author: Wood, J.

text:
    Ellis v. Baker-Matthews Lumber Company.
    Opinion delivered February 12, 1923.
    1. Trusts — control of beneficiary oyer trust fund. — Where the owner of timber land,, entered into an agreement for clearing land, to secure the performance of which he retained a lien upon all timber, logs and products thereof, and subsequently released such lien in consideration that the purchaser of the lumber derived from the land would hold for his benefit a stipulated sum per 1000 feet on all the lumber cut and delivered, the accumulation of the sum represented by such agreement created a trust fund in the hands of the purchaser of which the owner of the lands was the sole beneficiary, the assignment of which the trustee could not challenge.
    2. Set-off and counterclaim — trust fund. — As a trustee is not a debtor, he cannot set off a debt due to him individually against a trust fund, which must be paid to the beneficiary or to the person to whom the trust is properly assigned.
    Appeal from Craighead Chancery Court, Eastern District; Archer Wheatley, Chancellor;
    reversed.

      Horace Sloan, for appellant.
    1. The -stumpage fund was a trust fund. 31 Kan. 170, 1 Pac. 767; 49 Colo. 186, 112 Pac. 326; 17 Wyo. 268, 98 Pac. 590. Failure to pay Ellis’ assignment constituted a breach of trust. 23 R. C. L., 30, § 5; 123 N. Y. 33.6, 25 N. E. 499, 11 L. R. A., 116. Appellee would have no right to set-off this trust fund against the indebtedness of Rhoads Brothers. 60 111. App. 506; 133 Mass. 359; 197 Mo. 438, 93 S. W., 337 129 Ark. 149.
    2. Under the terms of the stumpage agreement, appellee was obligated to pay out the fund in question upon the mutual agreement of Yount and Rhoads Brothers, without reference to the state of account of Rhoads Brothers on other matters with appellee. 24 R. C. L. 808, § 16.
    3. Under the laws governing assignments, appellee has no right to set-off against appellant an indebtedness due to it by Rhoads Brothers. O. & M. Digest, ^ 1195; Pomeroy, Eq. Jur., 3d ed., 1273, § 706; Words and Phrases, “Set-Off.”
    4. The instrument held by Ellis is an assignment, and not a release. 5 C. J., 846; § 6; 101 Ark. 582, 586; 87 Iowa, 443 ; 43 Am. St. Rep. 391; 81 N. Y. 454, 37 Am. Rep. 515; 141 N. Y. 495, 36 N. E. 394; 96 Me. 294, 90 Am. St. Rep. 346; 35 Ark. 293; 123 Ark. 24; 9 Ark. 118.
    5. A debtor cannot set-off against an assignee plaintiff a debt due him by an intermediate assignee. The right of set-off is purely statutory, and the statute of this State precludes such a’ right of set-off. 2 Ark. 198, 206; C. & M. Digest, § 477; 46 Pa. 262; 2 Bailey (S. C. ) 354; 32 Ala. 494; 50 Ala. 10; 32 Tenn. (2 Swan) 494; 75 Mo. App., 567; 63 Pa. St. 322; Pomeroy, Eq. Jur. 3d ed. 1230, § 704.
    6. The Rhoads Brothers indebtedness to .appellee was unmatured and unliquidated at the time of the assignment from Yount to Rhoads Brothers, and from the latter to Ellis, hence not a proper set-off. 34 Oyc. 748; § 3; Id., 746, § 2; 2 Ark. 198; 5 C. J. 963, § 150.
    7. Appellee is estopped to iclaim that the stumpage fund should be applied on its debt. 2 R. C. L. 631, § 41 ; 16 Mass. 397; Pomeroy, Eq. Jur., 3d ed. 1231, § 704.

      Lamb & Frierson, for appellee.
    1. From the allegations of the complaint it will be seen that, under the rules of equity, it is a bill in the nature of a bill of interpleader, coupled with a bill for an accounting. 4 Pomeroy, Eq. Jur., §§ 1481, 1482; 92 Ark. 446; 192 Fed. 890. The right of equitable set-off, counterclaim or recoupment is so much broader than the statutory right that the complaint brings appellee well within the doctrine. 24 R. C. L. 865, § 70; Id. p. 843, § 48; Id., p. 823, § 30; hi., pp. 803-7, §§ 12-15; 34 Cyc. 633, et seq.

    This court has held that in equity unliquidated damages arising from breach of independent contract between the parties can be set-off. 101 Ark., 493; 92 Ark. 594. - Moreover, under the amendatory statute of 1917, C. & M. Digest, §§ 1195-6-7, any suit which the defendant could maintain as an independent cause of action is made the proper subject-matter for a counterclaim. 134 Ark. 311; 138 Ark. 38; 135 Ark. 531; 215 S. W. 622; 141 Ark 87. Ellis, as a plaintiff, could not have sued alone, but would have' had to join both Yount and Rhoads Brothers in such suit. 235 S. W. 995; 47 Ark. 541.
    2. If the stumpage fund was ever a trust fund, it was for the protection of Yount against Rhoads Brothers, and of the latter against the former; hence, when Yount released it, the trust terminated.
    3. The instrument signed by Yount is not an assignment, but a release to Rhoads Brothers; and, being a release, there is no intermediate assignee, because there is only one assignment, that of Rhoads Bhothers to Ellis. If there is only one assignment, all defenses and equities availing against the assignor can be set up against the assignee. 24 R. C. L. 819, § 26; 34 Cyc. 744, et seq.; 5 C. J. 962, §150; 2 R. C. L. 625, §34; Id., 629, § 39. The general rule is that consent of a debtor is necessary before a part of a debt can be assigned. 2 R. C. L. 624, § 31; 5 C. J. 894, § 60.

      4. There is nothing in the evidence on which to base estoppel.
   Wood, J.

The appellee is a foreign corporation, engaged in the lumber business and having its principal office in Memphis, Tennessee. Dr. W. E. Yount is a physician residing at Cape Girardeau, Missouri. He owned some timbered land in Arkansas, near Rhoads Bros. & Company’s sawmill. Rhoads Bros. & Company was a partnership, composed of J. T., W. W., and S. S. Rhoads, engaged in running a.sawmill near Black Oak, Arkansas. E. B. Ellis was a merchant of Black Oak, Arkansas. On October 17, 1917, W. E. Yount entered into a contract with the Rhoads Bros. & Company whereby he sold to them all the timber standing on 880 acres of land, more or less, for the consideration named in the contract of $17,600. No cash was to be paid, but the consideration named represented the value of clearing the lands mentioned in the contract. The provisions of the contract in regard to the clearing are as follows:

“In consideration of the foregoing, and to pay for said timber, the parties of the second part (Rhoads Bros.) agree to clear all said land ready for cultivation and ready for the plow, by removing therefrom all standing timber and underbrush and all down timber and logs and all other foreign matter which interferes with farming 'said land, except only the tract fenced off into a field at the tenant house, which tract is east of the cultivated field, and is grown up in young timber, but has no saw timber thereon. This tract was formerly cleared, but has now grown up in young timber. The parties of the second part agree that they will begin the work of cutting the timber and clearing said land during the month of October, 1917, and will give said work their time and attention and push the same forward to completion as rapidly as can be, and will finish all said work of clearing within two years from this date, and will thus finish not less than two hundred acres thereof before May 1, 1918. All land when thus cleared is to be turned back to said Yount for cultivation.They also agree that they will begin at the- south side of said land near the present millsite, and will cut timber and clear for cultivation as they advance from the south end of said land northward, in strips about four hundred feet wide, and that they will cut no timber on more than forty acres of said land in such strips in excess and advance of land cleared for cultivation as aforesaid, and that said Yount shall have a lien on all of the timber, log's and products thereof on the yard to secure the prompt and faithful performance of this agreement on the part of the second parties; but no lien herein mentioned shall ever be construed to authorize said Yount to prevent or interfere with the selling or marketing of said timber products, so long as second parties are not in default under the terms of this contract; and it is distinctly understood and agreed that the said sum of $17,600 is to be paid by second parties by and through their above described clearing work, and that said sum of $17,600 shall be deemed fully paid when said clearing work has been fully performed by said second parties under this contract.”

Prior to May 12, 1919, Rhoads Bros. & Co. had entered into a contract with L. D. Leach & Co. of Chicago, Illinois, by which Rhoads Bros. & Co. was to manufacture lumber for that company, and it was to make advances to Rhoads Bros. & Company as the lumber was manufactured. Baker-Matthews Lumber Company took over the Leach & Company contract and reimbursed it for the advances it had made to Rhoads Bros. & Company. On the 12th of May, 1919°, Rhoads Bros. & Co. entered into a contract wtih the Baker-Matthews Lumber Company. This contract provided for the manufacture of 2,250,000 feet of various kinds of lumber at specified prices, which was supplemented by an agreement of August 12, 1919, changing the prices. On September 22, 1919, Rhoads Bros. & Co. entered into a supplemental agreement with Yount, whereby the terms of the former contract for clearing, which would have expired on October 22, 1919, were to remain in full force and effect for an additional period of eighteen months. This -contract -of Sept. 22, among other -things, provided:

“In consideration of the foregoing the parties of the second part do hereby agree that they will forthwith proceed in a diligent and business-like way to clear said lands ready for cultivation as provided in said former contract, and that they will clear not less than one hundred acres per month, and that they will, before the last day of October, 1919, clear one hundred acres of said land in addition to what is already cleared, and that they will likewise clear one hundred acres each month thereafter until they have fully complied with the terms of said original contract by having all the lands cleared ready for cultivation on which they have cut any timber, les-s only forty .acres, by May 1, 1920. * * * It is further agreed -and understood that this extension agreement is not in any way to release or impair the lien which was retained by party of the first part on timber and the products thereof as provided in the original agreement, and it is further agreed that, if the parties of the second part make default in any -of the provisions and conditions Of this contract, they are to have n-o further right to cut or remove any timber from any of said land or to remove any lumber from .said land until this contract is fully complied with.”

