text:
    Combs v. State.
    Opinion delivered April 14, 1924.
    1. Homicide — sufficiency of evidence. — Where there is evidence sufficient to sustain a conviction of voluntary manslaughter, the issue was properly submitted to the jury.
    2. Criminal law — ruling on motion to disqualify sheriff and DEPUTIES. — In a prosecution for murder, the ruling of the court' on a motion to disqualify the sheriff and his deputies to serve a venire facias for special talesmen to serve on the petit jury on the ground of partiality will not be disturbed unless there has been an abuse of discretion.
    3. Criminal law — chart showing bullet wounds on body. — In a prosecution for murder committed by shooting, it was not error to allow the State to introduce a chart made by the coroner showing the location of the wounds on the body of the deceased.

      4. Homicide — threats.—In a prosecution for murder, where there was a conflict of evidence as to who was the aggressor, it was not error to admit testimony of threats by accused against deceased, made several months before the killing, where there was evidence of a continued state of ill will between defendant and deceased from the time the threats were made until the fatal encounter.
    5. Homicide — instruction as to threats. — In a prosecution for murder, where threats by defendant were proved, it was not error to instruct the jury that any threats made by defendant toward the deceased might be considered for the purpose of shedding light on the state of mind existing between the deceased and the defendant.
    6. Criminal law — map op the scene of killing. — In a prosecution for murder by shooting it was not error to admit maps and plats showing the scene of the killing.
    7. Criminal law — res gestae. — In a prosecution for murder committed by shooting, a diagram showing the location of .blood stains and bullet-holes found on the premises after killing was admissible as part of res gestae.

    8. Witnesses — allowing witness to refresh memory. — In a criminal trial it was not error to permit a State’s witness to refresh his memory by notes of.his testimony on the subject-matter taken before the grand jury.
    9. Homicide — relevancy of shells found on premises. — In a prosecution for murder by shooting it was not error to confine the inquiry concerning shells to those that were found on the premises immediately after the killing, or so near as to throw light upon the number of shots fired or kind of weapons used.
    10; Criminal law — res gestae. — In a prosecution for murder it was error to exclude testimony that, immediately after the shooting, defendant said that the deceased “has shot me, and I think I have killed him; see what you can do for him;” such • testimony being a part of res gestae.

      11. Witnesses — impeachment by contradictory statement. — In a prosecution for murder, where a State’s witness had testified that he had notified defendant that deceased was mad at him, and that defendant had told him that he was going down to the office of deceased and “cuss it o,ut with him,” and on cross-examination denied that he had stated, in the presence of witnesses, that the reason why he did not tell defendant that deceased was mad at him and was going to kill him was that it would do no good, it was error to exclude the testimony of such witnesses that he did make such a statement; such evidence affecting his credibility.

      12. Witnesses — competency op convict. — Under Crawford & Moses’ Dig., § 4145, convicts, as such, are not disqualified from testifying.
    13. Witnesses — impeachment.—Where defendant testified that he was known by either of two names in Kentucky, where he was raised, the matter being merely collateral, it was error to permit the State to contradict him by proving that he was known in Kentucky by only one of such names, which was different from the name which he went by in Arkansas.
    14. Criminal law — res gestae. — On a murder trial, evidence of a witness that he saw defendant immediately after the killing, and that he accused- the witness of causing him to be shot, in not telling him that deceased intended to shoot him, was competent as res gestae, and as tending to contradict a former statement of the same witness that he had told defendant that deceased was angry and for him not to go in there for a while, and that defendant ran his hand in his pocket and walked in there.
    Appeal from Garland 'Circuit Court; Earl Witt, Judge;
    reversed.

      Richard M. Ryan, Gibson Witt, Sr., N. A. McDaniel and South Strong, for appellant.

      J. S. Utley, Attorney General, Jolm L. Carter, Win. T. Hammock, Darden Moose and. J. S. Abercrombie, Assistants, for appellee.
   Wood, J.

This is an appeal from a judgment of the Garland Circuit Cou|rt sentencing the appellant .jo imprisonment in the State Penitentiary for a period of five years. We find that there are some errors in the record for which the judgment must be reversed, and the cause remanded for a new trial. We will therefore .discuss only these errors and such other grounds of appellant’s motion for a new trial as we deem necessary to properly guide the court on issues that may likely he raised at another trial.

The indictment is valid, and, in approved form, charged the appellant with the crime of murder in the first degree in the killing of W. A. Matthews, which charge also embraces- voluntary manslaughter, the crime of which appellant was convicted. While the verdict of the jury did not find appellant g*uilty of voluntary' manslaughter, the punishment fixed by the jury necessarily shows that voluntary manslaughter was intended. .See §§ 2367-2368, Crawford & Moses’ Digest. Bettis v. State, 164 Ark. 17.

1. About four o’clock on the afternoon of August 4, 1923, the appellant shot and killed Matthews in the latter’s office in the city of Hot Springs, Arkansas, by shooting him four times with a pistol. There were no eye-witnesses to the actual rencounter.’ -According to appellant’s version, he entered Matthews’ office on business, and, immediately upon entering the office, Matthews approached him with a shotgun leveled upon him. The appellant begged him not to shoot him, and jumped from left to right several times in an endeavor to get out of the way, when finally Matthews fired one barrel of his gun at a distance of eight or ten feet, and appellant fell to the floor. Matthews rushed upon him, and pressed the gun up against appellant’s body. Appellant grabbed the muzzle of the gun and raised himself up, and they struggled back and forth across the floor of the office. The appellant backed Matthews against the left wall, and, while they were still struggling, appellant pulled his pistol and fired into Matthews. They both fell to the floor. Appellant pulled himself up, and staggered out of the office across the street. Appellant had no ill will toward Matthews, and was not expecting any trouble with him.

Several witnesses, who were in proximity to Matthews’ office at the time of the rencounter, testified for the State to the effect that they heard the sound of shots as of a small gun before they heard the sound as.of a large, gun. The witnesses designated the louder reports as shots from the shotgun — -the big gun — and the other reports as the shots from the small gun — the pistol.

There was some testimony on 'behalf of the State to the effect that Matthews was running a stave-mill, and that he had been informed that appellant was cutting his ties and selling them, and that Matthews was ano-rv at appellant on that account; that, on the day of the killing, a -witness, who knew that Matthews was very angry with appellant, informed appellant of that fact, and appellant said that he was going down to Matthews ’ office and cuss it out with him;” that appellant said this ten or fifteen minutes before the shooting, and was going towards Matthews’ office at the time. There was testimony to the effect that, in March previous to the killing, the appellant had said that he would kill that damned old son of a b-if he ties into me and fools with me.”

The physical facts surrounding the shooting were detailed in evidence before the jury. There was abundant evidence to corroborate the testimony of the appellant, and to sustain his contention that he killed Matthews in necessary self-defense; and, if the testimony in his behalf had been credited by the jury, it would have warranted a verdict of not guilty. On the other hand, the testimony adduced by the State was sufficient to warrant the jury in finding the appellant guilty of voluntary manslaughter. So the issue of appellant’s guilt or innocence, under the evidence, was an issue of fact for the jury.

2. The appellant moved to disqualify the sheriff and his deputies.to serve the venire facias for special talesmen to serve on the petit jury, alleging that the sheriff and his deputies were so prejudiced against him that they could not act impartially in summoning the talesmen. Testimony was adduced by the appellant to sustain his motion, and the court, after hearing the motion, sustained the same as to the sheriff’s deputies but overruled same as to the sheriff himself, and directed the sheriff to personally summon the special talesmen.

Upon the evidence adduced on the hearing of the motion the court did not err in its ruling. The ruling of the court on this issue must be judged 'by the testimony adduced at the hearing, and not by any alleged misconduct of the officer after the jury was impaneled and the cause submitted. The appellant testified on the motion that, from what he had heard from his friends and other people, he did not believe that the sheriff would summon, a fair and impartial jury. But duly qualified officers cannot 'be disqualified upon the opinion of prisoners, based upon hearsay that such officers are so prejudiced that they would not be impartial in the discharge of their sworn duties. In such matters the trial judge is necessarily vested with large discretion, and his ruling will not be disturbed unless it clearly appears that there has been an abuse of his discretion.

3. There was no error in allowing the State to introduce a chart or plat made by the coroner, Dr. Randolph, who, immediately after the killing, examined the dead body of Matthews. This plat described the location of the wounds on Matthews ’ body, showing the places of entrance and exit of the bullets which resulted in the death of Matthews. Dr. Randolph testified that this plat was a correct representation of what it purported to show. Hankins v. State, 103 Ark. 28.

4. Witness Virgil Spear testified, over the objection of appellant, that, some time along in March, 1923, Mr. A. A. Mandrell had given appellant a letter that Matthews sent appellant. Appellant was mad about it, and was talking to Mandrell, and said: “I am going in to town and I will kill that damned old son of a b-if he ties into me and fools with me.” Mandrell testified that in March, 1923, he had a conversation with appellant about Matthews. Matthews had sent a letter by witness to appellant. Witness delivered the letter to appellant, and it was so dark at the time he could not read it. Appellant rammed the letter down in his pocket and said, “That is two I have got today from the damned old son of a b-Appellant further said, “If he had come up here himself I would have blowed hisGr-d-brains out,” and further said,“If old Bill Matthews don’t quit fooling with me I will blow his Gr- d-brains out. I have took about as much off of-him as I am going to take.”

The appellant objected to the above testimony, on the ground that the threats were too remote.

