author: McCulloch, C. J. Humphreys, J.

text:
    Starr v. State.
    Opinion delivered October 13, 1924.
    1. Poisons — possession op narcotics — indictment.—An indictment charging that the accused on a certain day “unlawfully and feloniously did have morphine in her possession” held sufficient under Acts 1923, p. 177, without negativing the exceptions contained in the proviso of that act.
    2. Poisons — possession op narcotics. — Under Acts 1923, p. 177, making it unlawful for any person “to have in his possession or to sell, barter, exchange or give away any opium, morphine,” etc., the mere possession of the narcotics mentioned, with the exceptions mentioned, was made unlawful, although the possession was not for the purpose of sale, barter or exchange.
    3. Poisons — possession op' narcotics — evidence.—While it was competent, on indictment of defendant for having morphine in her possession, to show -that she also had a quantity of cocaine in her possession for the purpose of showing for what purpose she had the morphine, it was error in admitting such testimony to tell the jury that her possession of cocaine was admitted “for the purpose of showing that she had narcotics in her possession.”

      4. - ■ Poisons — possession of narcotics — iNSTRUcTioN&wkey;Where, in a prosecution for having morphine in her possession, defendant was shown to have had cocaine in her possession it was error, to refuse an instruction that she could not be convicted of having • -cocaine in her possession.
    5. Poisons — possession of morphine — -instruction.—In a -prosecution for having morphine, an instruction to’convict if defendant unlawfully and feloniously did have morphine in her possession was in conflict with other instructions telling the jury that defendant was not guilty if she merely purchased and kept the morphine for her own use under a prescription of a physician, .' and was erroneous.
    Appeal from Sebastian. Circuit Court, Port Smith District; John E. Tatum, Judge;
    reversed.

      G. L. Grant, for appellant.
    The indictment is demurrable: (1) Because .the purpose of-the act was to prevent the barter, sale, or giving away of the drug- named. It does not .prohibit the possession of the narcotic. Possession, to be unlawful, must be for sale. 133 Ark. 491; 150 Ark. 486; 68 Ark. 251; 111 Ark. 214; 136 Ark. 46; 143 Ark. 593. ■ (2) Because it does not negative the instances set forth in the statute by which the appellant might possess narcotics. 37 Ark. 409; 38 Ark. 563. The statement of the prosecuting attorney “that she was in the habit of selling dope” was erroneous and prejudicial because there was no evidence on which to base it. 70 Ark. 305; 58 Ark. 473; 72 Ark. 461; 71 Ark. 415; 58 Ark. 353; 72 Árk. 138; 143 Ark. 523; 151 Ark. 515. The court erred in instructing the jury that, if defendant was in possession of morphine, she was guilty, .since the instruction ignores the defense. 154 Ark. 608.

      J. 8. Utley, Attorney General, and John L. Garter, •Assistant, for appellee.
    An act must be read in its entirety to- extract its meaning. ■ -156 Ark. 169; 133 Ark. 1. A departure from the language -of the statute on the part of the court is in effect an assumption of legislative power. 151 Ark. 519; 11 Ark. 44; 151 Ark. 428. Unless the exceptions to the act prohibited are set out in the enactihg' clause of the statute, it is not necessary to negative them in the indictment. 77 Ark. 321; 90’ Ark. 344; 155 Ark. 16. In his opening statement counsel is allowed great latitude. 101 Ark. 51; 34 Ark. 649; 94 Ark. 558; 157 Ark. 283. The first part of the testimony objected to by appellant was competent to explain the reason for the officers being at her house. 155 Ark. 443. If it tends to prove the issue, it is admissible. 14 Ark. 555; 161 Ark. 263. Evidence that she possessed cocaine was admissible for what it was worth. 129 Ark. 106; 146 Ark. 77. Evidence as to the associates of appellant was admissible. 104 Ark. 162; 53 Ark. 387. Before appellant may be heard to complain of an incorrect instruction she must request a correct one. 150 Ark. 299; 157 Ark. 51; 125 Ark. 263. Instructions on the same point need not be multiplied. 156 Ark. 459.
   McCulloch, C. J.

Appellant was convicted, under an indictment charging her with having in her possession a certain quantity of morphine, in violation of the statute, which reads as follows:

“It shall be unlawful for any person, firm or corporation to have in his or its possession, or to sell, barter, exchange or give away any opium, morphine, codine, heroin, laudanum, cocaine, cannabis indica, or other potent narcotic drug, or any derivative, preparation, or compound thereof. Nothing in this section shall apply: (a) To the possession, prescribing, dispensing or administration of any of the aforesaid -drugs to a patient by a licensed physician, dentist, or veterinary surgeon in the course of his professional practice only; and to a patient upon whom such physician, dentist or veterinary surgeon shall personally attend, (b) To the possession, sale, dispensing or distribution of any of the aforesaid drugs by a registered pharmacist to a customer, under and in pursuance of a written prescription issued by a licensed physician, dentist or veterinary surgeon.” Acts 1923, p. 177.

The indictment charges, in the language of the statute, that the accused, on a certain day, “unlawfully and feloniously did have morphine in her possession.” There was a demurrer to the indictment, which the court overruled, and it is now insisted that the indictment was defective in that it failed to state the purpose for which the accused had the morphine in her possession. There are exceptions in the statute, but it is not necessary to negative these exceptions, for they are contained in the proviso and not in the enacting portion of the statute, and can only be brought, into the case as a matter of defense. Richardson v. State, 77 Ark. 321.

