author: Mehaeey, J.

text:
    Simmons v. State.
    Opinion delivered October 12, 1931.

      Walter A. Isgrig and Elmer Sahoggen, for appellant.

      Hal L. Norwood, Attorney General, and Robert F. Smith, Assistant, for appellee.
   Mehaeey, J.

Appellant and one J. it. Graham were jointly indicted for murder in the first degree. They were charged with killing one Elgin Jordan. Graham pleaded guilty, and appellant was tried in the Pulaski Circuit Court and convicted of murder in the first degree, and his punishment fixed at life imprisonment in the penitentiary. Appellant prosecutes this appeal to reverse the judgment of the circuit court.

The appellant, who was twenty-four years old, lived in North Little Rock, was married, and his occupation was electrical helper. According to appellant’s testimony, he had never been in trouble before this except on two whiskey charges.

There had been a robbery of the Engieberger Cafe, but the evidence is in conflict as to whether appellant participated in. this robbery. Appellant bad known Graham, according to his testimony, four or five months.. On the morning that Jordan was killed, appellant had gone near Moore’s houseboat, he said, to meet a woman. He saw Graham at that time, and he testified that Graham asked Mm to carry Mm somewhere, as he had several times before.

He returned to where Graham was, Graham asked him to wait a minute, and then Graham went into a little tool shack, and came out pulling down his pocket. Jordon was there, and he and Graham came up to the car. Graham got in the front seat and Jordan in the rear. Graham told appellant to drive out the 19th Street Pike, and while they were driving, they talked about money matters, and Graham said it was not right if Westerman owed Jordan part of the money, and that he ought to pay him,, and that when he got out there he’d see that Westerman gave Jordan his part. According to appellant’s testimony, they turned off the pike and drove a short distance and Graham told appellant to wait, that they would be back in a few minutes. When Graham told appellant they had reached the place, appellant stopped the car, and Graham and Jordan walked off together.

Graham came back to the car alone, and he and appellant came back to the city. Several days after this Jordan’s body was discovered, and the examination showed two gun shot wounds that had caused his death. One bullet entered behind the left ear, ranged downward through the neck, coming out below the right ear. The other bullet entered below the left shoulder blade and passed through the body. Other evidence will be referred to in the opinion.

Appellant first contends that the evidence is .insufficient to warrant a conviction of murder in the first degree. The evidence shows that appellant and Graham were associates, frequently together both before and after the killing of Jordan. A short time before the killing of Jordan, Graham and others had robbed the Engleberger Cafe in North Little Rock. Graham testified that the appellant was involved in this robbery. Graham also ■ testified that he and Westerman divided the money.

On the day of the killing of Jordan, appellant and Graham got in the front seat of the automobile and Jordan got in the back seat. They drove several miles out the Hot Springs Pike and left the pike and drove some distance and were gone a short time and Graham and appellant returned to the city in the car without Jordan. A few days thereafter Jordan’s body wad found, and two gun shots were in the body, either one of which would have killed him. The physician testified that the wound in the head killed him, but that if he had not been shot in the head, the other one would have killed him. Appellant and Graham were constantly together thereafter until Graham was arrested.

Graham testified that he did not know who killed Jordan. The appellant testified that Jordan and Graham left the car and went a few yards away, out of sight of the car, and that he heard two shots, and that Graham came back to the car and said that he had killed Jordan. This testimony of appellant is contradicted by Graham. If it occurred like appellant said it did, then Graham did know who' killed Jordan. The statement of Graham that he did not know who killed Jordan could only mean that he and appellant both shot him, and that he did not know which one killed him. It cannot mean anything else, because, if Graham went out with Jordan alone, and fired both’ shots, he of course knew who killed Jordan.

The jury had a right to believe that Graham’s statement was true, and that both Graham and appellant shot Jordan and that he did not know which one killed him. The jury may have believed that appellant and Graham thought Jordan knew too much about the cafe robbery and that they together took Jordan to the place where he was killed and that both of them shot him.

The undisputed proof shows that Jordan was claiming some of the money, and Graham, according to the evidence, was going to make Westerman pay Jordan some of the money. The circumstances and evidence very strongly indicate that both Graham and appellant drove Jordan out into the woods and killed him. There was ample evidence to justify the jury in believing that both of them took part in the killing.

Another assignment of error relied on is the court’s refusal to grant a peremptory instruction. This request for a peremptory instruction was of course based on the theory that the evidence was insufficient to support the verdict, and is the same as his first assignment of error. Wha.t we have just said answers this contention.

It is next contended that the court erred in refusing to furnish a full and complete panel of twenty-four jurors. The record shows that the appellant announced ready for trial, and waived arraignment and formal drawing of a jury, and entered a plea of not guilty. The record also shows that, during the examination of the regular panel for the purpose of selecting jurors to try the case, the name of Mrs. N. M. Harrison was called for examination, and the clerk announced that Mrs. Harrison had been excused, whereupon the following occurred: Mr. Isgrig: “How many jurors are on the panel?” Mr. Gladden (clerk): “There are twenty-one.” Mr. Isgrig: “I want a full panel of 24 jurors and I won’t proceed until it is completed, I am entitled to a panel, and I won’t proceed further until I get it. ’ ’ Court: ‘ ‘ The request is denied.” Mr. Isgrig: “I except.”

“The statute provides that by consent of the parties, the drawing of the jury may be waived, in which case the whole panel may be sworn, examined, and disposed of as provided in the preceding section.” Crawford & Moses’ Digest, § 3146.

The preceding section referred to provides that when the panel is exhausted, bystanders may be summoned. We think these two sections clearly show that when the drawing of the jury has been waived the defendant is not entitled to a full panel of 24 jurors.

Section 3144 of Crawford & Moses’ Digest provides for the method of selection in felony cases. In construing these §§, 3144 and 3146, of Crawford & Moses ’ Digest, this court said: ‘ Our construction is that it is only necessary to have 24 names in the box when a drawn jury is not waived. In this case appellant waived a drawn jury. The waiver was tantamount to saying to the court that there was no necessity for filling np the panel until the qualification of each of the 12 .jurors in the box was passed upon and until the State and appellant should exercise such number of their peremptory challenges as each might desire.” Bohannon v. State, 160 Ark. 431, 254 S. W. 683.

This court also recently said: “When the case was finally called for trial, appellant announced ready and proceeded with the impaneling of the jury without asking for a drawn jury until a portion of the jury had been selected and accepted. The question was raised that there had been no formal arraignment, and, appellant then refusing to plead, the court entered on the docket a waiver of arraignment and a plea of not guilty. It was then that appellant’s counsel asked for a drawn jury. It was too late then to make the request, for appellant had, by proceeding with the selection of the jury without a formal arraignment, waived both the arraignment and. the right to have a drawn jury.” Herring v. State, 170 Ark. 352, 280 S. W. 353.

The record in the instant case shows that the appellant waived arraignment and formal drawing of a jury and entered his plea of not guilty. His request for a full panel therefore came too late.

Appellant’s next contention is that the court erred in permitting the introduction of immaterial and irrelevant photographs and enlargements thereof. The objection to the photographs was that they were immaterial and do not shed any light on the case as to defendant’s guilt or innocence and that they were introduced for the purpose of inflaming the minds of the jury. The photographs introduced in this case were shown to have been accurately taken and to correctly represent what they were intended to show. This court stated the rule with reference to the introduction of photographs as follows: “As a general rule photographs are admissible in evidence when they are shown to have been taken accurately and to be correct representations of the subject in controversy and are of such nature as to throw light upon it.” Sellers v. State, 91 Ark. 175, 120 S. W. 840; Washington v. State, 181 Ark. 1011, 28 S. W. (2d) 1055; Nicholas v. State, 182 Ark. 309, 31 S. W. (2d) 527.

The appellant objected to the introduction of the confession or statement that he had made after being arrested. He contends that the court erred in. permitting this to be introduced in evidence. The confession was substantially the same as appellant’s testimony at the trial, and therefore the appellant was not prejudiced by the introduction of the statement. The appellant testified that the statement was voluntarily made, and that no promises of any kind were made to him and no threats were made, and appellant does not contend that the confession is not true.

The appellant contends that the court erred in permitting a continued reopening of the case. The record does not show any reopening of the ease, but there was a recall of witnesses and evidence introduced, but all this was done before the appellant introduced any evidence, and the case had not been closed. But the reopening of the case, either for the re-examination of a witness or the taking of further testimony after the testimony on both sides has been concluded, is a matter within the sound discretion of the court.

The statute reads as follows: “A -witness once examined cannot be re-examined as to the same matter' without leave of the court. But,he may be re-examined' as to any new matter upon which he has been, examined by the adverse party. After the examination on both sides is concluded, the witness cannot be recalled without leave of the court.” Crawford & Moses’ Digest, § 4190; Whittaker v. State, 173 Ark. 1172, 294 S. W. 397; Teel v. State, 129 Ark. 180, 195 S. W. 32; Smith v. State, 162 Ark. 458. 258 S. W. 349.

Appellant contends that the court erred in refusing to instruct the jury on the different degrees of manslaughter. The court properly refused the request of appellant to instruct the jury on the different degrees of manslaughter because under the evidence the appellant was either guilty of murder in the first degree or innocent. There is no evidence in the record to justify an instruction on the other degrees of homicide.