As we have just seen, there was some testimony to the effect that the appellant, on the very day of the killing, and while he was on his way to Matthews’ office, stated that he was going down there to'“cuss it out with him.” It is admitted that he went to Matthews’ office ■armed with a pistol. While the testimony on behalf of appellant was to the effect that there was no ill-will between himself and Matthews, and that he did not anticipate any trouble with him, nevertheless there was testimony on behalf of the State tending to prove that there was ill-will between them, and these threats of appellant were not so ambiguous in meaning and remote in time as to render them incompetent testimony, as was the case in Billings v. State, 52 Ark. 503, upon which appellant relies. On the contrary, these threats were very pointed and definite, and tended to show a mental status on the part of appellant towards Matthews that was far from friendly. “Threats are circumstantial facts and a ■part of the res gestae when so connected with the conduct of the parties as to explain their motives.” Palmore v. State, 29 Ark. 248. Where the point is in doubt as to who was the aggressor, uncommunicated threats are admissible as tending to throw light upon that issue, if they are •sufficiently definite in fact to involve a threat, and sufficiently near in time to indicate present ill-will towards the person about whom they are.made. Casat v. State, 40 Ark. 511; McGough v. State, 119 Ark. 57; Lee v. State, 72 Ark. 436.

It follows, from what we have said, that the court did not err in admitting the testimony of Spear and Mandrell, and it also follows that the court did not err in giving instruction No. 20, to which, appellant objected, in which the court told the jury that, in determining who was the aggressor, “you may also take into consideration any threats made by 'the .defendant toward the deceased; that any such threats, if any,, may be taken into consideration by you for the purpose of shedding light on the state of mind existing between the deceased and the defendant. ”

5. Appellant assigns as error the ruling of the court in permitting the State to introduce maps and plats showing a diagram of Matthews’ office, where the killing occurred. Witnesses testified that these plats were a correct representation of the premises. Appellant also objected to the testimony in regard to blood stains and bullet holes found on the premises. This was all competent testimony. The plats would enable the witnesses to point out to the jury the locations and distances, and bring to the jury, in a clearer way than they otherwise could, the facts within their knowledge about which they were testifying. The blood spots and bullet-holes were a part of the res gestae; they were physical evidences concerning the rencounter which were relevant and competent for whatever light they might throw upon it. Hornsby v. State, ante p. 396, and cases there cited; Ragland v. State, 71 Ark. 65; Hankins v. State, supra.

6. The court .did not err in permitting the State to refresh the memory of its witness, Akers, by notes of his testimony on the subject-matter thereof taken before the grand jury. It is not contended that the testimony itself was irrelevant, hut only that the witness should not be permitted to refresh his memory from the notes taken before the grand jury. There was no error in the court’s ruling.

7. Witness Akers, on re-cross examination by counsel for appellant, was asked the following question: “Now those three shells that Mr. Wakeland presented to you, where did he claim that he found them?” The court ruled that it was not proper “to go into another three shells; that the shells that had been introduced'in evidence were the only ones that the jury could consider. ’ ’ The appellant excepted to this ruling of the court. There was certainly no error in the ruling of the court in confining the inquiry concerning the shells to those that were found on the premises immediately after the killing, or so near as to throw light upon the number of shots fired, weapons used, etc. For aught that this record shows, the court was endeavoring, by its ruling, to limit the inquiry to that situation by not permitting the introduction of shells that were not found on the premises after the shooting, and which therefore were not relevant to the issue as to the number of shots fired or the character of the weapon used in the killing of Matthews.

8. It would unduly extend this opinion to discuss the remainder of the forty-six assignments’of error which appellant’s counsel urge as grounds for the reversal of the judgment. We will therefore dispose of the numerous other assignments by saying that we find no reversible error in these rulings of the court, except the following:

(a) The appellant offered to prove by several witnesses that, immediately on hearing the report of the small gun, they saw appellant walking across the street from Matthews’ office, some fifty yards away. One of them assisted appellant, to a chair, and appellant said, “Matthews has shot me, and I think I have killed him; see what you can do for him.” The court would not allow this testimony. In this ruling the court erred. These declarations of the appellant, coming immediately after the rencounter and so close to it, should have been received as a part of the res gestae. There was no time for reflection and dissimulation: They were spontaneous exclamations, coming from the excited brain of one of the actors, just emerging from the scene of conflict, without any time to disguise his feelings and to resort to subterfuge.

In the case of Outler v. State, 154 Ark. 598-600, the facts were quite similar. The appellant, who had killed a man and his brother, immediately after the fatal rencounter rushed into the presence of an excited crowd, cursing and commanding the people to stand back, and, among other things, said, “He come out there and drawed a damn little short gun on me like this.” And further said, “If any damn son of a b-wants to be deputized, come on.” We held that these declarations were part of the res gestae, and were competent. While declarations made by the accused immediately after the commission of the crime are always to be received with eaution, yet if they are so immediate and made under circumstances which preclude the idea- of reflection and the possibility of concocting a story showing a motive on the part of the actor to excuse, palliate, or justify himself, then they are competent for the reason, as stated in Carr v. State, 43 Ark. 99-104, that they “stand in immediate causal relation to the act and become a part either of the action immediately preceding it or of the action which it immediately precedes.” In other words, such declarations are a part of the surrounding facts of the transaction explanatory of it, rather than showing a disguise or subterfuge to escape its consequences. They are verbal acts, so to speak, growing out of the rencounter, and are a part of it. Cornelius v. State, 12 Ark. 782; Childs v. State, 98 Ark. 435, and cases there cited; Plumley v. State, 116 Ark. 17; Stevens v. State, 117 Ark. 64.

The offered testimony was competent for the consideration of the jury, and they might have concluded that these declarations of the appellant, under the circumstances, were corroborative of his testimony at the trial to the effect that Matthews was the aggressor. At any rate, the testimony was competent for whatever effect it may have had in the minds of the jury in determining the guilt or innocence of the appellant.

(b) Witness Herron testified for the State that, on the day of the killing, he met the appellant going towards Matthews’ office, and that he told appellant that Matthews was mad at him, and that appellant said that he was ‘ ‘ going down there and cuss it out with him. ’ ’ Herron, on cross-examination, was asked by counsel for appellant if he did not state, in the presence of witnesses Henry Grantham and Mrs. Grantham, on the Sunday after the killing, that the reason why he did not tell the appellant that Matthews was mad at him and going to kill him was because he didn’t think it would do any good. Herron answered that he did not make the statement.

The appellant, in rebuttal, offered to prove by the Granthams that Herron did make this statement in their presence. The court ruled that the testimony of the Granthams to the effect that Herron told' them, on the Sunday mentioned, that he was down at Matthews ’ office and that he knew that Matthews was going* to kill appellant, was proper, hut that the part of their testimony in which they say that Herron also stated that the reason he didn’t tell appellant that Matthews was there with his shotgun to kill him when he came in at the door, was because he didn’t think it would do any good, was improper because it was the mere expression of the opinion of the witness Herron. The court erred in excluding this testimony. It was very material, as affecting the credibility of Herron. The jury had a right to consider the reason Herron gave for not telling appellant, when he knew that appellant, as the witness himself said, was going to Matthews’ office, and that Matthews was mad at appellant, had'his shotgun, and was ready to kill appellant. The jury might have concluded that, if the facts to which Herron testified were true, he would have communicated same to appellant; that it would have been wholly unreasonable for any right-thinking man with normal impulses not to have done so, and that therefore the testimony of Herron was unworthy of belief.

(c) The appellant, in answer to question, stated on cross-examination, that, in Breathitt County, Kentucky, where he was 'born, his mother died when he was a very small boy, his father left Kentucky, and he was reared by foster parents to manhood, and took their name of Combs. His real name was Tom Barnett. His grandmother on his mother’s side was named Combs, and he took the initials “J. L.” of his grandfather on his mother’s side, when he left Kentucky. Everybody knew the circumstances under which he was brought up. He was known in the same place- — -Breathitt County — by some people as Tom Barnett and by some as J. L. Combs. The State introduced a witness by the name of Cornett, a convict in the State Penitentiary, who testified that he knew appellant in Breathitt County, Kentucky. He was asked if appellant was known by any other name than Tom Barnett in Breathitt County, and answered, “No sir; not to my knowledge. ’ ’ This witness further testified that he saw appellant at Pennington Gap, Virginia, and' his name there was Tom Barnett, and, so far as witness knew, appellant was not known by any other name there. Witness met appellant at El Dorado, in this State, about February, 1922, and recognized him and called him Tom.

Appellant objected to the above testimony of the witness Cornett, on the ground, first, that he was not a competent witness, and second, on the ground that his testimony was concerning a collateral matter. The court overruled the objection, and' appellant duly excepted to the ruling. The fact that the witness was a convict did not render him an incompetent witness. 'Section 4145, C. & M. Digest. But the court erred in permitting the witness to testify that, in Breathitt County, Kentucky, appellant went under the name of Tom Barnett, and not under any other name, so far as witness knew. The court should not have permitted the testimony of this witness, because it was concerning collateral matters. The State had elicited these on the cross-examination of appellant, and it was bound by his answers. It could not introduce a witness to contradict him. Butter v. State, 34 Ark. 480; Plunkett v. State, 72 Ark. 409; Selters v. State, 93 Ark. 313; McAlister v. State, 99 Ark. 604. The testimony of the witness was exceedingly prejudicial to appellant.

(d) The court would not permit Lem Burke, a witness for the appellant, to testify that lie saw appellant when he came out of the door of Matthews’ office, after the shooting; that he was all stooped over, running the best he could up the sidewalk, coming that way. He was running, and bloody as he could be. He came right over there, and they set a chair out there, and he sat down; he ran up and said, “Burke, you caused me to get shot.” I said, “I told you not to go in there; I didn’t know he was going to shoot you.” He asked me, “Why didn’t you tell me the old man was aiming to shoot me?” I said, “I didn’t know it, Mr. Combs, I swear I didn’t.”

