text:
    Hughes v. Garrett.
    Opinion delivered November 7, 1921.
    1. Set-off and counterclaim — against insolvent bank. — Where a bank becomes insolvent, a depositor who is indebted to the bank may set off the amount of his deposit in an action by the receiver or assignee to recover on the indebtedness due to the bank.
    2. Banks and banking — insolvency—set-off.—Where a bank becomes insolvent, a depositor indebted to the bank may set off the amount of his deposit in an, action by the receiver or assignee to recover the indebtedness due the bank.
    3. Set-off and counterclaim — by one of several defendants.— A debt due from a sole plaintiff to one of several defendants may be pleaded under our statute as a set-off by the defendant to whom such debt is due.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    reversed.
    STATEMENT OF FACTS.
    On November 16, 1920, appellee instituted this action against appellants to recover the sum of $150 alleged to be due and payable to appellee on the joint promissory note of appellants.
    On September 8, 1919, S. T. Hughes executed his note, with M. T. R/undle as security, for the sum of $150 due and payable to the First National Bank of Judsonia, six months after date. The bank became insolvent, and a receiver was appointed to take charge of its assets and wind up its affairs. S. T. Hughes had on general deposit in the bank, at the time the receiver was appointed, the sum of $410.10. He also owed the bank three other notes besides the one sued on. Two of these notes were for small amounts, and the third one was for the sum of $1290.
    Hughes directed the first receiver of the bank to pay the note sued on out of the general deposit owed him 'by the bank. The receiver failed to apply the general deposit of Hughes to the payment of the note sued on. Subsequently Robert D. Garrett was appointed receiver, and he refused to make the application. He applied the amount of the general deposit due Hughes towards the payment of other notes which Hughes owed the bank, either as principal or surety.
    The court directed the jury to return a verdict in fávor of appellee, and to reverse the judgment rendered appellants have prosecuted this appeal.

      John E. Miller and G. E. Yingling, for appellants.
    Appellant had the right to offset any amount that he might owe the bank with the amount that the bank owed him. 98 Ark. 294. The fact that the bank is in the hands of a receiver does not alter the rule. 146 U. S. 499; 2 Bolles on Banking p. 858; 138 Ark. 38; 3 B. C. L. p. 686, Sec. 317. He had the right to demand that his deposit be applied on this note instead of others. 213 S. W. 737; 91 Ark. 465. He made such demand.
    By failing to make the application of appellant’s funds to the payment of the note in suit, the surety was thereby released from liability. 5 Ark. 298; 114 Ark. 170; 3 B. C. L. 596.

      Brundidge & Neelly, for appellee.
    Appellant made no request that the amount of his deposit in the bank, or so much as was necessary, be applied to the note in suit.
    The ¡money deposited by Hughes was a general deposit, not a special one, and when so deposited became the property of the bank absolutely, and Hughes had no right to direct the application of it. 124 Ark. 536 and cases cited. Where there is no specific application of the fund directed, the bank may apply it to any indebtedness due it. 3 B. C. L. 588.
    The indebtedness of Hughes and Bundle was a joint one. There was no such mutuality of claims between Bundle and the bank as would give the receiver the right to set-off Hughes’ deposit against this note. 3 B. C. L. p. 591.
   Hart, J.

(after stating the facts). The judgment of the circuit court was wrong. At the time the bank failed it had made no appropriation whatever of the amount of the general deposit of Hughes towards the payment of any of Ms notes dne the bank. When the receiver was appointed, Hughes directed-him to apply the amount due him on general deposit by the bank to the payment of the note sued on first, and the balance to the payment of other indebtedness. The receiver had no right to refuse to make the appropriation as directed.

This court has held that, the relation between a bank and a general depositor being that of debtor and creditor, if the bank becomes insolvent, a depositor who is also indebted to the bank may set off the amount of his deposit in an action by the receiver or assignee to recover on the indebtedness due the bank. Funk v. Young, 138 Ark. 38, and Steelman v. Atchley, 98 Ark. 294,

As we have already seen, the record in this case shows that the bank did not appropriate the deposit of Hughes to the payment of any indebtedness due the bank until after Hughes had directed it to be applied to the payment of the note sued on.

It is true that the note sued on was signed by Hughes and Bundle as his sureties. It is well settled in this State that a debt due from a sole plaintiff to one of several defendants may be pleaded under our statute as a set-off by the defendant to whom such debt is due. Burton v. Blytheville Realty Co., 108 Ark. 411, and Rush v. Citizens’ National Bank, 114 Ark. 170, and cases cited.

It follows from the facts stated that Hughes had a right to set-off against the note sued on his individual indebtedness to the bank, and the court erred in directing the jury to find a verdict for appellee.

For that error the judgment will be reversed, and the cause will be remanded for a new trial.


source: Caselaw Access Project

author: Smith, J. Hart, J.

license: Public Domain

text:
    Weldon v. State.
    Opinion delivered November 7, 1921.
    1. Contempt — power op courts. — By the common law, a court may punish as for contempt insults offered to the person of the judge in consequence of his judicial acts, though offered on a day when court was not in session and at a place where court could not legally be held.
    2. Contempt — constructive contempts. — Const. 1874, art. 7, § 26, providing that “the General Assembly shall have power to regulate by law the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience to process,” and Crawford & Moses’ Dig., § 1485, providing that punishment for contempt not so committed “shall in no case exceed the sum of $50 nor the imprisonment ten days”, have no application to con-tempts committed by offering physical violence to the person of the judge at a time and place when the court was not in session, if designed to influence, intimidate or control the action of the judge in the subsequent trial of a case, as such acts would be considered as done constructively in the presence of the court.
    Certiorari to Garland Circuit Court; W. B. Sorrels, Judge, on exchange;
    affirmed.

      Thos. S. Doivney and HarryH. Myers, for appellant.
    Tbe alleged contempt was not committed in the presence of the court. A judge alone does not constitute a court. 8 A. & E. Enc. Law (2nd Ed.) 22; 22 Neb. 280. A court is an official assembly, leg-ally met together for the- transaction of judicial business. 79 Ind. 376; 87 Ala. 330. Indignities offered to a judge in vacation, when not engaged in judicial business, and without reference to his official conduct, are not punishable for contempt. 9 Ark. 258.
    Section 1484, C. & M. Digest, has-reference to acts occurring within the presence of the court, or having reference to its processes.
    Even if guilty of contempt, the punishment is excessive and unreasonable. Sec. 1485, C. & M. Digest.
    The fact that the defendant was notified by citation is conclusive that the act complained of was one committed without the presence of the court. Sec. 1496, C. & M. Digest, and.the punishment to he assessed is provided by § 1485, C. & M. Digest.

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants.
    The assault was occasioned by litigation then pending before the court and was such contempt that the court was authorized, under the law to punish petitioner summarily. 9 Ark. 259; 139 N. C. 95; 2 L. E. A. (N. S.) 603. Contemptuous conduct toward a court while in discharge of a judicial duty is not limited to acts committed in the presence of the court, but includes insolent conduct during the intermission of court. 105 Iowa 7; 75 N. W. 685; 21 Fed. 772; 6 E. C. L. Sec. 5, p. 492 and notes. The punishment meted out in this case was not limited by § 1485, C. & M. Digest, as contended by petitioner. A similar punishment was sustained by this court for intimidating a litigant which act of intimidation was not in the presence of the court. 123 Ark. 341.
   Smith, J.

This proceeding grew out of the following citation which issued out of the Garland Circuit Court:

“Whereas, on the 4th day of July, 1921, Charlie Weldon, in the County of Garland and State of Arkansas, made an assault on the person of the Hon. Scott Wood, judge of this court, and whereas said assault was without provocation and was prompted by malice by the acts of said judge in the performance of his judicial duties in a case pending in this court wherein the State of Arkansas is plaintiff and Charlie Weldon and others are defendants, and said assault was made with the intent to intimidate said judge and deter him .from the performance of his duties in the trial of said case; it is therefore ordered that an attachment of contempt of court be issued for the'said Charlie Weldon, and that he be requested-to appear at the next regular day of the present term of said court on the 13th day of July, 1921, and show cause if any he have why he should not be punished for said contempt. ’ ’

An agreement of exchange of courts was made between the judge of the Garland Circuit Court and W. B. Sorrels, judge of the Eleventh Circuit, and the matter was heard on the return day of the citation before the last-named officer. The case coming on for hearing, defendant Weldon, who will hereinafter be referred to as the petitioner, was found guilty as charged, and his punishment fixed at imprisonment in jail for three months and a fine of $500. Petitioner has by certiorari brought before us the record of the court below for review.

• Judge Wood testified that the court over which he presided had taken a recess from the Saturday before the 4th of July to the 13th of that month, and that he spent the 4th at a bathing place called Arbordale Springs, eight miles from Hot Springs, the county seat; and that, as he came from the water, and was standing outside a dressing booth waiting to get in, hfe noticed petitioner walking toward him, and as petitioner came up he said to witness, “You are a smart guy,” and struck at the judge. The judge said, “What is the matter with you? You are crazy; you are a fool.’’ Petitioner said, “Did you hear what he called me?” The judge denied having called petitioner any name. The judge testified that he said to petitioner, ‘ ‘ I know what you are doing this for; you think you can bully somebody,” or “you are doing it because I did in my official capacity have to try you.”

The petitioner used vulgar language toward the judge and called him some names, and asked, “What have you got it in for me for? What have I done to you?” but never denied that he was acting for the purpose of which the judge accused him, and made no response to the statement of the judge. The judge and the petitioner struck at each other, then clinched, but were separated without either having inflicted any bodily harm on the other. The judge further testified that he had only seen the petitioner in court, and had never before. had any conversation or communication with him. He stated that petitioner had been indicted’in his court for manufacturing intoxicating liquors, but an agreement had been made between petitioner and the prosecuting attorney that the charge should not be tried until a similar charge had been disposed of in the Federal court. Petitioner was convicted in the Federal court, but that conviction was reversed in the Federal Court of Appeals. Whereupon petitioner was put on trial in the Garland Circuit Court. There was a mistrial, and, in dismissing the jury, Judge Wood, who had presided, made the remark that the case would be set for another day and tried until a verdict was reached.