This court recently said, in discussing the refusal of the lower court to instruct on the lesser degrees of homicide: “We do not think that this assignment of error is well taken. There was no evidence to establish a lesser degree of homicide than murder in the first degree. The evidence shows that the defendant, if guilty at all, was guilty of murder in the first degree; and it was not error for the court to refuse to give instructions authorizing the jury to return a verdict of guilty of one of the lesser degrees of homicide when there was no evidence upon which to base such instructions.” Washington v. State, 181 Ark. 1011, 29 S. W. (2d) 1055; Clark v. State, 169 Ark. 717, 276 S. W. 849; Harris v. State, 170 Ark. 1073, 282 S. W. 680.

Appellant contends that the court erred in its refusal to instruct the jury on the question of appellant’s being an accessory. As we have already said, the evidence in this case shows that the appellant was either guilty of murder in the first degree or innocent. This court said: “One present, aiding and abetting in the commission of a felony, formerly a principal in. the second degree is under the statute responsible for the result of the act done as though he had done it himself, a principal offender, and must be indicted and punished as such; and in charging appellant with having stabbed the deceased with a knife, his act was stated according to its legal effect.” Parker v. State, 169 Ark. 421, 275 S. W. 758; Crawford & Moses’ Dig., 2308-2309.

Appellant contends that the court erred in giving an argumentative instruction. In the instruction objected to the court simply told the jury that it was not necessary to prove motive in order to warrant conviction.

The court continued in its instruction as follows: “It may happen that there are no external conditions-capable of proof of express malice, but the prosecution does not necessarily fail for that reason,.” The part quoted is the part objected to by appellant. There was no error in giving this instruction. Floyd v. State, 181 Ark. 185, 25 S. W. (2d) 766.

The other instructions objected to by defendant were instructions defining murder and malice given in all cases where the charge is murder in the first degree, and have been many times approved by this court.

It is finally contended by the appellant that W. A. Howell, one of the jurors, was not a fair and impartial juror. The affidavit of one D. M. Phillips was introduced to the effect that Howell had stated that Charley Simmons was a crook and a law violator. The statements in this affidavit were contradicted by Howell. The finding of the trial court on this conflicting evidence will not be disturbed by this court. Cabe v. State, 182 Ark. 49, 30 S. W. (2d) 855.

The trial court did not abuse its discretion. Pendergrass v. State, 157 Ark. 364, 248 S. W. 914. We find no error, and the judgment is affirmed.


source: Caselaw Access Project

author: McHaney, J.

license: Public Domain

text:
    Little Rock v. Holland.
    Opinion delivered October 12, 1931.

      Limoood L. Rrickhouse, for appellant.

      Geo. A. McConnell and Graham R. Hall, for appellee.
   McHaney, J.

The only question presented by this appeal is whether the city of Little Rock, in the operation ■ and maintenance of an electric light plant and distributing system, including necessary poles and wires, for the sole purpose of lighting its streets, alleys, public buildings and grounds, acts in a proprietary, corporate capacity, to which liability for negligence attaches; or whether it acts in its governmental capacity, on which no liability for' negligence of its agents or servants may be predicated.

Appellee, an electric lineman in the employ of the city was sent out alone by his superior to remove a pole in the city’s electric line. He climbed the pole, after an inspection, to remove the wires therefrom, and, when he had reached the top, it broke because of a rotted condition beneath the surface of the ground, causing him to fall and receive painful and permanent injuries. Negligence was alleged by reason of the failure of his superior to inspect the pole or to warn him of its dangerous condition, in failing' to furnish him a safe place to work, and in not sending another to assist him. A demurrer to the complaint was interposed and overruled. A trial resulted in a verdict and a judgment for appellee for $1,000. Is the city liable for the negligence of its agent or officer as alleged in this respect?

It is conceded that the city owns and operates its light plant and distributing system for the sole purpose of lighting its streets, alleys, public buildings, parks and grounds, and that it sells no current to private consumers or otherwise.

At the outset we desire to commend the diligence of counsel for both parties in the preparation of the excellent briefs submitted to us. An exhaustive review of our own decisions touching on the question, as well as a great collection from other jurisdictions, has been made. We find it unnecessary, however, to go beyond our own cases to determine the question involved, as we feel the principle has been well settled by many decisions of this court. We will not undertake to review them, all, but only enough of them to show that the principle has been decided.

As early as Granger v. Pulaski County, 26 Ark. 37, it was held that counties are quasi corporations, and that they possess no power and incur no obligations, except conferred or imposed by statute, and that they are not liable, in a private action by the party injured, for the negligence of their officers, unless authorized by statute. At the conclusion of the opinion the" court pointed out a distinction between counties and municipalities and rather indicated that had the action been against a municipality, instead of a county, that the municipality would be answerable, and held to a performance of its corporate duties. Granger and wife sought damages for injuries received by reason of a defect in a public highway, a defective bridge. It was denied.

Whatever distinction between liability of counties and cities the court pointed out in the Granger case, supra, has been lost sight of by this court in its later decisions. For instance, in Arkadelphia v. Windham, 49 Ark. 139, 4 S. W. 450, 4 Am. St. Rep. 32, it was held that a municipality is not liable for nonfeasance in failing to put the streets in repair, or in failing to keep them in repair, Ft. Smith v. York, 52 Ark. 84, 12 S. W. 157, in the absence of a statute imposing such liability. But in the earlier case of Mayor of Helena v. Thompson, 29 Ark. 569, it was held that the city was liable for the misfeasance of its officers caused by raising the grade of a street, thereby changing the natural channel of a stream, and in failing to provide other means of sufficient capacity to carry off the water so diverted, which flooded Thompson’s land. This court, in Collier v. Ft. Smith, 73 Ark. 447, 84 S. W. 480, 68 L. R. A. 237, pointed out the distinction between the two lines of cases in this language: “There is no necessary conflict between the earlier case (29 Ark.) holding the city liable for misfeasance of its officers and servants and the two later cases (49 Ark. and 52 Ark.) holding that cities and towns are not liable for nonfeasance. This distinction is not without reason, for, in the absence of a statute expressly imposing liability to individuals for nonperformance of a duty to the public, none will be implied, though liability might be implied from the commission of a positive wrong whereby an individual might suffer injury. Nor is this distinction without high authority to support it.” Citing cases. In the Collier case damages were sought for injuries sustained because of an obstruction placed in one of the public streets of the city and permitted so to remain overnight without displaying a red light or other danger signal, and by reason of which plaintiff was thrown from his horse and injured. A recovery was denied. In that case the court recognized the distinction “between act and duties of a municipal corporation which are strictly public and governmental in their nature and those of a private or quasi private nature.” It has been generally held that in the former there is no liability, whereas in the latter there is, and it was held that the management and control of highways by cities was of the former class.

In Brown v. Bentonville, 94 Ark. 80, 126 S. W. 93, it was held that the maintenance and operation of waterworks by the city are governmental functions, and that the discretion of the city council is not subject to control-by mandatory injunction. In Board of Imp. Sewer Dist. No. 2 v. Moreland, 94 Ark. 380, 127 S. W. 469, 21 Ann. Cas. 957, it was held that a sewer district is a quasi public corporation: “In other words, they are agents of the State to which certain powers and duties of a public nature have been delegated, but which can only exercise the corporate -functions which the statute has expressly conferred upon them. Public quasi corporations are created with limited statutory powers, and the general rules, as respects the question of liability to individuals for the negligence of their officers or agents, is that no such liability attaches unless expressly provided by statute.” Citing cases.

Prom the foregoing cases we may deduce the following principles as being well settled:

1. That a municipality is not liable for the nonfeasance of its officers and agents.
2. That a municipality is not liable for the negligence of its officers and agents in the performance of a governmental function.

We think unquestionably the city of Little Rock, in lighting its streets, public buildings and grounds, is engaged in the performance of a necessary governmental function, necessary for the convenience and safety of the public, not onLy of its own citizens, but of all others who may be visitors therein, for the prevention of crime, for the apprehension of criminals and for other purposes. If the maintenance and operation of waterworks, the maintenance and operation of sewers, and building and repair of streets are necessary governmental functions, for which municipalities are not liable for the negligence of its officers and agents, it is difficult to perceive why the same rule should not apply to-the facts in this case. We hold that it does. Appellee bases his action upon the failure of his superior to perform a duty, a mere act of nonfeasance, for which the city is not liable., and for negligence in the performance of a governmental function for which the city is not liable.

The court therefore erred in overruling the demurrer and in submitting the case to the jury. The judgment will be reversed, and the case dismissed.


text:
    Ross, Graham and Logan v. State.
    Opinion delivered October 12, 1931.

      Evans <& Evans, for appellants.

      Hal L. Norwood, Attorney General, and Robert V. Smith, Assistant, for appellee.
   McHaney, J.

The prosecuting attorney filed with the clerk of the circuit court,- on June 19, 1931, three separate petitions, one against each appellant, to abate as a nuisance the business of each appellant. It was alleged that they were operating “snooker” halls or parlors in Booneville, in violation of the laws of the State; that gambling was permitted; that children under the age of 18 were permitted to play and loiter therein; that “snooker” parlors are in fact pool rooms operated under that name as a shield from its reality; that the reputation of such places is bad, and that they are kept open late at night, all to the detriment of public morals and welfare of the citizenship of Logan County and the State of Arkansas. Further “that they are truly a public nuisance.” An order was prayed abating each of them as a nuisance. A demurrer was interposed by each appellant challenging the sufficiency of the petition and the jurisdiction of the court to abate their places of business as a nuisance on the said petition, which was overruled by the court. Motions were thereupon made to transfer to equity and overruled. Separate responses were filed denying all the allegations of. the petition, and request was made for trial by a jury, which the court also denied. The cases were consolidated, tried before the court, and a finding made against appellants that they were operating places of business which were public nuisances and should be abated. An order was made and entered directing the sheriff to close each place until the further order of the court, “and that the gambling devices, the pool tables, balls and cues be held by him until the regular August,. 1931, term of this court. ’ ’

This appeal challenges the validity of this order.