On November 3, 1919, Rhoads Bros. & Company entered into another contract with Baker-Matthews Lumber Co., which was entirely independent of the former contract between those parties of May 12, 1919. The contract between Rhoads Bros. & Company of November 3, 1919, provided that Rhoads Bros. & Company should manufacture for the Baker-Matthews Lumber Co. 2,000,000 feet of lumber at prices specified therein, and this contract also provided: “Performance of this contract by parties of the second part (Baker-Matthews Lbr. Co.) is contingent upon said first parties obtaining from Dr. W. E. Yount a release from any and all claims which he has, or might have, against the lumber to be delivered under this contract; such release to be subjéct to the approval of said second parties.”

On November 7, 1919, W. E. Yount executed the following instrument: “For and in consideration of the .sum of one ($1) dollar and other good and valuable considerations in hand paid, the receipt of which is hereby acknowledged, I hereby release any and all liens or claims I may have against any and all lumber cut from and off my property in Craighead County, Ark., and also any lien or claim which I may have against any and al'l timber and lumber which may hereafter be cut from and off of any land owned by me in said county, and in lieu of said lien or claim Baker-Matthews Lumber Company agree to hold the sum of six ($6) dollars per thousand feet on all lumber hereafter cut and delivered to them by Rhoads 'Bros. & Co. coming from my property, and particularly all lumber to be cut on a certain contract executed November 3, 1919, between Rhoads Bros. & Company and Baker-Matthews Lumber Company for two million feet of lumber; said sum of six ($6) dollars per thousand feet to be held by said Baker-Matthews Lumber Company, to be paid out by them on the mutual agreement between myself and Rhoads Bros. & Company. It is understood that B'aker-M'atthew® Lumber Company are not to retain the sum of $6 per thousand feet on any lumber except that manufactured and delivered under a certain contract dated November 3, 1919, between Rhoads Bros. & Co. and Baker-Matthews Lumber Company.”

A sum in excess of $2,000 had accumulated in the hands of Baker-Matthews Lumber Comapny under the provisions of the last-mentioned instrument. On June 3, 1920, Yount executed to Rhoads Bros & Company the following instrument:

“For value received I hereby transfer, set over and assign to Rhoads Bros. & Company, all of my right, title and interest in and to the sum of two thousand dollars ($2,000) now in the possession of Baker-Matthews Lumber Company under the provisions of the contract dated November 3, 1919, between Rhoads Bros. & Company and Baker-Matthews Lbr. Co., or under any contract subsequently executed between the same parties, and also under the release or contract of date of November 7, 1919, and signed by me, and also signed by Rhoads Bros. & Co., agreeing to the provisions of the release or contract of date November 7, 1919, hereby waiving all my rights of every bind .and description which I may, or might, have under any of said contracts as to the said sum of two thousand dollars ($2,000).
“Witness my hand this 3rd day of June, 1920.
(Signed) . “W. E. Yount.
“Witnesses: Frank Kelley, W. E. Walker.”
On June 7, 1920, Rhoads Bros. & Company wrote to Baker-Matthews Lumber Company as follows:
“G-entlemen: As we have been in an awful pinch, and Mr. E. B. Ellis was one of our largest, creditors and has helped us out on the balance of the $2,000, we hereby ask that you pay the $2,000 released awl mentioned above to him and charge to our account.
“Rhoads Bros. & Company
“By J. T. Rhoads.”

Upon receiving the above communication, Ellis presented same to the Baker-Matthews Lumber Company, and they wrote him the following letter on June 8, 1920:

“Memphis, Tenn., June 8, 1920.
“Mr. E. B. Ellis,
“Black Oak, Arkansas.
“Dear Sir: You have presented to us this morning the assignment and release of W. E. Yount dated June 3, 1920, transferring $2,000 of the fund in our hands arising under certain contract of date November 7, 1919, and some subsequent contracts, with an order to pay the amount of this fund to you.
“We- desire to advise you that we cannot pay this sum today, for the following reason: First. We do not know what amount will be due Rhoads Bros. & Co. under our contract until all the lumber is taken up and shipped out, which we hope to have done this week. If you are not already advised, it is true that Rhoads Bros. & Company, under their contracts with us, guaranteed the title to this lumber to be free and clear of all incumbrances. We are in litigation with a creditor of Rhoads Bros. & Co. at Jonesboro in which this question is involved, and we therefore must say to you at this time we cannot pay out this money to you.”

On June 11, 1920, Baker-Matthews Lumber Co. instituted this action against Yount, Ellis, and Rhoads Bros. & Company. Plaintiff alleged that it had in its hands over $2,000 which it had been holding for the protection of Yount; that it had advanced large sums of money to Rhoads Bros. & Company to pay for labor and to purchase timber; that, according to the 'contract with Rhoads Bros. & Co., the lumber manufactured by them was to be kept free from all liens; that this provision had been violated by permitting A. B. Jones Company to procure a judgment for over $2,500 and to' levy an execution on the lumber, for which plaintiff had brought replevin. The plaintiff alleged that Yount had attempted to assign the sum of $2,000 to Rhoads Bros. & Co., who had attempted to reassign the same to Ellis; that plaintiff had refused to accept the assignment; that the account between plaintiff and Rhoads Bros. & Co. involved large sums of money; that final settlement was not due until time of shipment of the lumber, a portion of which had not yet been shipped; that the account was so complicated and uncertain that it could not be determined whether plaintiff would be indebted to Rhoads Bros."& Company or not on the completion of their contract. The plaintiff then tendered the sum of $2,000 into court, to be held pending the replevin litigation with A. B. Jones Company and final completion of the contract with Rhoads Bros. & Company and a settlement of its account with the plaintiff.

Ellis filed a separate answer, setting up his ownership of the $2,000 under the instrument signed by Yount. and Rhoads Bros. & Company, above mentioned, and denied the right of plaintiff to withhold payment of the same. He also set up that Rhoads Bros. & Company were indebted to him for supplies furnished it in opening up and clearing the lands for W. E. Yount, and alleged that the transfer and assignment of the $2,000 was made for his benefit to enable him to furnish Rhoads Bros. & Company the supplies necessary to enable the latter to perform its contract with Yount. He made his answer a cross-complaint, and asked for judgment in the sum of $2,000 with interest from June 8, 1920, the time plaintiff refused to pay him.

Rhoads Bros. & Company also answered denying the allegations of the complaint, and made their answer a cross-complaint, setting up á breach of the lumber manufacturing contract between it and Baker-Matthews Lumber Company. Yount also filed a separate answer and cross-complaint against the Baker-Matthews Lumber Company, alleging its failure to pay him $6 per thousand feet for stumpage. The matters growing out of this cross-complaint were settled, and Yount has passed out of the case. It is not necessary to make further reference to the pleadings filed by him.

The plaintiff filed a supplemental complaint against Rhoads Bros. & Company to foreclose a mortgage executed by it to the plaintiff, which was answered by Rhoads Bros. & Company. Further reference to the pleadings on the foreclosure of this mortgage is also unnecessary.

Upon the pleadings and the documentary evidence as above set forth, and the depositions of witnesses, the court found that the only issue presented to it for decision was that raised by the complaint of the plaintiff and the answer and cross-complaint of Ellis concerning the sum of $2,000 which had been tendered'into court and deposited with the American Trust Company, under the court’s direction. On this issue the court found “all the issues of fact and law in favor of the plaintiff, Baker-Matthews Lumber Company, and against the defendant and cross-complainant, E. B. Ellis,” and enteredits decree dismissing the cross-complaint of Ellis for want of equity, and directing that the sum of $2,000 in the hands of the depository trust company be paid over to the plaintiff. The court also found that the defendant, Rhoads Bros. & Company, was indebted to the plaintiff in the sum of $3,202.60, for which amount it rendered .judgment against the individual members of the partnership. This decree was entered on January 7, 1922, from which Ellis prayed an appeal. Later, on April 21, 1922, the court made findings and rendered a final decree against Rhoads Bros. & Company, from which they prayed an appeal, but which has not been prosecuted by them to this court. At least, no brief has been filed in their behalf, and therefore their appeal will be treated as abandoned. We will decide only the issues presented by this record as they pertain to the controversy between Ellis and the Baker-Matthews Lumber Company. Such other facts as we deem necessary will be referred to as we proceed.

For convenience, the Baker-Matthews Lumber C!ompany will hereafter be called the appellee, Ellis will be referred to as the appellant, and Rhoads Bros. & Company will be called Rhoads Bros.

It will be observed that the contracts between Yount and Rhoads Bros, provided for the clearing of the timber on the lands of Yount by Rhoads Bros, within a certain time and in a certain manner therein specified. To secure the performance of the contract on the part of Rhoads Bros., Yount retained a lien on all timber, logs and products thereof. The fact is established by the undisputed evidence that Rhoads Bros, had not complied with the terms of the contract, and were therefore in default, which, under the express terms of the contract, rendered the lien of Yount effective. As shown by the contract between appellee and Rhoads Bros, of November 3, 1919, the appellee had knowledge of the lien retained by Yount on all the timber and products manufactured by Rhoads Bros, from Yount’s land, lie-cause on that day appellee entered into a contract with Rhoads Bros, for the purchase of two million feet of lumber, at certain prices therein specified, to be manufactured from the timber on Yount’s land, and the performance of this contract on the part of the appellee was contingent upon Rhoads Bros, obtaining from Yount a release of any and all claims which Yount had or might have against the lumber, such release to be approved by the appellee. Rhoads Bros, obtained such release, as evidenced by the instrument of November 7, 1919, signed by Yount, the effect of which was to release his lien on all the lumber cut from his land, provided the appellee would hold for his benefit the sum of $6 per thousand feet on all lumber cut and delivered to the appellee by Rhoads Bros., which sum was to be held by the appellee and to be paid out by it on the “mutual agreement between Yount and Rhoads Bros.” By an indorsement on the instrument, Rhoads Bros, authorized the appellee to carry out the terms of the instrument.