It is also argued that, under a proper interpretation of the language of the statute, it does not make it unlawful for a person to have morphine or other narcotics in possession, unless the possession be for the purpose of sale, barter or exchange. We cannot agree with counsel in this contention, for the word “possession” is connected disjunctively by the word “or” with the words “to sell, barter, exchange or give away,” therefore it was the clear design of the lawmakers to make it unlawful to have narcotics in possession for any purpose except for those mentioned in the proviso. The exceptions extend only to physicians, dentists or veterinary surgeons in prescribing, dispensing or administering the prohibited drugs, and to the patient “upon whom such physician, dentist or veterinary surgeon shall personally attend.” The exceptions also extend to the possession or sale of narcotics by a registered pharmacist to a customer on a written prescription from a licensed physician, dentist or veterinary surgeon. It is therefore unlawful for a person to have any of the narcotics mentioned in the statute in his or her possession for any purpose other than those mentioned in the proviso of the statute. We are of the opinion that the indictment was sufficient.

Appellant admitted that she had three grains of morphine in her possession, but defended on the ground that she procured the drug from a certain druggist in Fort Smith on the prescription of a physician. She testified that she so obtained the morphine, and that she kept it solely for her own use. She produced a prescription, and proved by tbe druggist that he had sold it to her under that prescription.

On the other hand, the proof adduced by the State tended to show that appellant was what is ordinarily termed a ‘ ‘ dope peddler, ’ ’ and that .she had in her possession the morphine and also a lot of cocaine for the purpose of selling and1 administering it. The State also adduced testimony tending to show that appellant had in her possession, and carried around with her, a spoon and a hypodermic syringe for use in administering morphine to those who habitually used it and were willing to pay for it. There was evidence which justified the finding of the jury that appellant kept the drugs for the purpose of sale, or at least for the purpose of administering same to other persons. This brought the facts of the case within the terms of the statute, and warranted1 a conviction. On the 'Other hand, we think there was enough testimony to justify a submission to the jury of the question whether or not appellant obtained the morphine on a prescription from a licensed physician and that she kept it for her own personal use, which would have been a defense to the charge if the jury found those to be the facts.

The State was permitted to prove, over the objection of appellant’s counsel, that the officers found, behind a trunk in appellant’s room, a package containing ten grains of cocaine. We are of the opinion that this testimony was competent for the consideration of the jury in determining the purpose for which appellant had the morphine in her possession — whether for personal use or for other purposes. Possession of a quantity of cocaine at the same time has some tendency to show what the purpose was in having the morphine in her possession. Springer v. State, 129 Ark. 106; Marsh v. State, 146 Ark. 77.

It was also competent to prove the conduct of appellant and other persons in the house, and also the possession by appellant of the spoon and hypodermic syringe which she carried around with her, for the consideration of the jury in determining what the purpose was in having the morphine in her possession. There was no- error in the court’s ruling in admitting this testimony.

In admitting the testimony about appellant’s possession of the cocaine, the court made this statement: ‘ ‘ The court states she cannot be tried under this indictment for possessing cocaine, but it will be admitted for the purpose of showing she had narcotics in her possession.” When the court charged the jury, appellant requested the following, among other instructions, which was refused:

“No. 7. You are instructed that the indictment does not charge the defendant with unlawfully possessing cocaine. Therefore you cannot convict her of the offense of possessing cocaine, even though you find from the evidence that cocaine was in her possession.”

The testimony concerning the finding of the cocaine in appellant’s possession was, as before'stated, admissible, but the court was not accurate in stating to the jury the purpose for which it was admitted, for it was admitted, not to show that appellant had narcotics in her possession, but to show what her purpose was in having it in her possession — whether for her own use or otherwise. The explanation of the court was calculated to confuse the jury in determining what effect to give to this testimony if they found, as they might have found, that the cocaine belonged to appellant and was in her possession. The court should have given the requested instruction of appellant telling the jury emphatically and unequivocally that she could not be convicted of having cocaine in her possession. We think the court erred therefore in not giving the correct explanation to the jury of the purpose for which they might consider this testimony, also in refusing to give the requested instruction.

It is also contended that the court erred in its first instruction to the jury, which reads as follows :

“The court instructs the jury: If you believe from the evidence beyond a reasonable doubt that the defendant. Lucile Starr, in the Fort Smith District of Sebastian County, and within three years next before bringing the suit, unlawfully and feloniously did have morphine in her possession, you should convict the defendant; otherwise you should acquit her.”

It will be noted that this instruction makes the guilt of appellant depend entirely upon having morphine in her possession, and it excludes altogether the exceptions contained in the statute, which the jury might have found to exist; that is to say, that appellant had the morphine for her own use, and that she had obtained it under a prescription from a licensed physician. It is true the court gave other instructions requested by appellant, telling the jury that appellant was not guilty of the offense if she merely purchased and kept the morphine for her own use under a prescription of a physician, but these instructions were not in any way connected up so as to explain instruction No. 1 and harmonize them. In other words, the instructions were conflicting and calculated to mislead the jury.

For these errors the judgment is reversed, and the cause remanded for a new trial.

DISSENTING OPINION.

Humphreys, J.

I dissent from the conclusion reached by the majority because the instructions are in perfect harmony when read together. The first instruction makes the guilt of defendant depend upon whether she had morphine in her possession, and. the others give her the benefit of the exceptions contained in the statute.

Her proof did not show that she obtained the prescription from a licensed physician.

For these reasons, in my opinion, the judgment should have been affirmed.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Davison v. Harris.
    Opinion delivered October 13, 1924.
    Evidence — res inter alios acta. — In an. action for the price of coal delivered, where the defense was that the coal was sold at prices to be determined from time to time according to the market, and that defendant had notified plaintiffs of a reduction in price, evidence that plaintiffs bought some of the coal from a third person to supply defendant at a price which exceeded the reduced price offered by defendant and that defendant had likewise bought coal from such person, for which he had never paid, was incompetent and prejudicial.
    Appeal from Sebastian Circuit Court, Greenwood District; Joint E. Taiwan, Judge;
    reversed.