Petitioner testified that he spoke to the judge civilly, who responded by saying, “Hello, mooner,” meaning thereby to call him a “moonshiner,” and that this offensive epithet of the judge caused the difficulty which then ensued.

Each of these witnesses was corroborated in several material respects, but, without further reciting the testimonjq we announce the conclusion that the finding of the trial court is supported by the testimony. Ex parte Winn, 105 Ark. 193.

It is insisted that the judgment of the court below must be quashed and the proceeding dismissed because the incident herein set out occurred on a day when the court was not in session, and at a place where a session of the court could not be legally held, and further that, as the conduct complained of did not take place in the actual presence of the court, the punishment imposed is without authority of law, and is, in any event, in excess of that permitted by the law.

It is true that the incident complained of did not occur on a day when the Garland Circuit Court was in session (Light v. Self, 138 Ark. 221), although it did occur before the adjournment of the court for the term. It is also true that the incident occurred at a place where court could not be legally held (Mell v. State, 133 Ark. 197). But are these facts conclusive of the question presented on this appeal?

Section 1484, C. & M. Digest, provides that every court of record ‘ ‘ shall have power to punish as for criminal contempts persons guilty of the following acts,” and there follows in five paragraphs an enumeration of acts declared to constitute contempt of court.

This section is taken from section 37, chapter 43, of the Revised Statutes of Arkansas; and no change appears to have been made in it except that as approved (February 28, 1838) it read: “Every court of record shall have power to punish as for criminal contempts persons guilty of the following acts, and no others,” and thereafter follow the five paragraphs as they now appear in section 1184, C. & M. Digest.

The words, “and no others,” have been eliminated from the statute. This was done, by Josiah G-ould in the digest of the statutes' prepared by him in 1858, and in a note to the section where this omission first occurs the digester has the following explanation: “The words, ‘and no others,’ are stricken out as not binding on the courts. See State v. Morrill, 16 Ark. 384, and cases, there cited.”

The facts in the case of the State v. Morrill, 16 Ark. 384, were that Morrill had published an article in a newspaper reflecting upon a decision of the Supreme Court and apparently attributing the decision to extraneous influences. In response to the summons which there issued, the defendant filed a plea to the jurisdiction, submitting that the publication was not embraced within the statute regulating the punishment of con-tempts. Speaking for the court, Chief Justice English conceded that the act charged against the defendant was not embraced within any clause of the statute. The insistence was made by counsel for the defendant that the court must look to the statute for its power to punish contempts, and not to any supposed inherent power of its own springing from its constitutional organization, and that the courts were controlled by this statute, and-could not go beyond its provisions. The Chief Justice proceeded to answer and to refute this insistence in an opinion evincing great research and learning. He quoted from the opinion of this court in the case of Neel v. State, 9 Ark. 263, as follows:

“By the common law, a court may punish for contemptuous conduct toward the tribunal, its pi~ocess, the presiding judge, or for indignities to the judge while engaged in the performance of- judicial duties in vacation, or for insults offered him in consequence of judicial acts; but indignities offered to the person of the judge in vacation, when not engaged in judicial business, and without reference to his official conduct, are not punishable as contempts.”

The opinion in the Neel case is one of equal erudition, and the two, together, so thoroughly discuss the common-law doctrine of contempt that this writer is unequal to the task of adding anything to the discussion, and the two opinions, together, make it clear that courts have power to punish for contempt as a necessary incident to the exercise of their express powers, and that in doing so statutory authority need not be sought or found to warrant that action.

It is insisted, however, that our present Constitution has deprived the courts of this power, and that since its adoption the courts must look to the statute for authority to punish for contempt except those committed in the immediate presence or hearing of the court, or in direct disobedience to its process.

The provision of the Constitution referred to is section 26, of article 7, and reads as follows: “The General Assembly shall have power to regulate by law the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience to process.” Section 1483, C. & M. Digest.

A similar contention was made in the case of Turk and Wallen v. State, 123 Ark. 341. There Turk and Wallen were never shown to have been at any time in the actual presence of the court. On the contrary, it affirmatively appears that the conduct complained of, to-wit, the intimidation of a litigant from appearing in court and prosecuting his suit there pending, was committed “before reaching the courthouse.” It was there insisted that, as the offense with which Turk and Wallen were charged “was not committed in the presence or hearing of the court, and was not in disobedience of any process of the court, its power to punish was exceeded in the fine and imprisonment assessed,” inasmuch as section 1485 C. & M. Digest (sec. 721 Kirby’s Digest) provides that punishment for contempts not so committed “shall in no case exceed the sum of $50 nor the imprisonment ten days.”

Answering this insistence, Mr. Justice Kirby, for the court, said: “It is universally held that intimidating a witness and preventing his appearance at court or procuring him to absent himself from the trial is a contempt of court. Preventing the appearance of a litigant in court for the prosecution of a suit brought to enforce a right, by intimidation and threats, is such an obstruction of judicial procedure as renders absolutely worthless all process of the court, which is instituted for the enforcement and protection of the rights and the redress and prevention of wrongs of the litigants. It destroys the dignity and power of the court and brings the administration of justice into disrepute.

“Here a citizen appealed to the court for the redress of an alleged wrong only to find himself confronted by the wrongdoer and his associate on the day set for the trial, at the door of the court, and so intimidated with threats, that he found it necessary to absent himself from the court of justice to which he had appealed, and abandon the prosecution of his cause of action through fear.

“The conduct of appellants was a flagrant offense against the dignity and power of the court, whose arm is long enough and strong enough to keep open and unobstructed the way to its door to all who must invoke its authority, which is not limited in the right to punish offenses of this kind except by the infliction of such punishment as is commensurate with the the enormity of the offense and calculated to preserve and uphold the dignity and honor of the court and its respect in the confidence of the people. Ford v. State, 69 Ark. 550. The court had jurisdiction to hear the proceeding and did not exceed its authority in the assessment of the punishment.”

If full faith and credit is given to that opinion, we think it must necessarily follow that petitioner is as guilty of contempt as were Turk'and Wallen.

If intimidating a witness and preventing his appearance at court, is a contempt; if preventing the appearance of a litigant in court is such an obstruction of judicial procedure as constitutes contempt, why is it not contempt to be guilty of improper conduct designed and intended to influence and control the action of the court itself? The reasoning of Mr. Justice Scott in the case of Neel v. State, supra, is applicable here. He said: “When, therefore, the common law deemed it so necessary for this great purpose, to protect the juror, the witness, the informer, the party, the jailer, the attorney, and other persons, many of whom might never again be called into a court of justice, it was not to be expected that it would fail to cover, with its complete armor, the presiding’ minister of the law’s majesty, who would be so often exposed to similar trials. Not that any higher personal privileges were arrogated for him, than for the humblest of these, but because it was obvious that the principle, which suggested the protection of these, would, at least to the same extent, protect him, if it did not rise with the grade of the officer, and the majesty of the law be more degraded in the person of a higher than a lower officer, entrusted with its administration.”

In offering actual physical violence to the person of the judge, petitioner was in the constructive presence of the court, for he sought thus to influence, intimidate and control the action of the judge in the matter of re-setting his case for trial when the judge had again resumed the bench.

In the case of Stuart v. People, Scam. (Ill.) 395, the Supreme Court of Illinois said that in the class of constructive contempts would necessarily be included all acts calculated to impede, embarrass or obstruct the court in the administra tion of justice, and that such acts would be considered as done in the presence of the court. See also, People v. Wilson, 64 Ill. 196, 16 Am. Rep. 528; Ex parte McCown, 139 N. C. 95, 51 S. E. 597; 2 L. R. A. (N. S.) 603; McCarthy v. Hugo, 17 A. & E. Ann. Cas. 219, and the notes thereto in which cases supporting and opposing the view, that acts impeding the administration of justice will be held to be within the constructive presence of the court, will be found.

It follows, therefore, that the judgment of the circuit court must be affirmed, and it is so ordered.

Hart, J.

(dissenting).’ My dissent is based on the ground that Weldon did not commit contempt in the presence of the court, and therefore, under our Constitution, his punishment is fixed by statute at a fine not exceeding the sum of $50 and imprisonment not exceeding ten days in jail. .

State v. Morrill, 16 Ark. 384, sustains the inherent common-law right of constitutional courts to punish for contempt, committed either in or out of the presence of 'the court.

The Constitution of 1874 did not attempt to restrict the power of constitutional courts to punish for contempt, whether committed in or out of the presence of the court.

Art. 7, sec. 26, provides that the General Assembly shall have the power to regulate by law the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience of process. This section recognizes the inherent power of constitutional courts to punish for contempt, but gives the Legislature power to prescribe the punishment where the contempt is not committed in the presence of the court.

The court either was or was not in session when the contempt was committed. If it was not in session, I cannot see how there could be any contempt committed in the presence of the court, either actual or constructive. If court was in session, the case would call for' the application of the doctrine in Turk v. State, 123 Ark. 341. In that case the court was in session, and the contempt consisted in the defendant, by threats, preventing the plaintiff from appearing in the circuit court to prosecute' his case. At the time the contempt was committed by the defendant the plaintiff was in the town where the court was in session for the purpose of attending the trial of his case on that day. The law does not take account of different parts of days. Central Coal & Coke Co. v. Graham, 129 Ark. 550. Hence the court said that he was constructively in the presence of the court when the contempt was committed.

The doctrine of constructive presence proceeds upon the theory that the misbehavior is committed where it takes effect. Where one puts in force an agency for the purpose of interfering with the administration of justice, he, in legal contemplation, accompanies the same to a point where it becomes effective.