' The evidence taken on the trial, brought into the record by bill of exceptions, is not in conflict. It shows that “snooker” is a game very much like pool, played on a pool table with balls and cues, but with more balls, twenty, instead of fifteen, as in pool, and is a more scientific game. The charge made by the house is 5 cents per cue per game, and, by an arrangement between or among the players, the loser pays for the game,- with the knowledge and consent or acquiescence of the house. A few minors have been seen to play, but no drinking, vulgar or profane language is permitted, nor is gambling on the games allowed, except as it may be so in permitting the loser to pay for the game. Each appellant has been paying a small license charge to the city. This'is the substance of all the evidence.

It appears to us that, in effect, this is a suit in the circuit court by the prosecuting attorney in the name of the State, to enjoin appellants in the further conduct of their places of business as it is alleged they were conducted. Did the circuit court have jurisdiction1?

By act 469 of 1921, p. 993 of said acts, it is made unlawful “to operate for hire any billiard hall or pool room within three miles of any church or school in Logan and Craighead Counties.” A violation of this act is made a misdemeanor, punishable by fine of from $50 to $200, and each day’s operation is made a separate offense. It was found by the court that the game called “snooker” is a form of pool, and that the places so operated are pool rooms, and are in violation of said act above mentioned. Said act does not declare pool rooms to be public nuisances, nor does it attempt to confer jurisdiction on the circuit court to abate them. A violation of the act is made a misdemeanor, subjecting the misdemeanant to severe penalties, after a prosecution and conviction. This act, therefore, does not sustain the action of the court in this case.

It appears, however, that the circuit court relied somewhat on the decision of this court in Marvel v. State ex rel. Morrow, 127 Ark. 595, 193 S. W. 259, 5 A. L. R. 1458. But we fail to find there any support for the learned trial court’s action. The question there was the constitutionality of act 109, p. 408, Acts 1915, making the business of selling intoxicating liquors illegally in any building structure or place within this State a public nuisance, and enjoining upon the circuit and chancery courts of the State the duty-of abating them. The act was held valid, by a divided court, on the ground that no additional jurisdiction was conferred' on chancery courts by the act, but that a new condition had been prescribed upon which its ancient jurisdiction might be exercised. The court said: ‘ ‘ The act is remedial in its nature, and, while the Legislature cannot enlarge or restrict the jurisdiction of chancery courts, it is entirely within the province of the Legislature to prescribe the procedure •for the exercise of this jurisdiction, and to prescribe new conditions .under which that jurisdiction may be .exercised. The Legislature has not conferred the jurisdiction upon'the chancery court to abate public nuisances. This jurisdiction they have always had.” The court in that case distinguished its previous holdings in Hester v. Bourland, 80 Ark. 145, 95 S. W. 992; and other cases including Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980, from its then holding as above stated. In State v. Vaughan, 81 Ark. 117, 98 S. W. 685, it was held that, quoting syllabus, “Injunction will not lie at the instance of the State to restrain an indictable public nuisance, unless the nuisance is one touching civil property rights or privileges of the public, or the public health is affected thereby, or some other ground of equity jurisdiction exists calling for the injunction.” This-doctrine.was reaffirmed in Lyric Theater v. State, 98 Ark. 437. 136 S. W. 174. 33 L. R. A. (N. S.) 325.

. Whether the “snooker” parlors operated by appellants are in reality pool rooms, as the court found, cannot affect the matter, except that, if they are pool rooms, they may be prosecuted under the act above mentioned.- It appears, however, that they may be also operating a gambling device, under the decision of this court in State v. Sanders, 86 Ark. 353, 111 S. W. 454, 19 L. R. A. (N. S.) 913.

We conclude therefore that the circuit court was without jurisdiction in the premises, and the case will be reversed, and the proceedings dismissed.


author: Smith, J.

text:
    Krone v. Maestri.
    Opinion delivered October 12, 1931.

      Mill, Fitzhugh ■& Brizzolara, for appellant.

      G. L. Grant, for appellees.
   Smith, J.

This suit was brought by the trustees named in a deed of trust to foreclose that instrument. The testimony discloses the following facts: Leo Maestri operated a grocery business in a building owned by himself in the city of Ft. Smith, on which there was a mortgage not involved in this suit. To secure a number of creditors to whom he was indebted, Maestri executed the deed of trust here sought to be foreclosed. This instrument named the creditors and stated the amounts due them respectively, and Maestri did not deny the existence of this indebtedness. The deed of trust covered not only the stock of goods, but the trade fixtures, including a Frigidaire and a cash register, but a foreclosure is prayed only as to the trade fixtures and the Frigidaire and cash register. Buell and his wife, who were made defendants, bought an interest in the business, and later bought the entire interest of Maestri, and thereafter conducted the business in their own names.

The original purchase price of the Frigidaire was $595, and upon this Maestri owed a balance of $253.66. The original purchase price of the cash register was $495, and upon which Maestri owed a balance of $100.

The Frigidiare and the cash register had been sold under conditional sales contracts whereby the title was reserved until the purchase price had been jJaid. Buell paid the balance of purchase money due on both the Frigidaire and cash register and claims that he thereby became the owner of both.

The complaint filed to foreclose the deed of trust made the Buells, as well as Maestri, parties defendant, and it was alleged that a partnership composed of Maestri and the Buells had assumed the payment of the indebtedness secured by the deed of trust and had converted the goods which it described.

The complaint alleged that the trustees, on behalf of the creditors, had agreed to release a lien of the deed of trust on the stock of goods in consideration of the agreement of the Buells to assume and pay the debts secured by the deed of trust.

The Buells denied in their answer that they had agreed to assume the payment of the. existing indebtedness, but alleged that they took possession under an agreement with the trustees, referred to as Exhibit A, of which the following is a copy:

“Ft. Smith, Ark., Sept. 25, 1929.
“For the sum of two hundred sixty and no/100 dollars paid by John Buell we will release the stock of goods which was placed in the building by Leo Maestri and ■which was mortgaged to the creditors together with all fixtures in the building by Maestri.
. . “We, the undersigned trustees for the creditors, release the stock only.
“Grus Krone, Trustee,
“ J. A. Sipe, Trustee.”

As we understand the testimony and find the fact's to be, Buell now denies any liability under the instrument designated as Exhibit A, set out above, for the reason that it was never delivered and never became effective, although it is set out in the answer as the instrument and means under which he entered into possession of the property. It was also denied that the Buells have detained or claimed ownership of any of the fixtures except the Frigidaire and cash register, which Buell claims to have purchased from the original vendors by paying the balance of the purchase money due thereon. It was also alleged that they had requested the trustees to remove all the other trade fixtures from the building.

Certain cross-pleadings were filed by the Buells and Maestri against each other, which we need not consider, as they are not involved on this appeal. The complaint was dismissed as being without equity, and this appeal is from that decree.

We think the instrument referred to as Exhibit A must -be given effect, in so far as it obligated Buell to pay $260 for the release of the stock of goods from the mortgage, because the parties have acted under it, although the $260 therein referred to was never paid in the manner contemplated. But a sum in excess of this amount was paid by Buell when he paid the balance due on the Frigidaire and the cash register. This payment of the balance of the purchase price of the Frigidaire and cash register inured to the benefit of the partnership, because the contract evidenced by Exhibit A, under which, as we have said, the parties have acted, contemplated that the deed of trust given by Maestri which covered the Frigidaire and cash register, should subsist and continue in effect except as to the stock of goods.

The Buelis appear to have refused to assume the payment of the indebtedness secured by the deed of trust beyond the $260, and they cannot be held liable therefor, but such interest as they acquired in the Frigidaire and cash register was, for the reasons here stated, acquired subject to'the deed of trust.

There were transactions between Maestri and the Buelis which we need not recite, but it is not claimed that Maestri has paid his creditors the indebtedness which the deed of trust secured, and, as he does not deny this indebtedness, .judgment will be rendered against him for the amount thereof.


author: Butler, J.

text:
    Rogers v. Woods.
    Opinion delivered October 12, 1931.

      Buzbee, Pugh $ Harrison, for appellant.

      Robert Bailey and Chas. Mehaffy, for appellee.
   Butler, J.

This is an appeal from a judgment of $10,000 in favor of the appellee for injuries sustained on January 16, 1929, in a collision between a car driven by appellee and a truck driven by the defendant near Conway, Arkansas.

The sufficiency of the evidence is not questioned. The giving of instruction No. 6 at the request of plaintiff is the single assignment of error presented' and argued by appellant, which instruction is as follows:

“You are instructed that, if you find from the preponderance of the evidence in this case that the defendant or his employee was driving his truck .at a speed in excess of thirty-five miles an hour, that this is prima facie evidence of negligence and casts the burden upon the defendant to prove that he was exercising ordinary care notwithstanding the violation of this law. If yon further find from the preponderance of the evidence in this case that the defendant has failed to prove he was exercising ordinary care notwithstanding the violation of the law, and that said violation of the law was the proximate cause of the collision and the resulting injuries, if any, and that plaintiff was exercising ordinary care under •the circumstances, then you must find for the plaintiff.”