      Geo. W. Dodd and A. M. Dobbs, for appellant.
    The court erred in admitting the testimony of C. R. Harris and Mr. McCoy as to the purchase of coal from Kregger & Brannon. The testimony was incompetent, irrelevant and prejudicial. 140 Ark. 408; 67 Ark. 112. When incompetent evidence is introduced, prejudice is presumed, and the burden is upon the party introducing it to show no prejudice resulted. 77 Ark. 431; 89 Ark. 556; 105 Ark. 205. Incompetent evidence tending to strengthen a case is necessarily prejudicial. 108 Ark. 387.

      Geo. W. Johnson, for appellee.
   McCulloch, C. J.

This is an action instituted by appellees against appellant to recover a balance of $1,757.23, alleged to be due on the price of coal sold1 under contract in carload lots by appellees to appellant. Appellant pleaded full payment of the price of the coal as per contract, and also pleaded accord and satisfaction. A trial of the cause resulted in a verdict in favor of appellees for the recovery of $850, and an appeal has been prosecuted from the judgment.

Appellees alleged in their complaint, and proved at the trial, that appellant entered1 into an oral contract with them whereby he agreed to purchase all of the output of a coal mine by appellees near Midland, Arkansas, at the price of $4.50 per ton f. o. b. cars at the mine, “until notified by the defendant to stop the mining of coal.” This contract was entered into, according to the testimony, on August 25, 1922, and appellees furnished coal under the contract from time to time from that date until October 11, 1922, .after which date no further deliveries were made. This action is to recover the price of coal delivered at $4.50 per ton.

Appellant claims that he contracted for the coal at prices to be determined from time to time according to the market, and that he notified appellees by letter dated September 1, 1922, that the price thereafter would be .$3.75 per ton. The controversy relates to the amount to be paid after the date of this letter, but appellees contend, and attempted to prove by their testimony, that they did not receive this letter, nor did they receive any other notice of the reduction in the price of-coal until after the delivery, of the cars in controversy.

Testimony adduced by appellant tended to establish the fact that, when the controversy finally arose, a check was tendered to appellees in full settlement, according to the contention of appellees, concerning the price, and that the check was accepted by appellees in full settlement.

Appellees were permitted to prove by the testimony of one of them, over the objection of appellant, that several of the cars of coal delivered to appellant were purchased by appellees from' Kreggér & Brannon, the operators of an adjacent mine, and also were permitted to prove, over appellant’s objection, that they paid Kregger & Brannon $4.25 per ton for this coal. Appellees were also permitted1 to prove, over appellant’s objection, by Ed McCoy, the bookkeeper for Kregger & Brannon, that the latter concern had also sold several cars of coal to appellant and had had trouble in getting a settlement; that, in fact, they had never been able to obtain settlement from appellant. Exceptions were duly saved to each of these rulings, and they are now assigned as error.

We are of the opinion that the court erred in admitting this testimony, for it related entirely to transactions between parties other than appellant. These transactions had no relation whatever to the transactions between appellees and appellant, and1, for that reason, the testimony was incompetent. Hamburg Bank v. George, 92 Ark. 472.

The error was prejudicial, for the controversy related solely to the price of the coal, and the jury may have been influenced by the fact that appellees paid more for coal delivered than appellant claimed was the reduced price according to the notice alleged to have been mailed to appellees. The fact that the jury allowed appellees only one-half of their claim indicates that they may have been influenced by evidence which induced them to allow more than the price claimed by appellant and less than the price claimed by appellees.

Counsel for -appellees contend that the error was invited by testimony elicited by the latter’s counsel in the cross-examination of one of the appellees, drawing-out the fact that appellees had sold some of the coal from their mine to another party and had purchased coal from Kregger & Brannon to deliver in lieu of that sold to another party. We fail to find any such matter in the cross-examination, but, even if it so 'appeared, it did not invite an inquiry into the price paid by appellees to another party for the coal delivered. We find in the cross-examination some inquiry concerning a controversy about a carload of coal sold to one Caudle, and it was entirely proper and competent for appellant to inquire of the witness concerning* their failure to furnish all of the output of the mine, and this, did not constitute an invitation to appellees to go into the question of prices paid to other persons, nor did it justify appellees in proving by witness McCoy the difficulties of Kregger & Brannon in obtaining settlement from appellees for the coal they had sold to them. These errors call for a reversal of the judgment.

It is also contended that the evidence is not sufficient to sustain the verdict, but, inasmuch as there is to be another trial of the case, and the testimony may be different, we will not determine at this time the question of the sufficiency of the evidence.

There are other assignments of error with respect to the court’s charge, but it is unnecessary to determine those questions at this time, as they are not vital, and the instructions may not be the same on another trial.

For the errors indicated the judgment is reversed, and the'cause remanded for a new trial.


author: Wood, J.

text:
    Wacaster v. Hot Springs.
    Opinion delivered October 13, 1924.
    1. Statutes — special statute — publication op notice. — -Although a proof of publication of notice of an intention to apply for a special act, which is attached to the original bill and is on file with such bill in the office of the Secretary of State, fails to show compliance with Const. 1874, art. 5, § 26, in regard to giving 30 days’ notice of such intention, such proof of publication is not properly a part of the bill nor a record of which the courts may take judicial notice.
    2. Statutes — special statute — presumption.—The passage of a special act is conclusive of the fact that due notice was given of the intention to apply for its passage, unless the contrary is shown by some record of which the courts take judicial notice.
    Appeal from G-arland Chancery Court; J. P. Henderson, Chancellor;
    affirmed.