So in the present case, if court had been in session, it would be said that the contempt was committed in the constructive presence of the court, although not at the courthouse. I cannot perceive how contempt could be-committed, either in the actual or constructive presence of the court, when the court was not in session.

Light v. Self, 138 Ark. 221, is authority for holding that the court was not in session when Weldon committed the contempt. In that case the county court entered an order, “Court adjourned until called by the judge,” and at a later day attempted to amend the order of adjournment so as to make it read, “The court will suspend until tomorrow and remain open until the business of the term is completed.” This court held that this could not be done, because the court could not be kept in session by such an order.

The effect of the holding in that case is that any order made by a court not in session is void, and I cannot conceive how contempt could bo committed in the presence of the court, which was not a court, because not in session.

All courts, unless restrained by statute, may adjourn their sittings to a distant day. Dunn v. State, 2 Ark. 229, and McVay v. State, 104 Ark. 629. In State v. Canal Const. Co., 134 Ark. 447, the court said that we have departed from the common-law rule that a term of court should be considered as one day,and that a court of record may adjourn from one day to a distant day. It was further1 stated that during the interim the court had no power to transact business.

Even under the dissenting opinion in the case of Light v. Self, supra, the contempt in the present case cannot be said to have been committed in the presence of the court. The dissenting opinion in that case proceeds upon the theory that the court was not adjourned by the order made. The dissenting opinion, however, recognized the power of the court to adjourn from one day to a distant day. "When it has adjourned from one day to a distant day, I cannot perceive how it could be said to be in session for any purpose during the intervening days. If so, if a court should adjourn tom distant day for the purpose of holding a regular term of the court in another county in his district, it would, follow, under the majority opinion, that contempt could be committed in the presence of the court, not only of tiie court which was actually being held, but also of the court which was adjourned.

The Chief Justice concurs.


author: Smith, J.

text:
    Barron v. State.
    Opinion delivered November 7, 1921.
    1. Contempt — enforcement of order after forfeiture of bail.— Where a sentence of fine and imprisonment for contempt of court has not been complied with, it may be enforced upon defendant’s capture, though a bail bond given on appeal from the judgment of contempt has been declared forfeited.

      2. Bail — forfeiture of bail bond — disposition of proceeds. — Where defendant was ordered hy the circuit court to pay $400 to the estate of a decedent, and on failure to make payment was fined for contempt, from which judgment he prayed an appeal and was allowed .bail in the sum of $500, and thereafter absconded, whereupon his bond was forfeited, and was paid by his securities, the forfeiture was payable into the county treasury, and no part of it could be used to pay his indebtedness to the estate.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      J. E. London, for appellant.

      C. M. Wofford, for appellee.
   Smith, J.

J. T. Meyers was ordered by the circuit court of Crawford County to pay to the clerk of that court $400 misappropriated by Meyers, the same being the proceeds of the sale of certain personal property belonging to the estate of T. C. Nall, deceased. Meyers failed to make the payment, and was cited for contempt, and on a hearing of that charge was fined $100 and sentenced to thirty days in jail. From this order of the court he prayed an appeal, and was allowed bail in the sum of $500. Meyers absconded, and the appeal was never perfected, and the bond was declared forfeited, and was paid by the sureties thereon.

Thereafter the administrator of the Nall estate filed an account with the county court asking that, after the fine and costs of Meyers were paid, the balance of this fund be turned over to him as administrator to reimburse the estate for the money which Meyers had appropriated. The county court disallowed the claim, as did the circuit court on appeal. Hence the appeal to this court.

The argument for the reversal of the judgment is that the bond was in the nature of a civil bond, and was not the property of the State; that, after the State had realized her claim out of it, that is, the fine of $100 and the costs, the balance ought to be applied to the payment of the claim of the estate against Meyers.

We do not concur in this view. Appellant is mistaken in the character and purpose of the bond executed by Meyers and his sureties on the appeal from the order of the circuit' court adjudging him to be in contempt.

The judgment directing Meyers to pay money to the clerk of the court has not been satisfied. It is still a subsisting -judgment, subject to be enforced through the usual processes of the law. The order of the court imposing a fine and prison sentence on Meyers has not •been complied with, and is a judgment which may still be enforced if Meyers is again taken into custody. If such were not the case, one sentenced to jail for contempt might employ this method to relieve himself of that punishment.

The bond ran in the name of the State, and was for the benefit of the county in which the sentence was imposed.

The sentence for contempt was imposed because of Meyers’ contumacious conduct in refusing to obey the order of the court by paying over the money.

It is true, of course, as insisted by appellant, that the purpose of the original proceeding was to compel Meyers to disgorge; but, as that proceeding progressed, Meyers became guilty of contempt by defying the order of the court, and it was for this defiance that he was fined and sentenced to jail, and as his bond operated to stay the enforcement of that sentence, its penalty, when collected, inured to the' benefit of the county in which the sentence was imposed. Sec. 10183, C. & M. Digest.

The judgment of the court below is affirmed.


author: Humphreys, J.

text:
    Cloar v. Consumers’ Compress Company.
    Opinion delivered November 7, 1921.
    1. Negligence — burden of proof. — In an action against a cotton compress company for the negligent destruction of cotton by fire, it was error to instruct the jury that “if the circumstances in evidence are explainable on any other reasonable theory than that of the negligence of the defendant, your verdict should be for the defendant”, as the only burden resting upon the plaintiff was to establish his case by a preponderance of the evidence.
    2. Warehousemen — instruction.—In an action against a warehouseman for loss of property by fire, an instruction that defendant was not liable for the acts of third persons was erroneous in failing to embody the idea of his liability for acts of third persons which he could have prevented by exercising ordinary care.
    Appeal from Crittenden Circuit Court, First Division, R. II. Dudley, Judge;
    reversed.

      Berry £ Wheeler, for appellant.
    Instruction 4 given 'by the court on the subject of negligence, without the modification requested by the appellant, viz: “unless, after the discovery of such negligence, the defendant was negligent in failing to prevent the loss of plaintiffs’ cotton,” took from the jury one of the most important questions in the case. And, in giving the 4th instruction requested by the defendant, the concluding sentence thereof erroneously placed a burden on the plaintiff greater than that required of the State in criminal prosecutions. 4 Wigmore on Ev. § 2497, p. 3542; 118 Mass. 1; 38 Ark. 316; 61 Id. 103; 59 Id. 325; 76 Id. 325; 76 Id. 135; 77 Id. 436; 90 Id. 256.

      A. B. Shafer, for appellee.
    Instruction 4, as is made clear by instruction 3 given by the court, did not require the plaintiff to prove his case beyond a reasonable doubt, but was intended only to emphasize the fact that if the evidence was equally balanced, if the circumstances in evidence were explainable on two theories, equally reasonable, plaintiff had failed to make out his case. 77 S. "W. 69; 99 Mass. 605; 117 S. W. 91.
   Humphreys, J.

Appellant instituted suit against appellee in the Crittenden Circuit Court to recover damages in the sum of $3508.42, the value of 28 bales of cotton, stored in appellee’s warehouse and destroyed by fire through appellee’s alleged negligence in permitting loose lint cotton and sawdust to remain on the ground and platform near the -warehouse, and in not preventing the fire after it was discovered.

Appellee filed an answer, specifically denying that the fire originated or continued after discovery through its negligence.

The cause was submitted upon the pleadings, evidence and instructions of the court, which resulted in a verdict and judgment for appellee, from which an appeal has been duly prosecuted to this court.

The evidence adduced by appellant tended to show that the warehouse and contents were destroyed by fire originating in the sawdust and lint cotton round about and under the warehouse. The evidence of appellee tended to show that the fire originated from a bale of cotton which had been delivered and placed near the center of the compress, and which was burning on the interior when received, the fire being undiscoverable until it burnt out and came in contact with the air, at which time it flashed up and could not be extinguished.

Appellant insists that the court committed reversible error in giving appellee’s requested instruction No. 4, which appellant interprets as requiring him to establish the origin of. the fire to a moral certainty, or beyond a reasonable doubt. Appellee insists that the instruction simply emphasized that the burden of proof rested upon appellant, and has no reference to the degree of persuasion to which the jury should be brought before it should find for appellant. The instruction is as follows :

“Evidence may be either direct or circumstantial. Circumstantial evidence is the evidence of certain facts from which are to be inferred the existence of other material facts bearing upon the question at issue, or facts to be proved. But, while circumstantial evidence is legal and proper, you are instructed that no inferences or presumptions should be indulged in by you that do not necessarily arise from the circumstances proved. In other words, the circumstances proved must convey by a. logical train of reasoning that the defendant was negligent, and that such negligence was the direct and proximate cause of the loss of the plaintiff’s cotton by fire, before you can find in favor of the plaintiff. If the circumstances in evidence are explainable on any other reasonable theory than that of the negligence of the defendant, your verdict should be for the defendant.”

I'Ve think the last clause’ of the instruction imposed upon appellant the duty to establish his theory of the origin of the fire to the exclusion of any other reasonable theory as to how the fire originated, which, in effect, told the jury that appellant must establish the origin of the fire beyond a reasonable doubt. The only burden resting upon appellant was to establish his case by a preponderance of the evidence. The instruction was inherently wrong, and is not cured, as suggested by appellee, in instruction No. 3. The two were in direct conflict upon the extent of the burden of proof resting upon appellant, and because of the conflict the one cannot cure the other.

Appellant insists that the court erred in giving, on its own motion, the last instruction, which exempted appellee from liability for acts of third persons, without modifying it by adding the following clause: “Unless, after the discovery of such negligence, the defendant w^s negligent in failing to prevent the loss of the plaintiff’s cotton. ’ ’

All the instructions given are not abstracted, and we are unable, without exploring Ihe transcript, to ascertain whether the modification requested was embodied in other instructions. The instruction, however, as given by the court, was erroneous for another reason, that is, for failing to embod}^ the idea of appellee’s liability for acts of third parties which it could have prevented through ordinary care. We are not reversing the case on account of this error, but, as the case must be reversed for error in giving appellee’s requested instruction No. 4, we call attention to the error, so that .the law may be properly declared on trial anew.