The above testimony should have gone to the jury. The statements made by appellant, under the circumstances disclosed by Burke’s testimony, constituted a part of the res gestae, for the same reason given in subdivision “a,” which we will not repeat. The testimony was also relevant because it tended to' contradict the former statement made by Burke himself, to the effect that he had said to appellant that Matthews “was on his ear a little bit,” and' further said to appellant, “Oh, I wouldn’t go in there for a while,” whereupon appellant replied, “Oh, hell,” or “Hell, yes,” and ran his hand in his pocket, and walked in there. The last testimony of Burke as to the statements of appellant immediately after he was shot tended to prove that appellant went into Matthews ’ office wholly unsuspecting that Matthews was mad and might do him violence, whereas Burke’s former statement in his testimony tended to prove that appellant, after being fully advised, voluntarily sought the rencounter which had such a tragic ending. The jury might have found that the testimony of Burke was contradictory in itself. The court erred in not admitting the testimony as above set forth. The charge of the court, as a whole, fully and correctly declared the law applicable to the facts.

' We find no other reversible errors in the record, but, for those indicated, the judgment must be reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: Hart, J.

license: Public Domain

text:
    Sutton v. State.
    Opinion delivered April 14, 1924.
    1. Grand jury — order calling special grand jury. — Where, after the regular grand jury had been dismissed, the court set aside an indictment for irregularity and ordered a special grand jury to be summoned for the purpose of considering the charge against defendant, it is immaterial that the order for a special grand jury was not entered of record until after the trial had ended, as the court was authorized to correct its record so as to make it speak the truth.
    2. Grand jury — right to order special grand jury. — Where an indictment presented by the regular "grand jury had been set aside after the grand jury had ¡been discharged, it was not an abuse of discretion to cause a special grand jury at the same term to" be summoned to consider the charge against defendant.
    3. Grand jury — power to call special grand jury. — That a motion to set aside an indictment of the grand jury was made by the prosecuting attorney, instead of by the defendant, was immaterial to the power of the court under Crawford & Moses’ Dig., §§ 3057-8, to call a special grand jury, after the sustaining of such motion, to reindict defendant.
    Appeal from Little River Circuit Court; Ben F. Isbell, Judge;
    affirmed.

      DuLcmey S Steel, for appellant.

      J. S. Utley, Attorney General, J.oJm L. Garter, Wm. T. Hammock, Darden Moose and J. S. Abercrombie, Assistants, for appellee.
   Hart, J.

Alf Sutton prosecutes this appeal to reverse a judgment and sentence of conviction against him for the crime of assault with intent to kill.

The only assignment of error relied upon for a reversal of the judgment is that the court erred in refusing to quash the indictment on motion of the defendant. As grounds for his motion, the defendant alleged and proved that he was arrested under a warrant issued by a justice of the peace in Little River County, Arkansas, in October, 1923, charging him with-the crime of assault with intent to kill Harley Mason.

In November, 1923, the defendant was bound over by the justice of the peace to await the action of the grand jury. The circuit court convened on the 7th day of January, 1924, and the regular grand jury, impaneled on the first day of the term, returned an indictment against him for the crime of assault with intent to kill Harley Mason in October, 1923. On the 21st day of January, 1924, the indictment was quashed and the case ordered referred to the next grand jury. At the same term of the court it was ordered that a special grand jury be called and impaneled for the purpose of considering the same charge against the defendant. The special grand jury returned an indictment against the defendant, Alf Sutton, charging him with the crime of assault with intent to kill Harley Mason in October, 1923. This was the same crime for which the regular grand jury had indicted'him, and which indictment had been quashed by the court after the regular grand jury had been discharged. The defendant was tried on the new indictment, before a jiiry, which returned a verdict of guilty and fixed his punishment at one year in the State Penitentiary. After sentence had been pronounced upon the defendant, and after he had filed his motion to quash the indictment on the grounds stated, there was an order of the court for the special grand jury entered of record as follows: “It appearing to the court that there were faulty indictments against certain persons charged with felonies, .which indictments have this day been quashed and referred to the next grand jury, and it further appearing to the satisfaction of the court that a necessity exists for the summoning of a special grand jury;

“It is therefore considered, ordered and adjudged by the court that the sheriff of Little Eiver County, Arkansas, summon a special grand jury from the-inhabitants of said county, and qualified to serve as grand jurors, to appear before the Little Eiver Circuit Court on the 21st day of January, 1924, at 1:30 p. m., to qualify as such jurors.”

Objection is made by the defendant to this order, on the ground that it was not entered of record until after the trial had ended. It is well settled in this State that a court has the inherent power to correct its records So as to make them speak the truth, and may do so on any legal and competent evidence, even after the term has ended as well as during the term. Bowman v. State, 93 Ark. 168, and cases cited; Hydrick v. State, 103 Ark. 4; and Dawson v. State, 121 Ark. 211.

The main ground, however, relied upon by the defendant for a reversal of the judgment is that the only power of the court to call a special grand jury was under § 3004 of Crawford & Moses’ Digest, and that the record affirmatively shows that the offense charged to have been committed by the defendant occurred before the sitting of the court, and that the court did not have the power to summon a special grand jury to indict him after the indictment which had been found by the regular panel had been set aside. In this connection it may be stated that the special grand jury which indicted the defendant in the case at bar was not called under the provisions of § 3004 of Crawford & Moses ’ Digest. As we have already seen, the regular grand jury had' indicted the defendant for this same crime, and the indictment had been set aside by the court after the regular panel of the grand jury had been discharged.

. Section 3057 of Crawford & Moses’ Digest provides that one of the grounds for setting aside an indictment is that it was not found and presented as required by law. The presumption is that, in the absence of a showing to the contrary, the indictment returned by the regular grand jury was set aside under this section of the statute.

Section 3058 of the Digest contains' the method of procedure on sustaining the motion, and reads as follows: “If the motion (to set aside an indictment) is sustained, and the court shall order that the case be submitted to another grand jury, to be assembled at that or the next term of court, and the defendant, if in custody, shall be remanded to bail, or, if on bail, the bail shall be liable for the defendant’s appearance to answer a new indictment, if one be found.”

Section 3058, when read in connection with the preceding section, expressly provides that, where a motion to set aside an indictment is sustained, the court shall make an order that the case be submitted to another grand jury, to be assembled at that term or the next term of the court.

It is true that the motion to set aside the indictment was made by the prosecuting attorney; but this does not make any difference. These two sections of the statute are a part of our Criminal Code, which was passed for the purpose of simplifying and expediting the trial of criminal cases. The method of procedure provided was for the benefit of the State as well as of the defendant.

When the court sustained the motion of the prosecuting attorney to set aside the indictment as being defective, the regular grand jury had been discharged, and, under the statute, it was within the discretion of the court to call a special grand jury at the same term, or to continue the case until the next term for action by the grand jury. Hence we are of the opinion that the circuit court was right in overruling the motion of the defendant to quash the indictment of the special grand jury upon which the defendant was tried and convicted.

No prejudicial error appears in the record, and the judgment will therefore be affirmed.


author: Hart, J.,

text:
    State Bank of Siloam Springs v. Marshall.
    Opinion delivered April 14, 1924.
    1. Banks and banking — liability for dishonoring check. — A bank is bound -to honor checks drawn on it by a depositor having, sufficient funds, not subject to any lien or claim, on deposit when the -cheek is presented, -and is liable in an action by the depositor for its refusal or neglect to do so.
    2. Banks and banking — liability for dishonoring check. — Under Gen. Acts 1921, p. 514, § 10, a depositor whose check is wrongfully dishonored by the bank may recover anything more than nominal damages only by allegation and proof of special damages proximately resulting.
    3. Banks and banking — dishonor of check — damages.—Testi- • mony of plaintiff, keeper of a boarding-house, that she suffered damages to her credit in business- was not sufficient, in the absence of proof of the facts and circumstances which occasioned the damage and the amount thereof, to entitle her to more than nominal damages.

      Appeal from Benton Circuit Court; W. A. Dickson, Judge;
    reversed.
    STATEMENT op pacts.
    This is an action by Charlotte Marshall against State Bank of Siloam Springs, to recover damages for the refusal by the defendant to honor certain checks drawn on it by the plaintiff, against a deposit subject to checking which she had with the defendant,' and which was more than sufficient to meet the checks so drawn when presented.
    It appears from the record that, during the period of time involved in this lawsuit and for several years prior thereto, Charlotte Marshall was engaged in operating a rooming and boarding-house in Siloam Springs, Arkansas. On the 19th day of November, 1921, she had on deposit, subject to check, in the State Bank of Siloam Springs the sum of $245.27. On November 23, 1921, she gave a check on the bank for $10 for goods purchased at a drugstore. On November 26, 1921, the plaintiff gave a check upon the bank to a mercantile company for $30.25 in payment of merchandise which she had bought. On the same day she gave another merchant a check on the bank for $20 for merchandise bought from him. On November 25, 1921, she gave a lumber company a check on the bank for $10 for lumber bought from it. Each of these checks was returned marked “no funds,” and the bank refused payment on the cheeks because it had applied the amount on deposit to the credit of the plaintiff in payment of a debt due in the future 'from the plaintiff to the defendant. It also appears from the evidence of the plaintiff that she was not insolvent at this time. Other facts will be stated or referred to in the opinion.
    The jury returned a verdict in favor of the plaintiff against the defendant in the sum of $250; and from the judgment rendered the. defendant has duly prosecuted an appeal to this court.