      B. O. Davies, for appellant.
    Courts will take judicial notice of the original bill, its indorsements, and all rolls, records, etc., which have been properly signed and deposited with the Secretary of State. See C. & M. Dig., § 4121. The Constitution, art. 5, § 26, requires evidence of publication of notice to be exhibited in the General Assembly before the passage of the act. If the record is silent, there is of course a presumption of its having been exhibited, but, if the record shows plainly that the notice was not published for thirty days before the act was introduced, it should he held void. 132 Ark, 240. The court will not look beyond' the records, etc., of the General Assembly in determining whether an act has been properly passed. 139 Ark. 595. If the errors appear on the engrossed bill, they will be considered. 216 S. W. 31. Judicial notice of the record will be taken. 216 S. W. 500; 218 S. W. 389. It is the duty of the court to look to all the records in the office of the Secretary of State. 130 Ark. 503.

      Galvin T. Gotham, for appellee.
   Wood, J.

This is an action by the appellants, who alleged that they were citizens, taxpayers, and owners of animals and places of business where they were carrying on a dairy and stock raising business upon their own or leased property in the vicinity of the city of Hot Springs. The action was instituted in the chancery court of Garland County against the city of Hot Springs to enjoin it from enforcing the provisions of act 542 of the Special Acts of the General Assembly of 1923 (Acts of 1923, page 1168), on the ground that the act was unconstitutional and void because it was a special act, and that article 5, § 26, of the Constitution of 1874 was not complied with in the passage of such act.

To sustain their contention the appellants introduced, through the Secretary of State, the original bill, and attached thereto was the proof of publication of notice of the intention to apply for its passage, signed and verified by E. Marion Higgs, publisher of the The New Era, a newspaper published in the city of Hot Springs, Garland County, Arkansas. This proof of publication states that the notice had been published in the newspaper thirty times upon the following dates, to-wit: The first insertion on January 25, 1923, the last ^insertion on February 26,1923. The bill was introduced in the lower house of the General Assembly on the 19th of February, 1923, and was passed by the House and finally by the Senate on March 2, 1923, as shown by the indorsements on the bill.

The appellees denied the allegation that the provision of the Constitution as to the notice of intention had not been complied with, and set up and offered to prove that notice of intention to apply for the passage of the bill had been given thirty days before the bill was introduced, and the publisher, E. Marion Riggs, who was a witness to that effect, asked that his certificate of proof of publication be corrected to show that fact. The trial court, however, ruled that the testimony offered by the appellees concerning the proof of publication was incompetent, and also held in effect that the proof of publication attached to the original bill was not competent to prove that article 5, § 26, of the Constitution of 1874 had not been complied with. Upon the whole case the court entered a decree dismissing the complaint for want of equity, from which decree is this appeal.

1. In Booe v. Road Imp. Dist., 141 Ark. 147, we said: “It would not do to relegate to the courts the ascertainment of a jurisdictional fact for the Legislature upon admission in pleadings by agreement of the parties, or by proof introduced of facts not required to be made a matter of record by the Constitution. To hold otherwise would make the validity of special laws depend upon the action of the parties, and might make it valid as to one person and invalid as to another in the locality affected by it. Such a course would not only be ruinous to the people in such localities, but might unsettle every special act passed since the adoption of the Constitution. ’ ’

Article 5, § 26, of the Constitution, supra, requires that evidence of the notice of the intention to apply for the passage of a special bill shall be exhibited in the General Assembly before such act shall be passed. There is nothing in the Constitution, nor is there any statute requiring that the proof of publication of this notice shall be spread upon the journals of the General Assembly or otherwise preserved as a record in connection with the passage of the bill. Attaching such proof to the original bill did not make it a part of the bill. There is no provision of the Constitution or statute requiring that it be attached to the original bill. Such proof of publication of notice is not a roll, record, document or paper required by law to be kept in the office of the Secretary of State, and therefore such proof of publication does not come within the provisions of § 4121 of Crawford & Mioses’ Digest. As is said in Booe v. Road Imp. Dist., supra: “The passage of the act is conclusive of the fact that due notice was given, unless the records of which the courts may judicially take notice show otherwise.” See also Booe v. Sims, 139 Ark. 595.

The decree is correct, and it is therefore affirmed.


text:
    Hill v. Ralph.
    Opinion delivered October 13, 1924.
    1. Statutes — construction.—A statute must be viewed as a whole, and every word and every part considered and compared and given some sensible meaning if possible, in order to arrive at the intent of the Legislature in the enactment.
    2. Schools and school districts — location op high school— center of district. — In requiring that a high-school building to be erected by a school district should be “geographically located in the center of the district so as to best serve the greatest number of children of scholastic age in the district,” the legislative purpose was to require the location to be as near the geographical center of the district as possible, talcing into consideration ' all of the factors that would foest serve the greatest number of children of scholastic age in the district.
    3. Arbitration and award — conclusiveness op award. — Where an act providing for the location of a high school building provided that, if the directors of the school district disagreed as to its location, the matter should be submitted to a board of arbitration, whose decision fixing the location of said school building should be conclusive, the decision of such board is conclusive, in the absence of actual fraud or such gross mistake as to be tantamount thereto.
    Appeal from Mississippi Obancery Court, Osceola District; J. M. Futrell, Chancellor;
    affirmed.