The judgment is reversed, and the cause remanded for a new trial.


text:
    Griffin v. Searcy County.
    Opinion delivered November 7, 1921.
    1. Eminent domain — damages—province of jury in assessing.— In the assessment of damages for injury to real estate, juries must necessarily be governed by the testimony of the witnesses in the case, but in reaching a result, may consider all the evidence in the case, and are not restricted to values of, and estimates of damages to, real estate fixed by the opinion of one or more witnesses.
    2. Appeal and error — evidence viewed favorably to appel- ■ lee — In testing the sufficiency of evidence to support a verdict, the Supreme Court will view it in' the lig'ht most favorable to the party who secured the verdict.
    .Appeal from Searcy Circuit Court; J. M. Shinn, Judge;
    affirmed.

      D. T. Cotton and George W. Reed, for appellants.
    Notwithstanding the rule not to disturb the verdict of a jury if there is any evidence to support it, yet, if a jury ignores the testimony and returns a verdict not responsive to it, this court will correct the error. The jury is not without restraint, and where, in its assessment of damages, the amount awarded is either so large, or so small, as to shock the sense of justice, its verdict should be set aside. 39 Ark. 491; 70 Id. 385; 47 Id. 567.

      W. F. Reeves, for appellee.
   Humphreys, J.

About two acres of land belonging to appellant was condemned for road purposes in the Searcy County Court, in which proceeding appellant was awarded damages in the sum of $300. An appeal was prosecuted to the circuit court, where, upon a trial de novo, appellant was awarded damages in the sum of $350, from which is this appeal.

Reversal of the judgment awarding damages in the sum of $350 only is sought xipon the alleged ground that the least amount which could have been assessed under the evidence was $700. The basis for this contention is that, according to the testimony of any witness testifying upon the point, the lowest value of the land actually taken was placed at $200 and the lowest estimate of damages made on account of taking it was $500. The opinions of the several witnesses, both as to the value of the land taken and the damages resulting to appellant by reason of taking it, varied widely.. In valuing the land actually taken, the testimony ranged from one hundred to four hundred dollars an acre; and in estimating the damages accruing to appellant by reason of taking the land the testimony ranged from five hundred to a thousand dollars.

The record, however, contains other evidence than the opinions of the several witnesses as to the value of the' land taken and the amount of damages sustained by appellant on account of taking it. The record reflects the amount, character, and shape of the land taken, the condition in which it left the remaining land belonging to appellant, and the inconvenience resulting to him on account of taking it. The fact was developed that the strip taken was adjoining and parallel to a railroad right-of-way already traversing appellant’s lands, so that the taking of the land did not divide the main body of land differently from the way it was di-’ vided by the railroad right-of-way; that the railroad right-of-way separated appellant’s residence from the main body of land in cultivation, so the taking of the land for road purposes did not cut off appellant’s farm lands from his improvements; that the only expense entailed upon appellant by reason of taking the land for the road was the cost of constructing a crossing over it.

In the assessment of damages for injury to real estate juries must necessarily be governed by the testimony of the witnesses in the case, but, in reaching a result, may consider all the evidence in the case, and are not restricted to values of, and estimates of damage to, real estate fixed by the opinion of one or more witnesses. Jurors are accorded great latitude in the consideration of testimony, and in testing the sufficiency of the evidence necessary to support a verdict, this court “will view it in the light most favorable to the appellee.” Bennett v. Snyder, 147 Ark. 206.

Applying this rule to the facts in the instant case, the jury may have concluded that the only damage sustained by appellant was the value of the land actually taken and the cost of the construction of a crossing over the road. This, on account of the fact that the road paralleled the right-of-way of the railroad already there and did not cut the land in parts different from the parts into which it had been cut by the railroad right-of-way. The evidence would have sustained a much larger verdict than that rendered by the jury, but the evidence is legally sufficient, when accorded its strongest probative force, to sustain the verdict rendered.

No error appearing, the judgment is affirmed.


author: McCulloch, C. J.

text:
    Clemons v. State.
    Opinion delivered November 14, 1921.
    1. Larceny — indictment—variance.—There is a material variance between an indictment alleging the larceny of two cows and proof of larceny of a steer.
    2. Criminal law — variance between indictment and proof — assignment. — An assignment in the motion for new trial challenging the legal sufficiency of the evidence is sufficient to raise the question whether there is a substantial variance between the indictment and the proof.
    3. Indictment and information — variance.—A substantial vari- ■ anee between the allegations of the indictment and the proof amounts to a failure of proof.
    Appeal from Arkansas Circuit Court, Northern District; George W. Clark, Judge;
    reversed.

      Chapline <& MorHson, for appellant.
    One indicted for stealing a cow cannot be convicted of stealing a bull. 34 Ark. 160.
    In an indictment where the allegation is unnecessarily minute as to the description, the proof must satisfy that description. 64 Ark. 231; 119 Ark. 503.

      The existence of a felonious intent is a question for the jury. 25 Cyc. 129. The publicity of the taking was evidence of good faith. 79 Ga. 564; 11 Am. St. Rep. 447. And of more force was the fact thatthe claim wasnot for himself but for another. 29 Ga. 75; Am. & Eng. Ency. (2nd Ed.) Yol. 18, p. 525.
    The taking of property under authority of another in the bona ficle belief that he is authorized to do so is not larceny. 59 Ark. 641; 27 S. W. 225. One taking property under an honest belief that he is the owner, does not constitute larceny. 96 Ark. 148. The mere fact of the taking and carrying away does not raise the presumption of guilt, a criminal or felonious intent must be shown. 32 Ark. 238.

      J. S. TJtley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    Even if it be conceded that there was a fatal variance between the allegation in the indictment and the proof introduced, no objection was raised by appellant at the time, and it is too late to object on appeal. 133 Ark. 66; Ency. of Evidence, Yol. 13, pp. 740, 741; Am. & Eng. Ency. .of- Law, Yol. 28, pp. 61, 62.
    Objections to instructions made for the first time on appeal cannot be considered. 70 Ark. 348; 74 Ark. 566; 70 Ark. 490; 124 Ark. 599.
    Objections will not be considered on appeal where no objections were saved below nor referred to in the motion for new trial. 62 Ark. 543. Exceptions must be preserved in the motion for new trial. 90 Ark. 482. Errors not set out in motion for new trial will not be considered on appeal. 117 Ark. 198; 106 Ark. 138.
    The court will not inquire into the correctness of the verdict if there is substantial evidence to support it. 135 Ark. 117. If the evidence is substantial the verdict must stand. 134 Ark. 385.
    .Even if it be conceded that the juror Marshall had both formed and expressed an opinion, if appellant did not ask him on Ms voir dire whether or not he had heard a similar case, he did not show due diligence. 154 Ark. 36; 93 Ark. 301.
   McCulloch, C. J.

The indictment against appellant charges grand larceny in the stealing of two cows, the property of George Carlson, and on the trial of the case the State proved the stealing of a steer, the property of Carlson.

There was no objection made to this testimony, but one of the grounds set forth in the motion for new trial is that the verdict is contrary 'to the evidence. In other words, in the proceedings below, appellant in apt time raised the question of sufficiency of the evidence; but did not, when the testimony was introduced, raise the question of the variance between the allegations in the indictment and the proof.

It is conceded by the Attorney General that there is a substantial variance between the indictment and the proof, and that if the question had been raised in apt time it would have been fatal to the State’s case, but it is insisted that it is too late to raise that question here for the first time. That the variance is material is settled by several decisions of this court. State v. McMinn, 34 Ark. 160; Keoun v. State, 64 Ark. 231. The case of State v. Haller, 119 Ark. 503, is not in conflict with prior decisions. We agree that the question cannot be raised here for the first time, but is it not raised by the assignment in' the motion for a new trial challenging the legal sufficiency of the evidence? We think that the result of a substantial variance between the allegations and the proof is necessarily a failure of proof, for the proof must conform to the allegations, and, unless it does, there is no evidence to sustain the verdict. Our previous decisions seem to be to the effect that a material variance between the allegations and the proof may be raised on appeal in the same way that the legal sufficiency of the evidence may be challenged. Wilburn v. State, 60 Ark. 141; Blevins v. State, 85 Ark. 195.

The judgment is therefore reversed, and the cause is remanded for a new trial.


text:
    Barfield Mercantile Company v. Connery.
    Opinion delivered November 14, 1921.
    1. Vendor and purchaser — right to receive rents. — A deed conveying title to land in fee simple carries with it the right to collect the rents, and unless the deed reserves the right to the grantor to collect and use the rents, these pass as a necessary incident with the land to the grantee; and this is true where the grantee as lessee owed the rents.
    2. Evidence — parol evidence to vary deed. — Where a deed is absolute on its face and contains no reservation of the rents, proof • of an oral reservation is not admissible.
    3. Evidence — parol evidence rule. — While the rule that parol evidence is inadmissible to contradict or vary the terms of a written instrument is confined in application to the parties to it or to those claiming some right or interest in it, the rule applies where an assignee of a lease assumes the lessee’s liability for rent and subsequently takes a deed in fee simple from the lessor.
    Appeal from Mississippi Circuit Court, Chickasawba District; R. H. Dudley, Judge;
    reversed.

      C. A. Cunningham and Little, Buch & Lasley, for appellants.
    The title passed when the deed was delivered. The presumption is that a deed is delivered the date of its execution. 61 Ark. 104. The deeds, being absolute on their face and containing no reservation, transferred the rent with the reversion, and such rights as appellee had before conveyance. _ 10 Ark. 9.
    The fee simple title to land carries with it the right to its absolute dominion. 92 Ark. 315.
    Where land is rented and the reversion is transferred by the lessor, the right to the rent thereafter to become due is no longer vested in him. Tiffany, Landlord & Tenant, par. 180.