The allegations of the complaint and the undisputed testimony show that the $2,000 now in controversy had accumulated in the hands of the appellee under the terms of the contract of November 3, 1919, between Rhoads Bros, and the appellee, and the instrument of November 7, 1919, which hereafter, for convenience, will be referred to as the “stumpage agreement.” On the third day of June, 1920, for value received, Yount transferred or assigned his interest in the $2,000 to Rhoads Bros., waiving all rights of every kind which he had on said $2,000 under his contract with Rhoads Bros., and on June 7, 1920, Rhoads Bros., by letter, requested the appellee to pay the same to Ellis, which the appellee refused to do.

Now, considering the various written instruments set out above, especially the contract between Rhoads Bros, and the appellee, of November 3, 1919, and the stumpage agreement of November 7, 1919, to which the appellee became a party, and by which it was bound in purchasing and receiving from Rhoads Bros, the lumber manufactured by them, with knowledge of Yount’s lien; and considering likewise the correspondence between Yount and the appellee, and the oral testimony, we have reached the conclusion that the $2,000 in controversy was a trust fund, of which Yount was the sole beneficiary. A letter in the record from Yount to the appellee designates the same as a “trust fund,” and a letter from appellee to Yount refers to the fund; and states that it is to be paid out by the appellee on the joint agreement of Yount and' Rhoads Bros., and asks Yount to get Rhoads Bros.’ written order authorizing the appellee to pay the balance due on the fund. Baker, in his testimony, designates it as “a sort of trust fund held for these parties, to be determined between them as to whom this was to be paid.” The fund was in lieu of the lien which Yount had on the lumber which the appellee had purchased from Rhoads Bros. The appellee, knowing that Yount had a lien on the lumber, agreed, in effect, that, if Yount would release his lien and allow it to purchase the lumber from Rhoads Bros, unincumbered by such lien, they would hold this sum of $2,000 for his sole benefit and would pay the same on the mutual agreement between Yount and Rhoads Bros. Such is the unambiguous wording of the stumpage agreement, by which, as we have said, the appellee was bound. The assignment of June 3, 1920, of Yount to Rhoads Bros, and the written order of Rhoads Bros, of June 7, 1920, asking that the appellee pay the $2,000 to Ellis, was tantamount to a mutual agreement between Yownt and Rhoads Bros, that Ellis should receive the fund. The testimony of Yount and J. T. Rhoads was to the effect that the $2,000 in controversy was to constitute a kind of budget, the larger part of which was to be paid to Ellis. Yount so understood it at the time he executed the assignment. Yount realized that he would receive the benefit from the use of the fund by Rhoads Bros, in paying Ellis the amount advanced by him to Rhoads Bros., because that would better enable Rhoads Bros, to carry out their contract of clearing Yount’s land. At any rate, that was a matter solely for the determination of Yount and Rhoads Bros., a right which appellee, the trustee, could not challenge.

Having reached the conclusion that the fund in controversy was a trust fund, the appellee could not refuse to pay Ellis, to whom the fund had been assigned, without a breach of the trust. 'The appellee could not hold the -fund as if the same belonged to Rhoads Bros, and claim the right to set-off against it any indebtedness that Rhoads Brothers might be due the appellee. A trustee cannot set-off against the trust indebtedness an independent debt due him individually. The trustee is not a debtor. Therefore, any debt owing by him or due to him individually is not due in the same right or capacity as a trustee, and lacks mutuality. He cannot set-off such debts against the trust fund, but must pay the same to the beneficiary or the one to whom the trust is properly assigned. The trustee cannot in this way reap a personal advantage from his trust relation. 39 Cyc. 479; 24 R. C. L. sec. 16, p. 808; Knowles v. Goodrich, 60 Ill. App. 506; Dodd v. Wishi, 133 Mass. 359; Smith v. Perry, 197 Mo. 438. See also Sorrels v. Childers, 129 Ark. 149.

Having reached the conclusion that, as between Ellis and the appellee, the fund in controversy belongs to Ellis, the other interesting questions presented in the elaborate briefs of counsel pass out. The decree is therefore reversed, and the cause will be remanded, with directions to enter a decree for Ellis in accordance with the prayer of his cross-complaint.


source: Caselaw Access Project

license: Public Domain

text:
    Roach v. Scott.
    Opinion delivered February 12, 1923.
    1. Marriage — proof of, in action for alienation. — In an action for alienation of affections, direct proof of a formal marriage is not necessary, but evidence of cohabitation, reputation and acknowledgment by the parties, or a holding themselves out to the world as husband and wife, is sufficient proof of the fact of marriage, and the testimony of the plaintiff that he and his wife were married was sufficient to establish his marriage.
    2. Marriage — sufficiency of evidence. — A legal marriage may be proved either by direct testimony or by circumstances.
    3. Appeal and error — general objection. — A general objection is insufficient to direct attention to an instruction that is not inherently erroneous.
    4. Husband and wife — burden of proof in action for alienation. — In an action for alienating the affections of plaintiff’s wife, the burden is on plaintiff to show, not only that there was infatuation of the wife for the defendant, but that defendant by wrongful act was the cause of it; he must show a wrongful attempt on defendant’s part to alienate the ' affections of his wife and that the attempt was successful, and without the consent of plaintiff.
    5. Appeal and error — sufficiency of evidence. — In testing the sufficiency of the evidence on appeal, the Supreme Court must view it in the-aspect most favorable to the verdict.
    6. Husband and wife — alienation—sufficiency of evidence.- — In a suit for alienation of affections brought by a hus-and, evidence held sufficient to sustain a verdict for plaintiff.
    Appeal from Prairie Circuit Court, Northern District; George W. Ciarle, Judge;
    affirmed.

      Gregory & Holtzendorff, for appellant.
    Before appellee could maintain this' action, it was incumbent upon him to show affirmatively a marriage valid in every sense. 132 Me. 389; 31 Mich 127; Rodgers on Domestic Relations, p. 131, § 175. There is no testimony in the record that appellant in any way alienated the affections of appellee’s wife. To recover in an action for alienation, it is essential that it -be established that the alienation arose, at least in part, through the fault of the defendant. 123 111. App. C-t. 121; 129 Ky. 7; 113 N. Y. Supp. 163; 133 S. W. 396.

      W. A. Leach and Glenn H. Wimmer, for appellee.
    The authorities cited by appellant, placing upon appellee the burden to show affirmatively a marriage, are cases arising out of criminal conversation. Proof of marriage may be established by evidence of collateral facts and circumstances from which its existence may be inferred. 127 A. ¡3. R. lié; 26 Cyc. 822; 21 Cyc. 1630; 18 Am. Dec. 3éé; Enc. of Ev., vol. 3 L. 782. In an alienation suit a showing that the parties held themselves out to the world as husband and wife, or the admission by one that they were married, is sufficient. Enc. Ev. vol. 1, p. 756; Am. & Eng. Enc. of Law, 15, p. 863; 2d ed. Abbott, Trial Ev. 859; Elliott’s Ev., § 16é7; 8 Enc. of Ev. p. 466; Ann. Cases, 1916-A, p. 651; 173 (Ark.) S. W. 200. When the marriage is proved, the general rule is that every fact necessary to its validity will be presumed. 8 Ene. Ev. p. é55; 3é Ark. 511; 67 Ark. 278; 26 Cyc. 877. There is a presumption that a former marriage of one of the parties was dissolved by divorce, and the burden of proving that such is not the case is on the party disputing the validity of the second marriage. 8 Ene. Év. p. 463; 26 Cyc. 880; 67 Ark. 278. A general exception to an instruction is of no avail unless the same is entirely erroneous. 60 Ark. 250; 59 Ark. 370; 75 Ark. 181.
    In testing the sufficiency of evidence to support a verdict, the court must view it in the strongest light favorable to the finding of the jury. 97 Ark. é86; 87 Ark. 109; 97 Ark. 438; 102 Ark. 200;'101 Ark. 90.
   Wood, J.

This action was instituted by the appellee against the appellant. The appellee alleged that on the 5th of November, 1921, he was remarried to Elsie Barnard Scott '(Roach) and that from that date until the 5th of December, 1921, they lived happily together as husband and wife; that the appellant, by false representations, induced the appellee’s wife to believe that the appellee was unfaithful to her and had no affection for her, and also induced her to believe that the appellant would provide her with more luxuries than the appellee could, and thus wrongfully, maliciously and wickedly lessened appellee’s influence over his wife and alienated her affections from the appellee and induced her to leave and abandon him, all to his damage in the snm of $15,000, for which he prayed judgment.

The appellant answered, denying all the material allegations of the complaint.

The appellee testified that he had known appellant since 1919; that appellee was first married on 'the 16th of April, 1911, at Panghnrn. Two children were horn of the marriage, a boy and a girl. The woman whom he married was named Elsie Barnard. They lived together until January, 1919, when he moved to Jospoda, south of Des Are. Up to that time he and his wife had never had any trouble. In November she went over to the appellant’s place of business, where she remained. Appellant was running a boarding-house. In November following appellee’s wife obtained a divorce from him. The court awarded the children to him, but his wife took the girl and he took the boy. After the divorce, appellee moved to Pangburn, and later to Searcy. When he returned to Searcy, his wife was there, and they were remarried there. They then moved to Griffithsville, where they lived together five or six weeks. She went to De-Valls Bluff, where she made her home with a brother of the appellant. The appellee had done nothing to cause her to leave him. . He did not know that she was going to leave and did not have anything to do with it. The appellant was at Griffithsville during the time the appellee was living there with his wife. Appellant wrote to appellee’s wife while she and appellee were living at Griffithsville together. Appellee saw some of the letters.

