difference in allowing the credit of the sale price of the assets of the corporation realized upon its liquidation, $100,000, the sale having occurred more than two years after the expiration of the last stockholders’ agreement signed by Winham, from the amount of the indebtedness of the corporation in ascertaining the amount for which Winham was liable to contribution under the stockholders’ agreement, since the undisputed testimony shows that said amount was the fair and reasonable market value of the assets of the corporation at that time. We find no error in the record, and the decree is accordingly affirmed.


author: Mehakfy, J.

text:
    Smith v. Ryan.
    Opinion delivered October 17, 1927.
    1. Bills and notes — burden of proving affirmative defense.— Where plaintiffs in. a suit on notes made a prima facie case by introduction of the notes in evidence, defendant, asserting an affirmative defense, assumed the burden of proving it.
    2. Bills and notes — illegal consideration. — Notes signed dn consideration of an agreement to prevent a prosecution, or to secure dismissal of a prosecution, or to suppress evidence, are illegal and void.
    3. Contracts — illegal consideration — evidence.—In a suit on notes, evidence held to sustain a finding that there was no agreement on the part of the payees or anybody representing them to have the prosecution dismissed or not prosecuted, as consideration thereof.
    Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;
    affirmed.

      White & White and Evans S Evans, for appellant.

      A. A. McDonald, for appellee.
   Mehakfy, J.

These suits were brought, one by Maude Byan against the appellant and the other by Emma Florslioim against- the appellant, to recover on two promissory notes. The suits were brought separately but were consolidated and tried together.

The appellant, who was defendant in each suit below, answered, alleging that there was no consideration for the note other than an agreement to prevent or stop certain prosecutions against E. V. Oglesby, one of the makers of each note. That is, that the notes were executed in consideration of the fact that plaintiffs would dismiss or cause to be dismissed the charge of felony which, the plaintiffs had instituted or caused to be instituted against the said Oglesby.

The plaintiff, J. J. Smith, who was 72 years old, testified, in substance, that he was engaged in the practice of medicine, and had been for forty years; that ho signed the note to Maude Ryan and also the note to Emma Florsheim, the notes sued on in these suits. That the consideration of his signing the notes was that the charges against Oglesby should be dismissed. The notes were presented to him by Oglesby, the party against whom prosecution had begun. Defendant further testified that he had never seen either of the plaintiffs. That he had some notes given by the plaintiffs to Oglesby, and had loaned Oglesby some money- and had taken these notes as collateral security, and that Oglesby made application to him to make his bond, and that Smith did make Oglesby’s bond. The witness testifies that he then went to Mr. Roy Clean, Oglesby’s attorney, and phoned for Mr. McDonald, who was the attorney of the plaintiffs, but that McDonald would not or did not come. Then Mr. Glean got in touch with the prosecuting attorney, Mr. Wood, and they got the bond reduced to $3,000, and Smith signed the bond. That defendant gave up the notes which he held as collateral on the loan made to Oglesby, and they fixed up notes to cover the amounts they claimed Oglesby owed them, and Oglesby was released from any prosecution. That the agreement was made in Roy Glean’s office between plaintiff and Roy (lean, who represented Oglesby, and the prosecuting attorney of that district, Sam Wood. Witness was to give up the notes for $2,700 and go on Oglesby’s note, the note sued on herein, and this was done and the prosecution stopped. This agreement, he testifies, was made while they were in Air. dean’s office and while Oglesby was still in jail. Witness said, “I signed the notes with Oglesby, and gave them back to him along with the notes signed by the ladies, which I had held as collateral for money I had loaned him.” Oglesby took the notes and went back to Fort Smith. Witness did not sign tlie notes and give them to the ladies. He had never seen the plaintiff's at that time. This was the only conversation witness ever had about the matter. The notes sued on are notes which witness signed with Oglesby in pursuance of the. agreement. “The grand jury asked me about the notes, and 1 told them that the notes Avere good if I was good. Mr. J. F. Brewer Avas foreman of the grand jury. So far as I knoAV, the charge against Oglesby was ignored, and I heard no more about it. The prosecuting attorney ' told me it would be all right. Oglesby is now dead. ’ ’ Witness did not hear the charge stated before the grand jury. The question asked him by the grand jury Avas, did he sign the notes. That was the only thing they asked him about it. At the time the agreement Avas made, Avitness did not see Mr. McDonald, who represented the plaintiffs, and did not see or make any agreement AAdth the plaintiffs in the ease.