      The court erred in permitting the testimony of appellee over the objections of appellant, as to the reservation of the rent. 10 Ark. 9.

      Gravette & Rayner, for appellee.
    It matters not how the money came into the possession of the party who has it, if the plaintiff is entitled to it. Elliott on Contracts, Sec. 1372; 56 Am. St. Rep. 587; 110 Pac. 46; 30 L. R. A. (N. S.) 807; 7 Colo. App. 528; 44 Pac. 380; 65 Ark. 222; 110 Ark. 578; 163 S. W. 795; 215 S. W. 694.
   McCulloch, C. J.

Appellee was the plaintiff below in this action to recover rents on lands alleged to be due for the year 1918 under a written contract. The case was tried before the court on an agreed statement of facts. The farm which constituted the subject-matter of the lease contract was owned by appellee' and-others as tenants in common. Appellee owned an undivided 1-6 thereof; D. H. Wilhite and W. O. Anthony, owned an undivided 1/2 thereof, and two other persons, whose names are not disclosed in this record, owned the other 2/6 interest. Appellant leased the land from'the owners for a period of 5 years ending December 31, 1919, under written contract stipulating that the rents should be payable annually on November 15, and the amount sued for by appellee is the amount stipulated to be paid her in the contract for her interest. This suit is, as before stated, one to recover the rent for the year 1918. In the spring of that year, appellant made an absolute assignment of the lease to Wilhite and Anthony, they paying to appellant the sum of $500 as consideration for the assignment and as purchase price for a lot of corn, and they “ succeeded to the rights and assumed the liabilities of the Barfield Mercantile Company under its lease contract covering said land.’? On October 12,1918, appellee sold, and conveyed by warranty deed without reservation, her said interest in the tract of land to S. E. Simonson, and on November 12, 1918, Simonson conveyed that interest dv warranty deed without reservation to Wilhite and Anthony. These deeds were placed of record on December 8, 1918, and by the purchase Wilhite and Anthony became the owners of the whole of the land except an undivided 2/6 owned by persons not involved in this litigation.

Appellee was allowed to prove, over the objections of appellant, that in the sale by appellee of her interest in the land to Simonson there was an oral agreement that the rents for the year 1918. should be reserved to appellee.

The trial court made a finding of fact to the effect that the sum of $500 paid by Wilhite and Anthony to appellant for the lease included the rents due appellee for that year, and that in this manner “Wilhite and Anthony paid the defendant the sum of $146 for the use and, benefit of plaintiff, independent of the purchase of the land.” Counsel for appellee defend the judgment on this finding of fact, and contend that appellee is entitled to recover on the ground that the rent money was paid over to appellant for the benefit of appellee and accepted by appellant for her benefit. This finding by the court, however, is not only without evidence to support it, but it is contrary to the affirmative evidence on this subject. The only testimony on that subject is that of Anthony, incorporated in the agreed statement of facts, wherein he testified that Wilhite and Anthony “paid the Barfield Mercantile Company $500 for its contract on said land, and for some corn,” and that “by said transaction the said Wilhite and Anthony succeeded to the rights and assumed the liabilities of the Barfield Mercantile Company under its lease contract covering said lands.” Nor can we, for the purpose-of sustaining a recovery in favor of appellee against the Barfield Mercantile Company, treat the alleged oral agreement between appellee and Simonson as an undertaking on the part of the latter to pay the rent for that year as a part of the consideration for' the deed. It may be conceded that oral proof of such an agreement would not offend against any of the established rules of evidence, but that would not help appellee’s case, inasmuch as Simonson is not sued and appellant can not be held responsible for Simonson’s undertaking to pay the rent as part of the consideration for the deed. Appellee’s right to recover must be tested solely upon the question of her right to prove an oral reservation of the rents in the sale of the land to Simonson.

It is well settled that a deed conveying the title to land in fee simple carries with it the right to collect the rents, and, “unless the deed reserves the right in the grantor to collect and use the rents, these pass as a necessary incident with the land to the grantee.” Gibbons v. Dillingham, 10 Ark. 9; Latham v. First National Bank of Fort Smith, 92 Ark. 315; Gailey v. Ricketts, 123 Ark. 18. Where the deed is absolute on its face and contains no reservation of the rents, proof of an oral reservation is not admissible. Gibbons v. Dillingham, supra; Hardage v. Durrett, 110 Ark. 63; Broderick v. McRae Box Co. 138 Ark. 215.

“The rule that parol evidence,” this court has held, “is inadmissible to contradict or vary the terms of a written instrument, is necessarily confined in its application to the parties to it or those claiming some right or interest under it.” Talbot v. Wilkins, 31 Ark. 411; Gates & Bro. v. Steele, 48 Ark. 539. However, the situation of appellant, Barfield Mercantile Company, falls within the operation of this rule, for appellant assigned the lease to Wilhite and Anthony, and they undertook to assume the obligation by paying the rent. The leasehold estate thus acquired by Wilhite and Anthony under the assignment became merged into the fee simple title in the purchase 'by them of appellee’s interest, and the obligation of appellant, as the original lessee, to pay the rent to appellee was thereby extinguished. Appellant was therefore directly interested in the deed from appellee to Simonson, because it was in the chain of conveyances to Wilhite and Anthony, which constituted the extinguishment of appellant’s obligation under the lease by the merger of the leasehold into the greater estate. The court therefore erred in permitting, appellee to prove the oral reservation and in rendering judgment in favor of appellee on the undisputed facts.

The judgment is therefore reversed, and the cause is remanded for a new trial.


text:
    Hoxie v. Gibson.
    Opinion delivered November 14, 1921.
    1. Municipal corporations — interest in streets — abandonment.— The interest which the public acquires by the dedication of land for a highway or street is merely an easement or right of passage over the soil, the original owner still retaining the fee together with all rights of property not inconsistent with the public use; and when the streets are vacated or the use abandoned, they revert to the owners of abutting lands.
    2. Municipal corporations — streets—adverse possession. — • Prior to Acts 1907, p. 1147, there was no statute exempting incorporated towns from the running of the statute of limitations as to streets and alleys, that statute limiting its operation to adverse possession or occupancy commenced or begun after its passage.
    3. Adverse possession — dedicated streets. — The statute of limitations begins to run against private rights in a street acquired by individuals under purchase of lots according to a plat filed by the owner of adjacent property from the time the latter’s possession became adverse.
    4. Adverse possession — when not permissive.— The fact that an adjacent proprietor took possession of a street after the town council had passed an ordinance vacating it did not render the former’s possession permissive, so as to prevent the statute of limitation from running.
    5. Adverse possession — character of possession. — Where an adjacent proprietor took possession of a street upon its abandonment by the town, and thereafter held possession adversely, it is immaterial whether the special act authorizing the town to vacate the street was valid or not.
    6. Quieting title — jurisdiction of equity. — Where a suit to quiet title to an abandoned street was properly brought in the chancery • court, that court could not be deprived of its jurisdiction by an answer setting up that defendant was entitled to go into the law court and condemn the land for street purposes, and requesting that the cause be transferred to the law court in order that it might be condemned.

      Appeal from Lawrence Chancery Court, Eastern District; L. F. Reeder, Chancellor;
    affirmed.

      Ponder & Gibson, for appellant.
    1. The town council had no authority to vacate the strip of ground in controversy, the same being part of a street. C. & M. Digest, § 4006; 75 Ark. 534; art. V. § 24, Const. 1874. The act No. 254, Acts 1905, p. 667, was void, and conferred no rights on the town or its council to vacate or close any of its streets or alleys. 134 Ark. 366; 120 Id. 214; 121 Id. 610 & Ark. cases cited; 98 Id. 156; 66 Id. 40; 65 Id. 410; 68 Id. 62; 50 Id. 473; 24 Id. 102; 27 Am. & Eng. Ene. 103; 9 Id. 20.
    2. When the owner of the land dedicated the streets and alleys to the town, the fee .passed to the town forever. 27 Am. & Eng. Enc. 117; 21 Fed. 223; 27 Am. St. Rep. 415; 8 Am. Dec. 263; 6 Peters (U. S.) 513; 1 Elliott on Roads and Streets, § 21; Id. % 128; 121 N. C. 350; 3 Colo. 472; 135 Ark. 48.
    3. Appellee acquired no title by adverse possession. Her testimony shows that when she enclosed the property it was not for the purpose of acquiring title, but only to protect her hotel properties from the noises of cattle and from the insanitary condition of the street; and that the idea of acquiring title was conceived only after the burning of the old hotel in 1912,. which was replaced by the new; brick hotel. Her adverse possession, therefore, began after the passage of the act of 1907, Acts 1907, p. 1147, and within its provisions.
    There could be no adverse possession until the street was ordered opened. 1 Gray (Mass.) 203; 56 Tex. 514. The rights of the public in a highway are not barred or lost by the failure of the city to act. Elliott on Roads and Streets, § 1188. And it-is not every encroachment thereon that constitutes adverse possession. Setting out shade trees, making of sidewalks, fencing in a portion of the street, have been held insufficient. Id., 33 Atl. 435; 34 Id. 366; 55 Id. 755; 71 Id. 141; 27 Am. Rep. 295; 18 Am. Dec. 86; 69 Am. St. Rep. 212; 29 Id. 500; 27 Id. 295; 88 Ark. 478. City not estopped on account of inaction of officers for a long period. 66 Ark. 40; 85 IcL. 524.
    4. The act of March 25, 1921, is valid and binding. Our statutes do not provide for a jury trial in matters of condemnation, except where private corporations seek to condemn, and the act is not violative of any provision of the Constitution. It provided a method for the settlement of the litigation in regard to this street. 96 Ark. 411; 32 Id. 553; 78 Id. 432; 77 Id. Ill; 40 Id. 290; 62 Ala. 569; 124 Ark. 61; 132 Id. 412; 134 Id. 121,130; Id. 293; 124 Id. 569; 75 Id. 530; 64 Id. 562; 79 Id. 159; 69 Id. 642.