      J. T. Coston, for appellant.
    The act is mandatory. An act must be so construed as to give every section.a meaning, so as not to render such section nugatory. 109 Ark. 60. A material departure from the plan laid down by the Legislature renders such action void. 113 Ark. 491. See also 102 Calif. 642, 36 Pac. 949; 288 111. 240; 13 Olda. 285. The site selected was not the one to “best serve the greatest number of children. ’ ’

      Chas. E. Sullenger, for appellee.
    In order to set aside an award of a board of arbitration it must be shown that the award was fraudulently made or that the arbitrators made a mistake in making their award. Fraud is never presumed, but must be specifically charged. 106 Ark. 156; Pomeroy’s Equity Juris. 2, 871, 1797. The presumption is in favor of the validity of the award, and its invalidity must be clearly shown. 5 C. J. 289, p. 123; 5 C. J. 389, p. 160. See also 5 C. J. 463, p. 180. Where the Legislature has erected a tribunal for a 'specified purpose, its decision is final, and cannot be reviewed by the courts. 96 Ark. 424.
   Wood, J.

The Shawnee Special School District No. 10 was created by act 143 of 'the Acts of 1923. Section 15 of that act provides for the support and maintenance of schools at the places where they were formerly taught throughout the territory which was br ought into the Shawnee Special ‘School District No. 10 “until such time as a suitable building may be erected, centrally located in said district, with ample facilities for the proper care of all the children of scholastic ages in said district, then, at any annual school meeting held thereafter, the said' qualified electors of said Shawnee Special School District No. 10 may, by a majority vote, abolish said schools, or any of them, provided, however, that the board of directors shall, at all times, have the right to provide for and maintain schools in any part of the district when, in their discretion, the public welfare of the children of the district demands same.”

Section 18 of the act provides as follows: “The location of all buildings for school purposes in said district shall be left to the discretion of the board of directors, provided, however, that any high-school building erected in the district shall be geographically located in the center of the district so as to best serve the greatest number of the children of scholastic age in the district, taking into consideration the accessibility of said building, roads, means of transportation, and all other factors to be considered; but, in the event said directors cannot unanimously agree upon a suitable location for a high-school building, they shall report such disagreement to the State Superintendent of Public Instruction of the State of Arkansas, and request that he appoint a board of arbitration, to consist of not less than three persons connected with the public schools of the State of Arkansas, and residing without the boundaries of Mississippi County, and, upon the appointment of such board of arbitration and their acceptance of such appointment, the State Superintendent of Public Instruction shall immediately notify the board of directors of said Shawnee Special School District No. 10, and fix the time and place when said arbitrators shall meet the said board of directors and arbitrate the differences of said board and announce their findings; the decision of said board of arbitrators fixing the location of said school building shall be conclusive and final. The expense of such board of arbitration shall be paid by the district, provided, however, that such expense shall not exceed the sum of $250.” •

The directors of Shawnee Special School District No. 10, hereafter called district, could not unanimously agree upon a suitable location for the high-school building, and a board of arbitration was appointed1 under the authority of the act. They met with the board of directors of the district, according to the provisions of the act, and heard the differences of the directors, and viewed the locations about which the members differed, and rendered their unanimous decision in writing, fixing the location of the high-school building and describing the same. The directors of the district acquired the land and issued bonds in the sum of $75,000, under the authority of § 7 of the act, and were preparing to erect a building on the site selected, when this action was instituted by the appellants, forty-eight patrons and taxpayers in the district, against the directors,to enjoin the erection of the building. They alleged, among other things, that the site selected by the board of arbitration was not the geographical center of the district; that it was a distance of only 3% miles from the south end of the district, a distance of only four miles from the southeast corner, four miles from the southwest corner, seven miles from the north end, eight miles from the northeast corner, and about 12 miles from the northwest corner of the district. They further alleged that the building was intended for white children only; that the white children of scholastic age were all living north of the site selected, except twenty-five, who were scattered through the south end of the district, and that no children lived within one mile of the building site. It was alleged that the geographic center of the district was high and dry, having an elevation of twelve or fifteen feet above the .site selected by the board of arbitration, with roads radiating in all directions therefrom, making it convenient for all schoolchildren within the district; but that the site selected by the board of arbitration was low, wet, and swampy, and a fit breeding place for mosquitoes, malaria and chills, and that a school maintained there would endanger the health and even the lives of the children.

The appellees, the directors of the district, answered, denying, among other things, that the site selected was not authorized under the act and that the place designated by appellants in their complaint as the geographic center of the district was a more suitable location than the one selected by the board of arbitration, and denying that the place selected was low, wet, and swampy, and a fit breeding place for mosquitoes, malaria and chills, and that a school maintained there would endanger the health and even the lives of the children.

The testimony tended1 to prove that the directors of the district had differed over two proposed locations for the high-school building, one on the Dickenson place, which was described by the witnesses for the appellants as about the geographic center of the district, considering the shape of the district and the accessibility of the site. They state that it was high and dry and well drained into a running stream; that the location selected' by the board of arbitration, on the contrary, was much lower than the Dickenson lot, and was surrounded by lagoons and swamps that could not be drained; that, because of this fact, it was very unsanitary, and would be a breeding place for mosquitoes, and subject the children to malaria, typhoid, dysentery, and other miasmatic diseases. Such was the effect of the testimony of several witnesses for the appellants, including four physicians, who resided and practiced medicine in that community. One of these, after describing the two proposed locations, stated that the location on the Dickenson place would be much more convenient to all concerned — .the most central. “The Dickenson place would make it about equal all the way through to all parties. It would give these people where the majority is, the same interest as where there are a few. The white children live in the north end, closer to the Dickenson place, and the south end of the district is a negro settlement.”