Records Avere introduced here shoAving the prosecution of Oglesby and the report of the grand jury ignoring the charge against Oglesby.

J. F. Brewer, foreman of the grand jury, testified that he knew the plaintiffs, Miss Florsheim and Mrs. Ryan, and one of them Avas before the grand jury with reference to the charge against Oglesby. He was charged with defrauding one or both of them of some property, and was bound over to the grand jury. The grand jury investigated the charge, and one of the plaintiffs Avas before the grand jury. Witness Avas presented with the notes, and the question before the grand jury seemed to be whether or not these notes were forgeries. Witness had Dr. Smith to come up to see whether or not his signature was genuine. Dr. Smith came up, and said he signed the notes, and that was all there was to it. Everybody A\.as satisfied about it, AVe had Dr.- Smith up there, and he said he signed the notes. AVe sent for Dr. Smith to see if he signed the notes, and that was after one of the plaintiffs had testified before the grand jury. One of the plaintiffs had testified about the transaction betAveen Oglesby and themselves. They had let liim have a certain amount of money, she said. She said it was settled by these notes, if the notes were good. Then we got Dr. Smith up there, and, after he testified, we did not indict Oglesby. The notes never came before the grand jury. The question was whether there was a* forgery of the notes. My impression is that they did not care to go any further into it. If they had insisted on indictment, I do not know what the grand jury would have done. We would have voted on it, of course.

T. C. Gray, a member of the grand jury, testified that they investigated the charge against Oglesby for defrauding Miss Florsheim and Mrs. Ryan of some money. One of the plaintiffs was before the grand jury, and she testified with reference to the charge. Witness thinks she had some notes that Oglesby had given her and her sister as settlement of some money he had got from them, and there was some question about the genuineness of the signature. Then Dr. .Smith was summoned. No request was made to the grand jury not to indict. The only question, as witness remembers, was whether Dr. Smith had signed the notes. Witness thinks that one of the plaintiffs who appeared charged that Oglesby had got their money from them under false pretenses and that, if the signature on these notes was not genuine, she would not be satisfied. ‘ We investigated to see if Dr. Smith signed the notes, and thereby a satisfactory settlement was made. The grand jury did not pass on whether they ought,to indict Oglesby for false pretense until Dr. Smith said he signed the notes. Then we did not indict. We did not think there was any charge against him when they got their money. If the notes were fictitious they wanted to indict him. The plaintiffs made no request of the grand jury to indict or not to indict. They did not refuse to answer, but were willing to answer any question asked them.”

Luther Hodges testified that he was on the grand jury; was clerk of the grand jury part of the time, and his testimony was largely the same as the other members of the grand jury whose testimony has been set out above.

Emma Florsheim testified that she had no knoA?ledge of any agreement made by Sam Wood, prosecuting attorney, with Dr. Smith and Oglesby at Eoy Gean’s office. Never heard of it until now. Never at any time made any agreement not to prosecute Oglesby and did not authorize anybody to make a settlement for her. Witness was called in and answered all the questions asked by the grand jury. She did not make any request and did not indicate in any way that she did not want the man indicted. Executed note to Oglesby and got it back through her attorney, Mr. McDonald, and got the notes sued on. Got back the notes after Oglesby was bound over to the grand jury. Told the grand jury if Dr. Smith signed that note that she was satisfied. Witness testified that Mr. McDonald was her lawyer and had authority' to represent her, and talked to the prosecuting attorney and had Mr. Oglesby arrested for false pretenses. Mr. McDonald gave these notes to witness. “We had given notes to Oglesby, but never received any money for them. We got the notes back.” Understood that Oglesby was being prosecuted through Mr. McDonald for defrauding witness.

