author: ■Smith, J.

text:
    Warren v. Henson.
    Opinion delivered May 17, 1926.
    1. Vendor and purchaser — rights of surviving widow. — 'Where a vendee of land, holding a bond for title, paid all of the purchase price except $107, and after his death his widow paid the balance and took deed to herself, her payment was in performance of the vendee’s contract, and she acquired, in addition to her marital rights, only the right which the vendor had, namely, to enforce payment of such balance from the vendee’s estate; and one who purchased from her with knowledge of "the facts acquired no more title, than she had..
    2. ■ Homestead — liability of minor heirs for improvements.— Minors are not liable for permanent and valuable improvements placed by an occupant on their homestead, since they can not be improved out of their homestead; but, in the absence of contract, the occupant should be allowed a reasonable compensation for necessary repairs, and charged with such rents for the premises as they- would have yielded without the improvements.
    Appeal from Clay Chancery Court, Western District; J. M. Futrell, Chancellor;
    affirmed.

      G. T. Bloodworth, for appellant.

      Oliver $ Oliver, for appellee.
   ■Smith, J.

Appellee brought this suit against appellant to recover a forty-acre tract of land, being in the Western District of Clay County J which he alleged his father,, J. E. Henson, contracted- to' buy from one W. C. Hastey, and from whom- he received a bond for title, under which the said J. E-. Henson entered into the .possession of the land and occupied it until his death in 1907.

After the death of J. E. Henson his widow married Joe Wallace. At the time of J. E. Henson’s death there was a balance of $107 principal and $1.78 interest due on the land. This amount was paid to Hastey by Mrs. Wallace, and Hastey executed to her a deed, which was dated December 14, 1908, -and on October 29, 1909, Mlrs. Henson deeded the land to appellant T: -S. Warren, who has held possession of the land since that time. Soon after he attained his majority, appellee brought suit to recover the possession of the land, and prayed that appellant Warren be declared a trustee for appellee’s benefit, and that appellee have an accounting of the rents and profits derived from the use and occupancy of the land by-appellant.

The court found the fact to be that the land in controversy was the homestead of J. E. Henson, and that appellant Warren holds the legal title thereto'as trustee for the use and benefit of appellee, who had just reached the age of twenty-one before instituting the suit, and it was decreed that the title be divested out of appellant and be-vested in appellee.

The decree recited' that the parties had stipulated that the stating of the account should be reserved until the title had been adjudicated, and that, as the adjudication of the title had rendered an accounting necessary, a master was appointed to state the account, and directions for so doing were given.

It appears that the original decree in the’cause was rendered at the October term, 1924, but at the next term of the court, which was in March, 1925, the first decree was vacated in so far as it related to the instructions given the master in stating the account.

The second decree — the one from which this appeal is prosecuted — contains the following.recital: “And it further appearing to the court that what purports to be a decree herein was in vacation entered of record on page 501 of chancery record ‘E’ of the Western District of Clay County, and that the said purported decree is not the decree rendered in this cause by this court, this decree as above set out, being in matter and form the decree rendered by this court in this cause, is prepared and ordered entered of record now for then.”

The point of difference between the two decrees is in the directions given the master in regard to the allowance to appellant for improvements made.

Appellant insists that the testimony does not support the findings of fact on which appellant was decreed to be a trustee, and that the court was without authority to set aside the first decree. ■

The testimony, very briefly summarized, is as follows: Joe Wallace testified that he married Mrs. Henson December 23, 1908, at which time she was living on the land, and that he and his wife resided on the land after their marriage until 1909, when the land was sold by his wife to appellant. He testified that, when the contract to sell the land to appellant was made, he and his wife went to Paragould, where Hastey resided, and his wife tendered to Hastey the balance of purchase money and requested Hastey to make a deed to Warren, but Hastey declined to do so, for the reason that he had contracted to convey it to J. E. Henson, but that Hastey did execute a deed to Henson’s widow when she paid the balance of the purchase money. The witness further testified that the deed from his wife to appellant was prepared by and acknowledged before Henry Brown, a justice of the peace, who, at the time he took the acknowledgment, asked •appellant if he were not afraid that Henson’s heirs would some time cause him trouble, and appellant answered that he did not expect to keep the land that long. This witness also testified that his wife did not claim to have acquired the title for herself, and that she only claimed a dower interest in the land, and that, before the deed from Hastey was received, appellant attempted to obtain a loan on the land, but, when the abstract was received, the loan was declined, because it appeared that appellee’s mother was not able to make a good title, yet the appellant bought the land from her later with knowledge of this fact.

Hastey identified a number of letters which he had written to J. E. Henson in regard to the sale of this land and the subsequent payments made on it. These letters were written in 1904 and 1905, and the originals of several of them, which are more or less illegible, are incorporated in the transcript. Those which were legible were copied. These letters are all addressed to J. E. Henson, and shoAV that the payments which were acknowledged were made by Henson, and the letters all refer to the land as land bought by Henson. There is nothing in any of the letters to indicate that Mrs. Henson was a party to the transaction. Hastey testified that he had no independent recollection of the transaction except as disclosed by the letters, which he admitted were written by him, and he had no explanation to make of the fact that he had conveyed to Mrs. Henson land which he had contracted to convey to her husband, except the fact that she paid the balance of purchase money due at the time he executed and delivered the deed.

MJrs. Henson’s mother — appellee’s grandmother— testified that she saw Henson with a paper which she knew at the time related to the land. This writing was evidently the bond for title, which was lost without being placed of record. This writing was never read by on to the witness, but Henson moved on the land shortly after she saw him with the paper, and improved the land, and lived there, until his death.

In the answer filed by appellant he alleged the fact to be that he was an innocent purchaser of the land, and that he had no knowledge of the fact that, in paying the balance of purchase money due Hastey, Mrs. Wallace was merely completing the payments due under the contract to convey the land to J. E. Henson, but appellant offered no testimony tending to explain or to contradict the testimony offered on behalf of appellee tending to, show that appellant was in fact familiar with the state of the title.

. Appellant offered in evidence a quitclaim deed dated December '23, 1914, from H. H. Williams, under which appellant also claims title.

, We think this testimony warranted the finding made by the court below that Hastey had contracted to sell the land to J; E. Henson, who, at the time of his death, had paid all the purchase money except $107- and some interest, and was entitled to a deed upon the' payment of .the balance, and that the payment of this balance by Henson’s widow was in performance .of that contract, and -that appellant bought with knowledge of these facts,

Appellant insists that the testimony of Wallace is unworthy of belief because of certain ¡alleged contradictions in his testimony as to the date of the deed from Hastey to M]rs. Wallace and the date of her deed to appellant; but the chancellor did not so regard this testimony; nor do we. The fact is that the two deeds were filed for record on the same day — October 30, 1909'. The testimony of this witness is to the effect that appellant assisted Mrs. Wallace in performing the terms of the bond for title, and he did this with knowledge of the contract between Hastey and J. E. Henson, and he did not take the stand and .deny the testimony given by Wallace imputing this knowledge to him.

We think appellant’s possession is referable to the deed from Mrs. Wallace, and that appellant acquired no title under the quitclaim deed from Williams. Williams, the grantor in that deed, appears* to have obtained a clerk’s tax-deed, dated August 31,1891, but the land again forfeited to the State in 1893, and was later conveyed by a redemption deed from the State to the Arkansas Western Railway in 1897, and, as has been said, the quitclaim deed from Williams to appellant whs dated December 23, 1914, which was more than five years after appellant had entered into possession under the deed from Mrs. Wallace.

• We think the testimony supports the finding that Hastey’s contract was to convey to J. El Henson, and, when Henson was put in possession of this land under this contract, he became the equitable owner of the land, with, the right to acquire the legal title upon the payment of the balance of the purchase money, and. that, while these payments were being made, Hastey held the legal title in trust for Henson and his’ heirs as security for the balance of the purchase money, and no one with knowledge of these facts could acquire from Hastey any greater rights than Hastey had, that is, that of holding the legal title in trust .to secure the payment of the unpaid’ purchase money. Upon completing the purchase money payments Mrs. Wallace acquired, in addition to her ¡marital rights, only the right which Hastey had, which was to enforce the payment of this balance. Whittington v. Simmons, 32 Ark. 377; Davie v. Davie, 154 Ark. 633. The marital rights of Mrs. Wallace as the widow of Henson were not taken into account by the court below, for the reason that she was dead at the time of the institution of this suit.

The decree of the court below recognized and declared the lien which appellant had acquired by his deed from M¡rs. Wallace, and the master was directed'to allow appellant credit for the balance of purchase money paid by Mrs. Wallace, with the interest thereon. The decree of October 28, 1924, directed that appellant be allowed credit for the value of the improvements made by him, whereas the decree of March, 1925, which vacated the prior decree, directed that appellant be allowed credit for the necessary repairs, which were defined to be “such repairs as were necessary in order-to keep the land in the condition it was when defendant obtained possession, and sufficient to render it tillable. ’ ’

We think no error was shown in the vacation of the first — and the entry of the second — decree. It is recited that the second decree was rendered nunc pro tuno to conform to the decree actually rendered by the court. There is no showing upon what testimony this order was made, but it is recited that the second decree was entered to conform to the decree which was actually rendered. Moreover, the question of rents, and profits had been expressly reserved until the title was adjudicated. The master -had made no report on the -question, and the subject remained within the jurisdiction of the court to adjudicate, and the court would have had the right, if it saw proper so to do, to change the -basis upon which the account should be stated before approving the master’s report, had one -been filed, which had not .been done..