On cross-examination appellee testified that at the time he and his wife separated in November, 1919, he knew no excuse whatever for it. He suspected that Roach had something to do with it; didn’t know for sure. The appellee’s wife sued for divorce on the ground of cruelty and nonsupport, but he denied that the divorce was obtained on that ground. The decree didn’t amount to much. His wife came and asked if he would give her a divorce if she would give him the children. He permitted her to get the divorce. He denied that she quit him because he would not provide for her, and denied that she went to work for Boach because appellee would not provide for her. He denied that, while they were living at Griffithsville, his wife supported the family. Appellee didn’t remember writing'her any letters while she was living with Boach. He never asked her to quit Boách and come to him. Appellee turned the children over to her after she went to live with Boach. Afterwards appellee went down and picked the children up in the road and carried them off, and left his wife crying for them. Appellee did not tell Kirk or McHroy that he was going to get the children and get the woman and give Boach all the trouble he could, and never had any talk with Edwards about the matter. Appellee’s wife left him in December. He presumed that Boach was the cause of it; that was the way appellee figured it. Appellee wrote the following letter:

“August 2 — 7.
“Elsie, Kind friend: Elsie, I don’t want you to think I am interfering with your family affairs, but only to the condition of the children I feel so sorrow for them and you to. The children is almost killed about you leaving them. Ellord is broke down and is sick now. Now, Elsie, I no that you love your children, and I believe you will appreciate me letting you know about them, and I was talking with Andy, and I pumped this much from him. That you have a 'chance of raising the children yet, and you wont have to live with Andy neither. And so you will be welcome when you get ready to come back to see them. He is very .sorrow that he told you that he and the children would turn you down. Now, Elsie, if you will write him your wants, he will tell how the children can become yours again. Now, Elsie, this is enuff 'sai'd. Now, Andrew don’t know that I am writing this letter, but lie said ¡that he would like for you to know that everything was pretty yet for you to get the babvs. Now, Elsie, this is the best friend you ever had on earth. Now, he is not mad at you or Mr. Roach either, but is hurt so bad. See how bad it hurts the children because you went away.”

Appellee testified that at the time he wrote the letter Elsie Barnard was not Roach’s wife. She had married Roach, but had been divorced from him, but was still with him. The letter was written the second day of July. Elsie and Roach were divorced in October, 1921, and he wrote the letter in July, 1921. He denied that he was trying to get Elsie away from Roach. The reason why he was writing such a letter was because he had the children. Appellee didn’t remember writing Elsie any other letters.

On redirect examination he stated that he bought his children some clothes and grub and bought his wife a pair of shoes after she returned to him. Appellee testified that the expense of procuring his wife’s first divorce was paid by Roach. The woman and Roach were living together at the time he wrote the letter referred to. The suit for divorce had been filed prior to that time, and the decree was rendered and held off of the record at Roach’s request.

Witness Barnes testified that he knew the appellant ; that he recently did some work for him; knew Elsie Scott or Elsie Roach, and knew that she lived with Roach. He had a conversation with Roach with reference to the woman. He said something about going up to see her while she was at Searcy, and tried to get witness to go up there, and offered to take witness to Jospoda to see whether or not he could get the woman to come back and live with him. Something to that effect. Witness didn’t know exactly when it was. It seemed to witness that it was about a week after the woman separated from Roach and went away. Witness didn’t know whether she and Scott had remarried at that time. Appellant told witness that the woman was working at that time in a hotel in Searcy for a man named Hutchins. Witness knew that it was about a week, not over two weeks at the outside, after she left Roach. The day she left witness saw her putting some .clothes in a little grip; that was before Roach tried to get witness to go and try to get her to return. John Howell started to come in and pick up the trunk, and Mrs. Roach was helping to carry it, and witness offered to take her place and assist in lifting it; that was the day her things were going away, when she was leaving Roach. That occurred on Saturday, and on Monday, when witness returned, she was gone.

Howell testified that he lived about six miles southeast of Des Arc. He knew the appellant Roach, lived about three and a-half or four miles from him, and also knew Elsie Roach. He remembered the time she left Roach’s house. She left her things at witness’ house. The things were taken away from his house by Roach. Witness had a conversation with Roach after he removed Elsie’s things from witness’ house. Roach was talking about Mrs. Scott — about her leaving. He said,“She is married, but I don’t intend for them to live together if it is in my power.” Of course there were other things said too numerous to mention, but that was about it. It was after Scott and his wife were remarried. Witness stated that it was somewhere along about September that he had the conversation. Witness stated that he farmed for a living, and about the time Roach had the conversation with witness, witness was working for him, helping him harvest some sorghum hay that grew up after the 'first crop was cut. They usually cut the first crop about the last of August or the first of September. It was while they were cutting the second crop, somewhere along in September. Witness didn’t know whether Scott and his wife were remarried — only what Roach told him. He brought the subject up' himself.

Witness Romber testified that he was acquainted with Roach. He m.et him some time in November, at G-riffithsville. He spent the night with witness. The next morning witness had a conversation with him. He asked Roach his name, and Roach hesitated for a few moments, and told witness that his name was Roach, and that he came np to see abont the woman who used to be his wife. That was all that passed between them. Scott’s name was not mentioned in the conversation. The woman he spoke about was living at Hutchins’. Witness didn’t know what she was doing. The witness was asked if the woman had said that she and Scott were- remarried at that time, and replied that they said they were. Witness didn’t know for sure, as he never saw any license. Scott at that time was working at the tram shell at Griffithsville. Witness had dealings with Scott along about that time or before then.

Mrs. Julia Flowers testified that she lived at Griffithsville ; that she knew Scott and Elsie Scott, his wife, at the same time. They lived at Hutchins’, just across the lane from her. They came there the 9th day of October or November, and remained until the last of November or the first of December. Witness didn’t know what time Mrs. Scott came to Des Arc. Witness was quite intimately acquainted with them, and Scott was just as good to his wife as he could be. Witness supposes he provided for her as far as he was able. They had a little trouble over a trip or two that his wife made. She went down to Des Arc, and the only trouble they had was over that. Mrs. Scott told witness that she left Roach, and had remarried Scott to get her children. She told witness that directly after she icame there.

' Witness Hutchins testified that he was running a restaurant at Mesa. He knew Roach; had first met him at Searcy, and had known him since last fall. Also knew Scott and his wife. Roach came to Griffithsville after he wrote to Mrs. Scott to meet him at the train. Witness knew of Roach’s writing letters to Mrs. Scott at Griffithsville. They were addressed to witness to be delivered to Mrs. Scott. Roach told witness that if any letters came to witness from Jospoda to give them to Mrs. Scott, and witness did so. Scott and his wife were living together at that time. Witness read one of the letters that Roach wrote to her. It was mailed at De-Valls Bluff and was addressed to G. H. Hutchins. Witness gave it to Mrs. Scott to read, and she handed it over to witness. It was signed by Roach. Witness gave the letter back to Mrs. Scott, and had not seen it since, and didn’t know where it was. Witness didn’t remember all that the letter contained, but Roach told her he would give her the rest of that week to make up her mind what she was going to do, and if she didn’t come he would get another cook. Another letter came, saying that he wanted her to meet him at the train, and Mrs. Scott had witness meet Roach and tell him not to come to the house. The next morning Mrs. Scott left. As well as witness remembered, that occurred the last of November or the .first of December. The woman came back to witness’ place after he moved to Searcy. The woman worked and cooked for witness before he moved to Searcy. That was before she and Scott were remarried. After they were remarried they all moved down to Griffithsville, and Mrs. Scott continued to cook for witness. Scott furnished half the grub and witness the other half. Witness stated that he had two living wives and one dead.- He had not been trying to marry Mrs. Scott. Wouldn’t have any woman that wanted some one else more than she did .witness. He didn’t try to take another man’s wife. Witness and his former wife had discussed this woman, and witness told her that he wouldn’t have this woman. Roach had sent money by witness to Mrs. Scott when he was at Griffithsville. This occurred along the last of November or first of December. Roach handed witness the money, and told witness to tell Mrs. Scott to use it like she wanted to. The sum was two dollars. Witness supposed it was to pay her way to Jospoda. Witness had a conversation with Roach before Roach gave witness the money. Witness told Roach he had better not go over there; that he could go over and stay at Mrs. Bomber’s if he wanted to. Witness didn’t know what Roach’s business was up there. He seemed to want to see her to see if he couldn’t get her to go back. Witness never paid any attention to the date. The woman was without shoes. Witness joked with Scott, and told him if he or Roach one didn’t get her some- shoes, witness would have to. Scott got her the shoes, and also got shoes for the children. When Scott got -a check, he turned it over to Mrs. Scott, and also turned over his wages to her.

Witnesses on behalf of the appellant testified substantially as follows: One witness stated that she knew Scott and the woman alleged to be his wife, and knew Hutchins, the latter part of October when they were at the Roberts Hotel at Searcy. She was working for Hutchins at that time. Scott was there, in and out: came in at night and went out in the morning. Witness Kirk testified that some time in September he had a conversation with Scott in regard to the separation from liis wife and the cause of it, and Scott said he didn’t blame Roach at all for the separation; that Bill Chandler’s folks were the cause of the separation between him and his wife. He stated that he was going to take his children, and he didn’t believe that his wife could stay long with Roach after that. Scott took the children away in September, 1921. In the conversation Scott said something about his wife wanting to come back to him, but he didn’t know whether he would take her back or not. He was afraid she was betraying him. He stated that he told his wife “to go ahead and live with the old devil; that she had married him, and to go ahead and stay with him.” Another witness, Mcllroy, stated that he knew Scott and Roach; that he had a conversation with Scott last fall»with reference to the trouble between himself and his wife, and the separation. Scott said something about his children being down there, and witness asked him if he was going to let them stay. Scott replied, “No,” when he left he was going to take them with him. He also stated that he guessed the woman would not stay long with Roach after that.