By § 4 of act 223 of the Acts of 1927, subdivision (a), the rule of conduct for persons driving- vehicles on the highway is prescribed, i. e., that he “shall drive the same (vehicle) at a careful and prudent speed not greater than is reasonable and proper having due regard to the traffic, surface and width of the highway,' and of any other conditions then existing, and no person shall •drive any vehicle upon a highway at such speed, as to endanger the life, limb, or property of any person.”-

By subdivision (b) of the same section it is provided ■that in all eases where the speed at which a vehicle is driven shall not exceed the speed limits specified in the act, the driver’s conduct shall be prima facie lawful.

By subdivision 8 it is provided that it shall be prima facie unlawful to exceed the speed limits, thirty-five miles per hour being the extreme limit.

Upon the foregoing statute is based the instruction of which complaint was made. As stated by the appellant, it creates no civil liability, but imposes a penalty for its violation. Yet an injured party, in seeking redress by common-law action, may base such action on the evidence found in its violation; and, as such action •is based not on the statute but on the evidence found in its violation, a literal adherence to its language is not essential, though perhaps to be desired.

According to the statement made in Huddy’s Enc. on Automobile Law, vol. 3-4, page- 61, the great weight of authority is to the effect that a violation of the statute . such as the -above is negligence per se, but in this State .the rule is that it is not negligence per se, but is'evidence of negligence (Mays v. Ritchie Gro. Co., 177 Ark. 35-37, 5 S. W. (2d) 728), which casts upon the defendant the burden of proof to establish a compliance with the .rule of conduct fixed by the statute, and which would be ordinary care within its meaning. Herring v. Bollinger, 181 Ark. 925, 29 S. W. (2d) 676.

In criticism of the instruction, counsel say: first, that it departs from the language of the statute in that it substitutes the words “prima facie unlawful,” for “prima facie evidence of negligence”; second, that it assumes that defendant violated the law; third, that it assumes that driving in excess of thirty-five miles per hour was negligence. Counsel suggest the- language in which the instruction should have been couched.

Under the statute, supra, the prima facie violation is driving in excess of thirty-five miles an hour. Unless, therefore, the driver establishes ordinary care on his part, driving in excess of thirty-five miles per hour violates the law and is evidence of negligence. When one introduces evidence rebutting the prima facie case of unlawful conduct, of course the fact that he was driving in excess of thirty-five miles per hour loses its probative value. The same proof which raises the presumption of an unlawful act creates the evidence of negligence, and the same proof which rebuts that presumption destroys the evidence created by it. So, it seems to us that the use of the words 11 prima facie evidence of negligence” was unnecessary, for, if they had been wholly omitted, the legal effect would have been unchanged, and stripped of its unnecessary words and arranged in proper order, an interpretation might be placed on the instruction considered as a whole that it did not assume a violation of the law or of defendant’s negligence and that the excess speed, if proved, without proof of the exercise of ordinary care on defendant’s part, established a violation of the law which was an evidence of negligence sufficient to fix liability, if the rate of speed was the proximate cause of the collision arid injuries provided plaintiff himself was not negligent. This seems to us to be the meaning of the instruction.

We have frequently held that wheré an instruction is imperfectly worded so as to be obscure or ambiguous, if the appellant is of the opinion that it might mislead the jury, he should by specific objection point out what he conceives the assumption of fact to be and the inaccuracies in the language of the instruction. St. L. S. W. Ry. Co. v. McLaughlin, 129 Ark. 377, 196 S. W. 460; St. L. Sw. Ry. Co. v. Wyman, 119 Ark. 530, 178 S. W. 423; St. L. I. M. & S. R. Co. v. Hutchinson, 101 Ark. 424, 142 S. W. 527.

Had the appellant interposed his specific objections, the court could, and doubtless would, have converted the instruction into a concise and clear statement of the law by the use of a few qualifying and explanatory words; or, the appellant, if he so desired, might have had the instruction put in a more accurate form by presenting a correct prayer for instructions on the issues involved, thus removing any anticipated doubts from the mind of the jury. As the instruction was not necessarily erroneous and prejudicial, a general objection was not sufficient.

■Case affirmed.

Mr. Justice Mehaffy disqualified and not participating.


text:
    First National Bank of Wynne v. Coffin.
    Opinion delivered October 12, 1931.

      Oga/n S Shaver, 'for appellant.

      A. F. Clements and. S. H. Mann, for appellee.
   Butler, J.

This was a suit by the plaintiff in which he prayed for a cancellation of a contract entered into by and between plaintiff and defendant, that the defendant be required to accept reconveyance of property conveyed under said contract, for judgment against the defendant for all sums paid out by plaintiff on account of his purchase of said lands, and that certain outstanding notes for the remainder of the purchase price and the deed of trust securing same be canceled. The ground alleged for cancellation of the contract and deed thereunder was mutual mistake of the parties as to the quantity of land conveyed. Defendant filed answer and cross-complaint asking for a foreclosure of its mortgage. From a decree in favor of plaintiff the defendant prosecutes this appeal.

From the evidence it appears that it was the understanding of the plaintiff that the defendant was the owner and in possession of a certain tract of land, commonly known as the Austell place in or adjacent to the town of Wynne, Arkansas. Learning that the place was for sale, plaintiff interviewed Mr. Horner, the cashier of the defendant bank, regarding its purchase. The result of this interview was the execution of a contract by which it was agreed that certain described real estate be conveyed to plaintiff upon certain terms, and on December 12, 1927, a deed was executed conveying the land according to the description in the contract, being lots Nos. 301-450, both inclusive, of' the Bedford Addition to the town of Wynne, Cross County, Arkansas, and the southwest quarter of the northwest quarter (SW% NW14) 0f section 22, township 7 north, range 3 east, containing forty acres, more or less, in said county. The agreed purchase price was $4,750 of which the sum of $1,750 was paid in cash and the balance evidenced by certain promissory notes secured by deed of trust by which plaintiff conveyed to a trustee for the defendant bank the property described in the deed and also an additional forty acres. One of the notes for $500 was paid and interest payments on the others made in the sum of $431.61. Plaintiff paid the taxes for the years 1927, ’28 and ’29, in the sum of $178.27; for repairing buildings on the premises he expended $275; for surveying the tract and for attorney’s fees the sum of $61.50, making a total expenditure of $2,959.66.

The Austell property was marked by well defined boundaries and inclosed by a fence, all said property being included in one field and cultivated as farm lands. Austell, the former owner, had so occupied and used the land for a period of twenty years when the defendant bank acquired it under foreclosure proceedings. Plaintiff was familiar with the property, having known it for a number of years. He did not obtain immediate possession after his purchase because- one Williams, a tenant of the defendant bank, was in possession of the dwelling house on the property, and it was not until about January 1, 1928, that the tenant of defendant moved out and plaintiff, by a tenant, moved in. A short time after plaintiff had entered into possession of the property, one J. C. Bell laid claim to some of the property near the northern boundary and attempted to take possession of same. Another person by the name of Burke also made claim to a portion of the property. Plaintiff attempted to, and did, compromise with Burke and Bell, buying them off for a small sum of money. This' was called to the attention of the defendant bank and plaintiff and Mr. Killough, the attorney for the bank, with plaintiff’s attorney, went out and looked over the land and discussed the situation. After this the town council of Wynne addressed a letter to plaintiff notifying him that the council had ordered the removal of all the obstructions and encroachments from certain named streets which appeared to be located in Bed-ford’s Addition and in the field known as the Austell place of which plaintiff was in possession under his purchase from the bank. This, too, was called to the attention of the defendant bank, which undertook to remedy the situation by procuring an act of the Legislature for the reduction of additions and parts of same in cities and incorporated towns into acreage. The act as passed provided for proceedings in the county court on any question for the reduction of additions into acreage under the provisions of the act.

The plaintiff was notified of the passage of the act, and defendant undertook by proceedings in the county court, to obtain the benefits of such act. It appears from the order of the county court, however, that not all of the lots within the inclosure of the Austell place were included in the reduction to acreage, but only those named in the deed from the defendant bank to plaintiff, and lots Nos. 301-450, both inclusive, were not included in the order.

Plaintiff (appellee) had a survey made of the property, and from this it was discovered that the lots described in the deed covered only a part of the property, and that about seven acres was not within the description, this part being included in lots 300-350, both inclusive. Further negotiations were had between the parties regarding an adjustment of the matter, but no one appeared to know just how to proceed, and finally in the spring of 1930, the board of directors of the defendant bank, acting through its president, notified-the plaintiff that it would do nothing further toward perfecting the title. The plaintiff thereupon brought this suit.

The defendant bank contended, first, that there was no mutual mistake regarding the amount of land conveyed or its description; second, that-it had not made any representations to- plaintiff or shown him the land to be conveyed; and third, that plaintiff acted solely on-his own opinion and judgment, and, if there was a mistake at all, it was not mutual, but the mistake of plaintiff only. The finding of the chancellor was against the defendant, and we are of the opinion that a consideration of all the circumstances and proof justified the conclusion reached. From a fair analysis of the testimony there can be ho question that the defendant bank thought it owned and .had title to the Austell place, and that it was attempting to convey all the land within the inclosure, and that plaintiff also thought that he was buying the land within the inclosure. While Horner, the- cashier of the defendant bank, had only resided- in Wynne for about two years, it is not shown that he and the officers of the bank were unacquainted with the boundaries of the Austell place, and it makes but little difference whether Horner actually pointed out-the boundaries or not. For situated on land not included -in lots Nos. 301-450,- both, inclusive, the land actually conveyed, -was the dwelling house and other improvements, which land was shown to be much more valuable than the southern part of the tract. This dwelling was considered to be on and a part of the property conveyed, for the tenant who farmed the property occupied such house as a tenant of the bank for the year 1927 and possession could not be, and was not, given under the deed from defendant to plaintiff until the expiration of the tenancy of Williams. When Williams moved out, the plaintiff, by his tenant, moved in about January 1, 1928.