      Cohn, Clayton & Cohn, for appellee.
    1. Mrs.1 Gibson was the heir of the original owner of the land and entitled to claim as such. At most the ■town acquired nothing more from the platting and dedication than an easement over the soil. 24 Ark. 102; 77 Id. 570, 579. She acquired title by adverse possession, enclosed it with a view to claiming it as her own, kept it enclosed for over fourteen years, built houses— garage and warehouse — thereon. 58 Ark. 151, 156; 73 Id. 106. Ill; 76 Id. 48, 59; 84 Id. 52; Id. 516, 520; 133 Id. 527; 144 Id. 208. Title by adverse possession will sustain an action to quiet title. 83 Ark. 535; 20 Id. 508; Id. 542; 12 Id. 822. Oases cited by appellant from other jurisdictions are not in accord with this court and many others. See 2 Dillon Mun. Corporations, 4th Ed., §<§. 673, 674. Acts 1907 p. 1147 related to adverse possession which commenced after its passage. 133 Ark. 527, 530.
    2. It is not claimed that the town of Hoxie could legally vacate the street in question; but it could, and did, abandon it. 77 Ark. 570; 3 McQuillin, Mun. Corporations, § 1399; 26 L. B. A. 449. It is not the rule in this State that where a street has been dedicated, the fee in the land goes to the city. 24 Ark. 102; 77 Id. 570, 579; 50 Id. 466. Nor in the majority of the States.- 3 McQuillin, Mun. Corp. § 1305:
    3. Whatever the intention of the legislative body in enacting the Act No. 397, approved March 25, 1921, the act does not in terms seek to deprive the chancery court of jurisdiction of this suit, which was pending therein at the time of the act was passed. Intention to oust jurisdiction will not be presumed. 26 Am. & Eng. Ene. 645; 132 Ark. 481; 33 Id. 778, 785-87; 53 Id. 37, 45; 18 Id. 585, 588; 38 Id. 406. It could not, in any .event, deprive the chancery court of jurisdiction in this case, being an action to quiet title. 116 Ark. 490; 95 Id. 628; 80 Id. 145; 109 Id. 250.
    4. Act No. 397, Acts 1921, is invalid. It is an act to settle rights of property of a property holder, by a special proceeding, gotten up for that specific purpose. 1 Grill & J. 365; 31 Am. Dec. 72, 97-99. It provides no adequate time in which to appeal. 76 Ark. 184; 97 Id. 116; 134 Id. 294.
   McCulloch, C. J.

This is an action instituted in the chancery court by appellee against the town of Hoxie to quiet appellee’s title to a strip of land in the town, formerly owned by appellee’s mother, Mary A. Boaz, and dedicated by the latter to the public as a part of a certain street of the town of Hoxie. The chancery court granted the relief sought by appellee, and an appeal is prosecuted to this court.

Appellee’s mother, Mrs. Boaz, formerly owned the land on which the town of Hoxie is situated, and in the year 1883 she causécl the same to be platted into lots and blocks, intersected by streets and alleys, and filed the plat for record. Lots were sold according to the descriptions set forth in the plat, and the streets and alleys thus became' dedicated to public use.

The property in controversy is a strip 60 feet in width and 291 feet in length, south of block 12, according to the plat filed by Mrs. Boaz, and is a part of Springfield Street between two other streets designated as' Texas Street, which is east of block 12, and Maple street, which is west. Mrs. Boaz erected a building on one of the lots in block 12 for use as a hotel. She died, leaving appellee as her sole heir. According to the testimony adduced,, the part of Springfield Street on which- block 12 abutted was left open for public use, but was little used as a -street. It was used so little by the public that it got to be a place where cattle congregated in the evening and at night near the rear entrance to the hotel, and the place became insanitary. It is not contended, however, that the attempted dedica tion by Mrs. Boaz was not complete, nor that the dedication remained unaccepted by the public. The contention of appellee is that the street was vacated and abandoned, and that all rights acquired under the original dedication were thereby extinguished.

In the year 1905 a petition .of certain citizens of the town of Hoxie was presented to the Legislature, perhaps at the instance of appellee, and a special statute was enacted by the legislative session of that year authorizing the town of Hoxie to vacate, by ordinance, this portion of Springfield Street and a certain part of another street contiguous to appellee’s land not involved in this appeal. Pursuant to this statute, the town council enacted and published an ordinance on October 6, closing this part of Springfield Street, and within a short time thereafter appellee took possession of the strip of land in controversy and fenced it. in connection with her other property in block 12. She has kept the property fenced and has maintained exclusive dominion over it from that time until the commencement of this action. The old hotel building was burned in the year 1912, and was replaced by a brick building, used for the same purpose and still owned by appellee.

The testimony is ¿bundantly sufficient to establish the fact that appellee has continuously held the property since the autumn of 1915, in hostile possession and under a claim of ownership sufficient to completely vest the title in her by limitation unless, under the law and the facts of the case, the statute did not run in her favor.

This court, in an early decision, announced the rule, which has been several times reiterated, that “the interest which the public acquires by the dedication of land for a highway or street is merely an easement or right of passage over the soil, the original owner still retaining the fee, together with all rights of property not inconsistent with the public use,” and that “when the streets are vacated or the use abandoned, they revert to the owners of'abutting lands.” Taylor v. Armstrong, 24 Ark. 102; Packet Co. v. Sorrels, 50 Ark. 466; Dickinson v. Arkansas City Improvement Co.,77 Ark. 570.

At the time the adverse possession of appellee began, there was no exemption in the statute of limitation in favor of incorporated towns. A statute was enacted declaring such exemption at the legislative session of 1907 (Acts 1907, p. 1147), but that statute contains a provision limiting its operation to “adverse possession or occupancy commenced or begun after the passage of this act.” The effect of this statute wras construed and its provisions applied in the case of Madison v. Bond, 133 Ark. 527. The statute, of course, ran against private rights acquired by individuals under purchases of lots according to the plat filed by Mrs. Boaz. Mebane v. Wynne, 127 Ark. 364. The fact that appellee acquired possession of the property in controversy pursuant to to the ordinance enacted by the town council vacating the street does not render such possession a permissive one, so as to prevent the statute of limitation from running. It is contended by learned counsel for appellant that the special act of the Legislature authorizing the town council to vacate the street was invalid, a question which we do not deem it necessary to discuss; but, whether this be so or not, it demonstrates the fact that appellee’s possession began under a claim of legal right and not by permission, for it constituted an assertion of her right to resume possession of the property, in which she owned the fee after the public use was abandoned. Nor is it material that when appellee took possession of the property in controversy and fenced it she did not then, as now, purpose to extend the hotel building thereon. The controlling fact, however, is that she took possession and maintained it as a matter of right and under a hostile claim of ownership. Madison v. Bond, supra.

Our conclusion is, that regardless of the question of the legality of the proceedings on the part of the town in vacating the street, appellee’s title is complete by adverse possession, and that all other rights have been extinguished by operation of the statute of limitation.

There is another feature of the case, however, which calls for1 discussion. The General Assembly of 1921 passed a special statute (Act No. 397) referring to the property in controversy and to the -special statute of 1905 in regard to vacating Springfield Street, and authorizing the town of Hoxie to institute proceedings in the circuit court of Lawrence County “against any one claiming ownership in said street, for the purpose of determining whether any one has acquired rights in said street by limitation or under the provision of said statute.” The statute further provides that, if the circuit court “finds that other parties have acquired rights in said street, it shall appoint three citizens of Lawrence County to-act as appraisers,” and that there shall be an appraisal of the value of the property, and that when the appraisal has been made the town council “shall determine whether they are willing to pay the amount thereof and to open said street; and, in the event they determine to open said street, the incorporated town of Hoxie shall execute and deliver' to the parties who are adjudged by the circuit court to be the owners of said street, the warrants of said incorporated town, drawn on its treasurer, for the amount of the appraised value of said street.”

Appellant, in its answer in the present case, pleaded the statute just referred to, and moved the court to transfer this cause to .the circuit court for further proceedings in accordance with the statute. This motion was overruled. u

We are of the opinion that the court was correct in refusing to transfer the case. The chancery court rightfully acquired jurisdiction 'for the purpose of quieting appellee’s title to the strip of land in controversy. The relief sought in this action fell within the original jurisdiction of chancery courts, and the statute in question was nothing more nor less than one prescribing the method for condemnation of this property for public use under the right of eminent domain. It could not deprive the chancery court of the jurisdiction already rightfully acquired, nor was it an attempt to do so. Appellee’s title to the property has been quieted by the decree of the chancery court, and her rights therein are thus settled, but appellant’s authority under this statute to proceed to condemnation of this property is still unimpaired, notwithstanding this decree adjudicating and quieting appellee’s title to the property, for, as before stated, the only purpose of the act is to prescribe the method of condemnation. It is unnecessary for us at this time to determine the question of validity of the mode of condemnation prescribed in this statute, nor is it proper that we should do so, for that question will not arise until the prescribed method is pursued.

The decree is affirmed.


text:
    Wilder v. Little Rock.
    Opinion delivered November 14, 1921.
    Municipal corporations — building permit — extension of fire limits. — The grant by a city of a permit to build a frame building did not constitute a contract, nor, in the absence of any vested rights acquired thereunder, did it prevent the city from extending its fire limits so as to prohibit the erection of such frame building.
    Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor;
    affirmed.

      Hendricks & Snodgress, for appellant.
    The city may extend its fire limits, but cannot give it an ex post facto effect, as it attempted to do in this case.
    The permit contains no provision for revocation, and the law provides for none, and the, city’s action was .without authority. 1 L. R. A. (N. S.) 458 and oases cited. See also case note thereto; 3' Dillion, Municipal Corp. p. 1875; 145 111. 451.
    By the issuance of the permit and the payment by appellant of rent in advance on the premises and other expenditures for lumber, etc., he acquired a vested right which could not be taken away by the action of the city council.