Another 'witness testified that he heard Scott say, after his former wife had married Roach, that he was going to take his children, and that if he did that Elsie would not stay with Roach over thirty days. Other witnesses testified to the effect that they saw Mrs. Roach on the day that Mr. Scott took the children away from her in the road, and that she was crying.

The appellant himself testified that the woman alleged to be Scott’s wife was previously his wife. He married her on the 21st of April last. They lived together about three months, when she went away and was gone about ten days. After she had been at home about ten days she went away again on Saturday, saying she would be back on Monday. Witness then details, after he had married the woman, and during the time of his marriage, the efforts that Scott had made to induce her to leave appellant and return to him, and stated that after Scott took away his children appellant’s wife stayed with appellant only four or five days. She then left, and never came back. Appellant next saw her at Searcy, when she claimed that she had remarried Scott. She was then working for Hutchins. She was married on the 5th day of November, and the next day was at the appellant’s house. Witness had not seen her from the time she stated she had married on the fifth of November until she appeared at his place. Witness had talked to her, however, over the ’phone, and told her she could get her children. At that time she wasn’t married. Witness denied having written her any letters during the time it was claimed that she had remarried Scott. Witness was divorced from the woman in October, and after her remarriage to Scott he didn’t do anything to induce her to leave Scott and come back to him. Witness didn’t pay for her divorce from Scott the first time, and was not the cause of their separation. Witness admitted that, after the alleged remarriage to Scott, at Hutchins’ request he had given him $2 for the woman, and he admitted writing a letter to Mrs. Scott, addressed to Hutchins, hut stated that Hutchins’ statement as to what the letter contained was not true. Appellant testified that he told Mrs. Scott in the letter not to come back to him. The letter was also about buying the children. He wanted to buy the children because the woman wouldn’t stay with him without them. She was not with him at the time, and had left him. He knew at the time this letter was written that she was remarried to Scott. Scott had offered at one time to sell the children for $50 and to grant her divorce, and witness was seeking to buy them because Scott had made that remark. Mrs. Scott didn’t come to work in appellant’s boarding-house until she left Scott. She worked for appellant one and three-quarter days before she and Scott were separated. Witness paid the bill for the woman’s divorce from Scott, but it. was her money, which appellant had borrowed from her previously. Appellant was divorced from his wife, who lived somewhere in the west, and was married to Mrs. Scott right away. He went to see Scott about buying the children, and found that he had changed his mind in regard to selling them. Appellant didn’t see the woman. After the woman had left appellant, and before she had remarried Scott, appellant had made two trips, on the advice of his attorney, to see if he couldn’t get the children from Scott and then get out of the State. At that time the woman was his wife. Witness explained that he had made the trips which witness Hutchins testified about in response to Scott’s statement that he wanted to sell the children.

In rebuttal, Scott testified that, before his wife procured a divorce from him, and while she was staying at Roach’s, Roach overtook him in the road and asked if he had ever studied over the proposition about selling his children to Roach, and at that time stated that, if he (Scott) would divorce the woman and turn her loose so he could live with her, he (appellant) would pay for the divorce and give Scott $50 for the children. Appellant, being recalled, testified that no such conversation occurred as that last testified to by Scott.

The jury returned a verdict in favor of the appellee in the sum of $2,000. The appellant moved for a new trial, one of the grounds being that the verdict of the jury is contrary to the evidence. The court overruled the motion, and rendered judgment in favor of the appellee in the sum of $2,000, from which judgment is this appeal.

The appellant contends that there was no evidence to support the verdict, because there was no evidence to prove that the appellee and Elsie Barnard-Scott-Roach were legally remarried after her divorce from the appellant, as alleged in the complaint. The law as to proof of marriage in actions for alienation .of affections is correctly declared in Ency. of Evidence, vol. 1, p. 756, as follows: “In an action for alienating the affections, direct proof of a formal marriage is not necessary, the general rule being that evidence of cohabitation, reputation, and acknowledgment by the parties, a holding themselves out to the world as husband and wife, is a sufficient proof of the fact of marriage, and the admission of the defendant that the plaintiff and his alleged wife were married is sufficient.” See also 8 A. & E. Ency. of Law, 863; 2 Abbott’s Trial Evidence, 859; Elliott’s Evidence, § 1647.. ‘ ‘ The fact of marriage may be proved by one of the contracting* parties.” 8 Ency. of Evidence, p. 466; Ann. Cases, 1916-A, 651; 18 R. C. L. 424, § 50.

The' appellee testified that he and his wife Avere married. Under the above rule, the testimony was amply sufficient to establish the remarriage of appellee to his former wife, from whom he had been previously divorced.

The court, among other instructions, gave the following: “The burden is upon the plaintiff to prove by a preponderance of the testimony these allegations in the complaint, which, as stated to you, are that they had been legally married, bnt that is not denied, however, in a formal way.”

' Appellant contends that in the nse of the- words, “but that is not denied, however, in a formal way,” the court meant to say that a legal marriage need not be strictly proved. At least that such might have been the’ impression made on the jury. It occurs to us that the instruction is not susceptible of that construction, but, if so, the instruction was not prejudicial, for the reason that the court would have been fully warranted, under the law, as already stated, in instructing the jury that a legal marriage could be proved either by direct testimony or by circumstances from which marriage might be inferred. In other words, in actions of this character it is not essential that the marriage be proved only by the testimony of the parties themselves, or eye-witnesses to the marriage. Marriage may be proved by these or by circumstances which justify the inference that the parties were married,

Furthermore, the instruction is not inherently erroneous. The objection here urged is only to the concluding phraseology as above quoted. Only a general objection was made in the court below, and that was not sufficient to draw the attention of the trial court to the objection which the appellant here urges. Hence the alleged error cannot avail the appellant. Keirsey v. State, 131 Ark. 487; Chancellor v. Stevens, 136 Ark. 175; Miller v. Fort Smith Light & Trac. Co., 136 Ark. 272.

The most serious question, and the one that has given us the greatest concern, is whether or not, under the law applicable to such cases, the evidence is legally sufficient to prove that the appellant had alienated the affections of appellee’s wife.

In Boland v. Stanley, 88 Ark. 562-69, we said: ‘ ‘ The loss of what is termed in law ‘consortium’, that is, the society, companionship, conjugal affection, fellowship, and assistance of the wife, is the principal basis for actions of this kind. Tiffany’s Persons and Domestic Relations, p. 75, and authorities cited in note. 15 Am. & Eng. Eno. Law (2 ed.) 862 (b), note 6. Whoever invades the hallowed precincts of a home, and, without justifiable cause, by any means whatsoever severs the sacred tie that binds husband and wife, alienating her affections from him, and depriving him of the aid, comfort and happiness of a loyal union between them, is liable in civil damages for his wrongful conduct. Rodgers Dom. Rel., §177; Sohouler’s Dom. Rel., §41; Tiffany’s Per. & Dom. Rel., 74; 15 Am. & Eng. Enc. Law, 862. In such cases, whether or not there were malevolent or improper motives is always a material consideration. In case of a stranger in blood the causes must be extreme that will warrant him in interfering with the relation of husband and wife. If he, by advice or enticement, induces a wife to leave her husband, or takes her away, with or without her consent, and encourages her to remain from him, or harbors and protects her while away from him, he does these things at his peril, and the burden is on him to show good cause and good faith for his conduct.”

‘ ‘ To entitle the plaintiff to recover, in an action for alienating affections, the burden of proof is upon the plaintiff, and the plaintiff must show that there was a direct interference upon the part of the defendant, that not only was there infatuation of the husband or wife for the defendant, but that the defendant, by wrongful act, was the cause of it. The plaintiff must show a wrongful attempt on the part of the defendant to alienate the affections of plaintiff’s husband or wife. The burden is also upon the plaintiff to show that the attempts were successful and without the consent of the plaintiff.” Elliott on Evidence, § 1643; Smith v. Gilapp, 123 Ill. App. 121. See also Scott v. O’Brien, 129 Ky. 7; DeFord v. Johnson, 133 S. W. 396; Hanor v. Housel, 113 N. Y. Supp. 163.

It would unduly extend this opinion to reiterate the testimony and discuss it in detail. In testing the sufficiency of the evidence on appeal, the rule is that this court must view it in that aspect which is most favorable to the verdict. We might have reached a different conclusion from that reached by the jury had we been triers of fact, but, after carefully considering the argument of counsel in their briefs, as well as the oral argument pro and con, we are convinced that the evidence is legally sufficient to sustain the verdict. The jury were the judges of the evidence and the credibility of the witnesses. When all of the testimony is considered, it cannot be said that there was no evidence to sustain the verdict. There is no error. Let the judgment be affirmed.

Hart, J., dissenting.


author: Hart, J.,

text:
    Scoles v. Weaver.
    Opinion delivered February 12, 1923.
    1. Appeal and error — conclusiveness of finding of court. — The finding of the circuit court sitting as a jury will not be disturbed on appeal if supported by substantial evidence.
    2. Bailment — liability of gratuitous bailee. — A gratuitous bailee is bound to use only slight care in the protection of property intrusted to him, and is responsible for its loss only in case of gross negligence.
    3. Negligence — gross negligence defined. — Gross negligence by a bailee is nothing more than a failure to bestow that care which the property in its situation demands.
    Appeal from Sharp Circuit Court, Northern District; J. B. Baker, Judge;
    affirmed.
    STATEMENT OF FACTS.
    J. S. Scoles sued Lee Weaver to recover the sum of $109, alleged to be the value of a bale of cotton placed by the plaintiff in the hands of the defendant as a bailee, and lost through his negligence.