• The facts as found by the chancellor bring this case within the rule announced by the authorities cited in appellant’s brief. McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52; Augusta Cooperage Co. v. Bloch, 153 Ark. 133, 239 S. W. 760. Although the description used in the deed was admittedly the same as that in the contract, and the appellant did convey all the land in the written contract, as we have seen, the evidence justified the conclusion that the description as used was mistakenly thought to cover the land actually intended to be conveyed, and, since it did not, under the authorities cited, the deed anight be canceled for mutual mistake between the parties to the transaction unless the appellant- is correct in his third and fourth contentions, i. e., that any right plaintiff had to cancel the deed for mutual mistake was waived by his agreement, and that he is estopped by his conduct and delay in demanding a cancellation of the conveyance. This presents the greatest difficulty in the case and one on which the testimony is somewhat conflicting.

The appellant says that it has done everything within reason and within its power to satisfy appellee, and that an agreement was made between the parties under which the appellant agreed to procure the passage of an act through the Legislature by which the' platted portion actually conveyed to plaintiff might be turned back into acreage; that, in consideration of this promise, appellee agreed that he would be perfectly satisfied with his purchase and continue his payments according to the original agreement. In this connection Mr. Horner, the cashier of appellant, stated that an agreement was made between him as the representative of the bank and the appellee; that appellee feared the city would compel him to open up the streets and lots Nos. 301-450, inclusive, and that, if he knew that the city would not do this, he would still carry out his contract; that an agreement was made to procure an act authorizing the abandonment of the addition converting the lots to acreage; that the passage of this act was procured and an order of the court made under the authority of said act putting the lots back into acreage, and that when this was done appellee paid a $500 note which was past due' and which he had before refused to pay on account of the condition of the title. This payment was made about the first of July, 1929, which only paid the principal and did not take care of the past-due interest; that appellee’s attention was called to this by letter of July 12, 1929, and that at a later date he and the appellant adjusted the interest by waiver of the bank and in addition paying one-half of the purchase price that appellee had paid to Bnrke, one of the parties claiming an interest in the property. The amount paid by the bank on the Burke matter was $5.72. Horner was asked: “After having waived the interest- and having agreed with Mr.- Coffin to pay Mr. Burke• one-half of the purchase price of the lot in question, did Mr. Coffin state whether or not if you would-do that he would be perfectly satisfied and continue with and make the balance of the payments due for the land?” The answer was, “He 'did.’’ Continuing, Mr. Horner testified that thereafter the appellee made no objection until March 21, 1930, when witness was notified by letter from appellee’s attorney that he' was demanding that the bank refund him all the money appellee had paid on purchase price of the' land.

The appellee testified that he had purchased the property for a particular purpose; that in about three weeks after taking possession, when he discovered that others were claiming some part of the property, he was much disturbed and immediately notified the bank, which seems to have done nothing but look the situation over and.advise appellee that his title was good because of the length of time the property had been adversely held by the bank and its predecessors in title. According to appellee’s testimony, which is undisputed, the appellant bank afforded him no assistance in dealing with those who were claiming title, although appellee was trying to clear same. On cross-examination of the appellee, the intimation is made that the appellant bank, when first notified that the description in the deed did not cover all of the property sought to be conveyed, offered to cancel the trade and to reimburse the appellee the money he had paid on the purchase price, and that appellee refused to reconvey the land. But he answered those questions containing the above intimation in the negative, stating that he had bought the land for a definite purpose, and had no intention of ever going back on the deal as long as he thought the bank would give him a title to it, but that he had no recollection of the offer made or of his refusal. There was no testimony introduced to contradict this. Appellee further testified that some time later on the town council gave appellee notice to open the streets through the land and to remove the fences, and to meet this defendant procured the passage of an act by which additions that had been platted into lots and blocks might be reduced to acreage. For some reason, however, probably still believing that the lots as described in the deed occupied the entire area of the land conveyed, the order was procured for only the reduction to acreage of the lots in the deed, whereas it developed that these lots were not the ones on which the dwelling house was located and which were being claimed adversely by other parties. Before the procuring of that order, the appellee had failed and refused to pay a $500 note due, and after the order of the county court he paid the same. He stated that he did this in order to comply with his part of the contract according to the understanding he had had with Horner, the cashier of the bank; that when Mr. Killough, his attorney, was satisfied as to the title he would abide by the latter’s decision, but that Mr. Killough had never been satisfied. The question was asked appellee: “Is it not true that both Mr. Killough and myself (the interrogator) advised you that the only method by which the title to this seven acres not conveyed, by the bank could be straightened out would be by a suit brought by us to quiet the title,” and he answered, “No, sir; I didn’t think it was my place to claim that land because I bought it from the bank, and it was up to them. I don’t see why I should be out any more expense — I have bought it once.”

Appellee further testified that after the order of the county court, in the spring .of 1930, he had two meetings with the bank officials endeavoring to get the matter straightened out, and they were trying to adjust it; that he had no intention of handing the land back to the bank because he wanted it and believed they were sincere in trying to fix it, and the first knowledge he had that the bank had no intention of quieting the title was when he attended a meeting of the board of directors in the spring of 1930, and the president of the bank so stated. Appellee also testified that he had a conversation with Mr. Homer who told him that he had sold bim everything under fence and would take the matter up with his attorney and see what could be done about it; that, from the information appellee gathered from his dealings with Horner and because the bank was a reputable institution, he believed it would do the right thing, and it was only when the president of the bank, acting for the bank, refused to take further steps to adjust the title that he concluded that the bank would not do this, and in a short time thereafter he brought this suit.-

Horner, the cashier, and the appellee, were the only persons testifying as to these transactions, and, while the evidence as -disclosed by the record is- not clear as: to what the intention of the parties was with reference to claiming the title and what they were attempting to do and what was the attitude of the appellee, we cannot say that the conclusion reached by the chancellor that the appellee had not waived any right he might have to call for a cancellation of the contract was against the preponderance of the testimony.

The fourth ground urged by the appellant for a reversal of the case is that the appellee is estopped by his conduct and delay in demanding a cancellation. The cases cited by appellant to support this contention, Fitzhugh v. Davis, 46 Ark. 348, and McCormick v. Daggett, 162 Ark. 16, 257 S. W. 358, correctly state the rule that one who desires to rescind upon the ground of mistake -or fraud must, upon the discovery of the facts, at once announce his purpose and adhere to it; if he be silent and continue to treat the property as his own, he will be held to have waived the objection and will be conclusively bound by the contract as if the mistake or fraud had not occurred, and must proceed with reasonable diligence to disaffirm the contract so that both parties may as nearly as. possible be restored to their original positions. In the case at bar, however, we do not think that the facts, as found by the chancellor, bring the appellee within the rule for he immediately brought to the attention of the officers of the appellant bank the fact that others were adversely claiming the property and continued to urge them to perfect the title until shortly before the institution of the suit, and the delay was occasioned by his mistaken -belief that the bank would do whatever was necessary to perfect the title.

This view disposes of the fifth and last contention of the appellant that it cannot now be placed in the same position it was when a discrepancy in the acreage was first discovered, for if that be true, this was occasioned through no fault of the appellee.

The decision of the trial court, not being* against the preponderance of the evidence both as to the complaint and cross-complaint, will be affirmed.


author: Hart, O. J.,

text:
    School District No. 65 of Randolph County v. Wright.
    Opinion delivered October 19, 1931.

      George M. Booth, for appellant. .

      A. J. Cole and Jacks on, Blackford, for appellee.
   Hart, O. J.,

(after stating the facts). Counsel for appellant first insist that the contract is void and unenforceable because the record does not show that the electors of the common school district at the annual school meeting voted to keep the school open more than three months in a year, as required by § 8952,' Crawford & Moses’ Digest. Under our settled rules of practice, this assignment of error is not before us for review. The record shows that, at the time of, or after the parties had made their statements to the jury, the court ruled that the burden was on the defendant to establish its defenses to the contract, and that it would be given the opening and closing of the case in argument. Counsel for the defendant accepted the ruling of the court as correct. Therefore, whether the ruling was correct or not, it be.came the law of the case and governs the parties on this appeal.

It is next insisted that the court erred in instructing the jury that the burden was on the defendant to show that the plaintiff might have obtained other employment of the same character' for the remainder of the term. What we have said with regard to the first assignment of error will govern on this point.

Besides this, the burden of proof was on the defendant to show that the plaintiff found or could have found employment elsewhere of the same or similar character for the balance of the term. Seaman Stores Co. v. Porter, 180 Ark. 860, 23 S. W. (2d) 249; Tate v. School District No. 11 of Gentry County, 324 Mo. 477, 23 S. W. (2d) 1031, 70 A. L. R. 771; Beissel v. Vermillion Farmers’ Elevator Co., 102 Minn. 239, 113 N. W. 575; Farrell v. School District No. 2 of Township of Rubicon, 98 Mich. 43, 56 N. W. 1053; Hamilton v. Love, 152 Ind. 641, 53 N. E. 181, 71 Am. St. Rep. 384; Court v. O’Connor, 65 (Tex.) 834; Howard v. Daly, 61 N. Y. 362; and Kring v. School District No. 3, 105 Neb. 864, 182 N. W. 481. In the last case cited it was said that it seems to be practically the latest and universal rule that, where an employee brings an action against the employer for damages resulting from a violation of the contract of employment, the burden rests upon the defendant to plead and show that the employee might have, or could have, obtained employment in mitigation of damages.