The second decree — and not the first one — declared the correct rule for charging the value of the improve-' meats. Appellant entered upon the land while appellee was a minor — a small child — and he did not therefore have the right to be credited with the cost of all the improvements made by him. In the case of Gatlin v. Lafon, 95 Ark. 256, Mr. Justice Battle quoted from the case of Sparkman v. Roberts, 61 Ark. 27, the following statement of the law: “As to improvements and repairs, this court said in Sparkman v. Roberts, 61 Ark. 27, 32: 'Minors are not liable for permanent and valuable improvements placed on their homestead. They cannot be improved out of their homesteads; nor can the occupants be lawfully charged an increased rent on account of their improvements. In the absence of a contract, the occupant should be allowed a reasonable compensation for necessary repairs, and charged with such rents for the premises as they would have yielded without the improvements. McCloy v. Arnett, 17 Ark. 156; Reynolds v. Reynolds, 55 Ark. 369.’ ”

The direction of the second decree conformed to the law as thus declared, and was correct.

We find no error in the decree, and it will therefore be affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Davis v. Davis.
    Opinion delivered May 17, 1926.
    1. Frauds, statute op — sufficiency of description of land. — A family settlement dividing the lands of a testator among his devisees is sufficient, within the Statute of Frauds, where the tracts assigned to the several devisees are described in such manner that they may be identified by parol evidence.
    2. Descent and distribution — construction of family settlement. — Where a family settlement stipulated that each of a testator’s devisees should “get” a certain tract of land, the intention was that the party named as getting the land was to take title thereto in severalty.
    3. Frauds, statute' of — sufficiency of memorandum of sale of land. — Where a written contract for the sale of land is valid under the Statute of Frauds, its performance will not be defeated because there was another agreement not embraced in the writing.

      4, Descent and distribution — enforcement of family settlement. — An agreement whereby the devisees in a will divided the lands which had been devised to them will be enforced, although the children of a deceased brother who had no interest in the lands under the will did not participate in the agreement.
    Appeal from White Chancery Court; John E. Martineau, Chancellor;
    affirmed.

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

      Brundidge & Neelly, for appellee.
   Smith, J.

L. D. Davis died October 19, 1924, leaving two sons and a daughter, the appellant and appellees, and four grandchildren, who are the children of J. M. Davis, a deceased son.

On February 6, 1922, L. D. Davis executed a will, devising to Ada C. Langford, a daughter, and A. S. and H. G-. Davis, his sons, all of his personal property and real estate after the payment of his debts. The effect of the will was to exclude the heirs of the deceased son, J. M. Davis, it being recited in the will that the testator had given this son a deed to sixty acres of land and had substantially aided him in purchasing another one hundred and twenty-acre tract, thereby relieving the testator of further duty to. the heirs of this son.

On September 5, 1922, the testator added a codicil to the will, by which he bequeathed to his daughter Mrs. Langford the northwest quarter northwest quarter section 19; to his son H. Gr. Davis the west half southwest quarter section 17 and the west half northwest quarter section 20; and to his son A. S. Davis a part of the northeast quarter section 19, containing fifteen acres, all the land being in township 6 north, range 9 west.

After the death of L. D. Davis there was some negotiation between the daughter and the two sons in an effort to divide their father’s land contrary to the will. There was some threat of a contest of the will, on the ground that the testator was lacking in testamentary capacity. Certain neighbors participated in the discussion, and offered suggestions. Finally the parties entered into the following agreement; “We hereby agree satisfactory between ourselves and is satisfactorily between all parties concerned, H. Gr. Davis is to get tbe home place, 80 acres. A. S. Davis is to get lower bottom, 80 acres. Ada Langford is to get upper bottom, 40 acres, and 15 acres known as tbe Mart Emmons place. ’ ’

Later H. Gr. Davis, after considering tbe matter further, declined to perform tbe agreement by making tbe necessary exchange of deeds, and bis brother and sister brought' suit against him to compel tbe specific performance of tbe contract of settlement, and tendered into court deeds conveying to H. Gr. Davis tbe land which it was agreed be should have in tbe settlement contract.

Tbe court found tbe fact to be that the parties bad entered info tbe written contract to divide their father’s land,, and decreed a specific performance of the agreement.

For the reversal of' this decree it is insisted that tbe agreement was not sufficiently definite and certain to be the' subject of a suit for specific performance, and further, that tbe contract did not express tbe entire agreement of tbe parties.

We have bad before us a number of cases wherein it was sought to specifically enforce contracts for tbe conveyance of land, wherein it was alleged, in opposition to granting that relief, that tbe written instrument evidencing tbe agreement to convey was not sufficiently definite to warrant a decree granting tbe relief prayed. Two of the'latest of these cases are reported in 168 Ark., one being tbe case of Harper v. Thurlow, found at page 491, tbe second that of Richardson v. Stuberfield, reported at page 713. In tbe last-mentioned case it was said: “It is well settled by these and other decisions of this court that every contract for tbe purchase of land must define its identity and fix its locality, or there must be such a description as, by the aid of parol evidence, will readily point to its locality and boundaries. An agreement for the sale of land which is required to be in writing by tbe Statute of Frauds must be certain in itself, or capable of being made certain by reference to something else.”

The still later case of Moore v. Exelby, 170 Ark. 908, reviews the earlier cases on the subject, and it would serve no useful purpose to again review them. ' The contract involved in that case was made and evidenced by letters exchanged between the parties, none of which purported to describe the land involved, but it was said that “the letters indicate that from the beginning both parties definitely understood the tract of land which was the subject of their negotiations.’'’

The plaintiffs in this case and certain neighbors testified that the lands of L. D. Davis were well known by the names which were employed to designate them in the contract of settlement. The contracting parties- were well known to be the heirs of L. D. Davis, deceased, who owned a farm known as the home place, another as -the lower bottom placé, another as the upper bottom place, and a fifteen-acre tract of land known as’ the Mart Emmons place. We think these designations furnished a key by which the lands there apportioned are made certain, and that the contract meets the requirements of the Statute of -Frauds as announced in the case of Richardson v. Stuberfield, supra.

It is insisted that the contract».was indefinite, in that it does not recite what was to be done with these lands, the phrase “to get” being too indefinite for that purpose.

It will be remembered that the contract was made to effect a family settlement, a thing favored by the law, and that it contemplated the subsequent exchange of deeds, wherein more definite descriptions of the land would be employed, and we think there is no difficulty in determining that, in saying each party was “to get” a certain tract of land, it was intended that the party named as getting the land was to have that land, take title thereto in severalty, and we think this conclusion is warranted by the language of the instrument .itself without reference to the parol testimony, which very clearly shows that this was in fact the meaning of the language employed.

It is insisted that the writing did not fully express the agreement of the parties. This contention is based upon the testimony of one or more of the neighbors, who testified that it was also agreed that appellant H. G-. Davis was to allow his brother A. H. Davis the use of a tenant house for a year, which was on the land assigned to H. Gr. Davis.

In answer to this contention it may be said that^ if the contract is not void under the .Statute of Frauds— and we have concluded that it is not void as failing to meet the requirements of that statute — the performance of the contract is not to be defeated because there was another agreement not embraced in the writing. At any rate, A. S. Davis is not asking the enforcement of this additional consideration, if it was in fact a part of the agreement. He has waived any right to ask a reformation of the agreement, and appears to be satisfied with the enforcement of the contract as written.

It is finally insisted that appellees, the plaintiffs below, are not entitled to equitable relief because they have not come into court with clean hands, in that they ask, in effect, that their father’s lands be divided as if there were no will, and yet do not take into account the minor children of a deceased brother, who would be entitled to share in the division of the estate if the testator be treated as having died intestate.

In answer to this contention it may be said that the will was duly probated, and no complaint on behalf of the minors has been made; at any rate they are not affected by the settlement. Their right to contest the will, if it were thought proper so to do, was not involved, and they are not parties to this litigation. If the recital of the will is true, that the deceased son had been given property equal in value to what this son’s share would have been had there been no will, this sou, and his heirs after him, would be charged with the value of that property as an advancement if the will had been set aside. Section 3485, C. & M. Digest.

The parties to the will divided the lands which had been devised to them, and in which the children of the deceased brother had no interest under the will, and we see nothing in, this conduct which would warrant a court of equity in denying them the relief prayed if they were otherwise entitled to it.

We think the decree correct, and it is affirmed.


author: Humphreys, J.

text:
    Morgan v. Morgan.
    Opinion delivered May 17, 1926.
    Estoppel — accepting benefit of decree. — One cannot accept and derive a 'benefit from a decree without necessarily admitting its legality,
    .Appeal from Independence Chancery Court; Lyman F. Reeder, Chancellor;
    reversed.

      W. K. Ruddell, for appellant.

      S. M. Casey, for appellee.
   Humphreys, J.

This suit was brought by appellee against appellant on December 1, 1923, in the chancery court of Independence County, to set aside a decree of divorce and an award of their child obtained by appellee on September 3,1923, under constructive service upon her husband. It was alleged in the bill that the decree was procured through fraud practiced upon the court by falsely representing that appellant did not know the whereabouts of appellee.

Appellant filed an answer denying the allegations, and, by way of further defense, alleging that appellee was estopped by pleading said decree in bar of an action for divorce and alimony, which appellant pleaded against appellee in the chancery court in Memphis, Tennessee.

The cause was submitted upon the pleadings and testimony adduced by the respective parties, which resulted in the cancellation of the decree rendered September 3, 1923, from which is this appeal.