      According to the testimony of J. B. Scoles and his son, they carried a bale of cotton weighing 545 pounds from the gin and deposited it in the warehouse of the defendant, Lee Weaver. Before putting the cotton in the defendant’s warehouse, they asked his permission to place it there, and received the key of the warehouse for that purpose. After putting the bale of cotton in the warehouse, they put a tag with the name of the plaintiff on it. They then locked the door and carried the key back to Weaver. This was about the last of January, 1921. During the first part of October, 3921, the plaintiff went to get his cotton for the purpose of selling it, and found that it was not in the warehouse of the defendant. He went to see the defendant about it, and offered to pay him the customary price for storage, but the defendant refused to receive the money, and denied that the cotton had ever been placed in his warehouse.
    Other witnesses for the plaintiff testified that they put their cotton in the defendant’s warehouse during the month of January, 1921, and that they considered it an accommodation to do so, because it was the only place in town where they could store the cotton and keep it out of the weather. They had no special agreement with the defendant to pay him for keeping the cotton. After it had been in the defendant’s warehouse about two months, he notified them to take the cotton out, and they did so: They paid him twenty-five cents storage per month on each bale. ' They tagged the cotton so as to identify it when they put it in the warehouse, and went and.got it out themselves. Most of the witnesses said that the defendant had no control over the cotton, except that he let them store it in his warehouse. One- of them said that it was his understanding that they were to pay for storing the cotton in the defendant’s warehouse; but that he did not get this impression from any agreement with the defendant. Quite- a number of people were storing cotton in the defendant’s warehouse about the same time, and it was generally understood among them that they were to pay the defendant for storing the cotton with him.
    According to the testimony of the defendant, he let a number of people store their cotton in his barn in January, 1921, simply as a matter of accommodation. He told the people that they might put their cotton in there until he got ready to use his barn. About two months thereafter the defendant notified the people that he would need his barn, and they came and got their cotton out of it. Some of them paid him storage charges, and some did not pay him. He made no storage charges to any one, and only received payment as it was voluntarily made. The defendant had no control over the cotton whatever, and it was placed in his warehouse and was taken out of it without his ever exercising any control whatever over it. The defendant did not have any recollection whatever of the plaintiff storing a bale of cotton in his warehouse, and did not know what became of it, if the plaintiff did store it with him. The bale of cotton was not in the warehouse when the plaintiff came for it in October, 1921, and no trace of it could be found.
    The case was tried before the court without a jury. The court found that the plaintiff had stored the cotton in the defendant’s warehouse, and that it had been lost. The court further found that the defendant was a gratuitous bailee, and had not been guilty of gross negligence in the premises. Therefore judgment was rendered in favor of the defendant, and the plaintiff has appealed.

      David L. King, for appellant.
    Appellee was not a gratuitous bailee, but a bailee .for hire, as appears by his own testimony. The bailment being reciprocally beneficial, appellee is answerable for want of ‘ordinary care. 67 Ark. 284; 74 Ark. 277; 137 Ark; 79; 101 Ark; 75; Ann. Cases, 1912-B, 430; 21 Ann. Cas. 96; Id. 842; 60 Ark. 62; 52 Ark. 364; 16 Ark. 104; 20 Ark. 583.

      Arthur Sullivan and C. E. Elmore, for appellee.
    Appellee was a gratutious bailee, and answerable only for gross negligence. 144 Ark. 146; 23 Ark. 61; 52 Ark. 564; 103 Ark. 12; 42 Ark. 200; 97 Ark. 290; 142 Ark. 100; 67 Ark. 284; 145 S. W. 532 (Ark.).
   Hart, J.,

(after stating the facts). Where a cause is tried before the court, the finding of a court sitting as a jury will not be disturbed on appeal if there is any substantial legal evidence to support it. Greenspan v. Miller, 111 Ark. 190; Youngblood v. Thorn, 145 Ark. 466; and Thomas v. Thomas, 150 Ark. 43.

According to the testimony of the defendant, he was a gratuitous bailee, and, under the rule just announced, the finding of the circuit court to that effect will not be disturbed on appeal. A gratuitous bailee is only bound to use slight care in the protection of the property intrusted to him, and is responsible for its loss only-in case of gross negligence. Baker v. Bailey, 103 Ark. 12; Strange v. Planters’ Gin Co., 142 Ark. 100, and Rollins v. East St. Louis Cotton Co., 144 Ark. 146.

According to the cases cited, gross negligence is nothing more than a failure to bestow that care which the property in its situation demands; and whether this existed was a question of fact for the court sitting as a jury to determine.

According to the testimony of the defendant, he had no control whatever over the cotton stored in his warehouse.- The persons owning the cotton placed it in there and tagged it themselves. When the defendant got ready to use his warehouse he notified them, and they came and took away their cotton. The defendant had no control whatever over it, and it cannot be said, under the facts and circumstances, as viewed from his standpoint, that he was guilty of gross negligence in the premises. The court having found in his favor on this point, we are not at liberty to disturb the finding on appeal.

It follows that the judgment must be affirmed.


author: Hart, J.

text:
    Houpt v. State.
    Opinion delivered February 12, 1923.
    1. Larceny — sufficiency of evidence. — In a prosecution for grand larceny committed by stealing an automobile, evidence held to connect defendant with the theft of the automobile.
    2. Larceny — sufficiency of ownership. — Where an indictment charged that an automobile was the property of B., proof that the automobile was owned jointly by B. and wife, and that B. had exclusive possession of the car at the time it was stolen, held sufficient to sustain conviction.
    Appeal from Garland Circuit Court, Scott Wood, Judge;
    affirmed.

      William G. Bouic, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   Hart, J.

Sam Houpt prosecutes this appeal from a judgment of conviction against Mm for grand larceny, charged to have been committed by stealing one Dodge touring car of the value of $500 from E. L. 'Barkley in Garland 'County, Ark.

According to the evidence for the State, E. L. Barkley and his wife jointly purchased .and owned a Dodge touring car in August, 1921. It was a five-passenger car, and had nickel-plated bumpers on the front and rear of the car. The lights were also nickel-plated, and the ear had been in use less than a year at the time it was stolen on the night of Saturday, July 1, 1922. E. L. Barkley was the proprietor of a Piggly-Wiggly store in the city of Hot 'Springs, Garland 'County, Ark., and a young man who works in the store drove the car in front of the store on the night in question and left it there. He then delivered the key to E. L. Barkley, and no one could drive the car after it had been locked without a similar key with which to unlock it. Soon afterwards, on the same night, the car was driven away by some unknown person, and in about ten days thereafter it was recovered. The car was worth about $1,000 at the time it was stolen. E. L. Barkley had the car in Ms care and custody at the time it was stolen. On the night the car was stolen a captain of police in the city of Hot Springs saw. Sam Houpt driving the car. The captain of police knew Barkley’s car and recognized the car by its similarity to that of Barkley. Immediately after he saw the car pass he heard that Barkley’s car had been stolen. The car was found out in the country near where Sam Houpt lived. After Sam Houpt was arrested, he admitted that he was driving .a car on the streets of Hot Springs on the night that Barkley’s car was stolen, but said that the car belonged to Tolbert Teague. The officer who saw Sam Houpt driving the ear testified that he knew the car of Tolbert Teague, and that the car he saw Sam Houpt driving was not Teague’s car. -

.This evidence clearly shows that Barkley’s car was stolen, and it is sufficient to identify the defendant as the person who stole the car. An officer saw the defendant driving a car immediately after Barkley’s car was stolen, and the car driven by the defendant exactly fitted the description of Barkley’s car. In'fact the officer, when he saw Barkley’s car after it had been recovered, identified it as the car wliich he saw the defendant driving just after Barkley’s car was stolen. This was sufficient to connect the defendant with the larceny of the car. Hence the assignment of error of the defendant that the evidence is not legally sufficient to convict him is not well taken.

The main reliance by the defendant for a reversal of the judgment is an alleged variance between the allegation in the indictment and the proof of ownership of the car. The indictment charges that the car was the property of E. L. Barkley.

On cross-examination E. L. Barkley testified that the car had been paid for by a check signed by himself and by his wife. He stated that the car was owned jointly by himself and wife. He stated further, however, that on the night the car was stolen it had been locked, and that he had the key to it and was in the exclusive possession of it.

Counsel for the defendant claim that this testimony is not sufficient to prove ownership in E. L. Barkley, and rely upon the case of Merrit v. State, 73 Ark. 32. In that case the indictment charged the stealing of a steer, the property of W. N. Marshall. The proof showed that the steer was the joint property of W. N. Marshall and h-is brother, as partners. The steer was running in the range, and neither of the partners was in possession of it. Hence the court, following its former decisions, held that there was a variance between the allegations of the indictment and the proof introduced. The court in that case, as well as in other later cases, recognized that an allegation of general ownership will be sustained 'by proof of special ownership.

In the instant case, while the indictment charged general ownership in E. L. Barkley, the proof showed that he had the car exclusively in his possession at the time it was stolen, and this created a special ownership in him. The accused had no special concern as to the exact state of the title of the stolen property, and evidence of the exclusive possession is ordinarily sufficient proof of ownership. Cook v. State, 80 Ark. 495, and State v. Esmond, 135 Ark. 168.

It follows that the judgment must be affirmed.


text:
    Armstrong v. McGough.
    Opinion delivered February 12, 1923.
    1. Time — computation.-—-In computing the time mentioned in a contract for the doing of an act, intervening Sundays are to be counted, but when the last day for performance falls on a. Sunday it is not to be taken into computation; and this rule applies to optional -contracts, such as an oil lease authorizing payment of rental to cover the privilege of deferring commencement of a well.