      A. L. Smith, for appellant.

      1. The demurrer to- the amended complaint in its entirety should have been sustained. Since the enactment of the statute prescribing- the rule of pleading- in suits of depositors against banks 'for -wrongfully dishonoring their check, Acts 1921, p. 522, § 10, the bare allegation of -wrong refusal to pay plaintiff’s checks, and the statement that by reason thereof the credit of the plaintiff was- injured in a certain amount, is not sufficient.
    2. The plaintiff has wholly failed to prove any special damages, or any damages whatever, by reason of the refusal to pay her checks. N. Y. Supp. 236, 59 N. Y. Super. <Ct. 71; 56 N. Y. -Supp. 380; 75 Id. 861; 35 Hun (N. Y.) 16; 52 N. Y. Supp. 638; 28 Conn. 201; 43 Conn. 562; -81 Mich. 227; 24 Pac. 188; 63 Pac. 812, 23 Utah, 199; 31 S. W. 260; 51 Mo. 319; 42 Mo. App. 542; 12 S. W. 655 ; 63 Fed. 62; 11 C. C. A. 27; 73 U. S. (6 Wall.) 578; 87 Fed. 135; 46 S. W. 554; 101 Terna. 1.

      Tom Williams, for appellee.
    Section 10 of the act of March 26, 1921, is unconstitutional and invalid; -but, even if valid, the complaint stated a cause of action.
   Hart, J.,

(after stating the facts). At the time the plaintiff drew the. checks in question on the defendant bank she had on deposit there a sum subject to her check which was greater than the amount of the four checks drawn by her upon which the bank refused payment. The ground upon which the bank dishonored the checks was that it had applied the deposit of the plaintiff towards the payment of a debt which she owed the bank, but which was not then due. It was also shown by the plaintiff that she was not at the time insolvent, and that the bank had no lien on her deposit.

The general rule is that a bank is bound to honor checks drawn on it by a depositor, if it has sufficient funds belonging to the depositor when the check is presented, -and the funds are not subject to any lien or claim, and for its refusal or neglect to do so it is liable in an action by the depositor. This rule is so well settled in this State, as well as elsewhere, that a citation of authorities in support of it is not necessary.

In McFall v. First National Bank, 138 Ark. 370, and First National Bank v. McFall & Co., 144 Ark. 149, this court held that, in case a bank wrongfully dishonors, through mistake or otherwise, a merchant’s or trader’s check, injury to his credit may be inferred from the fact that he is a merchant or trader, and substantial damages may be awarded upon proof of that fact without anything more.

The reason is that the act of the banker in refusing to honor the check imputes insolvency or bad faith to the drawer of the check, and has the effect of slandering’ the merchant or trader in his business. The refusal to pay the check injures the credit of the merchant or trader, and because this element of damages is difficult to prove and estimate, temperate damages are allowed. They are more than nominal damages, and are such as would be a reasonable compensation for the injury to the credit of the merchant or trader.

Subsequent to the rendition of these decisions, the Legislature of 1921 passed act 496, whereby the act of the General Assembly of 1913, creating the State Bank Department, was amended. 'Section 10 of the act reads as follows:

“A depositor, whether a merchant or trader or otherwise, may recover from any bank doing business in this State for or on account of its wrongful dishonor of his check, only upon allegation and proof of such special damages as have approximately resulted to him therefrom.” General Acts of 1921, p. 514 at 524.

The evident purpose of the section quoted was to change the rule announced in the decisions referred to above and to require depositors in all oases to prove the amount of damages they have suffered by reason of the bank’s refusing to pay their checks before they can recover more than nominal damages. In short, merchants and traders must prove actual loss to their credit before they can recover damages from a bank for refusing to pay their checks.

In the instant case the court limited the right of the plaintiff to recover against the defendant compensa/ tion for damage to her credit. In this connection it may be stated that the plaintiff was not a merchant or trader, and did not suffer any damage to her credit.

In construing the Federal bankruptcy act it has been generally held that a merchant or trader is one whose business it is to buy merchandise, goods or chattels, to sell the same at a profit. One engaged in running a rooming and boarding-house is .not a merchant or trader. One engaged in the business of running a boarding and rooming-house is not engaged in the purchase and sale of merchandise or chattels, but is engaged in furnishing the traveling public with a temporary home and with food. It is true that groceries and other merchandise are purchased for use in running rooming-houses and feeding the boarders, but the articles are used by the roomers, and served, to the boarders in a changed form.

• It has been well said that to say such a business is that of a merchant or trader is giving those words an elasticity of meaning not according to common usage. Toxaway Hotel Co.v. Smathers, 216 U. S. 439; In re Excelsior Cafe Co., 175 Fed. 294; In re Wentworth Lunch Co., 159 Fed. 413, and In re United States Hotel Co., 134 Fed. 225.

The plaintiff, not being* a merchant or trader, was not entitled to recover more than nominal damages under the proof made. Her testimony that she suffered damages to her credit in business was not sufficient to allow her to recover more than nominal damages. She must show the facts or circumstances which occasioned the damage and the amount thereof. At most she only showed, in the present case, that her checks were dishonored by the bank, and that she suffered some inconvenience thereby. It is not shown that she suffered any loss of patronage to her rooming and boarding-house, or that she was prevented from supplying her guests with food or other articles necessary for their use and comfort. It is shown that one of the merchants in question refused to extend her credit any further, hut she continued to buy from him for cash. She was not entitled to recover under the proof made more than nominal damages.

The jury returned a verdict in her favor for $250. There is nothing in the proof tending to show any elements of damages to the plaintiff upon which the jury might base this verdict.

Therefore a verdict for more than nominal damages, under the proof made, is without evidence to support it, and constitutes reversible error.

It follows that the judgment must be reversed, and the cause remanded for a new trial.


author: Smith, J.

text:
    Chicago Mill & Lumber Company v. Matthews.
    Opinion delivered April 14, 1924.
    1. Adverse possession — continuity.—An agreement by a squatter to buy the land from the owner made before he has acquired title by adverse possession is a recognition of the owner’s title, breaks the continuity of his own possession, although the contract was for a deed to the son of the squatter.
    2. Frauds, statute of — conveyance—verbal agreement. — An agreement to convey land, to be 'binding, must be in writing.
    3. Specific performance — statute of frauds. — In a suit by a vendor to enforce a contract to buy land, where defendant denied the contract, but did not plead the statute of frauds, it devolved on the plaintiff to prove the existence of a valid contract in writing.
    4. Frauds, statute of — enforcement of contract to sell land.— Though a vendor of land seeking specific performance of a contract to sell land tenders a deed with his complaint, he cannot enforce the contract without proving a valid and enforceable contract.
    5. Frauds, statute of — enforcement of oral contract. — In a suit by the owner of land seeking specific performance of a- verbal contract to sell the land, defended on the ground of adverse possession, plaintiff could not use its oral and unenforceable agreement with defendant to purchase the land as breaking the continuity of adverse possession by recognition of his title without being obliged to abide by such agreement if the defendant elected .to purchase it.
    Appeal from Mississippi Chancery Court, Osceola District; Archer Wheatley, Chancellor;
    reversed.

      Little, Buck & Lasley, for appellant.
    Appellee’s possession after he went on the land in 1912 was not continuous to the extent required by the statute. His possession was broken by the removal, taking his family with him, and going down the river to make and harvest crops during the years 1913 and 1914, leaving nothing about the place to indicate that possession was being claimed. 153 Ark. 620. The statute of limitations did not, therefore, begin to run until the fall of 1914, when appellee returned to' the premises. Appellee’s negotiations to purchase the land, and his agreement to purchase the same is clearly established by the evidence, constituted a clear recognition of appellant’s title, and an interruption of the adverse possession. 2 C. J. 104; Ann. Cases, 1912C, p. 955; 80 Ark. 446. On the question of estoppel, see 10 R. C. L. 698; 16 Cyc. 742; 35 Ark. 377; 91 Ark. 148.
   Smith, J.

This suit was begun on April 10, 1920, by the filing of a complaint by the appellant lumber company, hereinafter referred to as the company, which contained the following allegations: That the company was the owner of that part of the northwest quarter northeast quarter section 30, township 13 north, range 9 east, which lies east of the east meander line of Little River, and that on the 18th day of March, 1918, it contracted aiid agreed to sell same to J. M. Matthews and G-. W. Matthews for the consideration of $397.25, and, in accordance with said agreement, the defendants were permitted to go upon the land and to take possession thereof, and the company caused a proper deed to be executed by its officers and tendered the same to the defendants, who refused to accept it or pay the consideration agreed upon. There was a prayer for the specific performance of the contract. The company prayed that, if it were mistaken in the relief asked, the defendants be declared trespassers, and that it have judgment for the possession.

An answer was filed by the defendant, Gr. W. Matthews, in which he denied that the company was the owner of the land, or that he had contracted to purchase it, or that he had entered into the possession of the land with the company’s consent, or had remained on the land with its permission. For further answer he alleged that he entered upon the land as owner, and had, for the last nine years, continuously occupied the land as owner, his possession at all times being open, adverse and hostile, and that he had cleared the land and put it in cultivation, and had built a house and barn and other improvements worth $3,000 on it, and he prayed that the complaint be dismissed.