Although the record reflects that appellant knew of appellee’s whereabouts when she brought her suit in the chancery court of Independence County, and that she failed to impart this information to the attorney appointed to represent her husband, which suppression amounted to such a fraud as would justify the court in setting aside the decree, yet appellant estopped himself from taking advantage of the fraud by using the decree sought to be canceled in defeating a suit for divorce and alimony brought by appellant against appellee in Tennessee. The record of the suit and proceedings brought in Tennessee was introduced in evidence in the instant case, and the following is an excerpt from appellee’s answer filed therein:

“Having heard that his wife had' fraudulently obtained a divorce from him, he immediately went to Batesville to verify the report. Upon his arrival there he not only found his wife divorced, but married to one Harris A. Hobbs, who had been employed by this defendant on the farm of this defendant recently purchased for his wife. Defendant would show that he at once had his former wife and Harris A. Hobbs arrested for bigamous conduct, but that the warrants were later withdrawn and a petition drawn up for the annulment of the divorce proceedings, upon which petition, however, absolutely no court proceedings had been had. Defendant would show that he brought his former wife back to Memphis with him, doing everything in. his power to forgive and forget her wrongs to him. That while here in Memphis, and presumably on the best terms with him, the complainant filed her bill in this court, .which your defendant alleges is a perjurous statement from beginning to end. Therefore this defendant pleads said former suit and proceedings and adjudication in bar of the present bill, and prays that said adjudication is and remains in full force and effect;.and prays that complainant’s bill be hence dismissed and the injunction dissolved.”

The bill in Tennessee was subsequently dismissed and the injunction dissolved. One cannot accept and derive a benefit from a decree without necessarily admitting its legality. Butts v. Butts, 152 Ark. 399. The court therefore committed reversible error in setting the decree of date September 3,1923, aside for fraud.

On account of the error indicated the decree is reversed, and the cause is remanded with directions to dismiss appellee’s bill for the want of equity.


author: Humphreys, J-

text:
    Corning Custom Gin Company v. Oliver.
    Opinion delivered May 17, 1926.
    1. Corporations — dissolution op going concern. — Where a cor-, poration is a going concern, a minority stockholder cannot maintain a bill to have it dissolved or its assets distributed; if stockr holders in such case disapprove of the company’s management' or consider their speculation a bad one, their remedy is to elect new officers or to sell their shares and withdraw. ■ •
    2." Corporations — right op stockholders to sue for corporation. —To enable a stockholder in a corporation to sustain in his own name a suit in equity founded on a .right of action existing in the corporation itself, and in which the corporation itself is the appropriate plaintiff, there must exist as the 'foundation of the suit such a fraudulent transaction, completed or contemplated by the acting managers, as will result in serious injury to the corporation or to the interests of the other stockholders.
    3. Corporations — compensation op director. — A director of a corporation acting as manager or in any other capacity outside of his duties as director is entitled to receive compensation either by contract or on a quantum meruit. ■
    Appeal from Olay Chancery Court, Western District; J. M. Futrell, Chancellor;
    reversed.

      C. O. Raley, F. G. Taylor and Gautney & Dudley, for appellant. _ .

      C. T. Bloodworth and M. P. Huddleston, for appellee.
   Humphreys, J-

Appellee instituted this suit against appellants in the,chancery court of Clay County, Western District, to dissolve the corporation and for an. injunction to restrain the appellants from dissipating the assets of the corporation, and to recover from the directors and officers funds alleged to have been wrongfully and unlawfully paid to them, and for the appointment of a master to state an account, and a receiver to take over the corporate property and to wind up the affairs of the corporation.

The right of appellee, a minority stockholder and director in the corporation, to maintain such a suit was put in issue by a denial of the material allegations in the bill.

The cause was submitted to the court upon the issues joined, which resulted in a dismissal of .the hill for the want of equity as to all issues except the issue of the alleged wrongful payment of funds of the corporation to F. B. Sprague, C. R. Black, T. W. Wynn, and L. G. Black, in the sum of $350 each for services rendered to the company by them during the year 1922. Upon this issue a judgment was rendered against the four of them for $1,400. A judgment was rendered in favor of appellee against the corporation for $300 with which to pay his attorney, and in favor of R. P. Taylor, special master, for $50. Both appellee and appellants have prosecuted an appeal to this court from the decree in so far as same was adverse to him or it.

As we view the case, only two real issues are involved. One is whether the corporation, under the facts, is subject to dissolution and to have its affairs wound up by a receiver; and the other is whether the directors and officers may be required to return the salaries received by them to the corporation on the application of appellee, who is a minority stockholder in the corporation.

Since the record is voluminous, only such facts will he set out as are necessary to a determination of these issues. The Corning Custom Gin Company was organized with a paid-up capital stock of $13,400 in the spring of 1919. The gin was constructed at a cost of about $25,000.

The corporation made a net profit of $13,178777 during the first fiscal year of its operation, ending April 30, 1920. It was operated during that time under the successive managements of Ad Newell, Mr. Nettles, and Clayton Sprague, each of whom was paid at the rate of $150 per month. The directors were paid no salaries during that year.

The second year, ending April 30, 1921, T. W. Wynn was manager at a salary of $300; G. B. Oliver, Jr., was secretary-treasurer at a salary of $600; and the directors were paid $100 each for services they rendered the corporation.

The third year, ending April 30, 1922, G. B. Oliver, Jr., received $350 as secretary-treasurer; T. W. Wynn received $5 per day for 289 days as president and manager; and the directors received $250 each for services rendered ¡by them to the corporation.

The fourth year, ending April 30, 1923, L. G. Black was paid $1,100 as manager, and the directors $500 each for services rendered to the corporation.

On June 28, 1920, the stockholders passed a resolution at a regular meeting, authorizing the directors to pay themselves out of the funds of the corporation such sums or salaries as would compensate and be commensurate with their services for the ensuing years.

On the first day of August, 1923, the stockholders adopted a resolution ratifying the payments made to the directors for services, which resolution recited that certain of the directors had given a large portion of their time and attention to managing the affairs of the corporation and making it a success, and that the sums which had been paid them during the years of the corporation’s existence were fair and reasonable and commensurate with the services rendered.

Appellee owned $250 in stock at the time the corporation was organized. He afterwards purchased stock to the amount of about $5,000, and'paid $1 to $1j50 for the stock thus purchased. His purchases of stock were made subsequent to the passage of the resolution authorizing the directors to pay themselves salaries for such services as they might render the corporation.

At the time appellee instituted this suit, the gin had been paid for, there was a balance of $2,000 cash on hand, equipment was on hand of the value of $1,136.35, all repairs had been made and paid for, the corporation was out of debt, and an average dividend of 10 per cent, had been, paid during each year to the stockholders, and the gin was in actual operation and doing a good business.

The parties from whom appellee purchased his stock participated in the adoption of the resolution authorizing the directors to pay themselves for such services as they might render the corporation.

The law applicable, under the facts stated above, to the first issue involved on this appeal is stated as follows in 7 E. C. L., § 292, p. 315:

“Where the corporation is a going concern, it is undoubtedly true that a minority stockholder cannot maintain a bill to have it dissolved or to have its assets •distributed. In such case, if the shareholders disapprove of the company’s management or consider their speculation a bad one, their remedy is to elect new officers or to sell their shares and withdraw.”

Practically the same rule is announced in vol. 4, § 1542, of Pomeroy’s Equitable Eemedies, 4th ed., and that text is supported by the notes to the section.

The corporation sought to be dissolved and wound up by a receiver in the instant case was not only a going concern, but was very prosperous. Under the management of the directors, elected by a majority of the stockholders, the gin had been, paid for, was in good condition, and had earned an averag’e dividend of 10 per cent, annually for its stockholders.

The law applicable, under the facts stated above, to the second issue on this appeal is stated as follows in the case of Hawes v. Oakland, 104 U. S. 450:

“We understand the doctrine to be that, to enable a stockholder in a corporation to sustain in a court of equity in his own name a suit founded on a right of action existing in the corporation itself, and in which the corporation itself is the appropriate plaintiff, there must exist as the foundation of the suit * * . * such fraudulent transaction completed or contemplated by the acting managers, in connection with some other •party, or among themselves, or with other shareholders, as will result in serious injury to the corporation, or to. the interests of the other shareholders.”

In the instant case there was no fraudulent diversion. or misappropriation of funds belonging to the corporation. On the contrary, the funds were used to pay for actual and valuable services rendered by the directors and officers of-the corporation under authority from the stockholders, by formal resolution passed at a regular stockholders’ meeting. The services rendered were of great benefit to the corporation and shareholders, so much so that the stockholders ratified the payment which had been made to the directors and officers for:, services by resolution also, which recited that the directors had given, a large portion of their time toward building up the business of the corporation and making it a success, and that the salaries paid were reasonable and commensurate with the services rendered. We know of no law prohibiting stockholders from employing directors to perform services for the corporation outside of their regular duties, and remunerating them for it. This court is committed to the doctrine that “when a director is acting as manager, or in any other capacity -outside of his duties as director, he is entitled to receive a salary either by contract or upon quantum meruit, according .to the circumstances of the case. Coal Co. v. Martin, 86 Ark. 608. We think therefore the trial court erred in rendering a decree against F. B. Sprague, C. R. Black, T. W. Wynn and L. G. Black for the $1,100 and against the corporation in favor of appellee for $300 with which to pay his attorney, and against the corporation in favor of the master for $50.

There was an issue joined and some testimony taken pro and con relative to a claim by appellee against the corporation for cottonseed. The matter. was not fully developed, and the master was not requested to state an account between them or the chancellor to make any finding thereon. It seems that the issue was waived in the court below.