The next assignment of error is that the contract is unenforceable because it was unlawful for the board of directors of the school district to employ a teacher unless there was money on hand with which to pay her. To sustain this assignment of error, reliance is placed on § 9030 of Crawford & Moses’ Digest, which provides that it shall be unlawful for any board of directors in any school district to employ a teacher unless said district has money to its credit in the county treasury for such work. The section, however, contains a proviso that, if the amount of taxes to be- paid in by the collector of any county shall be sufficient to have a school taught in any district in which such taxes are to be paid, then the directors shall have the power to employ teachers to teach a school in such district. In the present case, the record shows that during the time for which appellee was employed to teach the school, there was deposited in the county treasury for the district the sum of $531.39, which was an amount more than sufficient to pay appellee under her contract. It did not make any difference that the contract was to be performed after the next annual school meeting. Under our statute, there a.re three directors of a common school district, and each one is elected annually for a term of three years. Hence the court has held that it is not unlawful for the school board to make a contract for a teacher for a term beginning after one of the members of the board goes out of office. Gates v. School District, 53 Ark. 468, 14 S. W. 656, 10 L. R. A. 186; and School District No. 54 v. Garrison, 90 Ark. 335, 119 S. W. 275. It is believed that this is a safe and reasonable rule to enable the directors to perform with due care the important duty of selecting and hiring teachers.

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


author: Hart, C. J.,

text:
    Kelley Trust Company v. Paving District No. 46 of Fort Smith.
    Opinion delivered October 19, 1931.

      George F. Youmans, for appellants.

      George W. Dodd, for appellee.
   Hart, C. J.,

(after stating the facts). The suit was brought within the time required by statute and therefore constitutes a direct attack upon the assessment of benefits. The question thus presented by' the record is mainly one of fact.

At the outset, it may be stated that the special benefit conferred upon private property by public improvement is the foundation of the power to assess it to pay the cost of the improvement. This is the only theory upon which, under our Constitution, an assessment can be justified. An assessment cannot be levied if the amount of it is in excess of the benefits in the enhancement of the value of his property received by the owner from the improvement. Kirst v. St. Imp. Dist. No. 120, 86 Ark. 1, 109 S. W. 526; Osborne v. Board of Improvement of Paving District No. 5 of Fort Smith, 94 Ark. 563, 128 S. W. 357: Mullins v. City of Little Rock, 131 Ark. 59, 198 S. W. 262, L. R. A. 1918B, 461; and Johnston v. Conway, 151 Ark. 398, 237 S. W. 80.

Many other authorities in support of the general rule might be cited, but the principle is so firmly established in this State that a further citation of authorities is unnecessary.

The only difficulty is to apply the rule correctly under the facts of each particular case. The general test is whether the proposed improvement will enhance the actual value or worth of the property.- The test is not whether, as now used by its present owner, any advantage is received, but whether its general value has been enhanced. While the mere fact of improvement or failure to improve is not the controlling question, yet the situation and- conditions surrounding the property may be looked into to ascertain the weight to be given to the testimony of the witnesses with regard to their opinion as to whether or not the property will be enhanced in value by the amount of the assessment of benefits against it. • -

Two streets were to be paved in the present district, each of them being two blocks in length. The two streets proposed to be paved run east and west and are parallel to each other and are connected with paved streets on each end. It will be seen from our statement of facts that the witnesses differed widely in their judgment or opinion, as to whether the proposed improvement would enhance the value of the property to the amount of the special assessment against it.

The assessors and witnesses for the improvement district testified that the property would be enhanced in value in the amount assessed against each lot in the district, but they in the main contented themselves with the general statement that they were familiar with real estate values in Fort Smith and believed this to¡ be true. According to the testimony of Noe, one of the assessors, they began by getting an estimate of the cost of the paving from the engineer of the district, and thus obtained the amount necessary to be raised by means of the assessments. He said their purpose was to charge each lot in proportion to the entire amount, figuring five per cent, for the improvement. This is a proper matter for consideration in testing the credibility to be given this witness. Doubtless his judgment was at least unconsciously affected in the assessment by the knowledge that the assessments of benefits must be high enough to cover the estimated cost of the improvement and leave a margin for unforeseen contingencies. The test is whether the general value of the property will be enhanced to the amount of the assessment.

The testimony for the witnesses for the property owners was directly contrary to that of the witnesses for the district. The witnesses for the property owners stated positively that the property of appellants is not worth the cost of the improvement or of the assessment of benefits against the property. They stated that no one would assume the burden of the cost of the assessment upon the property, for the property. They stated that under present conditions, which have existed for more than two years, no one would buy the property and improve it with the probability of having to pay the assessment of benefits levied against it. They stated that the property had no salable value for any reasonable amount, and that it would have to be greatly sacrificed in order to sell it at all. They stated further that if the property was sold for speculative purposes, it could not be given away to any one who would pay the assessment of benefits against it. While witnesses for the defendant contradict this testimony, they all admit that there has been no market for the property of this kind for the past year.

It does not make any difference whether the general depression and the financial condition of the country caused this or whether there are other extraneous causes for it. The test is whether the property will be enhanced in value to the amount of the special benefits assessed against it. As we have already seen, where lands are improved by legislative action for a public improvement, the cost of such improvement may only be imposed on the property to the extent of the special or peculiar advantages received by it. In this way it is not considered that the property of the individual or any part of it is taken from him for the public use, for the reason that he is compensated by the enhancement of the value of his property. In short, the principle is only applicable where tbe assessed benefits is commensurate to tbe burden. If tbe sum is exacted of tbe property owner in excess of tbe enhanced value, then to that extent private property is taken for public use without just compensation to the owner.

A majority of the court is of the opinion that, when the situation of the property and the conditions existing at the time the assessment of benefits was made are considered, the assessors levied against the property of appellant an amount of benefits substantially in excess of any enhancement in the value of the property, and that the chancellor erred in not so holding. Therefore the decree will be reversed, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. It is so ordered.

Justices Smith, Kirby and McHaney dissent.


text:
    Federal Land Bank of St. Louis v. Miller.
    Opinion delivered October 19, 1931.

      J. R. Crocker, for appellant.

      Oliver '& Oliver, for appellee.
   Smith, J.

This suit was brought by the Federal Land Bank of St. Louis, hereinafter referred to as the Loan Company,- to foreclose a deed of trust in its favor executed by James B. Miller and wife. Mrs. Malinda Miller, the mother of James B. Miller, filed an intervention, in which she alleged the truth of the following facts:

Prior to March 24,1922, intervener and her husband, J. T. Miller, owned in fee the land described in the complaint, and on the date mentioned she and her husband conveyed said land to their son, James B. Miller, in consideration of an ag’reement on his part to suitably maintain them in accordance with the manner in which they had previously lived, and this agreement was recited as the consideration for their deed to their son; that their son had failed and refused to keep his agreement; that he is now insolvent and unable to prevent the foreclosure of the deed of trust. She further alleged that her husband was dead, and that she' was dependent upon the land, which at the time of its conveyance to her son was the homestead of herself and her husband, for her support. She therefore prayed that the deed to her son be canceled, but, if that relief were denied, that a lien be declared in her favor for a sum sufficient, her expectancy of life being taken into account, to support her for the remainder of her life..

Testimony heard at the trial was to the following-effect : Intervener and her husband owned a quarter section of land, and they deeded eighty acres to each of two sons, and the consideration recited in each of the deeds was ‘ ‘ the sum of one dollar and maintenance to us paid. ’ ’ These deeds were duly acknowledged and recorded, and the two sons entered into the possession of the land conveyed to them respectively. At the time of the execution of these deeds a written contract was entered into, which was not placed of record, in which the agreement in regard to maintenance was amplified.

Mrs. Miller, the mother, lived first with one son and then with the other, but finally James B., through his dissipation, became unable to support her. James B. never at any time repudiated his obligation, but was unable to comply with it, although he continued to make small contributions to his mother’s support.

It is contended that Mrs. Miller has estopped herself to attack the right of her son, James, to execute the deed of trust here sought to be foreclosed, for the reason that she permitted him to execute the deed of trust. She denied, however, that she had any knowledge of the execution of this instrument until after the loan had been consummated, and no attempt was made to show that she had said or done anything to induce the belief that she had waived any of the benefits reserved in the deed to her son. On the contrary, the loan company had no knowledge of the recital as to maintenance until long after the loan had been made, as the abstract of the title submitted for examination recited the consideration to be “the sum of one dollar to us paid,” and contained no. reference to any agreement for maintenance. :But there was no attempt to charge Mrs. Miller with knowledge of or responsibility for this omission in the abstract, whether it was fraudulently done or not. The court found that Mrs. Miller had done nothing to waive the agreement for her maintenance, and we think the testimony fully supports that finding.

We think no importance is to be attached to the contemporaneous -written agreement on the part of Mrs. Miller’s children to support her and her husband, as that contract was not of record, and as to that writing the loan company is an innocent purchaser. But not so as to the deed itself. The deed was the instrument under which James B. Miller acquired title to the land which he mortgaged, and the loan company is, of course, affected with knowledge of its recitals, although they were not shown in the abstract of title. Madden v. Suddarth, 144 Ark. 79, 221 S. W. 457; McLaughlin v. Morris, 150 Ark. 347, 221 S. W. 457; Star Lime & Zinc Co. v. Arkansas Nat. Bank, 146 Ark. 246, 225 S. W. 322.