The chancellor found that defendant entered into the possession of the land in July or August, 1912; and we concur in that finding. The testimony shows that defendant thought the land on which he entered, and upon which he first built a one-room house, was unsurveyed government land, and his purpose was to preempt it and claim it as a homestead. About two years after entering upon the land his presence there was discovered by a representative of the company, to whom the defendant Matthews stated that if the land was not government land he did not and would not claim it. The undisputed testimony shows that the land was not government land, but was the land of the company.

The defendant at first cleared only a small part of the land, less than an acre in area, but thereafter he continued clearing the land, and extended his fence, as he cleared the land, to include the clearing.

The testimony establishes the fact that in 1913 and 1914, when defendant had cleared only a small area of the land, he moved down the river and made two crops, although he moved back in the fall of each year after completing his crops. He left so few of his effects in the house that passers-by thought the place was abandoned. Defendant testified that, although he took his family with him when he went away to make the crops, he left a table, stove and bedstead there, and some stock running loose in the woods.

After 1914 defendant, resided on the land, making each year some addition to his clearing, and these conditions continued until 19l7, at which time the company determined to oust defendant, and a notice to vacate was served on him. The negotiations for the purchase of the land then commenced. The defendant asked that the deed be made to his son and co-defendant, and explained that he wished this done as he was attempting to homestead some government land. The company refused to do this because the son was a minor. Defendant then agreed to pay all cash for the land, and upon this condition the company agreed to execute the deed to the son. The company later caused an accurate survey to be made of the land and the acreage measured, and its officers executed a deed to the son. The negotiation was had entirely with, the father, who was in fact the purchaser and who was to furnish the purchase money. Defendant Gr. W. Matthews was notified that the deed was ready for delivery, but he advised that he could not take the deed up at that time, but would do so in the fall (of 1918), when he would have some money.

The manager of the company testified that he did not press the matter of closing the sale, as he regarded it as settled, and assumed that Matthews would take the deed and pay for the land as soon as he was able, and on this assumption he extended indulgence by way of granting time. Thus the matter continued until November, 1919, when defendant disclaimed holding by the company’s permission, and asserted his ownership of the land by reason of his possession.

Without setting out the testimony of the numerous witnesses, we announce our conclusion that the great preponderance of the evidence supports the company’s contention in regard to the contract to sell the land and defendant’s agreement to buy it.

The defendant was a squatter who thought he was on government land, and during the years 1913 and 1914 he (lid not live on it, but moved several miles away, and made a crop during each of those years, and left the premises in a condition which indicated that he had moved away. His conduct no doubt caused the company to be less active in attempting to eject him or to close the sale of the land, and, when that agreement was reached, we think there was such a recognition of the company’s title as to amount to a break in the continuity of the defendant’s possession.

It will be remembered that, when the agreement for the purchase of the land was reached, the defendant could not then have claimed title by adverse possession, for he had been on the land less than seven years.

In the case of Shirey v. Whitlow, 80 Ark. 444, it was said: “If one, before the statutory period has run, and before lie has' acquired title by adverse possession, acknowledges or recognizes the title of the owner, such recognition will show that his possession is not adverse, and the statute of limitations will not commence to run against the owner until the adverse claimant repudiates the title of the owner.”

• We think there was here such a distinct recognition of the company’s title as to break the continuity of defendant’s possession. Webb v. Spann, 157 Ark. 328; Blackburn v. Coffee, 142 Ark. 426; Dermott v. Stinson, 144 Ark. 208; Hudson v. Stillwell, 80 Ark. 575.

It is true the defendant Matthews proposed to take the title in his son’s name, and that it was he, and not his son, who was in possession; but this was the father’s transaction. It was he who proposed to buy the land and pay the consideration, and it was he who thus recognized the title of the company.

The court found that it was impossible to ascertain just what land the defendant occupied for more than seven years, but that he had occupied at least one acre for that time, and directed a surveyor to lay off an acre in the form of a square with the residence as the center, and this was done, and this acre, upon which all the buildings had been erected, was decreed to belong to defendant, and the remainder was decreed to the company.

As we have said, this suit was brought to enforce the specific performance of a contract of sale. The company — the owner of the land — brought the suit, and has prayed that relief.

Tlie agreement sued on was one to convey the title to land, and, to be valid, should have been in writing, but was not. It is true the defendant did not plead the statute of frauds, but he did deny the existence of the contract sued on. Under these circumstances it devolved upon the plaintiff to prove the existence of a valid contract, which must have been a written contract. Cook v. Cave, ante p. 407.

It is true the vendor in the deed tendered brings this suit, which would, of course, .be a waiver of the statute by .it, but the party here sought to be charged is the vendee, and in the case of Jones v. School District, 137 Ark. 414, we held that “the words, ‘the party to be charged,’ refer not to ‘the party to be charged’ with the contract, but to ‘the party to be charged’ in the action, that is, the defendant.”

We have held that a suit for specific performance-of a contract to convey land may be brought by the owner of the land as well as by the prospective purchaser. Garrison v. Geren, 159 Ark. 9; Robinson v. Florence Sanitarium, 149 Ark. 355; Dollar v. Knight, 145 Ark. 522; Wilkins v. Eanes, 126 Ark. 339; Ex parte Hodges, 24 Ark. 197. But that relief cannot be awarded here, primarily because the company does not prove a valid and enforceable contract, for the reason that the contract was not in writing.

It appears that the continuity of the defendant’s possession was broken by the recognition of the company’s title, in conjunction with the character of possession which the defendant had maintained, and the company is therefore entitled to recover the possession of the land. But it does not appear to be equitable to permit the company to use this_ unenforceable agreement to buy for tbe purpose of breaking tbe continuity of tbe defendant’s possession without imposing on the company the obligation of abiding by that agreement, if the defendant so elects.

It follows therefore that, to do equity, the defendant should be allowed, if he so elects, to claim the benefit of the contract which broke the continuity of his possession, but, if he does not elect to take advantage thereof, a decree will be awarded the company for the possession of the land.

This land appears to have been carefully measured by the company’s surveyor, and the deed tendered contains an accurate description thereof, and recites the consideration to be $397.25, this sum being arrived at by multiplying the ascertained acreage by the agreed price per acre.

This deed to the defendant was executed March 18, 1918, but was not acknowledged until April 6 of that year, when it was sent from the general office of the company in Chicago to the company’s local office in Blytheville, and letters were written to the defendant immediately that the deed was ready for delivery. We think the tender of the deed was made not later than April 15, and interest thereon at six per cent, per annum should be calculated from that date until the date when payment is made, if the defendant elects to' take the benefit thereof.

It is therefore ordered that the decree of the chancery court be reversed, and the cause will be remanded, with directions to enter a decree giving the defendant a reasonable time, to be fixed by the court, within which to pay the sum herein ordered to be paid, and the company, upon the tender thereof, will deliver the deed heretofore tendered to the defendant, or, in lieu thereof, if the same is not now available, another deed with the usual covenants of warranty and a correct description of the land, and, in default of such payment, a writ of possession will be awarded to eject defendant from tlie possession of tlie land, the same to be restored to tlie company.

Mr.' Justice Hart thinks the decree should be reversed and the cause remanded, with directions to enter a decree in favor of appellants for the possession of the land.


text:
    Road Improvement District No. 4 v. Burkett.
    Opinion delivered April 14, 1924.
    1. Statutes — rights under unconstitutional act.. — No rights can be predicated on an unconstitutional statute.
    2. Highways — abandonment op project — recovery op engineer’s pees. — Where the commissioners of a valid road improvement district approved and accepted the preliminary survey of an engineer, and agreed .to pay him for them, but subsequently abandoned the project, the engineer was entitled to recover on a quantum meruit, though the survey was made under an invalid act.
    3. Highways — value op engineer’s services.. — In a suit on quantum meruit by an engineer to recover for services in preparing the plans for a road improvement district, the value of his plans was properly determined by the reasonable cost of the work necessary to prepare them.
    Appeal from Johnson Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Jesse Reynolds, for appellant.
    The work done by appellee was done under the first contract, which was void. Where an act is declared void, the contract of the engineers as well as their claim for services on a quantum meruit is swept away. 122 Ark. 491. A subsequent act cannot vitalize or validate a void contract. 154 Ark. 218; 31 Ark. 701; 109 Ark. 90; Haley v. SulUvcm, 162 Ark. 59. Appellee was not entitled to any further remuneration. His plans were inefficient and of no value to the district. 155 Ark. 304. The evidence produced by appellee did not establish the cost of the work done. If he has this information and fails to produce it, it is an evidence ag’ainst him. 32 Ark. 337; 160 U. S. 379.

      Coleman, Robinson & House and Saye & Saye, for appellee.
    Appellant could not 'in equity accept the benefit of appellee’s labor and skill and then deny liability for the reasonable value of the same. 147 Ark. 535; 47 Ark. 270; 122 Ark. 14; 138 Ark. 12, 203 Ill. App. 245; 111 N. E. 420; 148 N. W. 390; 24 N. W. 253; 155 Ark. 304. Appellee seeks to recover upon a quaniim meruit. The district is liable for the preliminary expenses as defined in 119 Ark. 188. See also 152 Ark. 302.
   Smith, J.

Appellee brought this suit to recover for work done in making a preliminary survey in Road Improvement District No. 4 of Johnson County. .At a special session of the General Assembly in 1919 an act, numbered 172, was passed, creating Road Improvement District No. 4 of Johnson County; but this act was void for the reason set forth in the opinion of this court in the case of Booe v. Road Imp. Dist. No. 4 of Prairie County, 141 Ark. 140. This act 172 named the commissioners, who were directed to construct the improvement there authorised. These commissioners immediately organized and entered into a contract with appellee, by which they attempted to employ him as engineer for .said district, to do all of said district’s engineering work, including the preparation of all preliminary plans and the final plans, and the supervision of all construction work, he to pay all the necessary expenses of draftsmen, assistant engineers, and all other help of whatever kind or character, and all engineering expenses, for a compensation of five per cent, of the actual cost of the improvement.