On account of the error indicated the decree is reversed, and the cause is remanded with directions to dismiss appellee’s bill for the want of equity.


text:
    Lane v. State.
    Opinion delivered May 17, 1926.
    1. Criminal law — admission of evidence — harmless error. — The error of admitting improper testimony was cured by instructing the jury not to regard such testimony for any purpose whatever.
    2. Witnesses — impeachment)—contradictory statement. — On a charge of grand larceny alleged to have been committed in stealing certain bonds, where defendant testified as to what he did with the bonds, it was not error to permit the State, by way of impeachment, to cross-examine him as to an inconsistent statement made by him in a contempt proceeding growing out of the same transaction.
    3. Witnesses — impeachment—collateral matter. — Where the prosecuting witness on cross-examination denied that he had been guilty of gambling on another occasion than the one in question, the defendant was bound by his answer and could not impeach him by evidence to the contrary.
    4. Criminal law — admonitory instruction. — It is proper for a trial court to admonish the jurors to give due regard and weight to the opinion of their fellows in an effort to reach a verdict.
    Appeal from Greene Circuit Court, Second Division; W. W. Bandy, Judge;
    affirmed.

      T. H. Caraway and Gautney & Dudley, for appellant.

      H. W. Applegate, Attorney General, and John L. Carter, Assistant, and Block d Kirsch, for appellee.
   Humphreys, J.

Tbis is an appeal by appellant from a conviction in tbe circuit court of Greene 'County for the crime of grand larceny, charged to have been committed by stealing United States Government bonds, the property of James Alexander, of the value of $20,000.

The following six alleged assignments of error are insisted upon by appellant for a reversal of the judgment:

“First. The court erred in permitting counsel for the State to cross-examine defendant as to the civil judgment in the case of 'Alexander v. Lane.
“Second. The court erred in permitting counsel for the State to cross-examine defendant as to the evidence concerning the preliminary trial of the defendant on the charge of perjury before Hayes, justice of the peace, and also concerning the evidence of other witnesses in that trial.
“Third. The court erred in permitting counsel for the State to cross-examine defendant as to the proceedings in the Greene Circuit Court in June, 1925, wherein defendant attempted to purge himself of a crime of civil contempt.
“Fourth. The court erred in permitting the counsel for Htate to browbeat the defendant while on the witness stand by entering into a dispute with him of the occurrences after the commission of the alleged offense.
“Fifth. The court erred in excluding the evidence of T. W. Davis, Charles Freeman, and Ed Landers.
“Sixth. The court erred in giving the instructions urging the jury to get together after the cause had been submitted.”

(1). In two instructions, “A” and “B,” the court called attention to the fact that testimony relative to the civil judgment against Mr. Lane in regard to the bonds had been introduced. He then instructed them not to regard that testimony for any purpose whatever, for the reason that it shed no light on the guilt or innocence of appellant. If any error was committed by the admission of this evidence, it was cured by these instructions. Holt v. State, 91 Ark. 576.

(2). We are unable to find any facts in the record justifying the contention that the prosecuting attorney was permitted to cross-examine appellant touching a charge of perjury against him before Hayes, the justice of the peace. It appears that the court not only excluded a question propounded by the prosecuting attorney to him relative to what a witness testified to concerning the bonds before the justice of the peace, but told the jury, in instruction “C,” that the testimony had been ruled out, and not to consider it in reaching their decision as to the guilt or innocence of appellant.

(3). Appellant’s defense was that he won the bonds from James Alexander in a crap game. He testified that on October 14, he took the bonds out of the State and placed them in the First National Bank at Cardwell, Missouri, and kept them there until a few days after his arrest; that, after his preliminary trial, he brought the bonds back to his father’s farm 'and buried them, and that was the last he knew of them. On cross-examination the prosecuting attorney asked him if he was not in jail a number of months for contempt, to which he answered, “Yes sir, about eleven.” The prosecuting attorney was then permitted, over the objection of appellant, to ask him if he did not swear in June, when attempting to purge himself of 'contempt, that he did not know what became of the bonds. Appellant insists that reversible error was committed in requiring him to answer the question. He answered in the affirmative. The testimony was admitted as affecting the credibility of the witness, and we think properly so. He had buried the bonds in November, and his failure to make an explanation of what had become of them was a circumstance for the jury to consider in determining what credit they would attach to his testimony.

(4). We are unable to discover in the record where the prosecuting attorney browbeat appellant when examining him. At times the questions as well as the answers were somewhat heated, and at one time the court was compelled to admonish them against argumentation. Such incidents are common when witnesses are being pressed upon some point, and a judgment should not be reversed on account of them, unless it can be seen that the rights of the defendant were really prejudiced in some way. We do not think the argumentation between counsel for State and the witness assumed proportions sufficient to prejudice the rights of appellant in any way.

(5). Appellant’s counsel recalled James Alexander, the chief prosecuting witness, and asked him whether he had not gambled for money on a trip to the Shrine convention at Pine Bluff. He denied having done so. They then offered to prove by T. W. Davis, Charles Freeman, and Ed Landers that he had gambled on that occasion, under the theory that it was essential to their- defense to show that James Alexander had gambled on some other occasion than when appellant claimed to have thrown dice with him for the bonds. Appellant was bound by the answers he elicited from James Alexander on cross-examination. Lewis v. State, 168 Ark. 590.

(6). The court gave an admonitory instruction to the jury in an effort to get them to agree, after they had retired and been out for a considerable length of time considering the case. This court has recognized the right of the trial court to urge a jury to reach a verdict, and, in doing so, to call their attention to the ills attendant upon a failure to agree. If the admonitory instruction accords the jury the right of voluntary action and the exercise of their own conscience in reaching the verdict, it cannot be said to be objectionable. The admonitory instruction in the instant case did not encroach upon these rights of the jury. It is perfectly proper for a trial court to admonish jurors to give due regard and weight to the opinion of their fellows in an effort to reach a verdict, and this advice by the trial court seems to be the chief objection urged against the admonitory instruction given in this case. St. L. I. M. & S. R. Co. v. DeVaney, 98 Ark. 83. In support of his contention that the court erred in his admonition to the jury, appellant has cited the case of Simonson v. Lovewell, 118 Ark. 81, which we do not think is in point. In that case the trial court virtually told the minority to yield to the views of the majority, which was an invasion-of the jury ’s right to act voluntarily and according to their conscience.

No error appearing, the judgment is affirmed.


author: 'McCulloch, C. J.

text:
    Stribling v. State.
    Opinion delivered May 24, 1926.
    1. Homicide — sufficiency of evidence. — In a proscution for murder, evidence held sufficient to sustain finding that accused shot deceased, who died immediately from effect thereof.
    2. Criminal law — proof of venue. — The venue in criminal cases may he proved by a preponderance of the evidence, and may be established by circumstantial evidence.
    3. Criminal Law — judicial notice. — Courts and juries take cognizance of location of towns, postoffices and navigable streams.
    4. Criminal law — evidence.—In a prosecution for murder, where witnesses testified that accused previously attempted to assault deceased, testimony of a witness that, as accused was leaving the scene of such attempt, witness asked him what he was doing there with a gun, and accused raised the gun and ordered him to stop, was admissible as part of the story and as showing accused’s state of mind toward deceased.
    5. Criminal law — admission of evidence in rebuttal. — 'The admission of testimony in rebuttal is within the court’s discretion.
    Appeal from Crittenden Circuit Court, Second Division ; O. E. Keck, Judge;
    affirmed.

      Walter S. Duggar and R. R. Bond, for appellant.

      E. W. Applegate, Attorney General, and John L. Carter, Assistant, for appellee.
   'McCulloch, C. J.

Appellant was indicted by tbe grand jury of Crittenden County for murder in the first degree in tbe killing of Brady Williams, and on tbe trial of tbe cause be was convicted of that offense, and sentenced to death, Tbe principal ground urged here for reversal of tbe judgment is that tbe evidence is not sufficient to sustain the verdict.

The killing occurred on October 2, 1925, about eight o’clock in tbe morning, at or near West Memphis, in Crittenden County. Appellant and Brady Williams both resided at West Memphis, and Williams was working on tbe bridge, or viaduct, commonly known as tbe Harraban viaduct, which forms tbe approach to one of tbe bridges across tbe Mississippi River at Memphis.

Witnesses introduced by tbe State testified that,on tbe day before the killing, appellant came to tbe placo where the workmen, including Williams, were' sitting about, eating their noonday meal, that he had a shotgun in his hand, and attempted to assault Williams, declaring, as he approached, that he had come to kill Williams on account of the latter having ravished his (appellant’s) daughter. There was testimony introduced by appellant to the effect that, in the latter part of July, deceased had ravished appellant’s fifteen-year-old daughter. According to the testimony of the witnesses for the State, appellant’s assault on Williams was averted by Williams getting behind other men who were present at the time. One of the witnesses testified that, when appellant made the assault with the gun, he (witness) ran over a short distance and notified a man named Jaco, who was the “boss man,” as they called him, and that, as Jaco came forward, appellant turned and walked away, and that, when Jaco accosted him and reprimanded him for interfering with the workmen, appellant raised his gun and compelled Jaco to stop. This ended the occurrence, according to the testimony of the witnesses. The killing occurred early next morning, and the same witnesses, or some of them, testified that they saw appellant in the edge of a thicket, armed with a gun, and that, as Williams entered the thicket to hide himself for the purpose of attending to a call of nature, they heard the sound of a gunshot in that direction, and, looking there, they saw appellant running away with a gun in his hand, and Williams coming back toward the viaduct, calling out in anguish. They testified that Williams made no statement, but ran a short distance and fell dead.

There is some discrepancy in the testimony as to the kind of gun appellant used and also as to the kind of clothing he wore, but three witnesses testified that they saw appellant shoot Williams, or at least they saw him'run away when the shot was fired. If the testimony of the witnesses is true, appellant is undoubtedly the man who shot and killed Williams. He denied it, and said that he had no gun and was not there on that occasion. Other witnesses introduced* by him supported his testimony, but that raised a .question for the jury, and we are concluded by the verdict of the jury rendered upon conflicting testimony.