Many decisions of this court have upheld the validity of conveyances such as the one from Mrs. Miller and her husband to their son, and these cases have defined the rights of grantors in such instruments. One of the comparatively recent cases on this subject is that of Edwards v. Locke, 134 Ark. 80, 203 S. W. 286, where we said that this court is committed to the doctrine, which is supported by the great weight of authority, as announced in 4 R. C. L., p. 509, § 22, that “where a grantor conveys land, and the consideration is an agreement to support, maintain and care for the grantor during' the remainder of her or his natural life, and the grantee neglects or refuses to comply with the contract, that the grantor may, in equity, have a decree rescinding the contract and setting aside the deed and reinvesting the grantor with the title to the real estate.” (Citing cases.) It was there further said: “The rationale of the doctrine is that an intentional failure upon the part of the grantee to perform the contract to support, where that is the consideration for a deed, raises the presumption of such fraudulent intention from the inception of the contract, and therefore vitiates the deed based upon such consideration. Such contracts are in a class peculiar to themselves, and where the grantee intentionally fails to perform the contract, the remedy by cancellation, as for fraud, may be resorted to regardless of:any remedy that the grantor may have had also at law. ’ ’ (Citing oases.)

We therefore hold that the intervener had an interest in the land which she had the right to assert.

It was shown that the loan company had paid certain taxes duly assessed against the land after default made, and the court held that these taxes constituted a first lien on the land, “which lien shall be prior to any claim of homestead or dower rig’hts the said Malinda. Miller may have in said property,” and a decree for the foreclosure thereof was awarded.

The decree of the court below denied intervener’s right to absolute rescission, and declared that the deed of trust was a valid lien on the land, subject to her right to maintenance, and she does not complain of that decree.

The court, in effect, found that all the rents will be required for intervener’s maintenance, and that she is entitled to the possession of the rents and profits accruing from said property during" her natural life, and that out of said rents and profits she shall be required to pay the taxes, with the provision that, if she failed to pay the taxes, the loan company may do so, and shall have a first lien on the land therefor, and that the land may be sold bjr the commissioner named for that purpose in the manner there stated. We think this decree accords with the equity of the case.

We make no review of the testimony tending to show that intervener knew her son intended to mortgage the land, although the preponderance of the testimony appears to support her statement that she was unaware of that fact, because it is not contended that she said or did anything to induce the loan company to make the loan, or that she had waived any right to her maintenance, Of course, her son acquired by the deed an interest in the land which he might convey with or without his mother’s consent, subject, of course, to the right which she had reserved. The court recognized this right in its decree.

It is insisted that, although the plaintiff loan company is affected with notice of recitals contained in the deed to their mortgagor, these recitals are too ambiguous and uncertain to put it upon notice that the consideration had not been fully paid. "We do not think so. The deed recited as having been paid a dollar, a nominal consideration, and the recital of “maintenance to us paid” was certainly sufficient to put one on notice that there was some consideration other than the dollar, the receipt of which was acknowledged.

The reasonable construction of the language there employed was that the maintenance of the grantors was, in part at least, the consideration for the deed, and that this maintenance referred to an assumed obligation which remained to be performed. Certainly, it was not a recital which the loan company had the right to ignore, as the slightest investigation would have disclosed the facts.

In 38 C. J., page 338, chapter Maintenance, it is said that “maintenance” is a larg'e term, the meaning of which depends on the surrounding circumstances and the connection in which it is applied, and citations are made to cases giving various definitions, among others “act of maintaining; keeping up, supporting; livelihood; means of sustenance, etc.,” and, as applied to a person, to mean “supply of the necessaries of life; livelihood; the furnishing by one person to another, for his support, of the means of living, or food, or shelter, clothing, etc.; * *

We have said that the loan company had no actual . knowledge of the recital in the deed, but we have also said that it was charged with this notice, as it appeared in the deed through which their grantor acquired his title, and the intervener did nothing to prevent this constructive notice from becoming actual.

The insistence that the intervener is barred by the statute of limitations from the assertion of her claim of maintenance may be disposed of by saying that her son and grantee never at any time repudiated the obligation which he assumed in consideration for the execution and delivery of the deed to him.

The decree of the court is correct, and is therefore affirmed.

Kirby, J., dissents.


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    Smith v. Leech.
    Opinion delivered October 19, 1931.

      McDaniel S Nall, for appellant.

      W. II. Evans, for appellee.
   Smith, J.

This litigation involves the title to a small strip of land lying between two larger tracts, one of which is owned by appellant, who was the plaintiff below, and the other by appellees, the defendants.

After proving his title to the tract of land which he claimed, appellant offered testimony to the effect that the disputed strip was a part of the tract to which he had title. Appellees questioned the accuracy of the survey, which showed the strip to be a part of appellant’s land, and, in addition, they claimed title by adverse possession. This last defense was submitted under an instruction which reads as follows: “You are instructed that it makes no difference whether or not' the survey recently made by the county surveyor is correct or not, provided you find from the evidence that a fence was erected on the east line of the tract of land in controversy, and that said fence or a fence has been continuously on said .line for more than seven years, and you believe from the evidence that the strip of land in controversy is east of said fence, and that said J. A. Leech held said strip of land in open, continuous, notorious possession for more than seven years prior to his death, and that his open, continuous, notorious, peaceable and actual possession, together with the possession, continuously, and adversely and peaceably of the defendants has been for more than thirty years last past, you will find for the defendants.”

The accuracy of this instruction as a correct declaration of the law is not questioned, and the verdict of the jury in defendants’ favor thereon is conclusive of this case, as testimony was offered on behalf of appellees, that their ancestor had built a fence on what they claimed is the true line about thirty years ago, and that he and they have since continuously occupied the land to this fence as their boundary line. This being true, it is immaterial whether the fence was built on the true line or not, as the title to the land inclosed by the fence was acquired by the adverse possession.

There was testimony amply sufficient to warrant the submission of this issue to the jury and to support the verdict returned in defendants’ favor, and the judgment pronounced thereon must be affirmed, and it is so ordered. ■


author: Humphreys, J.

text:
    Butler v. Arkansas Natural Gas Corporation.
    Opinion delivered October 19, 1931.

      W. T. Saye and J. N. Saye, for appellant.

      Jeff Davis, for appellee.
   Humphreys, J.

Appellee brought suit in the chancery court of Ouachita County against appellant to recover $199.37 for fuel gas furnished to operate a certain oil leasehold and for $579.42 for fuel gas furnished to operate another certain leasehold, both belonging to appellant, and to enforce its lien against said oil properties for said amounts.

Appellant filed an answer denying liability on account of fuel gas thus furnished.

The cause was tried upon the pleadings and testimony, resulting in a decree in accordance with the prayer of the complaint, from which is this appeal.

The record reflects that fuel gas of the amounts and value alleged was furnished to and used by appellant in the operation of his leases in excess of 80 per cent, of the casinghead gas purchased and received from appellant by appellee under contract fixing the price and time of payment for the casinghead gas. In addition to the cash price appellant was to receive for the casinghead gas, appellee agreed to furnish fuel gas for the operation of the leases to appellant in accordance with paragraph 11 of the written contract between them, which is as follows:

“Buyer shall return, free of cost to sellers, residue or fuel gas to a mutually convenient point on said lease, such gas to have sufficient volume and pressure for the economical operation of said lease, for economical domestic use by seller’s employees residing thereon, and for the fulfillment of any lease grant obligations, provided that the number of cubic feet of fuel gas so furnished each month shall not, in any event, exceed 80 per cent, of the total number of cubic feet of casinghead gas received by the buyer from the above described property.”

The amount sued for was the price of the fuel gas used by appellant in excess of 80 per cent, of the amount of casinghead gas drawn from appellant’s wells on said oil properties.

Appellant’s contention for a reversal of the decree is that, although he used fuel gas in excess of 80 per cent, of the casinghead gas drawn from his wells, under paragraph 11 of the contract he was to have all the fuel gas he needed to operate his leases without additional cost. The language of the paragraph is unambiguous, and will not bear the construction placed upon it by appellant, for it states in language too clear to be misunderstood that the number of cubic feet of fuel gas to be furnished each month shall not, in any event, exceed 80 per cent, of the total number of cubic feet of casinghead gas received by appellee from the properties of appellant.

Appellant contends, however, that he should be released from payment for the excess fuel gas furnished him because he notified appellee that he would not pay for fuel gas in excess of 80 per cent, of the amount of casing-head gas bought from him. The equipment and connections were so arranged that appellant could use any amount of fuel gas he needed. It passed through a gas meter open to his observation and inspection, the quantity used by him being under his control. The gas meter was installed for his benefit, and he should not have used fuel gas in excess of the maximum amount specified in the contract unless he expected to pay for it. When he used more, there was an implied contract that he would pay the market price for the excess amount which he could not satisfy or settle by a written notice that he would not pay for it. Ilis acceptance and use of the excess rendered him liable therefor.

The decree is therefore affirmed.


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    Barton-Mansfield Company v. Collins.
    Opinion delivered October 19, 1931.

      A. H. Rowell, Jr., Rowell <& Alexander and H. Jordcm Monk,'for appellant.

      Reinberger ■& Reinberger and Galbraith Gould, for appellee.
   Humphreys, J.

The only question involved in this appeal is whether the chancery court in confirming a foreclosure sale of land to satisfy a materialman’s lien thereon had authority to grant a period of twelve months to appellee to redeem the property. Appellant furnished appellee building materials which were used in repairing buildings on lots 5 and 6 in block 3, Forest Park Addition to Pine Bluff, Arkansas, and, within the time allowed by law filed its materialman’s lien on said property for $48.90. This suit was later instituted in the chancery court of Jefferson County to foreclose the lien, wherein a decree of foreclosure and order of sale of the property was obtained. The sale was made pursuant to the order of the court and reported to the court for confirmation. The sale was approved and the commissioner ordered to execute a deed to the purchaser subject to redemption within twelve months by appellee. Appellant has appealed from that part of the decree allowing a twelve months period for redemption.