      2. Mines and minerals — payment of rent — forfeiture.—Though ' a bank, which by the terms of an oil lease was made the lessor’s agent to receive the rent agreed to be paid for the privilege of deferring commencement of a well, did not receive a letter containing a check therefor until after banking hours on the day it was due, and did not credit the amount until the next day, this did not work a forfeiture.
    Appeal from Union Chancery Court; J. Y. Stevens, Chancellor;
    reversed.
    STATEMENT OE EACTS.
    Appellees brought this suit in equity against appellants to cancel and set aside a certain oil lease given by appellees to appellants as a cloud upon their title.
    Appellants defend on the ground that the lease was valid and still in full force.
    On the 11th day of September, 1920, J. 'W. McGough and Dovie McGough, his wife, executed a written oil lease to W. A. Spear on forty acres of land in Union County, Ark; The clause of filie lease which is particularly involved in this lawsuit reads as follows:
    “If no well be commenced on said land on or before the 11th day of September, A. D. 1921, this lease shall terminate as to both parties, unless the lessee, on or before that date, shall pay or tender to the lessors or to the lessors’ credit in the Citizens’ National Bank of El Dorado, Ark., or its successors, which shall continue the depository regardless of changes in the ownership of said land, the sum of forty dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well for 12 months from said date. ’ ’
    The lease also contained a clause expressly allowing the assignment of the whole or any part of the lease. Spear made an assignment of his interest of one-half of the land described in the lease to ¿he other appellants who were his eodefendants in the chancery court.
    J. W. McGough, one of the appellees, and one of the plaintiffs in the chancery court, was a witness for himself. According to his testimony, the First National Bank is the successor to the 'Citizens’ National Bank of El Dorado, Ark. .He called at the First National Bank on September 10, 1921, before the bank closed in the afternoon, and inquired if any money had been paid there for him under the lease in question. He inquired again about noon on September 12, 1921, and was informed each time that there was nothing to his credit. September 11, 1921, fell on Sunday.
    According to the testimony of M. G. Wade, the cashier of the bank, on the morning of September 12, 1.921, the bank received a registry notice, and on the afternoon of the same day actually received a registered letter containing a remittance of rental for the oil and gas lease on the land in question. In the letter was inclosed a check for $20 to be deposited to the credit of J. W. McGough and Dovie McGough, for rental on an oil and gas mining lease on the twenty acres of land which is described in the letter. The twenty acres of land described in the letter is a part of the land .described in the oil and gas lease above referred to.
    The letter stated further that this was for the extension of the lease for a period of from September 11, 1921, to September 11, 1922. The letter was received too late to be entered on that day’s work by the bank, and the check was not entered on the books to the credit of McGough until the next day.
    According to the testimony of the postmaster, this letter arrived at the postoffice in El Dorado, Ark., on Saturday afternoon, September 10, 1921, and was delivered to the bank on Monday, September 12, 1921.
    The court found that the lease in question had been forfeited by the nonpayment of the rental as provided in it, and it was decreed that it should be canceled as a cloud upon the title of appellees, the plaintiffs in tlxe chancery court. The case is here on appeal.

      Dwight L. Savage, for appellants.
    1. Since the last day for the payment of the rental money as provided for in the lease fell on Sunday, pay-

      ment thereof on the next day, Monday, was effective. 43 Ark. 534; 228 S. W. 353-4; 214 S. W. 896; 14 L. it. A. - 120, note, and eases cited; 10 Gray, 307; 4 Bos. 299. -
    2. Payment by check to the bank which was made the depository by the lease, which was accepted by the bank and credited to the lessor, was sufficient. 164 Ind. 563, 74 N. E. 7.
    3. Having received and accepted the rent in this case on Monday, the failure of the bank to credit it to the lesson on that day is not chargeable to the lessee. 70 S. E. 707; 220 S. W. 163; 245 Fed. 979; 213 S. W. 286.

      E. W. McGough and Marsh & Marlin, for appellees.
    . 1. The contractor provided for its own termination in express terms, if no well was drilled on the land on or before the 11th day of September, 1921, unless the rental agreed upon was paid on or before that date. There was no enforceable obligation on the part of the lessee, either to drill a well or to pay delay rentals. He terminated the lease by failure to pay the stipulated rentals by the time it was due. 145 Ark. 574; 84 So. 485; 85 So, 59, and cases cited; 93 Ark. 257.
    2. At the common law, Sunday was not a dies non. 21 R. C. L. 13. The statutory provision that an enforceable contract to pay a debt falling due on Sunday may be deferred to the next day, is the only respect in which the common law has been changed, and it has not been changed in respect to the exercise of an option. The payment of the rental was an option which the appellant did not exercise by payment at the place and within the time specified.
   Hart, J.,

(after stating the facts). In Epperson v. Helbron, 145 Ark. 566, the court held that, under an oil and gas lease stipulating that if no well is completed within one year from date it shall become void unless the lessee pays $60 for each additional year, the lessor may declare a forfeiture at the end of the first year unless payment for such extension is made in advance.

It will be observed from the statement of facts that the lease in question provides for the payment of the. annual rental on or before September 11, 1921, and that September 11th fell on Sunday. The fact that the last day for the payment of the rent fell on Sunday raises the question of whether or not payment count be made on the following Monday.

The general rule with regard to contracts is that, when an act is to be performed within a certain number of days, and the last day falls on Sunday, the person charged with the performance of the act has the following day to comply with his obligation. The majority rule is that Sunday cannot, for the purpose of performing a contract, be regarded as a day in law, and should, as to that purpose, be considered as stricken from tlie calendar. In computing the time mentioned in a contract for the doing of an act, intervening Sundays are to be counted, but when the last day for performance falls on Sunday, it is not to be taken into computation. 28 A. & E. Enc. of Law, 2 ed. p. 224, and cases cited; Monroe Cattle Co. v. Becker, 147 U. S. 47; Avery v. Stewart, 2 Conn. 69; 7 Am. Dec. 240; Owen v. Howard Insurance Co., 87 Ky. 571; Seibert v. Stiles, 39 Wis. 533; Barnes v. Eddy, 12 R. I. 25; Post v. Garrow, 18 Neb. 682; L. R. & F. S. Ry. Co. v. Dean, 43 Ark. 529, and St. Louis Southwestern Ry. Co. v. Furlow, 81 Ark. 496. See also Street v. United States, 133 U. S. 290, where the rule was recognized in the exercise of a power.

The leading case on the subject is Hammon v. American Mutual Life Ins. Co., 10 Gray (Mass.) 306. The insured in that case contracted to pay his premium quarterly and not later than noon on the quarter day. The failure to make the payment forfeited his policy. One of the quarter days came on Sunday, and the insured died in the afternoon of that day. It was held that, as it was unlawful to transact business on Sunday, a tender of the premium on the day following was a compliance with the contract. In that case the court said* .

“But as to other contracts, which by the face of the instrument require a payment on a day which proves to be Sunday, to discharge literally the promise or duty, the law seems to sanction the postponement of the time for doing the same till Monday following. In other words, Sunday is not a legal day for the performance of contracts and doing secular business. The statute law forbids all such acts. The party paying and the party receiving money on that day in discharge of a contract would subject themselves to a penalty for so doing. Sunday was not a day contemplated by the parties as embraced in the stipulation to pay a quarterly premium on the first day of October in each and every-year during the life of the party assured. The defendants had no office open on that day, and were under no obligation to receive the payment of the premium on that day, if the same had been tendered by the assured. 'Such being the case, the assured was under no obligation to do what would have, been not only an illegal act, but also one which the' other party was not bound to recognize. In this view of the case there'was no such default on the part of the assured, in not paying the premium fully due on the 1st of October, as should be held to terminate the policy.”

In Edmundson v. Wragg, 104 Pa. 501, where the right to recover usury paid was limited to six months after the payment of the usury, it was held that the last day of the six months being Sunday, the party had a right to bring his suit on the following day.

In Sands v. Lyon, 18 Conn. 18, where a testator devised to his son a tract of land upon condition that he pay, within a year after the testator’s death, certain legacies, and the last day of the year being Sunday, it was held that a tender on the following day was sufficient to save his right to the land. In that case the court said that the nonpayment of the money was in the nature of a forfeiture, and that the general rule should be applied so as to prevent this effect.

In Campbell v. International Life Assurance Society of London, 4 Bosworth’s (-N. Y. Superior Court) Repts., 298, the general rule was applied in a life insurance case where the insured had the option to pay his premium on or before a certain date, which fell on Sunday, and the court held that he might pay the premium on the following day.

In Semmes v. Adams, 228 S. W. 353, the Court of Civil Appeals of Texas held, under a mineral lease providing that the lessee might prevent forfeiture ¡by paying á specific annual rental in advance, that, the last day of the payment of the rental being on Sunday, payment on the following day was in time. The holding- was in application of the general rule that, when the last day of the performance of a contract falls on Sunday, performance on the next day is sufficient.

Again, in Plumber v. Southern Oil Co., 214 S. W. 896, the Court of Appeals of Kentucky followed the general rule in a suit to cancel an oil lease for the nonpayment of rental.

As said by the court in Craig v. Butler, 83 Hun (N. Y.) 286, contracts mature and rent falls due on -Sunday as well as on any other day of the week, and the only effect of the rule of dies non is to postpone the enforcement of the contract to a day which is open to transactions of a secular nature.

Following these decisions, we are of the opinion that the general rule fixing the time for the performance of all contracts which, by their terms, mature .on Sunday, should be uniform, and that no distinction in this respect should be made between optional and other contracts.

The lease by its express terms was assignable in whole or in part, and we hold that the lessee' and his assigns had a right to pay the rental on Monday, September 12, 1921.

It is insisted, however, by counsel for appellees that, inasmuch as the bank did not receive the letter containing the check for the rent until after banking hours on the 12th clay of' September, 1921, and did not credit the amount until the next -day, the forfeiture occurred. This did not make any difference. By the terms of the lease' the bank was made the agent of the lessors to receive the rent. It actually received the letter containing a check for the rent on the afternoon of Monday, September 12, 1921, and credited the amount of the check to the lessors on the next day. The time when the credit was extended to the lessors cuts no figure. This was merely the method by which the bank transacted .its business. The main purpose in the minds of the parties was met and the payment was effected when the bank received the check and accepted it as a payment. This was on the afternoon of Monday, September 12, 1921, and was within the time allowed by the contract under the rule announced above.