It is argued that the testimony does not sufficiently show that deceased died from the effects of the wound, but we think the testimony is abundant to show that Williams was shot, and died immediately from the effect of the wound, and that appellant was the one who did the shooting.

Again, it is contended that the venue is not proved. We have often held that venue in a criminal case may be proved only by a preponderance of the evidence, and may be established by proof of circumstances. The witnesses testified that the killing occurred in sight of the viaduct in West Memphis, and in front of the postoffice. Courts and juries take cognizance of the locations of towns, post-offices and navigable streams, and we know that the places described by the witnesses are situated in Crittenden County.

The State was permitted, over the objection of appellant, to introduce, in rebuttal, Jaco, the individual mentioned above, who testified in substance that, on the day before the killing, about noon, he was called by one of the men to come down to the place near the viaduct where appellant was, armed with a gun, and that, when he came within about one hundred yards of appellant and asked him what he was doing there on the premises with a gun, appellant raised the gun and directed him to stop, which he did. It is contended that this testimony was . incompetent, as it tended to prove a distinct offense, that •is to say, an assault by appellant on Jaco. The court directed the jury, at the time the testimony was- introduced, not to consider it for any purpose except “as it might shed light on the mental condition of defendant with reference to his attitude or feeling towards the deceased.” We think the testimony was competent. . Jaco was not present when appellant attempted to assault WiHiams, but other witnesses testified concerning appellant’s conduct in that respect, and Jaco’s testimony related to appellant’s conduct immediately afterwards, and his testimony tended to show appellant’s disposition to prevent any interference with his effort to assault Williams. It is true the attempt was over, and appellant was about to leave the premises,, but the tendency of this testimony was to show his state of mind at that time, not towards Jaco but towards Williams. In other words, it was part and parcel of the whole story as to what occurred’ on this occasion when appellant attempted to assault Williams, and the part related by Jaco was concerning appel-; lant’s conduct immediately after the assault. Of course, if there had been no other testimony introduced concerning what occurred on that occasion, Jaco’s testimony would not have been competent, as it would have had reference only to appellant’s apparent attitude towards Jaco, but, when the testimony is considered in connection with what the other witnesses related, it is plain that the conduct of appellant at that time had some tendency to show his state of mind towards the deceased Williams. This testimony was introduced in rebuttal, but that was a matter which appealed to the discretion of the trial court.

We find no error in the record, and the testimony abundantly justifies the verdict of the jury in findingappellant guilty of murder in the first degree.

Judgment affirmed.


author: McCulloch, C. J.

text:
    Morning Star Mining Company v. Williams.
    Opinion delivered May 24, 1926.
    Attorney and client — ratification of employment. — Where plaintiff accepted employment as defendant’s attorney from defendant’s former manager, under reasonable belief that such employment was authorized, evidence that the plaintiff conferred .with the officers of defendant concerning the litigation and was encouraged by them to continue in its prosecution, held sufficient to show ratification of the employment. "

      Appeal from Marion Circuit Court; J. M. Shinn, Judge;
    affirmed.

      J. H. Blade and Coleman, Robinson, House S Riddich, for appellant.

      Floyd S Floyd, for appellee.
   McCulloch, C. J.

This is an action instituted by appellee against appellant to recover compensation for services rendered in certain litigation in which appellee appeared as attorney for appellant. The litigation in question, was a case which came to this court on appeal. Morning Star Mining Co. v. Bennett, 164 Ark. 244. Appellee alleged in his complaint that he was employed in that litigation by G. W. Chase, purporting to act as general manager of the business and affairs of appellant, and that the officers of appellant, with knowledge of the employment of appellee and of his performance of the services in the litigation, accepted the benefits and ratified such employment. Appellant answered denying that Chase was the manager of the business or affairs of appellant or had any authority to employ appellee as attorney, and also denied that the employment had been ratified or the services accepted by appellant. There was a trial of the issues before a jury, which resulted in, a verdict in favor of appellee.

Appellant is a foreign corporation, and owns and operates certain mining property in North Arkansas. For the past twenty-five years, up to the time of the occurrences now under investigation, G. W. Chase was the general manager of appellant’s business in Arkansas. In the autumn of 1919 Chase entered into a contract with Miss Roze E. Bennett, authorizing her, for a consideration, to find a purchaser and make a sale of a certain group of mining properties, including the property of appellant. During the summer of 1920 Chase, purporting to act as manager and agent of appellant, employed appellee as an attorney at law to institute an action against Miss Bennett to cancel, as a cloud on the title to the lands owned by Chase and appellant, the aforesaid contract authorizing her to make sale of the property. It appears that this contract was placed of record, and, upon consultation with attorneys, it was determined that it was, or might become, a cloud on the title of appellant to the property it owned in its mining operations. The action was instituted in September, 1920, arid both Chase and appellant were joined as plaintiffs, and Miss Bennett was the sole defendant. The cancellation was sought on the ground that the contract was obtained by fraud. Miss Bennett answered the complaint, denying the allegations of fraud, and she also filed a cross-complaint against appellant and Chase to recover damages for breach of the contract.

The testimony in this case establishes the fact that Chase had in fact ceased to be the manager of appellant, and that on April 12, 1920, there had been a complete change in the officers and management of appellant corporation. Appellee testified, however,, that he did not know of this change, that Chase had been the manager for twenty-five years, and appeared to be still in control of the business and affairs of appellant in this State, and that Chase employed him not only for himself but for appellant. Appellee also testified that, as soon as he filed the complaint, he mailed a copy of the pleadings to. Mr. Reid, the president of the corporation, who resided at Memphis, and also mailed a copy to a Mr. Straub, of Pittsburgh, who was understood to be-negotiating for the purchase of the stock. Reid had been president of the corporation, but ceased to be on April 12, 1920, when new officers were elected. A Mr. Lyons was elected president to succeed Reid, and appellee testified that, after the institution of the suit, Lyons came to appellee’s office in Yellville, Marion County, where the suit was pending, and conferred with him about the pendency of the suit. He testified that he went over the matter with Mr. Lyons, fully informing him as to the status of the litigation, and that Lyons made no objection to the inclusion of appellant as plaintiff in the litigation, or-to appellee’s conducting, the. litigation, as attorney for the plaintiffs. Appellee testified that about that time,. or shortly thereafter, another attorney in, Yellville was employed to assist him in the litigation, and that they prepared the case for trial and presented it in the chancery court. There was a decree against appellant, which was appealed to this court and reversed. After the decree was rendered, appellee was informed by appellant that other attorneys in Little Rock would 'be employed to conduct the case in the Supreme Court, and with that appellee’s connection with the litigation ended.

The testimony adduced by appellant shows conclusively that Chase had ceased to be the manager of the business at the time the litigation with Miss Bennett was instituted, and the testimony also tended to show that appellee’s employment was never ratified by the proper officers of appellant.

The principal contention in the case is that the evidence is not legally sufficient to sustain the verdict. The case went to the jury upon the sole issue as to whether or not appellant ratified the employment of appellee by Chase, and we consider the testimony for the purpose of determining whether or not it is legally sufficient to sustain the verdict in favor of appellee on that issue. We think' that the testimony is sufficient. According to the testimony of appellee, he accepted employment from Chase in. good faith for the purpose of instituting an action to remove a cloud upon appellant’s title to the property, and he had reason to believe, and did believe, that Chase was authorized to employ him. Chase had previously employed him for appellant, and the fees had been regularly paid. He further testified that, after the suit was commenced, the president of the corporation conferred with him about the litigation, with knowledge that appellant was a party to the suit, and encouraged him to continue in its prosecution.

The facts of the case come within the rule announced by this-court in Davis v. Trimble, 76 Ark. 115, 88 S. W., 920, where we said that, when persons were informed that they were parties to a suit and that an attorney had been employed, even'without authority to represent them in the litigation, if they remained silent and accepted the' services of the attorney, ‘ ‘ even though employed by another, the law would imply an agreement on their part to pay for the services.” The testimony in the present case fully measured up to that rule. Viewing it in the light most favorable to appellee, appellant’s officers knew that a suit had been brought by appellee in appellant’s name tó protect its property, and without objection accepted the services of appellee. It is true that appellant was not a party to the contract between Chase and Miss Bennett, and for this reason the Supreme Court reversed the decree in Miss Bennett’s favor. But the suit was instituted in good , faith, upon the' theory that the contract was, or might be considered, a cloud on appellant’s title, it being a contract which related to and specifically described appellant’s- property. With full knowledge of the pend-ency of the suit, appellant’s authorized officers permitted it to proceed to final decree. If Mr. Lyons, as president of appellant corporation, objected to appellant being made a party to the action, he should have made known the objection at the time it was brought to his' attention by appellee in the latter’s office. Instead of -making objection, he kept silent and permitted the suit to proceed to final decree, and permitted appellee to continue his services in the prosecution of the suit in-appellant’s name as well as that of Chase.

, There were objections to the court’s charge, but we are of the opinion that the only issue in the case,, that of ratification of appellee’s employment by acceptance of his- services, was correctly submitted to the jury. The objections made here to those instructions are not well founded.