On the other hand, the president of the board of directors of the district testified to the effect that he and two other members of the board wanted to locate the building where the site was selected by the board of arbitration, while two of them wished to locate it on the Dickenson place. As they could1 not agree, they asked that the Superintendent of Public Instruction appoint a board of arbitration, which was done, and the members of such board viewed the proposed sites and heard the statement . of each of the directors, explaining the advantages and - disadvantages of the respective sites, and .the board of ' arbitration selected a 'site upon which the directors pro- . posed to erect a building, located on the scenic highway 'and accessible tó all parts of the district; that most of the white children of the district lived not over two and arhalf miles .from the site selected; that the location is á high, dry, sandy ridge, with splendid drainage, the best in the county. The directors realized the fact that the building had to be located as near the center of the district as was practical, and they did not think it practical to put the building off of the highway, which ran parallel to the Frisco Railroad. - They intended to drain the territory around the location selected before building, and1 the canal and road with the sewer drainage would drain it.

Two other witnesses testified substantially to the same effect, and one of them stated he was familiar with the location on the Dickenson place, and that water stood on it, and it was entirely too low; it was buckshot land, and not good for the children to play on — low and wet.

After hearing the testimony, the court found generally in favor of the appellees, and entered a decree dismissing the complaint for want of equity, from which is this appeal.

1. The decision turns on the meaning to be given the word “centrally,” in § 15 of the act, and the word “center,” in § 18 of the act. It is a well-recognized canon of statutory construction that some meaning should be given to every word contained in the statute, if possible. The statute must be viewed as a whole, and every word and every part considered and compared and given some sensible meaning, if possible, in order to arrive at the intent of the Legislature in the enactment. State v. Boney, 156 Ark. 169; Carville v. Road Imp. Dist. No. 2, 152 Ark. 487; Nixon v. Allen, 150 Ark. 244; State v. Embrey, 135 Ark. 262; Cypress Creek Drainage Dist. v. Wolf, 109 Ark. 60.

The primary meaning of the word “center” is, according to Funk & Wagnail and Webster, “the point or place equally distant from the extremities or from the different sides of anything. The middle, as the center of a town — the center of a throng,” etc. “Central” means “relating to the center; situated in or near the center or middle.” These words, “centrally” and “center,” as used in the statute, must be construed with reference to the context. Observing these rules of construction, we are convinced that it was not the purpose of the Legislature to require the liigh-school building to be located in the exact center of the district, for the district was neither in the form of a circle, square, or parallelogram, but was of odd shape' — it had no mathematical center, and a geographical center could not be accurately ascertained. The evident purpose of the Legislature, as shown by the language with which the words “centrally” and “center” are associated and which qualified and limited their meaning, was to provide a location for a high-school building for the proper care of all children of scholastic age in the district — a location that would best serve the greatest number of children of scholastic age in the district, taking into consideration the accessibility of said building, rqads, means of transportation, and all other factors to be considered. The language of § 18 clearly indicates that the Legislature contemplated that the directors, in considering the various factors entering into the «election of a suitable site for the building, might not agree, and, unless they did agree unanimously, a board of arbitration should be appointed to arbitrate the differences between the directors and fix the location for the school building.

Taking the language of the act as a whole, we conclude that it was the purpose of the Legislature to give the directors, in the first place, and the board of arbitration, in the second place, the power to locate the school building somewhere as near the center of the district geographically as could be ascertained, taking into consideration all of the factors that would make it an eligible site for a high school that would best serve the greatest number of children of scholastic age in the district. It was not the purpose of the Legislature to require the location of the building on the exact geographical center, if that could be ascertained. But the act does require that the geographic center be taken into consideration, and that the location of the building be placed thereon, or as near thereto as possible, all of the factors of eligibility mentioned in the statute being considered. Therefore we conclude that it was within the power or jurisdiction of the board of arbitration to fix the location for the school building at the site designated by it.

2. The act, in express terms, makes “the decision of the board of arbitration fixing the location of said school building conclusive and final.” There is no attack made upon the regularity of the proceedings of the board of arbitration, nor is there any allegation that there was fraud upon the part of the arbitrators. The allegation of appellants that the location selected1 by the board of arbitration “is low, wet, swampy, and a fit breeding place for mosquitoes, malaria and chills, and to place the school building there would jeopardize the health and even the lives of the children,” is denied by the appellees. If the above allegation had been admitted or proved conclusively, it might be said that the decision of the board of arbitration was a gross mistake, and so arbitrary and unreasonable as to amount to a fraud on the inhabitants of the district and the patrons of the proposed high school. But the chancery court, after hearing the testimony, did not reach this conclusion, nor did the testimony justify such conclusion. The Legislature erected this special tribunal to determine the location for the high-school building in Shawnee Special School District No. 10, and, in the absence of actual fraud, or such gross mistake as to be tantamount thereto in law, its decision cannot be overturned. 2 Pomeroy’s Jurisprudence, § 879; 5 C. J. §§ 289, 389, 463. See also Shibley v. Fort Smith & Van Buren Bridge Dist., 96 Ark. 424.

The decree is in all things correct, and it is therefore affirmed.


author: Hart, J.

text:
    Hardy v. Ouachita National Bank of Monroe.
    Opinion delivered October 13, 1924.
    1. Bills and notes — indorsement op note before delivery. — One who indorses his name on a note before delivery and acceptance thereof by the maker is to be considered, so far as the holder of such note is concerned, as a joint maker of the note, and liable as such.
    2. Bills and notes — indorsement procured by fraud. — Under the rule that, where one of two innocent persons must suffer the consequences of the fraud of a third person, he must bear the loss who put it in the power of the third person to perpetrate the fraud, one who is induced by the fraud of another to indorse a note of the latter, mistaking it for a piece of blank paper, is liable to a bona fide holder of the note.
    Appeal from Cleveland Circuit Court; Turner Butler, Judge;
    affirmed.