The above is all the testimony on the question of any agreement with reference to Oglesby’s prosecution, and the appellant in his brief says: “The issues in this case are within a narrow compass.” Appellant then contends that the court erred in placing the burden of proof upon defendant to show by a preponderance of the evidence that there was no consideration for the notes in suit or that the consideration was illegal.

We think the court did not err in giving this instruction. The plaintiff sued on the notes, the defendant filed an answer admitting that he signed the notes, and when the notes were introduced in evidence they made a prima facÁe case, and the defendant, in asserting an affirmative defense, assumed the burden of proving it.

“The burden of proving defenses of an affirmative nature, or in confession and avoidance, is upon the defendant. The reason is obvious. In such instances the effect of the pleading is to admit the material allegations of the complaint or declaration, but to seek to avoid the effect thereof by the affirmative allegation of new matter avoiding plaintiff’s case. If the defendant pleads a release, in abatement, a discharge in bankruptcy, or other substantive defense, the burden is upon him to prove such affirmative defense and forms no part of the plaintiff’s averments.” Jones on Evidence, 2d Edition, vol. 2, 866; Johnson v. Aylar, 129 Ark. 82, 195 S. W. 4; Johnson v. Ankrum, 131 Ark. 557, 199 S. W. 897; Horn v. Brand, 133 Ark. 567, 203 S. W. 5; Cheney v. Auto Fedan Hay Press Co., 146 Ark. 517, 226 S. W. 161.

The plaintiff made a prima facie case when he introduced the notes, and the defense was that the consideration was illegal. If the law were otherwise, the plain tiffs in their suit on the notes would, have had to prove, not only that Smith executed the note which itself shows a consideration, but would also have been required to show that Oglesby was not bound over to the grand jury; that Smith did not go on his bond; that there was not an agreement not to prosecute. In other words, the plaintiffs would have been required to prove these negatives, unless the burden of proving these things as facts were upon the defendant.

The appellant does not call the court’s attention to any authorities supporting his views, but merely argues that the burden of proof was not upon the defendant. And, as Ave have said, the court did not err in giving this instruction.

There is no complaint about any other instruction, and the onfy other contention of the appellant is that the testimony shoAvs an agreement Avas had between defendant Smith and the prosecuting attorney, but, in ansAver to this, it may he said that the prosecuting attorney did not represent either of the plaintiffs; the undisputed proof sIioavs that the defendant had never spoken to either of the plaintiffs, that the)' had never talked to anybody representing the plaintiffs, and AAdmt the defendant claims to be an agreement not to prosecute is an agreement which he alleges was made between him and the prosecuting attorney and Roy Gean, representing Oglesby. The plaintiff absolutely knew nothing about it. Did not know that it had ever been discussed, and, when Dr. Smith was subpoenaed before the grand jury, it was for the purpose of inquiring of him whether his signature' to "the notes was genuine. The testimony shows that there was some claim that the notes were forgeries, that Dr. Smith did not sign them, and that seems to be the thing about which the plaintiffs were concerned. As soon as they found that Dr. Smith signed the notes, they were satisfied.

We think it clear from the proof that, if there- was any prosecution in the minds of the plaintiffs at the time, it was for; a prosecution against Oglesby for forgery. The undisputed proof shows that neither of them asked the grand jury to indict or not to indict. They simply went before the grand jury and answered the questions asked them. It is certainly true that the contracts or notes signed by Dr. Smith would have been illegal and void if the consideration had been to prevent a prosecution or to secure the dismissal of the prosecution or to suppress evidence. This question has been decided by this court many times, and there is no controversy about the law on this question. But it is unnecessary to refer to these authorities or to discuss the question further,, since we hold that there is no evidence that the plaintiffs or either of them ever entered into any agreement or that anybody representing them entered into any agreement to have the prosecution dismissed or to not prosecute.

We think the evidence sufficiently shows a consideration, and that the agreement not to prosecute or to secure a dismissal was not part of the consideration. The judgment of the circuit court is therefore affirmed.