Finding no error in the record, the judgment must be affirmed, and it is so ordered. . ...


author: Wood, J.

text:
    Lewis v. Bush.
    Opinion delivered May 24, 1926.
    1. Trusts — construction of pleading. — In an action to foreclose a vendor’s lien, where the land was sold by the commissioner to a subvendee, who had previously sold the land by warranty deed, defendants’ exceptions to the commissioner’s report of sale, alleging that such purchaser was personally liable to defendants by reason of such warranty, and asking that he be declared liable to them, and that a trust be enforced in their favor, was properly treated as a complaint against such purchaser, and, all parties being before the court, it had complete jurisdiction to determine the rights and equities of the parties.
    2. Vendor and purchaser — after-acquired title. — Where a purchaser of land conveyed same by warranty deed, without paying the purchase money notes, and subsequently purchased the land on foreclosure of the vendor’s lien, he became trustee for those deraigning title under him, under Crawford & Moses’ Dig., § 1496.
    3. Trusts — constructive fraud. — Unconscientious conduct constituting constructive fraud in equity is a necessary element of a constructive trust, not arising from actual fraud or violation of positive fiduciary obligation.
    Appeal from Woodruff Chancery Court, Southern District; A. L. Hutchins, Chancellor;
    reversed.

      Wils Davis, for appellant.

      Ross Mathis, for appellee.
   Wood, J.

W. T. Trice conveyed to W. J. Lovelace and S. M. Bush about four hundred acres' of land in Woodruff County, Arkansas, including lot 3, section 7, township 4 north, range 3 east. The purchase price was $7,254.94, $462 of which was paid in cash and the balance was evidenced by purchase money notes with a vendor’s lien retained in the deed to secure payment of the same. These notes were sold by the vendor Trice to one James, and payments from time to time were made thereon, reducing the amount to $4,285.30. The grantees, Bush and Lovelace, conveyed lot 3, section 7, to C. C. Hawkins and M. A. Cheshire, by warranty deed, and they in turn conveyed the lot by warranty deed to A. C. and Ruth H. Lewis for a consideration of $3,096 in cash. James instituted this action to foreclose the vendor’s lien on the notes he had purchased from Trice, and all the parties to the conveyances above mentioned were made parties defendant. A. C. and Ruth H. Lewis answered the foreclosure suit, denying all the allegations of the complaint. There was a decree of foreclosure, and all the lands originally sold, including lot 3 above described,- upon which the vendor’s lien was retained, were ordered to be sold to satisfy the notes. A commissioner was appointed to make the sale and directed to sell, first, all the property except lot 3, and then to sell lot 3. The commissioner duly advertised the land and made the sale as directed in the decree. Bush purchased all of the land at the sale. For lot 3 he paid the sum of $750, as shown in the report of the commissioner.

When the commissioner’s report came in, A. C. and Ruth TL Lewis filed their exceptions thereto, setting up substantially the above facts, and alleging that Bush was personally liable on the notes, and that he became by warranty deed one of the remote grantors of A. C. and Ruth H. Lewis, and, notwithstanding that fact, he procured a release of certain parts of the land on which the original vendor’s lien was retained to secure the notes, and permitted a judgment to be taken against himself and A. C. and Ruth H. Lewis on the notes, and permitted the sale of the lands, including lot 3, which had been con-' veyed by warranty deed to A. C. and Ruth H. Lewis; that he appeared at the sale and purchased the lot for the sum of $750, as above stated. They concluded, their pleadings, designated “exceptions to the commissioner’s report,” with the following prayer:

“Your exceptors pray that this honorable court enter a decree declaring the same S. M. Bush to be primarily liable for the payment of said notes; that he became the purchaser of said property absolutely when he made the bid; that any' title which he obtained be declared to be held in trust by him for the use and benefit of these defendants (A. C. and Ruth H. Lewis); that this honorable court further by decree declare that said title was an afterwards-acquired title and flows into these defendants by reason of the warranty deed above set out, and for such other equitable relief as the court may deem proper in the promises.”

The cause was heard upon an agreed statement setting forth the facts substantially as above, in which it is recited: “It is agreed and stipulated that the following agreed statement of fact shall be used as evidence in this cause on the exceptions filed by A. C. and Ruth H. Lewis to the report of the commissioners regarding the sale of land under the decree entered herein. It being further agreed that said exceptions may also be treated as a motion for equitable relief prayed for therein.” The decree of the court recites in part as follows: “This cause came on to be heard on this the 14th day of November, 1924, upon the exceptions of A. C. and Ruth H. Lewis, and all parties being present, the cause was submitted to the court upon the agreed statement of facts, the report of the commissioner, and on motion the exceptions of the report of the commissioner were treated also as a prayer to declare a resulting trust. * * * And the court, being well and sufficiently advised, doth find that there was no trust created in favor of the defendants A. C. and Ruth II. Lewis by reason of the purchase of said lands by defendant S. M. Bush. It is therefore considered, ordered and decreed that-the exceptions. and petition filed by the defendants A. O. and Ruth H. Lewis be and the same are hereby dismissed for want of equity.” From that decree is this appeal.

The agreed statement of facts and the recitals of the decree show that all the parties in interest were before the court, and that, as between the appellants and the appellee Bush, the court treated the cause as if it were an action by the appellants against the appellee Bush to have him declared a trustee and as holding title to the lot in controversy for the benefit of the appellants, and as if he had denied that the facts were sufficient to entitle the appellants to the relief prayed. The court ruled correctly in so treating the cause, but erréd in rendering a decree in favor of the appellee upon the issues and facts presented. Bush, as one of the original purchasers and makers of the notes secured by the vendor’s lien foreclosed in this action, was primarily liable on these notes which he failed to pay. He and Lovelace, the original purchasers, had sold the lot in controversy by warranty deed to Hawkins and Cheshire, and they in turn by warranty deed had sold the lot to the appellants. All these parties were before the court. Bush was liable on his warranty to Hawkins and Cheshire, and they in turn were liable on their warranty to the appellants. The appellants’ exceptions, as already stated, were and should have been treated as a complaint against Bush and Lovelace and appellants’ immediate grantors, to establish a trust and to hold Bush and Lovelace and appellants’ immediate grantors liable on their warranty. Under the issues and facts thus presented, the chancery court had complete jurisdiction to determine the cause with respect to the rights and equities of all the parties in interest. When Bush sold the land by warranty deed, he became liable to those who deraigned title from him to make his title good. Therefore, when he failed to pay the notes on .which he was liable for the original purchase money, and thus permitted the land to be sold, and acquired title to the same by purchasing at the’foreclosure sale, he became in reality a trustee to those who deraigned title under him. To hold otherwise would enable him to perpetrate a fraud upon them. Section 1498 of C. & M. Digest provides; “If any person shall convey any real estate by deed, purporting to convey the same in fee simple absolute, or any less estate, and shall not at the time of such-conveyance have the legal estate in such lands, but shall afterwards acquire the same, the legal or equitable estate afterwards acquired shall immediately pass to the grantee, and such conveyance shall be as valid as if such legal or equitable estate had been in the grantor at the time of the conveyance.”

In Haskell v. Patterson, 165 Ark. 65, 262 S. W. 1002, we quote from Mr. Pomeroy as follows; “Constructive trusts include all those instances in which a trust is raised by the doctrines of equity for the purpose of working out justice in the most efficient’ manner, where there is no intention of the parties to create such a relation, and, in most cases, contrary to the intention of the one holding the legal title, and where there is no express or implied, written or verbal, declaration of trust. They arise when the legal title to property is obtained by a person in violation, express or implied, of some duty owed to the one who is equitably entitled, and when the property thus obtained is held in hostility to his beneficial rights of ownership. As the trusts of this class are imposed by equity, contrary to the trustee’s intention and will, upon property in his hands, they are often termed trusts in invitum. ” Continuing, the learned author further says: “An exhaustive analysis would show, I think, that all instances of constructive trusts, properly so called, may be referred to what equity denominates fraud, either actual or constructive, as an essential element, and as their final source. Even in that single class where equity proceeds upon the maxim that an intention to fulfill an obligation should be imputed, and assumes that the purchaser intended to act in pursuance of his fiduciary duty, the notion of fraud is not invoked, simply because it is not absolutely necessary under the circumstances; the existence of the trust in all cases of this class might be referred to constructive fraud. * * * Certain species of the constructive trusts arise from actual fraud'; many others spring from the violation of some positive fiduciary obligation ; in all the remaining instances there is, latent perhaps, but none the less real, the necessary element of that unconscientious conduct which equity calls constructive fraud. ’ ’ Pharr v. Fink, 151 Ark. 305, 237 S. W. 728; Bragg v. Hartneg, 92 Ark. 55-59; 26 R. C. L., p. 1232.

Under the above statute and the doctrine of constructive trusts announced by Mr. Pomeroy, the purchase by Bush of the lot in controversy should be treated by him as h redemption of the land from the foreclosure sale for the benefit of those who deraigned title under him, and he should be declared a trustee of such title, holding the same for their benefit. The decree is therefore reversed, and the cause is remanded with directions to the chancery court to require the appellee Bush to make good his warranty by conveying the lot in controversy to the appellants, and, if not, by such other appropriate orders as may be necessary for that purpose.


text:
    Stewart-McGehee Construction Company v. Brewster and Riley Feed Manufacturing Company (2 cases).
    Opinion delivered May 24, 1926.
    1. Mechanics’ liens — right to recover on contractor’s bond.— Materialmen are entitled to recover on a contractor’s bond executed under Crawford & Moses’ Dig., § 6912, without filing liens within 90 days after materials were furnished, provided suits were brought before time has expired for establishing their liens.
    2. Mechanics’ liens — contractor’s bond — privity.—Where a contractor’s bond given to the owners for the -faithful performance of the contract provides that it shall he for the benefit of those furnishing labor or materials, they may maintain an action thereon, though they are not directly parties to the bond.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    affirmed.

      Abner McGehee, for appellant.

      Rowell & Aleocmder and Harry T. Wooldridge, for appellee.
   Wood, J.