About the time the engineer had completed his preliminary survey, the opinion in the Booe case, supra, was handed down, and all proceedings under act 172 were abandoned.

A second session of the General Assembly was called, however, which convened in 1920, and at this session an act No. 128 was passed, which was approved February 17, 1920. This act is practically identical with act 172, and named the same commissioners as were named in the first act, and these commissioners, on February 20, 1920, entered into a contract with Hight-Burkett Engineering Company, a copartnership composed of W. C. Hight and the plaintiff in this suit, by which the road district employed said firm as engineers for said district, to do all the engineering work connected with the construction of the proposed improvement, and agreed to pay, as compensation for such services, five per cent, of the total cost, and provided for the time and manner of payment. This contract was approved by the county court of Johnson County on February 23, 1920, and, a few days later, plans for the proposed improvement, which had been approved by the commissioners, were filed with the county court, as required by act 128, and these plans were duly approved by the county court. The Hight-Burkett Engineering Company dissolved, and plaintiff succeeded to the rights and liabilities of said partnership under its contract with the road improvement district.

Upon consideration of these plans, it was decided that the proposed improvement would impose too great a burden on the lands embraced in the district, and, by common consent, the project was treated as abandoned, and, at the regular 1921 session of the General Assembly, act No. 522 was passed, whereby the district was dissolved and provision was made for the liquidation of the district’s affairs.

The testimony established the fact that the actual survey from which the plans of the improvement were prepared was made under the contract made when the commissioners were attempting to operate under act 172. But, as this act was unconstitutional, no rights could be predicated on it, and there is no attempt to recover under this contract. But after act 128 was passed, which was an original act and not an attempt to amend or revive act 172, another contract was made, which was. substantially identical with the prior contract, and, under the authority of act 128, the commissioners approved' the plans of the engineer. The authority of the district to proceed under act 128 is not questioned, but it is insisted that, as the survey upon which these plans were based was made under a void contract, no account should be taken of this work. This is the question of law in the case; the other questions are ones of fact.

After the plans and specifications had been filed and approved, the engineer urged the commissioners to permit him to proceed under his contract, but they refused to do so because of the excessive cost involved. They did, however, call on the engineer for a revision of his plans, with the view of reducing the cost, and it appears that three revisions were made, but no construction work was done under any of them, and the whole matter remained in abeyance until act 128 was repealed. There does not appear to have ever been any assessment of betterments.

At the time the plans were approved, the commissioners executed and delivered to the engineer the notes of the district for $9,400, evidencing the amount due the engineer at that time under his contract. No payments were made on these notes, and they were taken up and canceled on the promise that the district would later pay the engineer the sum due him. However, a payment of a thousand dollars in cash on the demand was made when the notes were taken up.

No further payments were made, and on June 9, 1921, the engineer brought this suit for $7,826.77, which sum he alleged was the balance due him for preliminary work.

At the trial of the cause a number of witnesses testified. Much of this testimony related to the sufficiency and completeness of the plans. The principal witnesses testified as experts. There was testimony that the plans were incomplete and valueless, but the preponderance of the testimony appears to support the contrary finding which was made by the court.

It was the view of the court that the value of the plans was determinable by the cost of making them, and we think that view was correct. We are also of the opinion that the court was correct in holding that the right to recover the value of the plans was not to be denied because the survey was actually made under a void contract. There is no attempt to recover under that contract. 'The suit is one to recover, on a quantum meruit basis, the valúe of the preliminary plans made for a district created by a valid act of the General Assembly, and we think a fair method of determining their value was to ascertain the reasonable cost of the work necessary to prepare the plans.

The proposed road was to be forty-eight miles in length, and there was testimony that the topography of the country was such as to make the work of the preliminary survey more expensive than the ordinary road of that length would have been.

There are various conflicts in the testimony and explanations thereof in regard to the cost of the work. The engineer undertook to furnish a verified itemized statement of the expenditures incurred and of the value of his services.

Several recent cases have defined and limited the right to recover for these preliminary surveys, and no useful purpose would be served by reviewing those cases or a rediscussion of the legal principles there announced. Nor do we think it necessary to review the evidence on the various items covered by the engineer’s account. This testimony has been carefully considered, and, after such consideration, we are unable to say that the finding of the chancellor that the plans were worth as much $7,525 to the district is clearly against the preponderance of the evidence. The engineer did not cross-appeal, and we need not therefore consider whether they may have had a greater value to the district.

The decree is therefore affirmed.


text:
    Stanford v. Smith.
    Opinion delivered April 14, 1924.
    1. Exchange of property — fraud—sufficiency of evidence. — In a suit to rescind an exchange of property, evidence held to show-fraud authorizing rescission.
    2. Exchange of property — restoration.—In a suit to rescind an exchange of property for fraud, where plaintiff tendered a reconveyance of the land hut retained as damages $1,000 paid him by defendant, subject to being charged therewith if not entitled thereto, this was a sufficient restoration of the status quo on plaintiff’s part, and he could waive the defendant’s inability to restore fully the consideration received by him.
    3. Contracts — rescission.—As a general rule, rescission will be granted only upon condition that the party asking it restore to the other -party substantially the consideration received, and, if he cannot do so, he is remitted to his action for damages. ' ■
    4. Contracts — rescission—restoration of consideration. — Where a party seeking rescission is in position to restore what he received, relief should not be denied because defendant cannot do likewise, in which case the. value of the portion which cannot be restored may be ascertained, and the equities of the parties thus adjusted.
    5. Exchange of property — rescisson—recovery of damages. — In a suit to rescind an exchange of lands, plaintiff could not recover damages also.
    Appeal from Desha Chancery Court; E. G. Hammock, Chancellor;
    reversed.
    X. O. Pindall, for appellant.
    1. This case, on the facts and the law applicable thereto, is' controlled by the case of Cady v. Rainwater, 129 Ark. 498.
    2. The decree’s recital that plaintiffs had not offered to place the defendants wholly in statu quo, disgards the real status of the case. The question of tender or lack of it might have been tested by the demurrer originally filed, but the withdrawal thereof, and obtaining leave to file an answer, left the jurisdiction with the chancery court to administer complete relief. 52 Ark. 414; 87 Ark. 211; 107 Ark. 70; 32 Ark. 562. It is only incumbent on the plaintiff to restore as far as possible. 25 Ark. 204.

      Equity does not require entire rescission. It will rescind as far as possible, and there may be a partial rescission and damages as well. See also 100 Ark. 144; 96 Ark. 371; 55 Ark. 296; 97 Ark. 265; 98 Ark. 44.

      Johnson'& Smith, for appellees.
    1. Before one can ask for the rescission of a contract of sale or exchange for fraud, he must first restore, or offer to restore, to the defendant the property received from him. He must place the defendant wholly in statu quo. 5 Ark. 395; 15 Ark. 286; 17 Ark. 603; Id. 240; 20 Ark. 424; 25 Ark. 204 ; 31 Ark. 151; 35 Ark. 483; 38 Ark. 334; 59 Ark. 251; 134 Ark. 80; 140 Ark. 336. The case of Cady v. Rcármater, 129 Ark. 498, relied on by appellant, is clearly distinguishable from this case, in this: the Cadys first went to Rainwater and asked for a rescission of the contract, and, on his refusal, they filed suit, attached a deed of- reconveyance and prayed for rescission in toto.

    2. There was no deed tendered, nor any offer to reconvey the Texas land, in the complaint, and evidence to the effect that they had filed a deed since the suit was brought with the chancery clerk, offering to reconvey the land to appellees, was inadmissible. He must stand or fall upon -the case made by his complaint. 13 Ark. 88, 95; 24 Ark. 371, 381; 41 Ark. 393, 400.
    3. Appellant’-s proof of damages in “going to Texas and back” was entirety too remote. 71 Ark. 91, 99. Rescission and damages both are never allowed. 15 Ark. 286, 291; 72 Fed. 387; 99 Ark. 438, 442; 101 Ark. 95, 99.
    4. The representations were not shown to be fraudulent. 99 Ark. 438; 154 Ark. 193; 11 Ark. 66; 47 Ark. 165; 97 Ark. 268; 112 Ark. 498.
   Smith, J.

This suit was brought to effect a rescission of a contract of sale between the parties.

On February 28, 1922, appellant 'Stanford was the owner of an eight-room house in the town of Dumas, and he also owned a half interest in a mercantile business known as the Dumas Hardware & Furniture Company in Dumas. At the same time appellee Smith was the owner of forty acres of land in section 233, in Hidalgo County, Texas.

On account of failing health, Stanford contemplated a change of location, and he became interested in an advertisement which he read in a Little Rock paper. This advertisement was published by Roy L. Byrn, as the agent of Smith, and contained a proposal to sell the Texas land. Stanford and his wife took the matter up with Byrn, and were told that twenty acres of the land were in cultivation, and photographs were exhibited showing citrus fruits and palms growing thereon, and Byrn represented that the land had been plowed, and was so ditched that proper irrigation had been furnished, and that all Stanford would have to do would be to turn the water on and plant a crop.

It was represented that the land was within three miles of a town where a good school was taught, and that the school district ran school busses to and from the school every day, which would be available to residents on Smith’s land. That this land and similar lands were selling at from three hundred to one thousand dollars per acre, and rented readily at twenty-five dollars per acre. Stanford advised Byrn that he had no money to buy the land, but that he had the house and the interest in the mercantile business referred to above, which he would trade for the land. Byrn undertook to negotiate this trade, and was the intermediary between Stanford and Smith.