The trial court was in error in granting appellee twelve months in which to redeem the property from the foreclosure sale. The materialman’s lien law in this State contains no provision for redemption from the sale of the property to satisfy a lien for material furnished, and the record does not show that there was any agreement between the parties to that effect. The rule governing in equity foreclosures of such liens is well stated in 35 C. J., p. 67, in the following language:

“While, under the broad power to adjust the relief in such a way as to afford fair treatment of all parties, a court of equity may, and sometimes does, frame its decree so as to permit .redemption, to be made, at least before confirmation of the sale, the general rule in equity is that, where all the parties are before the court and a sale is made pursuant to its decree, and by an officer appointed by it for the purpose, the right of redemption will not be allowed except by command of the statute, or by contract between the parties. Except when given by a valid agreement between the parties themselves, the right of redemption exists, if at all, by force of statute, and the right extends only to cases coming- within the statute. ’ ’

That part of the decree appealed from is reversed, and the cause is remanded with directions to strike the redemption privilege from the decree.


author: Kirby, J.

text:
    City of New York Insurance Company v. American Company of Arkansas.
    Opinion delivered October 19, 1931.

      Verne McMillen, for appellant.
    ' IT. G. Wade, for appellee.
   Kirby, J.

This appeal is prosecuted from a decree denying- appellants the right to a citation against appellee for contempt for violation of the decree of the chancery court in attempting to issue an execution for collecting a circuit court judgment contrary to the provisions of said decree.

This is the third appeal of the case, a statement of which- appears in the opinions in American, Co. of Ark. v. Wheeler, 181 Ark. 444, 26 S. W. (2d) 115, and American Co. of Ark. v. Wheeler, 183 Ark. 550.

In reversing and remanding the cause on the first appeal, this court said: “The result of our views is, in so far as appellant is concerned, that the decree- must be reversed and the cause remanded with directions to the chancery court to order the amount of its .judgment and interest paid ont of the funds deposited in the registry of the court by the insurance companies.” 181 Ark. 450.

The mandate recites: ‘ ‘ * * * that this cause be remanded to said chancery court with directions to order the amount of the judgment of the appellant -against Conine and interest thereon paid out of the funds deposited in the registry of the court by the insurance companies aforesaid, and to distribute the remainder of such fund in accordance with its former decree. ’ ’

On the second appeal relative to the mandate' issued by the clerk, the court said: “It is the duty of a chancellor to enter a decree in accordance with the directions of the Supreme -Court, but the lower court may inquire into new matter which has never been adjudicated which does not conflict with the mandate. Hopson v. Frierson, 106 Ark. 292, 152 S. W. 1008. The decision of the Supreme Court became the law of the case, and decided all of the issues presented. The directions of the court were specific, and its holding' was to the effect that the petitioners herein were only liable to the American Company of Arkansas for the fund deposited in the registry of the court. ■ Hence it could no longer issue any executions on the judgments against the petitioners herein in the garnishment proceedings in the circuit court. In short, the court held that the American Company of Arkansas should be paid out of the proceeds deposited in the registry of the chancery court by the petitioners herein, and this was in effect to hold that the payment out of that fund satisfied the judgments obtained in the circuit court on the garnishment proceedings. As we have already seen, our holdings on that appeal be'eame the law of the case, and the issue could not longer bé litigated by the parties.”

These decisions became the law of the case, and the chancery court was without jurisdiction to restore the American Company to all its rights of said circuit court judgment as adjudged by the circuit court, and to decree that said company had not been divested of any right acquired under its judgment in the circuit court proceeding, contrary to the direction of the Supreme Court. Fidelity & Deposit Co. v. Fairfield, 169 Ark. 997, 278 S. W. 658; Henry v. Irby, 175 Ark. 614, 1 S. W. (2d) 49.

The American Company could not issue any executions out of the circuit court on its judgment on garnishment against the appellee company, which had paid the proceeds from the insurance into the registry of the chancery court, this court having held that it should he paid out of the proceeds deposited in the registry of the chancery court, in effect “that the payment out of that fund satisfied the .judgments obtained in the circuit court on the garnishment proceedings.”

The fact that such fund was dissipated before appellee, the American Company, was paid the amount of its judgment, if such is a fact, could not restore its right to proceed to its collection under an execution issued upon the circuit court judgment, as the chancery court erroneously held it might do.

The decree is reversed, and the cause remanded with directions to issue the citations, and for any further necessary proceedings not inconsistent with the principals of equity and this opinion.


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    Fort Smith, Subiaco and Rock Island Railroad Company v. Humphrey.
    Opinion delivered October 19, 1931.

      James B. McDonough, for appellant.

      Cochran •& Arnett, for appellee.
   Kirby, J.

This appeal is prosecuted by the railroad company from a judgment for damages against it for negligently permitting fire to spread from its right-of-way to the lands of appellee and destroy the trees, grass and fence post thereon.

The testimony on the part of appellant tends to show that its section crew was burning fireguard on the 13th of August, near the land of appellee, it being explained that a fireguard was the burning off of the grass on the right-of-way in order to prevent damage from fires extending to adjoining lands caused by the running of trains; that the fires were put out when the right-of-way was burned off; that they were burning fireguard on the particular day and quit in the afternoon when a rain came up and put out the fires.

Other testimony tended to show that a tree on the right-of-way began burning and was still burning that night. That after it had fallen, the fire was still burning on the stump, and that it spread and burned across the right-of-way to the lands of appellee and destroyed about 35 acres of pasture, some trees and some fence posts; some of the testimony showing that the land burned over ivas damaged at least $5 per acre.

There was some testimony indicating that the fire might have originated at a place 'off the right-of-way where some women were washing during the day.

The jury returned a verdict for appellee for $100 damages, and found against him on his complaint for personal injuries, resulting from fighting the fire, and the court also assessed an attorney’s fee of $50.

The testimony warranted the jury in finding that the fire that caused the damage ivas set out by the servants of appellant and negligently allowed to spread to and bum over appellee’s land, causing the damages thereto. Section 8569, Crawford & Moses’ Digest; K. C. S. Ry. Co. v. Cecil, 171 Ark. 34, 283 S. W. 1; K. C. S. Ry. Co. v. Wilson, 119 Ark. 147, 171 S. W. 484.

The court correctly instructed the jury as to the measure of damages for the destruction of the trees, etc. St. L. I. M. & S. Ry. Co. v. Ayre, 57 Ark. 371, 55 S. W. 159; K. C. S. Ry. Co. v. Wilson, supra.

Neither was error committed in the allowance of the attorney’s fee provided by the statute, which was not shown to be excessive, nor in the court’s fixing the fee after a hearing on the motion upon testimony adduced without the intervention of a jury, none being asked. K. C. S. Ry. Co. v. Cecil, supra.

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


author: Kirby, J.,

text:
    Rose v. Rose.
    Opinion delivered October 19, 1931.

      McKay & Smith, for appellant.

      Henry Stevens, for appellee.
   Kirby, J.,

(after stating the facts). The principal question herein is one of fact, and a careful examination of the testimony does not disclose that the finding of the chancellor is contrary to the preponderance of the evidence. The complaint alleges that the mortgage and notes securing it were through a mistake of fact delivered to the appellee, the mortgagor and maker of the notes, and that they had not been paid; but no testimony was introduced attempting to explain how the notes and mortgage came into the possession of the mortgagor and maker, if they had not been paid, and the burden was upon appellant to prove his allegation of mistake, which he failed to discharge, and to overcome the presumption of payment attendant upon the possession of the past-due obligation in the hands of the maker. Hollenberg v. Lane, 47 Ark. 399, 1 S. W. 687; Excelsior Mfg. Co. v. Owens, 58 Ark. 556, 25 S. W. 868.

The notes and mortgagé sued upon were not introduced in evidence, but others of different terms were introduced, the evidence tending to prove their execution, etc. The burden was on the plaintiff to show that the notes were not barred by the statute of limitations which was pleaded as a defense thereto. The notes were barred long since, according to their terms and date of execution, unless by partial payments the bar of the statute was removed, and the proof does not definitely show the fact of any partial payments on any of the particular notes or that such payments were credited thereon. The $600 that plaintiff paid at the bank and agreed to credit on the mortgage indebtedness when it was repaid by appellee, Mrs. Colvin, was not a charge against the lands mortgaged, and its payment could not constitute a partial payment on such mortgage indebtedness. Alston v. State Bank, 9 Ark. 459; Watkins v. Martin, 69 Ark. 311, 65 S. W. 103; Simpson v. Brown-Des Noyes Shoe Co., 70 Ark. 598, 70 S. W. 305; Armstead v. Brook, 18 Ark. 521; State Bank v. Woody, 10 Ark. 631; Desha Bank & Trust Co. v. Quilling, 118 Ark. 118, 176 S. W. 132, L. R. A. 1915E, 794.

It is insisted that H. A. Bryan was an incompetent witness, he being* the husband of one of the defendants, a granddaughter of the plaintiff, and that the court erred in allowing* the introduction of his testimony. This contention appears to be meritorious, but it is not necessary to pass upon the question, since we have already found from an examination of the whole testimony that the chancellor’s finding is not contrary to the preponderance of the evidence.

The decree is accordingly affirmed.