These were separate actions filed in the Jefferson Circuit Court by the appellees, material furnishers, against the appellants. The complaints alleged, in substance, that the respective plaintiffs had furnished material to one J. C. Shepherd, which material was used in the Hippodrome Theater building in the city of Pine Bluff, and which material had not been paid for; that Shepherd was a subcontractor of the Stewart-McGehee Construction Company, hereafter called company, and had a contract for building the theater; that the company was liable to the appellees under a bond containing the following provisions, to-wit: “That we, StewartMcGehee Construction Company, a corporation, as principal, and the Fidelity and Deposit Company of Maryland, Baltimore, Md., as surety, are held and firmly bound unto the State of Arkansas, for the use of the Hippodrome Theater Company, a corporation incorporated under the laws of the State of Louisiana, its successors and assigns, and all persons in whose favor liens might accrue, under chapter 110 of Crawford & Moses’ Digest of the Statutes of Arkansas, including all subcontractors, laborers, workmen, mechanics and material furnishers, and other persons having claims which might be the basis of liens, both jointly and severally, as their interests may appear, in the full s.um of three hundred and twenty-four thousand dollars ($324,000) lawful money of the United States of America, for the payment whereof, well and truly to be made, we bind ourselves, our heirs, administrators, executors, assigns and successors.”

The company demurred and answered. It denied liability, and set up that the appellees had failed to file with the clerk of Jefferson County an itemized statement of account for the material alleged to have been furnished by them, duly verified. The causes were by consent consolidated for trial and tried by the court sitting as a jury. After hearing the testimony, the court rendered judgments in favor of the appellees.

The only question presented by this appeal is whether or not the company is liable under the provisions of its bond. No issue is raised as to the amounts of the judgments. The company contends that it is not liable because the appellees failed to comply with the provisions of § 6922 of C. & M. Digest, requiring them to establish their liens by filing with the circuit clerk of the county in which the building is situated, within ninety days after the material was furnished, a just and true account of the demand due and owing them, etc. Section 6912 of C. & M. Digest is as follows: “The principal contractor may execute a bond to the State of-Arkansas, for the use of all persons in whose favor liens might accrue, under § 6906 et seq., conditioned for the payment' of all claims which might be the basis of liens; which bond shall be in a sum of not less than double the amount of the contract price, with good and sufficient sureties, whose qualifications -shall be verified, and such sureties shall be approved by the clerk of the -circuit court in the county in which the property is situated, and may file such bond in the office of said clerk; provided, that if such bond is not filed, all laborers, mechanics,. and material furnishers, except the principal contractor, shall have a lien for the unpaid amount of their claims against the building erected and improved and against the lot of ground upon which the -same is situated, and provided in this chapter. Provided, that if the owner shall require the contractor to execute bond, and the same shall be executed, approved and filed, as herein provided, he shall not be liable, nor shall the building, erection or improvements, nor shall the lot or ground upon which the same is situated, be liable for any sum or sums of money due subcontractor, laborers or materialmen because of any work done, labor performed, or material furnished in the erection of said building erected, o.r improvements under contract with said principal contractor or subcontractor. Suit may be brought on said bond by any person interested. ’ ’

Section 6922, supra, requiring liens to be established, is § 11 of the comprehensive lien law enacted April 20,1895. -Section 6912, supra, permitting the principal contractor to execute a bond for the usé of all persons in whose favor liens might accrue, is the first section of act 446 of the Acts of 1911, enacted June 2,1911. The provisions of the last enactment show that it was an amendment to the prior lien law, related to the same subject-matter, and is m pari materia. Therefore, to ascertain its meaning, it must be construed in connection with the provisions of chapter 110 of C. & M. Digest, relating to mechanics’, laborers’ and material furnishers’ liens. Pope v. Nashville, 131 Ark. 429-437; State v. Boney, 156 Ark. 169-174; McIntosh v. Little Rock, 159 Ark. 607-610. See also Beloate v. Baker & Co., 126 Ark. 67-71. Giving dne consideration to the above rule for the construction of the statute, we are convinced that it was the intention of the Legislature to provide an entirely different method to be pursued by the owner, the contractor, and the person in whose favor liens might accrue under the provisions of chap: 110, § 6906, C. & M. Digest, for the establishment, security and payment of claims, than that to be pursued under that chapter prior to the enactment of act 446, supra.

It will be observed that it is not obligatory upon the owner of the improvement to require the principal contractor to executé a bond. He may do so or not, as he deems to his interest. Likewise, the contractor • is not required by virtue of the law to execute a bond. He may refuse to do so. It is entirely a matter between the contractor and the owner as to whether the bond provided by statute shall be executed. But, where such bond is required by the owner and executed by the principal contractor, then the persons for whose use and benefit the bond is executed (§ 6906 supra) must look to the bond as their security for the payment of their claims, and not to a lien on the improvement. In other words, where the bond provided for under § 6912 of C. & M. Digest is not executed, those who are given a lien under § 6906, supra, must comply with the provisions of § 6922, supra, in order to avail themselves of the benefit of such lien; but, if the bond is executed as provided by § 6912, supra, then the parties having claims which might be the basis of liens do not have to comply with the provisions of § 6922, supra, in order that they may establish and obtain the payment of their claims. They must resort to the bond. But unless the beneficiaries under the statute institute suit on the bond before the time has expired for establishing a lien, then they have no claims which might be the basis of liens. Acme Brick Co. v. Swim, 168 Ark. 185. The language of § 1 of act 446 of the Acts of 1911, § 6912, supra, shows that, where the bond is executed pursuant to that section, the persons otherwise entitled to liens would no longer be entitled thereto, and hence would not have to comply with the provisions of § 6922, su-pra. Where the bond is executed ipso facto, the provisions relating to liens on the improvement are superseded, and no lien can attach. It occurs to us that no other meaning can be given the language, “provided, that if such bond is not filed, all laborers, mechanics and material furnishers, except the principal contractor, shall have a lien for the unpaid amount of their claim,” etc. This language necessarily implies that, if the bond is filed, then the persons named shall have no lien. Likewise such is the only meaning that .can be given the language that “if the owner shall require the contractor to execute bond, and the same shall be executed, proved and filed as herein provided, he shall not be liable, nor shall the building, erection or improvements, nor shall the lot of ground upon which the same is situated be liable,” etc. Since therefore no lien can be established and declared if the bond is filed, it necessarily follows— where the bond is filed — that the parties having claims do not have to comply with the requirements of § 6922, supra.

We have already in effect given the' statute the above construction in the case of Beloate v. Baker & Co., supra, where we said: “Section 1 (§ 6912 of C. & M. Digest), as quoted above, was- only intended to give the owner the privilege of requiring a bond so as to obviate liens of laborers and mechanics and material furnishers, and to give a lien on a building or other improvement in favor of subcontractors, laborers or materialmen for the full amount of their respective claims in the event the bond be not given.” See also Acme Brich Co. v. Swim supra. A like construction in other jurisdictions has been given statutes having a similar purport to our statute, as we construe it. See Bohn v. McCarthy, 11 N. W. 127; Martin v. Swift, 12 N. E. 201; Risse v. Hopkins, 40 Pac. 904.

Although learned counsel for the'company states in his brief that the only issue is as to whether or not the appellees can recover without complying with § 6922 supra, nevertheless he contends that the appellees had no right to recover on the bond for the reason that there is no privity of contract between the company and the appellees, inasmuch as the contract was between the appellees and J. C. Shepherd, who was a subcontractor of the company. We cannot concur with this view. It is conceded by the company that the bond was executed under the authority of § 6912 supra, and by its express terms the company, as principal, and the Fidelity & Deposit Company of Baltimore, Maryland, as its surety, ‘ ‘ are held and firmly bound unto the State of Arkansas, for the use of * * * and material furnishers and other persons having claims which might be the basis of liens, ’ ’ etc. This court, in a long line of cases, has ruled that, where a promise is made to one upon a sufficient consideration for the benefit of another, the beneficiary may sue the promisor for breach of his promise. Chamblee v. McKinzie, 31 Ark. 155; Talbot v. Wilkins, 31 Ark. 411; Heck v. Caughron, 46 Ark. 132; Thomas v. Prather, 65 Ark. 27; and several subsequent cases where the doctrine is recognized, among the more recent being Schmidt v. Griffith, 144 Ark. 28; Lesser-Goldman Cotton Co. v. Fletcher, 153 Ark. 17-34; Carolus v. Arkansas Light & Power Co., 164 Ark. 570.

The terms of the statute under which this bond was executed are written in the bond. See Brink v. Bartlett, 29 So. 958. The concluding sentence of § 6912, supra, is: “Suit may be brought on said bond by any person interested.” In 39 Ann. Cases, 757, the editors announce the doctrine as follows: “Where a contract- or’s bond given to the owner for the faithful performance of the contract contains an express provision that it shall be for the benefit of those furnishing labor and material, it is generally held that they may maintain an action thereon though they are not directly parties to the bond.” See also cases there cited. Our own court in Rieff v. Redfield School Board, 126 Ark. 474-479, construing a bond executed pursuant to this statute for the erection of a public school building’, which contained a provision that the contractor should pay “for all material and labor for the building,” held that the bond inured to the benefit of those furnishing the labor and materials, and that they could maintain , an action on the bond executed by the principal contractor and his sureties. It appears that these actions were not instituted within ninety days after the last item of material was furnished. Therefore at the time the actions were instituted appellees did not have claims which might be the basis of liens, and under the doctrine of Acme Brick Co. v. Swim supra, they have no right of action.