An inventory of the mercantile business was taken and the stock of goods invoiced $11,388. In addition, there were outstanding current accounts due the firm amounting to $21,000. These accounts were believed to be good, and were represented so to be by Stanford.

Stanford had never seen the Texas land, and prepared to visit it. He was assured by Byrn and Smith that this was unnecessary, as Smith was thoroughly familiar with the land, and had authorized the representations made in regard to it, and stood bq,ck of the representations which Byrn had' made, and it was stated that, if Stanford was not satisfied with his trade, after he had seen the land, Smith would make good any expenses which Stanford had incurred in moving on the land and in moving- back, if he did so. Byrn’s testimony substantially corroborates Stanford in regard to the representations made to Stanford to induce him to trade, and the testimony of Byrn’s stenographer is even stronger than that of Byrn himself. This witness corroborates Stanford in all essential parts. Byrn testified that he had never seen the land, and knew, nothing about it, except what Smith had stated to him, and that Smith authorized him to make the representations which he did make to induce Stanford to trade. It was stated by Smith that he was almost giving away the land, and that his reason for.so doing was that his wife was unwilling to remove to Texas.

The trade was finally consummated, and, by its terms, Smith paid Stanford $1,000 in cash and assumed an indebtedness of $2,000 due by Stanford on his house, and assumed liabilities against the stock of goods amounting to $8,500; and Stanford assumed, on his part, an obligation to pay a balance of purchase money due on the Texas' land, amounting to $3,600.

After the trade had been finally completed and the deeds exchanged, Stanford removed to Texas, and, upon his arrival there, found the land was four and one-half miles from town, and not accessible to the public school. The land was not in cultivation, and was not irrigated, and, so far from having a rental value of $25 per acre, it was shown by the testimony of residents of that vicinity that its market value was not so great. This testimony is by no means undisputed, but it is not required that it should be.

After a careful consideration of this testimony, we think it very clearly appears that these representations were made; that they were false; that Stanford relied upon them, and had the right to do so; that they were material, and induced Stanford .to enter into the contract; and we think he is therefore entitled to a rescission of the sale.

It is insisted, however, that Stanford has not offered to restore the status quo of the parties. But we think he has sufficiently done so. He executed and tendered a deed to the land in Texas. He did not tender the thousand dollars paid him, but he claimed that sum as damages resulting from his removal to and return from Texas after the deal was closed. He agrees, however, that he may be charged with this sum if he is not entitled to claim it as damages.

It thus appears that Stanford is in position to restore what he received from Smith. There is more difficulty about Smith restoring what he received; but Stanford waives this, and asks that equity be administered as nearly as can be under the circumstances.

The mercantile business was operated as a copartnership, and that copartnership was, of course, dissolved by the sale of Stanford’s interest therein. We cannot reestablish this partnership, but we can charge Smith with the value of the property which he received, after giving him credit for the debts against it which he assumed.

It appears that Stanford did not pay any part of the unpaid purchase money which he agreed to assume on the Texas land, and he will be absolved' from his obligation so to do upon the rescission of the contract, as we think he has made a ease entitling him to that relief.

Smith appears to have paid some of the debts which he assumed, including a lien against the house, and he is, of course, entitled to have credit therefor.

The case has not been sufficiently developed for us to find the value of Stanford’s interest in the mercantile business, including the outstanding accounts, and if this value does not equal the estimate made as the basis of the trade, Smith will be entitled to credit for the difference.

Upon, the remand of this cause, which is here ordered, the court will, if so advised, appoint a master to ascertain and report the matters necessary to adjust the equities of the cause, and, in so doing, will allow Smith credit for the thousand dollars, and credit will also be allowed for any payment on the debts which Smith assumed; and' the master will also allow Smith credit for the difference, if any, ¡between the market value of Stanford’s interest in the copartnership as of that date and its assumed value when the trade was made. It appears that the new copartnership, of which Smith became a member on the retirement of Stanford from that firm, has assumed and has by this time probably discharged the debts of that firm. These facts should be taken into account in determining the market value of the mercantile business.

It is insisted that a decree of rescission should not be awarded, for the reason that it is impossible to restore the status of the parties. But the party who asks rescission can restore what he received, and offers to do so. This consists of the Texas land and the thousand dollars. Smith cannot restore, in its entirety, to Stanford what he received from Stanford; but Stanford waives this. The residence can be restored, and, while the partnership interest cannot be restored to Stanford, its value can be ascertained, and a decree for that value awarded in lieu of the property .itself.

It is the general rule that rescission will be granted upon the condition only that the party asking’ it restore to the other party substantially the consideration received, and, if he cannot do so, he is remitted to his action for damages. Here the party asking rescission is in position to restore what he received, and is offering to do so, and we think he should not be denied this relief because the other party cannot do likewise as to the whole consideration, but the value of the portion which cannot be returned may be ascertained, and the equities of the parties thus adjusted. This was done in the case of Cady v. Rainwater, 129 Ark. 498. In Myrick v. Jacks, 33 Ark. 425, it was said: “When courts cannot place parties wholly in statu quo, they were not thereby precluded from granting relief against fraud. They may proceed to do so as nearly as possible, and make, com-pensation.”

In 4 E. C. L., p. 511, at § 23 of the chapter on Cancellation of Instruments, it is said: “In administering the remedy of cancellation, the fundamental theory on which equity acts is that of restoration. The injured party is the primary object of this purpose, and therefore it is not indispensable that the complainant be able to place the defendant in statu quo in those cases where it will not be inequitable to permit a rescission without so doing. If the requisite grounds for relief are clearly established, equity will not decline to grant its aid merely because circumstances intervening since the occurrence of the transaction complained of may render it difficult to restore the parties exactly to their original situations. Ordinarily, of course, rescission is allowable only when it is possible to restore the other party to his former position; and if no effort is made to rescind a conveyance or agreement until such restoration has become impossible, relief by way of rescission cannot be granted. ’ ’

See also §§ 93, 95, 96 and 100 of the chapter on Cancellation of Instruments in 9 C. J.; 2 Black on Beseission and Cancellation, § 616, p. 1416, § 618, p. 1426, § 627, p. 1453; Bunch v. Weil, 72 Ark. 343.

Here Stanford appears to have complained as soon as he discovered the fraud, and brought this suit with reasonable promptness when redress was denied him. At any rate, it is not urged that relief should be denied by reason of any failure or delay on his part to act promptly.

The court found that the testimony did not warrant a finding that Smith was guilty of deceit,- or that he knowingly misrepresented the facts concerning'the condition of the Texas land to such an extent as to entitle Stanford to a rescission of the contract, and that the plaintiff Stanford “has not offered in toto to place Smith back in statu quo,” and for these reasons dismissed the complaint as being without equity, and this appeal is from that decree.

As we have said, we do not agree with the chancellor in these findings. We think it does clearly and sufficiently appear that Stanford was deceived, to his injury, and that, while it is true that Stanford “has not offered in toto to place Smith back in statu quo,” this offer has been made in such a way that the equities of the parties may be adjusted.

Appellant Stanford insists that, in stating the account between the parties, certain damages which he sustained should be considered, chiefly the expense of removing to and returning from Texas, which expense, he says, exceeded the thousand dollars paid him by Smith. We think these damages are not recoverable. Stanford had the option to sue for these damages, and in that suit he could have recovered any damages he was shown to have sustained, but he has elected to ask rescission, and he cannot, in a suit of that character, have his property back and damages too. Cleveland v. Biggers, ante p. 377. We have directed the court to find the difference, if any, between the market value of the interest in the mercantile business and the value thereof which was assumed as the basis of the trade, only because the equities of the parties cannot otherwise be adjusted.

The decree will therefore be reversed, and the cause remanded with directions to the court below to order the rescission of the trade and the cancellation of the respective deeds of the parties, and the court will appoint a master, if the court is so advised, to adjust the equities in the manner herein indicated.


author: Humphreys, J.

text:
    Logan v. Sidewalk District No. 6.
    Opinion delivered April 14, 1924.
    Municipal corporations — authority of sidewalk district to issue BONDS. — Crawford & Moses’ Dig., § 5708, authorizing municipal improvement districts to “borrow money” and to “pledge all uncollected assessments for the repayment thereof,” empowered a sidewalk improvement district to issue negotiable bonds.
    Appeal from Johnson'Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.
    Appellant, pro se.

    The bonds sued on in this case do not possess the characteristics of commercial paper, and are subject to the defenses set up in the intervention, even though the bank be an innocent holder for value. 59 Iowa 95, 14 Fed. 628; 94 111. 528; 220 111. 417; 28 Cyc. 1611; 120 U. S. 517; 111 U. S. 400; 37 N. J. L. 191; 146 Fed. 113; 65 N. E. 687; 77 N. B. 169; 173 Mass. 275; 58 N. E. 1096; 50 N. E. 319.

      G. O. Patterson, for appellee.
    The bond in this case contains every requirement and provision necessary to make it negotiable under the negotiable instruments laws of the State. C. & M. Digest, § 7767. No exception or saving clause appears in the above statute excluding obligations of this character, and similar statutes are generally held to apply to bonds or notes of municipal improvement districts. 67 Atl. 67; Id. 69; 83 N. J. Law. 446; 157 N. C. 191. The commissioners had the power, under the provisions of C. & M. Digest, § 5708, to borrow money, not exceeding 90 per cent, of the estimated cost of the work, at a rate of interest not exceeding 10 per cent, per annum, and to pledge the uncollected assessments therefor. This carries with it by necessary implication the power to issue negotiable notes or bonds, or such evidences of indebtedness as are sanctioned by the known usages and customs of business in such cases. 51 Miss. Ill; 30 L. ed. (IT. S.) 701; 35 Ore. 325; 76 Am. St. Eep. 501; 28 Cyc. 1612; 78 Ark. 118; 90 Fed. 586; 116 Fed. 840; 99 U. S. 88, 95; 25 L. ed. 363; 126 Tenn. 223

      Rose, Hemingway, Cantrell £ Loughborough, Coleman £ Gantt, and Powell £ Alexander, submitted separate briefs as amici curiae.