      John F. Clifford, for appellee.
    Authority for the passage of the fire ordinance and ten amendments! thereto is found in §§ 7544, 7554-5, Crawford & Moses’ Digest. Their justification is sustained by 35 Ark. 352; 18 Ark. 252.
    The cases cited by appellant to sustain his theory of a vested right are not applicable, as under those cases some sustantial part of the work of building had been completed, whereas here nothing of this sort had been done, and appellant was out no money, not even for rent, as his lease contained a clause that the contract should be void in case the council revoked the permit. He had reason to expect that this might be done, as the present ordinance was pending at the time the permit was issued.
    Appellant did not comply with § 107 of the ordinance.
   McCulloch, C. J.

On March 17, 1921, appellant applied to the building inspector of the city of Little Rock for a permit to erect a frame building on a certain lot in this city, said lot not then being within the fire limits as fixed by existing ordinances of the city. The structure was to cost approximately $1,000, and on the same day the permit was issued to appellant, signed by the building inspector and countersigned by the city collector, in accordance with the provisions of the ordinance. At that time there was pending before the city council a proposed ordinance extending the fire limits so as to include the lot mentioned in the permit issued to appellant. On the following Monday night, March 20, the city council passed the new ordinance, which was approved by. the Mayor and published, and on March 23 appellant leased the lot mentioned in his permit from the owner, one Dodd. -The written contract of lease between the parties contained the stipulation that “if the city of Little Rock revokes permit ■to put up building, this contract is void. ’ ’. The building contemplated by appellant would be contrary to the provisions of the ordinance creating the fire limits, which prohibits the 'construction of frame buildings. Later the city council revoked the permit, and this action was instituted by appellant in the chancery court of Pulaski County to restrain the city and its officers from interfering with the construction of the building. Appellant alleges in his complaint that, in contemplation of the construction and erection of the building, he purchased material of the value of $100 and that he leased the lot for a period of 5 years, obligating himself to pay $30 per month, and that he paid the sum of $180 in advance.

At the hearing appellant proved that he had entered into a verbal contract with Dodd, the owner of the lot, whereby he agreed to lease the .lot on the Saturday before the city council enacted the ordinance on Monday, but that the lease was not reduced to writing and signed and delivered until after the enactment of the ordinance. There was no proof, so far as the testimony is abstracted, tending to show that appellant had incurred any other liability. So, as the case stands, appellant is insisting that the permit issued by the city authorities is irrevocable, and that his right to construct the building is unaffected by the ordinance subsequently passed.

The statutes of this State authorize city councils of all municipalities to “regulate the building of houses; to make regulations for the purpose of guarding against accidents by fire, and to prohibit the erection of any building or any addition to any building unless the outher walls thereof be made of brick- or mortar, or stone and mortar; and to provide for the removal of anv building or addition erected contrary to such prohibition.” Crawford & Moses’ Digest, § 7544. Another statute, applicable to cities of the1 first class, provides that such municipalities “shall have the power to regulate the building of houses, and to provide that no house or structure shall be erected within the city limits except upon a permit to be issued by such officer or •officers as the city council shall designate, and to provide that no permit shall be issued for the building of any house or structure deemed to be unsafe, insanitary, obnoxious, or detrimental to the public welfare.” Id. § 7754. This statute also authorizes such municipalities to “order the removal or razing of, or to remove or raze, any buildings or houses that have become, in the opinion of the city council, dilapidated, unsightly, unsafe, insanitary, obnoxious or detrimental to the public welfare.” Id. § 7755. Ordinances of the city of Little Rock have been enacted pursuant to this legislative authority. The chancery court dismissed the complaint for want of equity, and an appeal is prosecuted to this court.

A permit to build a house in the city is, under the statutes and ordinances of the city, issued without regard to its situation, either in or out of the fire limits. The officers of the city have no authority to issue a permit in conflict with the valid ordinances of the city relating to fire limits and the construction of buildings, nor can such officers restrict the lawful authority of the city by issuing. permits. Conceding that a permit is irrevocable, it does not follow that the issuance thereof is a bar to the exercise by the city of its power in extending the fire limits so as to include the lot on which the building is to be erected. The permit was merely the granting of a privilege, and did not constitute a contract between the city and appellant. No vested rights were acquired by obtaining a permit, and none arose in the acquisition of property or preparations for the construction of the building prior to the enactment of the new ordinance, so we do not have to deal here with the question of displacement of vested rights by the passage of tlie ordinance extending the fire limits. The city council was clearly within its powers in passing the new ordinance, and, as before stated, appellant was not exempted from its operation by the fact that he held a permit to construct a building on the lot in question.

The cases cited by learned counsel for appellant relate merely to the question of the irrevocability of a permit issued by a municipality, and do not reach the question of the power to extend the fire limits after the issuance of a permit.

Our conclusion is that the decree of the chancellor was correct, and the same is affirmed.


author: Wood, J.

text:
    Ingram v. Thames.
    Opinion delivered November 14, 1921.
    1 Municipal corporations — improvement districts — filing plans. —Under Crawford & Moses’ Dig. §§ 5656-7, providing that boards of improvement in cities and towns shall form plans for the improvement and procure estimates of the cost thereof, and shall report the same to the city or town council, which shall appoint a board of assessors of the benefits to be received by each lot, held that where the board of improvement formed plans and procured an estimate of costs, and reported to the city council, that it had done so, but did not file the plans or estimates with that body, the council was authorized to appoint the assessors.
    2. Municipal corporations — improvement district — limitation to ATTACK on assessment. — Under Crawford & Moses’ Dig. § 5668, providing that, within 30 days after passage of an assessment ordinance, a copy of it shall be published, and all the persons who fail to begin proceedings to correct or invalidate such assessment within 30 days after such publication shall be barred, an attack upon an assessment ordinance up,on the ground that the plans and estimate of costs were not filed with the city council before the assessors were appointed was barred by failure to institute proceedings within 30 days after publication of the assessment ordinance.
    Appeal from Pulaski Chancery Court; J. E. Martineau, Chancellor;
    affirmed.

      Sherrill $ Mallory, for appellant.

      There was no compliance with the provision of the statute requiring the filing of. plans with the city council. C. & M. Digest,5657. A report is a mechanical reproduction of what actually took place. 61 N. Y. Sup. Court, 207.
    The city council was without authority to appoint a board of assessors until the board of improvement had made plans and ascertained the cost of the improvement, 134 Ark. 319; and was without authority to return the assessment list to the board of assessors. 86 Ark. 1.
    No notice of the second assessment being given, the statute of limitations of thirty days did not apply. C. & M. Digest, § 5668.

      Wallace Townsend, for appellees.
    The report of the commissioners was a sufficient compliance with the statute. C. & M. Digest, § 5656.
    The. question of whether the city council had authority to return the assessment list to the board of assessors was not raised in apt time.
    Persons failing to begin legal proceedings within 30 days after the publication of the assessment ordinance for the purpose of correcting or invalidating the assessment shall be forever barred. C. & M. Digest, § 5668; 84 Ark. 257; 90 Ark. 29; 95 Ark. 575; 98 Ark. 543; 69 Ark.' 68; 92 Kans. 513; 141 Pac. 299; 176 N. Y. 31; 105 N. E. 105; 55 N. Y. 361; 92 Pac. 690; 90 Pac. 353; 138 N. W. 967; 134 Pac. 961; 130 N. Y 870.
    The city council had full power to grant the petition for the improvement. 110 Ark. 511.
   Wood, J.

Street Improvement District No. 305 Little Rock, Arkansas, was created by ordinance duly passed by the city council olf the city of' Little Rock on February 7, 1921, and - duly published on February 11, 1921. On March 7, 1921, a second petition in proper form was filed with the city clerk and notice duly published that a hearing would be held thereon on March 28, 1921. On April 4, 1921, the commissioners of the district took the oath and on May 9, 1921, filed with the city council, a report which reads in part as follows: “We have formed plans for the improvement within the district as prayed for in the petition, and have ascertained that 'the cost of such improvement will be $11,400, which is less than 20 per cent of the assessed value of the real property of said district as shown by the last county assessment.” No plans and specifications, or itemized statement of cost for the improvement, were filed with the council.

The duly appointed assessors of the district filed their assessment of benefits on June 16, 1921, and notice of such filing was duly published. Protests against the assessment of.benefits as filed were immediately made by the property owners. The city council referred these protests to its finance committee, which recommended to the council as follows: “We recommend a reduction in the assessment of 5% on property facing double track car lines and 2%% on property facing a single track car line.” The city council adopted these recommendations and referred them to the assessors for reassessment accordingly. The assessors revised the assessments according to these recommendations and filed the same on July 29, 1921.

On August 8, 1921, an ordinance was passed assessing the benefits in the district according to the assessments as revised, which ordinance was duly- published August 12, 1921.

This action was instituted by the appellant in the Pulaski Chancery Court seeking to have all of the acts of the city council, the board of improvement, and the board of assessors subsequent to the filing of the original assessment declared void. After setting out the facts as above appellant alleged that the board of improvement failed to file with the city clerk any plan-for the improvements within the district and that the council had- no authority to refer assessments once filed back to the board of assessors nor to revise the assessments when no appeal had been taken from the assessments of the board of assessors to the city council. The appellee demurred to the complaint on the following grounds, to-wit: “The complaint does not state facts sufficient to constitute a cause of action. The complaint shows that this is a suit to invalidate the assessment ordinance of said district and is begun more than thirty days after the publication of said ordinance and said suit is therefore barred and precluded.”

The court sustained the demurrer. The appellant stood on his complaint. The court entered a decree dismissing the same for want of equity, from which decree is this appeal.