The judgments of the Jefferson Circuit Court are therefore reversed, and the causes are dismissed.


author: Hart, J.

text:
    Johnson v. State.
    Opinion delivered May 24, 1926.
    1. Homicide — sufficiency .of evidence. — Evidence held to sustain a conviction of voluntary manslaughter.
    2. Homicide — instructions as to self-defense. — An instruction as to self-defense is not open to a general objection that it fails to state that accused had the right to act upon the appearance of danger to herself and not as it appeared to the jurors, especially where another instruction contained such a statement.
    3. • Witness — examination.—It was within the court’s discretion to refuse to permit counsel for .accused to repeat, on redirect examination, questions in varying form which had been propounded on direct examination.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.

      Brundidge & Neelly, for appellant.

      H. W. Applegate, Attorney General, and John L. Garter, Assistant, for appellee.
   Hart, J.

Trudy Johnson prosecutes this appeal to reverse a .judgment of conviction against her for manslaughter.

On Sunday evening of the 24th day of January, 1926, Trudy Johnson engaged in a difficulty with Lillie Davis, near the depot at Kensett, in (White County, Arkansas, and killed her by cutting her with a knife.

According to the testimony of one of the witnesses for the State, Lillie Davis passed by Trudy Johnson at the station at Kensett, in White County, Arkansas, and Trudy said, “You had just as well come on across; I am going to ask you.” The witness did not know what Trudy was talking about, and Lillie did not answer her. Lillie went on into the station, and Trudy walked in behind her. When they got into the station, Trudy said, “I heard some cow was going to pull my hair.” Lillie Davis did not reply to this. When the parties first met, Trudy Johnson had an open knife in her hand, and had it hid under her coat.

According to the testimony of another witness for the State, she heard Trudy Johnson say to Lillie Davis, in the waiting-room at the station, that if any one wanted to pull her hair she was there. Lillie Davis did not reply. The parties then left the waiting-room and went out on the station platform. Trudy Johnson and Lillie Davis commenced to strike each other. When the last lick was passed, Trudy backed up and said: “Oh yes, you thought I was by myself. ’ ’ The witness did not see anything in the hand of Lillie Davis. After Trudy struck Lillie the last time, the latter walked four or five steps, and fell. She died soon afterwards. This witness did. not know who struck the first lick. Four or five licks passed. Lillie struck Trudy two licks, and Trudy struck Lillie two or three licks.

According to the testimony of another witness for the State, he heard one of the parties ask the other what she was going to do about it, and the latter then asked the former what she was going to do. Lillie Davis was the larger of the two women, and hit Trudy Johnson first. Trudy Johnson fell hack, and then rushed back to Lillie Davis and struck her. She struck her three times. Then Lillie Davis started to walk off. Trudy Johnson ran away after striking Lillie Davis the third time..

On cross-examination this witness said' that Lillie Davis Struck Trudy Johnson with her fist, and that. Trudy staggered back. Trudy Johnson straightened up, and then began to strike at Lillie Davis. She struck her three times. Lillie Davis struck at' Trudy 'the second time, but the witness does not know whether or not she hit her. Trudy Johnson was stabbing Lillie Davis with a knife while she was striking at her. Lillie Davis had one cut on the face, and was stabbed in the left breast. She died in a few minutes after she was stabbed with the knife by Trudy Johnson.

According to the evidence for the defendant, she was a small woman, weighing about 115 pounds, and Lillie Davis was a large woman, weighing about 175 pounds. Both of them were colored, and most of the witnesses are colored people. According to the testimony of Trudy Johnson, Lillie Davis called her a whore,-and struck her twice before she struck back. She was staggered by the blow of Lillie Dávis, and, happening to remember that she had in her pocket a knife with which she had been picking out nuts, she pulled it out and stabbed Lillie Davis for the purpose of protecting herself' The defendant cut Lillie Davis with a knife because she thought that Lillie Davis had a knife in her hand and was trying to cut her with it.

The jury returned a verdict of guilty of manslaughter, and fixed the punishment of the defendant at five years in the penitentiary.

It is not necessary to discuss or review the evidence. A mere recital of the substance of the evidence for the State shows that it fully warranted the verdict of the jury. It is earnestly insisted, however, by counsel for the defendant that the court erred in giving instruction No. 4, which reads as follows:

“You are instructed that no one resisting- an assault made upon her in the course of a sudden brawl' or quarrel, or upon a sudden encounter, or in a combat in a sudden quarrel, or from anger suddenly aroused at the time it is ma,de, is justified in taking the life of the assailant, :unless she is so endangered by such assault as to make it necessary to kill the assailant to save her own life or to prevent a great bodily injury, and she employed all the means in her power, consistent with her safety, to avoid the danger and avert the. necessity of the killing. The danger must apparently be imminent and actual, and she must exhaust all means within her power, consistent with her safety, to protect herself, and the killing must be necessary to avoid the danger. If, however, the assault is so fierce as to make it apparently as dangerous for her to retreat as to stand, it is not her duty to retreat, but she may stand her ground, and, if necessary to' save her own life or to prevent a great bodily injury, slay her assailant.”

It is insisted that the -instruction is erroneous because it does not in any part of it provide that the accused might act upon what might reasonably appear to her, from the circumstances -surrounding her, to be her danger at' the time she stabbed the deceased with, her knife.

' It is true that we have many times held that the right of ah individual to fight in self-defense arises from his belief for the necessity óf it, and not from the belief of the jury as to the necessity for it. Smith v. State, 59 Ark. 132, and Scroggin v. State, 109 Ark. 510, and cases cited.

In this connection, however, it may be stated that the court gave instruction No. 3, which reads -as follows:

“You are instructed that the right of self-defense is founded solely on the principle of necessity, and before this plea-is available in this case it must have appeared to the defendant, acting without fault or carelessness on her part, not only that danger to her at the hands of deceased was imminent, but that it was so pressing and urgent that, to save herself from immediate death or great bodily harm at the hands of the deceased, the killing of the deceased was necessary. ’ ’

It.will be observed that in this instruction the jury is expressly told that the defendant might act upon the appearance of danger to herself. Instructions Nos. 3 and 4 were given together, and the court is not required to declare the whole law in one instruction. When the two instructions are considered and read together, they bring the case within the rule announced in George v. State, 148 Ark. 638, and other decisions of this court on the question.

In this connection it may be stated that a general objection was made to the instruction, and, if counsel for the defendant thought that it would tend to confuse or mislead the jury in the respect now complained of, they should have made a specific objection to the instruction, and doubtless the court would have inserted a clause in it that the defendant had a right to act upon the appearance of danger to herself,' and not as it appeared to the jury. See Youngblood v. State, 161 Ark. 144.

What we have said with regard to instruction No. 4 applies with equal force to the objection made to instruction No. 5 given on behalf of the State, and we do not deem it necessary to set out instruction No. 5 in the opinion.

A reversal of the .judgment is also asked upon the failure of the court to give three instructions requested by the defendant. We do not deem it necessary to set out these instructions. They are either argumentative in form, or were fully covered by the instructions given by the court.

In this connection it may be stated that the defendant was indicted for murder in the first degree, and the court expressly told the jury that the evidence was not sufficient to sustain either murder in the first degree or murder in the second degree. The court then proceeded to read the statute defining manslaughter, and fully and fairly covered the respective theories of the State and of the defendant upon this phase of the case.

The jury was also fully instructed upon the subject of self-defense and of reasonable doubt. In our opinion no prejudice could have resulted to the defendant from the instructions given by the court, or in refusing those asked by the defendant.

It is next insisted that the court erred in the exclusion of testimony. This assignment of error is predicated upon a colloquy between the court and one of the counsel for the defendant during the examination of a witness for the defendant. After the witness had been examined by counsel for the defendant and cross-examined by the prosecuting attorney, the witness was again subjected to a redirect examination by counsel for the defendant. iWe copy from the examination of the witness by counsel for the defendant the following:

“Q. Do I understand you to tell the jury that, when Lillie Davis hit Trudy, Trudy staggered back — is that right? A. Tes sir. Q. And that Lillie Davis followed her up ? Mr. Yingling: That is not what she says now. Court: The objection is sustained. Q. State what Lillie Davis did after she hit Trudy? A. When she hit Trudy the first time and Trudy staggered back? Q. Yes, what did Lillie Davis do then? A.. Lillie Davis went up on her. Q. Now, that is what I said. Court: You put it in her mouth. Mr. Brundidge: I didn’t put it in her mouth, if the court please. The Court: The court heard the suggestion put in the witness’ mouth, and the jury will disregard that answer. Mr. Brundidge: Save my exceptions, if the court please. I want to say this to the court: I have never put anything in that witness ’ mouth. Court: Sit down, sit down; don’t say any more. Mr. Brundidge: I want to be respectful to the court, but I want the court at the same time to be respectful to me. Court (vigorously pounding with gavel): I asked you respectfully to please sit down. Mr. Brundidge: I want the court to treat me properly. I except.”

On re-cross examination the witness again stated that Lillie ran into Trndy and struck her, and that she did not know whether Lillie had a knife or not. She had already been permitted to testify, in direct examination and upon cross-examination, the details of the difficulty as she saw them. She was permitted to state that Lillie Davis hit Trudy Johnson first, and then that they both began to strike each other. The witness stated several times that Lillie Davis hit Trudy Johnson first.

The jury could not have been misled by the action of.the court, and the ruling of the court simply means that an objection was sustained to the form in which the question was being asked the witness after she had already stated in detail just how the difficulty began and ended. It was a matter within the souiid discretion of the court not to allow counsel for the defendant to repeat the same questions in varying form. In other words, it was within the discretion of the court to refuse to permit questions of the same purport as those already asked to be repeated. Greathouse v. State, 166 Ark, 206.

We find no reversible error in the record, and the judgment will therefore be affirmed.