      Woodson Mosley, for appellant.
    The signature of appellant was procured by fraud, and be is not therefore liable. 42 Ind. 227; 44 Ind. 70; 51 Micb. 553; 29 Wis. 194; 22 Micb. 479. Negotiability presupposes the existence of the instrument as having been made by the party whose name is subscribed thereto, and it is always competent to show that the instrument is not his. 53 N. E. 471. Appellant was not guilty of negligence in writing his name on the bach of the note, under the circumstances of the case. 74 N. E. 1086.

      Bridges S Wooldridge, for appellee.
    Appellant was a general indorser before delivery, and his indorsement warranted that the note was genuine. C. & M. Digest, §§ 7831-32. By placing his name on same before delivery he incurs all the liability of an indorser. C. & M. Digest, § 7833; 116 Ark. 420; 146 Ark. 186. Appellee was the holder of the note for value. Section 7791, C. & M. Digest. He cannot assert fraud against an innocent holder. 118 Ark. 222; 94 Ark. 100; 3 R. C. L., § 320, p. 1105. The law would be the same if the contract was held to be a Louisiana contract. 128 La. 1008.
   Hart, J.

The Ouachita National Bank of Monroe, Louisiana, sued J. B. Hardy for $2,298.10 alleged to be due on a promissory note.

The note was introduced in evidence, and was dated February 15, 1921. It was for $2,298.10, and was due December 15, 1921. The note was signed ‘ ‘ Smith Motor Sales Co.,'by J. P. Smith, Mgr.” No part of the note has ever been paid.

There was a judgment in favor of the bank against Hardy in the circuit court, and the case is here on appeal.

It is earnestly insisted by counsel for appellant that the circuit court erred in directing a verdict in favor of appellee.

The Smith Motor Sales Company was indebted to the Ouachita National Bank of Monroe, Louisiana, and the note sued on was given by it in renewal of an old note; According to the evidence of the president, vice president, and cashier of the bank, they agreed to take the note sued on in renewal of the old note which evidenced the amount of the indebtedness of • the Smith Motor Sales Company to the bank. The bank declined to take the renewal note unless J. P. Smith would secure some one in good financial standing to indorse it. Smith offered to get J. B. Hardy to indorse the note, and, after the officers of the bank found that he was a man of good financial standing, they told Smith that they would accept Hardy’s indorsement of the note and give him an extension of time on his indebtedness. They filled out a new note for the amount of the indebtedness, and gave it to Smith. Smith returned the note to the bank with the blank indorsement of J. P. Hardy on the back of it.

Under these circumstances Hardy was an original promisor of the note. This court has repeatedly held that when one, in order to give the maker of a note credit with the payee, writes his name on the back of the note before delivery and acceptance thereof by the payee, he is to be considered, so far as the holder of such note is concerned, as a joint maker of the note, and liable as such. Lake v. Little Rock Trust Co., 77 Ark. 53, and cases cited, and Hodges v. Collison, 116 Ark. 420.

But it is contended that Hardy is not liable as indorser on the note because his signature was obtained by fraud. On this point J. B. Hardy testified that J. P. Smith came to his place of business and asked him to sign a note for him; that he told Smith that he could not afford to do it; that finally Smith told him that he would like to get his name so that his father might address letters to him right; that Smith put a blank piece of paper on the table where he was writing, and that he wrote his name on if, and started to write his address; that Smith told him that he knew his address, and picked up the paper and walked away with it; that he never turned the paper over to see if there was any writing on the other side of it.

On this point all of the officers named above testified that Hardy admitted to them that the indorsement on the note bearing his signature was his genuine signature, and made the same explanation about signing the note as he had testified to. They all testified that the signature of Hardy on the back of the note was there before Smith delivered the note to them and (before they accepted it in renewal of Smith’s past indebtedness. They had nothing whatever to do with getting Hardy to indorse the note. They did not know him, and only made inquiries about his financial condition after Smith had offered him as an indorser on the note.

There is nothing in the record tending to show that any of the officers of the bank had anything whatever to do with procuring the indorsement of Hardy to the note. As far as the bank is concerned, Hardy signed the note as an indorser,' and is liable on his indorsement, under the authorities cited above. He cannot be relieved from liability because of any fraud practiced by Smith in procuring his indorsement, unless such fraud was known to the bank before it accepted the note containing the indorsement, or the bank in some way participated in the fraud. Hardy, by carelessly indorsing the note, put it in the power of Smith to deliver the note to the hank and thereby secure an extension of his existing indebtedness. The rule is that, where one of two innocent persons must suffer the consequences of the fraud of a third person, he must bear the loss who put it in the power of the third person to perpetrate the fraud.

The note was signed in Arkansas, hut was payable in Louisiana. If it should be considered as a Louisiana contract, the law would he the same. Hackley State Bank v. Magee, 128 La. 1008.

It follows that the judgment must be affirmed.


text:
    Little River County v. Buron.
    Opinion delivered October 13, 1924.
    1. Counties — contract for audit of county books. — Crawford & Moses’ Dig., § 661, providing that the county judge “may, in his discretion, call on the State Auditorial Department for an audit of the books and accounts of the county,” intended to give the county court the discretion of calling on the State Auditorial Department for auditors to make an audit of the county books, but not to take away the court’s power to employ other auditors if deemed advisable.
    2. Appeal and error — conclusiveness of finding of fact. — A finding of fact of the circuit court sitting without a jury is as conclusive on appeal as the verdict of a jury.
    Appeal from Little River Circuit 'Court; B. E. Isbell, Judge;
    affirmed.