Of course the officials of the bank would not have to remain there after their customary banking hours in order to receive letters containing checks or other matters, but the fact remains that they did stay there and receive the letter containing the check, and accepted it as payment, on the 12th day of September, 1921. The lessees were not concerned in whether the bank gave the lessors credit on that day or on a subsequent day. They were only concerned in the bank’s receiving the letter containing the check and accepting it as payment on the 12th day of September, 1921. See Yoke v. Shay, 47 W. Va. 40, 34 S. E. 748, and Friend v. Mallory, 43 S. E. 114.

It follows that the decree must be reversed, and the cause will be remanded with direction's to the chancellor to dismiss the complaint of appellees for want of equity.


author: Smith, J.

text:
    Cates v. Cates.
    Opinion delivered February 12, 1923.
    1. Reformation of instruments — -description.—Where an administrator’s deed inadvertently described the land sold as “frl part” of the northeast quarter of a certain section, instead of “frl. northeast quarter” of the section, the land being properly described throughout the proceedings, and being fractional according to the government survey, the use of the word “part” was a mere clerical error, and the deed will be reformed.
    2. Deeds — description.—-A deed describing land conveyed • as containing 66 acres, when in fact it contained 69.47 acres, is not by that fact rendered invalid.
    3. Reformation of instruments — administrator’s deed. — Where an administrator’s deed purports to describe 15 acres .more than belonged to the decedent, to which the -grantee lays no claim, the deed was properly reformed to make it speak the truth.
    Appeal from. •Union Chancery Court; J. Y. Stevens, Chancellor;
    affirmed.

      George M. LeCroy, for appellant.
    1. The widow’s dower had not been assigned, at the time these proceedings were had, and the sale was void for that reason, since it amounted to a sale free of dower. 40 Ark. 17. The description of the lands in this case was void throughout. 92 Ark. 299, 122 S. W. 639. The chancery court was without authority and jurisdiction to reform the orders and proceedings of the probate court.
    2. The decree amounts to making the orders of the probate court speak what they ought to have spoken, and is in fact a substitute for the orders actually made. Even the probate court was without authority to amend them so as to make them -speak what they did not speak but ought to have spoken. 72 Ark. 21; 87 Ark. 438.
    3. The description of the land was too indefinite and uncertain to describe anything, and the defects could not be supplied by proof aliuncle. 60 Ark. 487; 86 Ark. 443: 75 Ark. 6.

      Mahony & Yocum and Saye & Saye, for appellee.
    Tire court, in testing the sufficiency of the description, will take "into consideration the entire record of the court authorizing the sale, -and if the technical description is sufficiently aided by other recitals in the record to identify the lands with reasonable certainty, the sale will be upheld. 18 Cyc. 749; 41 Minn. 266; 43 N. W. 4. The section in question is a fractional section, according to the government survey, and, 'being shown in that survey as such, the word fractional was copied therefrom and has remained associated with the description since that time. In such ease, while its use is not -necessary, it is not improper, and affords a -sufficient description. 128 Ark. 180; 117 Ark. 151. If, by treating the word “fractional” as -surplusage, a description is sufficient, the sale will be upheld. 129 Ark. 334, 336. The fact that the acreage was incorrectly stated following the general description did not invalidate the description. 128 Ark. 180; 8 E. C. L. 1081; 13 Cyc. 635, and cases cited; 3 Ark. 18: 166 'S. W. 405; 100 Ark. 105; 106 Ark. 83; 148 Ark. 623; Id. 634, 638. See also 142 S. W. 248; 43 So. 919. The fact that the widow’s dower had not been assigned at the time of the sale did not affect the validity of the sale so far as appellant is concerned. 78 Ark. 479; 33 Ark. 306. Appellee did not seek to have the order and proceedings in the probate court reformed, but only sought reformation of the administrator’s deed to conform to the proceedings -of the probate court. This was within the power of the chancery court. 4 Pomeroy, Eq. Jur. § 1376, p. 3280; 85 Ark. 25; 28 Ark. 372; 92 Ark. 63. It is not material whether or not chancery had jurisdiction to reform the administrator’s deed. This is a suit to quiet and confirm appellee’s title, and the administrator’s deed"was not necessary to vest title in appellee, the title having-vested upon confirmation of the sale by the probate court. Appellant could not take advantage of any defeats in the administrator’s deed. 19 Ark. 499.
   Smith, J.

This is a suit by appellee to quiet his title to two tracts of land which were owned by one J. H. Cates at the time of his death. The complaint alleges the proceedings in the probate court whereby the administrator of Cates was directed to sell the land, and at the administrator’s sale appellee, John Henry Cates, was the purchaser. This sale was duly approved and confirmed by the probate court, and on the — day of January, 1914, the administrator executed and delivered his deed to said lands to John H. Cates, and that deed was approved by the court and duly recorded. Actual and continuous possession of the land by appellee since the date of this deed was alleged and proved.

The description contained in the administrator’s deed to appellee was “frl part of NE¼ section 6, township 19 S., range 15 W., 126.81 acres; frl E½ of NW¼ section 6, township 19 S., range 15 W., 66 acres.”

It is conceded that the administrator’s sale was regular in all respects except as to the description of the land. In all the court proceedings leading up to the administrator’s sale the land was described as follows: “Fractional NE¼ section 6, township 19 S., range 15 W., 126.81 acres. Fractional of NW¼ section 6, township 19 S., range 15 "W., 66 acres.”

The fractional E½ NW¼ section 6 was described as containing 66 acres, when, in fact, its area is 69:47 acres; hut the intestate owned it all.

The area of fractional NE¼ section 6 was recited in the deed is 126.81 acres, when, in fact, that quarter section contained 141.81 acres, there being 15 acres in this quarter section owned by a man named Johnson which was never claimed by the intestate Cates.

Section 6 is shown by the government survey to he a fractional section, and the word “fractional” was copied from the survey,.and has remained associated with the description thereof since the survey was made, and was used in the patents from the United States, and appears to have been used in the mesne conveyances.

The heirs and the administrator of J. H. Cates were made defendants. One of these heirs is Desimus Cates, who is a minor and a grandson of J. H. Cates, and there was a prayer that a guardian ad litem be appointed for this /minor, and, upon that appointment being made, an answer was filed for him attacking the entire probate proceedings, and praying judgment for an undivided one-sixth interest in the land, this being the interest the minor has in the land .if the probate sale is void. The other defendants made default, and the court granted the relief prayed, and this appeal has been prosecuted on behalf of the minor child.

The appellee contends, and the court found, that the description of the land employed in the proceedings of the probate court leading up to the execution of the administrator’s deed sufficiently described the land, and that the use of the word “part” in connection with the description of the NE fractional quarter of section 6 in the administrator’s deed is a mere clerical error, and does not affect the validity of the sale, and that appellee was entitled to have the administrator’s' deed reformed to conform to the description employed in the court proceedings.

Appellant contends that the description employed in the probate court proceedings was also insufficient, and that the sale was therefore void.

It is insisted that the abbreviation “frl.,” when used in connection with a land description, is synonymous with the word “part,” and when that term is used the description is void for uncertainty. A number of cases are cited in which this court has held that the word “part” is an insufficient description.

But the words “fractional” and “part” are not synonymous. In the case of Graysonia-Nashville Lbr. Co. v. Wright, 117 Ark. 151, this court held that “fractional,” when used in connection with a subdivision of a section in describing it, means either that there is more or less land than is usually contained in such descriptions, and generally less, in the sectionizing of same by the government survey.

It is pointed out that the fractional NW¼ section 6 is described as containing 66 acres, when the correct area of this half of the quarter section is, in fact, 69.47. This difference is not of controlling importance. The description, fractional NW¼ section 6, purports to convey the east half of the quarter section, and is sufficient to do so, although the acreage is not correctly stated.

In the case of Rucker v. Arkansas Land & Timber Co., 128 Ark. 180, it was said: “A description used on taxbooks, like a description used elsewhere, has reference to government surveys, and a mere specification of the section or subdivision thereof is sufficient. If it is in fact a fractional section or subdivision, it is so indicated on the government survey, and it is unnecessary to use the word ‘fractional’ as á descriptive word, and, on the other hand, the improper use of the word, when the section is not fractional, does not invalidate the description. The fact that the acreage is stated incorrectly does not lessen the certainty of the description.”

Counsel argues that this court, in so holding, misapplied the decision in the case of Little Rock & Ft. Sm. Ry. Co. v. Evins, 76 Ark. 261, which was there cited, for the reason that in the last-mentioned case the abbreviation “frl.” followed the quarter section to which it related, whereas in the Rucker case the abbreviation “frl.” preceded the quarter section to which it related.

We think this difference unimportant. “Frl. NW¼ section 6” is identical in meaning with “E½ NW frl. ¼ section 6.” Either description would cover all the land in the NW¼ section 6, and the employment of the abbreviation “frl.” would indicate only that the half of the quarter section described was of irregular size. This is the necessary effect of the two cases cited above. See 'also Brinkley v. Halliburton, 129 Ark. 334.

What we have just said is equally applicable to the description frl. NE ¼ section 6. It is insisted, however, that, while appellee claimed all of the NW¼ section 6, he admits that he did not acquire title to 15 acres in the NE¼ section 6. This is true; but both descriptions purport to convey all the land the intestate owned in both quarter sections. The administrator sold all land owned by the intestate in both quarter sections, and there was employed throughout the court proceedings a description sufficient to cover that interest, as it included the half of one quarter section and all of the other. There is no attempt to acquire, or to cloud, the title to Johnson’s 15 acres. Indeed, a description is now furnished which expressly excludes Johnson’s land from the description in the deed.

The effect of the decision of the court below is that the proceedings in the probate court sufficiently described the land owned by the intestate to pass his title thereto upon the confirmation of the sale thereof; and, this being true, it was proper to so reform the administrator’s deed as to properly evidence that fact. 4 Pomeroy’s Eq. Jur. 871 and 1376.

The decree of the court below is therefore affirmed.