The report of the commissioners to the city council was in writing and informed that body that the commissioners had qualified and organized Into a board and elected a secretary; that they had formed plans as prayed for in the petition for the improvement and ascertained that the cost of such improvement would be $11,400, which was less than 20'per cent, of the assessed value of the real property in the district as shown by the last county assessment. The report concluded by asking that three persons, naming them, be appointed assessors to assess the benefits. Attached to the report was a statement of the engineer of the district as to the cost of the work outlined. The report was a sufficient compliance wtih sections 5656 and 5657, Crawford & Moses’ Digest, which require that, “immediately after their qualification, the board shall form plans for the imorovement within their district as prayed in the petition, and shall procure estimates for the cost thereof * * * and shall report the same to the city or town council, which shall appoint three electors of the city or town, which shall constitute a board of assessors of the benefits to be received by each lot, etc.”

It will be observed that the only purpose of requiring this report to be made to the city council is to advise that body, so that the latter may proceed to an-point the assessors, which is the only duty the' city council has to perform with reference to the report. The commissioners constituting the board of improvement are public agents, and necessarily vested ,'with large discretion in the discharge of their duties under the statute, and, if it had been the design of the Legislature to have the detailed plans, together with the itemized estimated cost of the improvement, filed with the city council before the latter could appoint the board of assessors, such purpose would have been plainly stated in the statute.

It is essential that the board of improvement form plans and procure estimates (for the cost of the improvement. Mo. Pac. Ry. Co. v. Waterworks Imp. Dist., 134 Ark. 315. And the board is directed to report the same to the city council, but the making of such report to the city council is not jurisdictional. If the commissioners had actually formed the plans and ascertained the cost thereof, but had failed to report the same to the city council, the latter body would still have had the power to appoint the assessors to assess the benefits. In others words, the further progress of the improvement could not be arrested and the whole improvement defeated simply because the board had failed or neglected to make proper report to the city council. The report made by the improvement board in this- case was in compliance with the requirements of the statute.

The statute requires that, within thirty days after the passage of the ordinance mentioned above (assessment ordinance), the recorder or city clerk shall publish a copy of it in some newspaper published in such town or city for one time. And all persons who shall fail to begin legal proceedings within thirty days after such publication for the purpose of correcting or invalidating such assessment shall be forever barred and precluded. Sec. 5668, Crawford & Moses’ Digest. The allegations of the appellant’s complaint show that it is an attack upon the assessment of benefits. The appellant did not comply with this statute, and therefore Ms cause of action is barred. Board of Imp. Dist. v. Offenhauser, 84 Ark. 257, 268; Boles v. Kelly, 90 Ark. 29; Webster v. Ferguson, 95 Ark. 575; Bd. of Imp. v. Pollard, 98 Ark. 543.

The decree is therefore correct, and it is affirmed.


text:
    Parker v. Twist.
    Opinion delivered November 14, 1921.
    1. Contract — breach—defense.—In an action by a landowner for breach of a contract to cut and slash the timber on certain land, it was not error to refuse to permit defendant to prove that, after the contract was made, certain persons notified defendant to discontinue cutting timber on some of the land described in the contract.
    2. Contract — breach—defense.—It was not error, in an action for breach of a contract to cut and slash all the timber on certain land, to refuse to permit defendant to prove that not more than half of the timber embraced in the contract had been cut and removed, and that there was enough timber left to more than pay for the cutting of the timber on all of the land.
    S. Evidence — hearsay.—Proof of a conversation between one of. the defendants and a third person in plaintiff’s absence is' hearsay and inadmissible.
    4. Contract — breach—damages.—In an action by a landowner for breach of a contract to cut and slash the timber on certain land, it was not error to instruct the jury that the only question for their determination was what would be the reasonable cost of cutting and slashing the timber on the land.
    5. Evidence — competency—res inter alios. — In an action for breach of a contract to cut and remove all the timber from certain land, it was not admissible for defendant to prove a contract between defendant and a third person whereby the latter agreed to cut and remove the timber from the land for a certain consideration; plaintiff not being present when the contract was made nor bound by it.
    6. Contracts — breach—instruction.,—In an action by a landowner for breach of a contract to cut the timber from certain land, it was not error to refuse to submit to the jury the issue as to whether or not the plaintiff was owner of the land, and whether defendant was prevented from performing his contract by the interferences of third persons; there being no testimony that defendant’s rights to cut the timber was challenged in such manner as to make it incumbent on plaintiff to offer assistance or protection.

      Appeal from Crittenden Circuit Court, First Division; 8. V. Neely, Special Judge;
    affirmed.
    Appellants pro se.

    Parker was prevented from carrying out Ms contract by the interference of third parties who claimed to own the land upon which he was cutting timber. Under such circumstances it was the duty of Twist, the owner, to relieve the situation. This he failed to do and Ms non-action amounted to a breach of the contract, relieving Parker from liability under Ms bond. 98 Ark. 160; 93 Ark. 447; 80 Ark. 228; 97 Ark. 522; 105 Ark. 421.

      Rudolph Isom, for appellee.
    The cases cited by appellants are not in point, ■ as under those cases the, contract was breached by a party to it.- Here the plaintiffs took no such action. The statements as to ownership of the lands not being in plaintiff Twist came from outside sources — parties not involved in this suit. To avail themselves of the plea of breach of the contract by plaintiff, there must have occurred some ouster or some act emanating from the plaintiff indicating an ouster. 112 Ark. 607. The assertion of ownership by outsiders would not excuse defendant from complying with Ms contract.
   Wood, J.

This is an action for damages brought by the appellee against the appellant Ben Parker, C. G. Barton and H. Fletcher to recover of Parker, the principal, and the others as sureties on his bond, for breach of contract. The appellee set up in substance that he was the owner of the land described in the contract, and that on the 22nd day of July, 1916, he entered into a contract with Parker whereby the appellee conveyed and sold to'Parker all the merchantable timber upon the 240 acres of land with the privilege of removing the same until the first day of November, 1917; that Parker agreed that he would cut and slash all the timber upon the land “while the leaves were green if possible during the season of 1916 and not later than the year 1917;” that as a guaranty of the performance by Parker of his part of the contract O. G. Barton and H. Pletclier joined with Parker in a bond of $1,000 .conditioned that Parker would perform the contract. The appellee alleged a failure of performance on the part of Parker by which he had been damaged in the sum of $2,000. He prayed that he have judgment against Parker and the other appellants in the sum of $2,000 and against Parker in. the sum of $1,000.

The appellants denied the allegations of the complaint, and they set up by way of an affirmative defense that, while Parker was complying with the terms of his contract, he was notified by one Max Levy and E. J. Badinelli to discontinue cutting on the lands described in the contract, they claiming to be the owners of the lands, and they forbade Parker from cutting on the same; that Parker notified the appellee of the demand made by Levy and Badinelli, and the appellee told him (Parker) to go ahead and cut the timber, but this Parker could not do in safety to himself, and therefore he discontinued operations on the lands. Parker made his answer a cross-complaint and asked judgment against the appellee in the sum of $600 and the sureties prayed that the complaint as to them be dismissed. Before the case went to trial Parker died, and thereafter as to his estate the ease was revived and progressed in the name of his administratrix.

The appellants offered to introduce testimony to prove that Max Levy notified Parker to discontinue cutting timber on some of the land described in the contract ; that Max Levy and E. J. Badinelli claimed to own these lands; that this fact was communicated to the agent of the appellee, and that nothing was done by appellee to relieve the situation; that at that time not more than one-half the timber embraced in the contract had been cut down and removed, and that there was enough timber left to more than pay for the cutting of the timber on all the lands embraced in the contract; that by reason of this notice to Parker he discontinued the cutting of the timber. Appellants also offered to prove that, in a conversation between Parker and a third party when the appellee was not present, it was said that the cost of the ■cutting and 'slashing of the timber would not have amounted to the sum for which the jury returned a verdict and for which judgment was rendered against the appellants. The court excluded this testimony, and the appellants duly excepted.

The appellants requested the court to submit the issue to the jury as to whether or not the appellee was the owner of the lands and also the issue as to the cost of cutting and slashing the timber under the contract as shown by the offered testimony. The court refused those prayers, to which rulings the appellants objected and duly excepted.

The court, in instructions on its own motion, after defining the issues raised by the pleadings and the uncontroverted testimony, told the jury that the only question left for their determination was what would have been the reasonable cost of cutting and slashing the timber on the 320 acres of land in section 8 described in the contract during the year 1917? That the plaintiff was not asking a verdict against the estate in a sum exceeding $1,000, and that in no case could they find against the sureties in a greater sum than this with interest from January 1, 1918. The appellants duly excepted to the rulings of the .court. The jury returned a verdict in favor of the appellee in the sum of $1,000. Judgment was entered in favor of the appellee for that sum, from which is this appeal.

There is no error in any of the rulings of the court. The appellants offered to prove by a certain witness that, after the contract herein involved was made, the witness entered into a contract with Parker to remove the timber, and appellants also offered to prove by this witness, and from the contract entered into between him and Parker, as to what would be the cost of cutting and removing the timber from the lands. Tim appellee was not present when the alleged contract was entered into between Parker and the witness, and therefore was not ¡bound by any contract or conversation that Parker may have had with witness. The offered testimony was purely hearsay.

The court likewise ruled correctly in refusing to allow appellants to submit to the jury the issue as to whether or not the appellee was the owner of the lands described in the contract, and as to whether or not Parker was prevented from performing his contract by the interference of third parties or strangers to the contract. The testimony' offered by the appellants did not tend to prove that they were ousted from the lands by the appellee, nor that appellee had done anything to obstruct them in the performance of the contract. There is no testimony tending to prove that the appellee was in any manner responsible for the acts of the third parties who claimed to own the lands. That appellants lent “a too diligent ear” to the claims of these parties, and voluntarily quit their work and abandoned their contract because of such claims is their own fault and not the fault of the appellee. Their right of possession under him had not been challenged by third parties in a manner to make it incumbent on the appellee to offer assistance or protection. Parker, therefore, when he abandoned his contract, violated the same, and he and his bondsmen are liable for the resultant damages. See Ingham Lumber Co. v. Ingersoll, 93 Ark. 447, and cases there cited.

Since there is no error, the judgment must be affirmed.