   Humphreys, J.

The First National Bank of Clarksville brought suit in the chancery court of Johnson County against Sidewalk District No. 6 of Clarksville to recover judgment in the sum of $515 upon a negotiable bond issued and sold by said district to obtain money with which to build sidewalks therein, and to enforce a lien against all the real property within the district to pay the judgment. It was alleged in the bill that said district 'was created under the general laws of the State of Arkansas, and that it issued this and nine other bonds in the sum of $500 each, bearing interest at the rate of 6 per cent, per annum, negotiable in form, for the purpose of constructing sidewalks and street crossings within said district; that said bond and interest had matured; that provision was made in accordance with law for levying taxes upon the real property in the district for the payment of said bonds and interest, and that said district had derived funds sufficient from this source to pay the bond and interest coupon attached thereto; that said bank purchased the bond for value before maturity, without knowledge of any legal or equitable defenses thereto, and is an innocent holder thereof.

The improvement district filed an answer admitting the allegations of the bill, and stating that said bond and coupon would have been paid at maturity liad it not been for objections made by the intervener, B. B. Logan, and other property owners and taxpayers in the district.

B. B. Logan filed an intervention denying the right and authority of the improvement district to issue negotiable certificates or bonds for borrowed money with which to make improvements in the district, and, for that reason, denying that the bank had or could become an innocent purchaser of the bond in question for value before maturity, and interposing the following defenses thereto: first, that the consideration for the indebtedness evidenced by the bonds failed because the contractor used an inferior grade of material and workmanship in constructing the sidewalks, in violation of his contract with the district; second, that the bonds were sold below their par or actual value; and third, that the commissioners of the district failed and refused to make full collection each year upon the benefits assessed against the property owners within the district, and failed and refused to provide from such collection ample funds with which to discharge the bonds.

The bank filed a demurrer to the intervention, upon the ground that it did not state facts sufficient to constitute a defense to the claim sued on in the action, which was sustained, over the objection and exception of the intervener. The intervener stood upon his demurrer and refused to plead further, whereupon the court dismissed the intervention and rendered a decree upon the bond in favor of the bank against the district, from which decree an appeal has been duly prosecuted to this court by the intervener.

A reversal of the decree is sought by appellant upon the alleged ground that the improvement district had no authority under the law to issue negotiable certificates ’ or bonds evidencing its indebtedness for borrowed money with which to construct improvements therein. The record reflects that the bond in question was purchased by the bank for value, before maturity, and without notice of any defenses thereto, and that it is negotiable in form.The authority for issuing these and the other nine bonds in the series is to be found in § 5708 of Crawford & Moses’ Digest, which is as follows: “In order to hasten the work, the board may borrow money, not exceeding ninety per cent, of the estimated cost of the work, at a rate of interest not exceeding ten per centum per annum, and may pledge all uncollected assessments for the repayment thereof.”

In construing this .statute this court said, in the case of Meyer v. Ring, 162 Ark. 9, that “this section, by necessary implication, gives the board the power to borrow money and issue bonds or other written evidences of indebtedness to the creditors of the district.”

This court is committed to the doctrine that, where a .school district is authorized to borrow money and issue evidences of indebtedness therefor, such authority includes the power to issue negotiable bonds of the district. Schmutz v. School Dist. of Little Rock, 78 Ark. 121. By analogy, the same • principle is applicable to improvement districts. This case is therefore ruled by the principle announced in the Schmutz case.

No error appearing, the decree is affirmed.


text:
    International Order of Twelve Knights and Daughters of Tabor v. Rosenberg.
    Opinion delivered April 14, 1924.
    Insurance — assignment of benefit certificates. — Crawford & Moses’ Dig., § 6074, designating the persons who may be made beneficiaries in the certificates of fraternal benefit societies, was not retrospective, so that an endowment certificate issued before its passage, no by-law of the society forbidding, could be assigned after its passage to a person not within the designated classes of persons.
    Appeal from Jefferson Circuit Court; T. C. Parham, Judge;
    affirmed.

      Scipio A. Jones and Carmichael & Hendricks, for appellant.

      Harry T. Wooldridge, for appellee.
   Humphreys, J.

This suit was brought by appellee, in the circuit court of Jefferson County, against appellant, a fraternal benefit association, to recover $300 upon an endowment certificate issued by appellant to Lizzie Coleman on the 24th day of April, 1914, and by Lizzie Coleman assigned for value to appellee on the 16th day of September, 1917.

Appellant filed an answer denying liability under the certificate on the ground that, when the certificate was assigned, appellee was not one of a class limited as benefieiaries by tbe provisions of § 6074 of Crawford & Moses’ Digest.

Tbe cause was submitted to tbe court, .sitting as a jury, upon the pleadings, the endowment certificates, and an agreed statement of facts, which resulted in a judgment in favor of appellee against appellant for the amount claimed, from which is this appeal.

The endowment certificate contained the following-provision as to payment in case of death: “His or her legal heirs, assigns or assigned to his or her death, shall be entitled to receive from the endowment department, Arkansas jurisdiction, the sum of three hundred dollars; and at no time shall the amount be less than one hundred dollars. Provided the statement made by the above named member to the medical examiner and in his or her petition for membership is warranted to be true; and the further condition that the said member shall have fully complied with all the laws, rules and reg-ulations of said endowment department now in force, or may hereafter be enacted for the government of said endowment department; and on condition that said member shall be in good standing at the time of death and has paid all requirements imposed by the endowment department at the time the same became due. ’ ’

The agreed statement of facts is as follows: “It is admitted by the counsel for all parties concerned in this action that policy No. T60576 was issued by the International Order of Twelve to Lizzie Coleman on April 24, 1914, and duly assigned by the said Lizzie Coleman to Mrs. Selma Rosenberg, the plaintiff, on 'September 16, 1917; that Mrs. Rosenberg was no relation to Lizzie Coleman; and that all dues under said policy have been paid; and that it was assigned to the plaintiff to .secure the payment of a sum equal to or exceeding three hundred dollars, the face value of the policy; that the defend-' ant,. International Order of Twelve, Knights and Daughters of Tabor, is a fraternal benefit society and was such at the time of the issuance of said policy; that nothing has been paid to Mrs. Rosenberg under this policy, although demand has been duly made therefor by plaintiff. That Lizzie Coleman died in Pine ¡Bluff, Arkansas, on or about March 24,1922. That the defendant received. proper notice of the death of said Lizzie Coleman, and acknowledged same. ’ ’

Appellant contends for a reversal of the judgment upon the alleged ground that appellee was not one of any class that might be designated by the insured as a beneficiary in a fraternal benefit society by § 6074 of Crawford & Moses’ Digest, which is as follows:

“The payment of death benefits shall be confined to wife, husband, .relative by blood to the fourth degree, father-in-law, mother-in-law, son-in-law, daughter-in-law, stepfather, stepmother, stepchild, children by legal adoption, or to a person or persons dependent upon the member, or his or her estate; provided that if, after the issuance of the original certificate, the member shall become dependent upon an incorporated charitable institution, he shall have the privilege, with the consent of the society, to make such institution his beneficiary. Within the above restrictions each member shall have the right to designate his beneficiary, and, from time to time, have the same changed in accordance with the laws, rules or regulations of the society, and no beneficiary shall have or obtain any vested interest in the said benefit until the same has become due and payable upon the death of the said member; provided, that any society may, by its laws, limit the .scope of beneficiaries within the above classes.”

Said section is the same as § 6 of act No. 462 of the Acts of the General Assembly of 1917. This act was before the court for construction in the case of Mosaic Templars of America v. Bean, 147 Ark. 24, which was similar to the case at bar. In the interpretation of the statute the court said: “The .statute under consideration pertains to the regulation and incorporation of fraternal beneficiary associations, and is very lengthy, containing thirty-two sections. There is nothing in any of them which tends to show that the Legislature intended the statute to have a retroactive effect. On the other hand, considering the language used in the light of the well known rule of construction above stated, it is apparent that the Legislature did not intend to give retrospective effect to the statute. At the time of the passage of the act there were doubtless many members of fraternal societies who were acting under the rules and constitutions of the societies as they then existed. There is nothing to indicate that the Legislature intended the statute to affect the rights of such members. Given a prospective operation, as we think it should be given, the statute has reference to the regulation of the rights and privileges between the societies and such members as should thereafter join them, and did not attempt to cut off or destroy the rights and privileges of those members who had already joined and secured benefit certificates under the constitution and by-laws of the associations as they then existed.” The endowment certificate in the case at bar antedates the act' and is in no wise affected by it. The insured had the same right to assign it after the passage of the act as before. There was no change in the constitution or by-laws of the society which affected the right of the insured to assign the certificate. The appellee therefore acquired a vested fight as beneficiary in the endowment certificate by virtue of the assignment thereof to her. It was beyond the power of the insured to designate another beneficiary, as attempted, after assigning the certificate for value to appellee pursuant to the authority contained therein.

No error appearing, the judgment is affirmed.