      June R. Morrell and George R. Steel, for appellant.
    The claims are invalid for the reason that the county judge and the county court did not comply with the law, in not calling upon the Auditorial Department for the appointment of an auditor to make the audit. §§ 661, 662, 663 and 664, C. & M. Digest. The Legislature has absolute authority to provide the manner in which the county judge shall act, in case he exercises his authority, and to provide the manner in which he shall proceed. 119 Ark. 567; 92 Ark. 93; 89 Ark. 456; 99 Ark. 100; 85 Ark. 464. The question as to whether the enactment is wise or expedient is exclusively for the G-eneral Assembly to determine. 89 Ark. 456. In construing an act of the Legislature, the intention of the Legislature in the passage of the act must be taken into consideration. 25 R. C. L., § 216, p. 960. The statute <is not merely directory, but mandatory. 77 Ark. 417; 25 R. C. L. 770; 106 Ark. 48; 22 How. 422; 24 N. E. 1009; 34 Ark. 394; 25 Ark. 101. The intention of the Legislature should prevail. 27 Ark. 420; 35 Ark. 56; 37 Ark. 491; 3 Ark. 285; 11 Ark. 44.

      DuLcmey £ Steel, for appellee.
    The claim was a valid claim against the county under article 7, ^ 28, of the Constitution. See also 122 Ark. 114; 175 111. App. 290; 114 Cal. 419; 46 Pac. '292! The Legislature, by the enactment of § 661, C. & M. Digest, simply gave the county court authority which it did not have before, that is, to call on the State Auditorial Department for an audit, if in its discretion it saw fit to do so. The word “may” in a statute is sometimes used in a mandatory, and sometimes in a directory, permissive, sense, but it is only where it is necessary to give effect to the clear policy and intention of the Legislature that it can be construed in a mandatory sense. 53 N. W. 256; 86 Iowa 352; 30 S. W. 1053; 88 Tex. 213; 26 U. S. 46; 7 L. ed. 47; 3 Neb. 224; 46 N. Y. 200; '59 Hun. 258; 12 N. Y. Supp. 890; 128 N. Y. 632; 29 N. E. 146; 75 N. Y. Supp. 976'; 71 App. Div. 351; 69 Fed. 671; 8 Kan. 623; 60 Pac. 1092; 128 Cal. 444; 82 Mass. 166; 56 N. E. 953; 184 111. 597; 24 S. W. 638; 42 Mlo. 171; 55 Cal. 599.
   Hart, J.

V. E. Buron filed three claims in the county court of Little River County, Arkansas, for services in auditing the accounts of the various county officers, under a contract made with the county court. The three claims of Buron, amounting' in the aggregate to $2,957.14, were allowed in the county court.

W. M. Glathright, a citizen and taxpayer of the county, filed Ms affidavit and bond for appeal, and the appeal was duly granted.

The circuit court, after hearing the evidence, found that the county judge of Little River County made a contract with V. E. Buron to audit the books and records of the various county officers of said county, and that the contract made by the county judge was ratified by the county court. The court further found that V. E. Buron and his assistants made an audit of the business, books and records of said county officers for a period of five years, in accordance with the contract, and that the services performed by Buron as such accountant were reasonable. It therefore affirmed the judgment of the county court making him an allowance in the sum named above. The case is here on appeal.

The first contention of appellant is that the county court had no power to make a contract with Buron to audit the accounts and records of the various county officers, except under the provisions of § 661 of Crawford & Moses’ Digest. The section reads as follows: “The county judge of any county may, in his discretion, call on the State Auditorial Department for an audit of the books and accounts of the county and township officers of the county of which he is the county judge. In such event it shall be the duty of the State Comptroller to appoint one or more experienced auditors for the purpose of making such audits as called for by the county judge, and such auditor or auditors shall receive a salary of not less than $10 a day for each day, and actual traveling expenses while engaged in the work of such audit.”

It is their contention that the word “may” means “must” or “shall,” and that the county judge or county court had no discretion to cause an audit of the books and accounts of the county officers to be made, except by applying to the State Comptroller, as provided in the-statute just quoted. They invoke the rule laid down in Washington County v. Davis, 162 Ark. 335. In that case it was held that the word “may” is always construed “must” or “shall” whenever it can be seen that the Legislature intended to impose a duty and not merely a privilege or discretionary power, and that the pu'bli-c or third persons are interested and have a claim of right to have the power exercised.

We do not think that rule has any application under the language used in the section to be construed in the case at bar. That case and others recognize the rule to be that it is only where it is necessary to give effect to the clear policy and intent of the Legislature that the word “may” is to be construed in a mandatory sense, and, where there is nothing in the context or in the sense and policy of the section to require an unusual interpretation, its usual meaning is merely permissive or discretionary.

In the instant case we do not see that it is at all necessary that the word “may” should be construed in a mandatory sense in order to give effect to the clear policy and intention of the Legislature in passing the statute of which the section in question is a part. It does not seem to us that the legislative intent was to impose an imperative duty upon the county judge to call on the 'State Auditorial Department when an audit of the books and accounts of the various officers was deemed necessary; but it is rather made plain that it was the intention of the Legislature to give the county court the privilege or discretionary power of calling on the State Auditorial Department for experienced auditors if he deemed such a course to the best interest of the county.

Neither do we see that the public or third persons have a claim of right to demand an exercise of the power which is plainly given to the county judge in his discretion. Section-661 is a part of the act creating a State Auditorial Department. Primarily the duties of that department relate to the inspection and supervision of all books and accounts of departments of State and other State institutions named in the act. The act was passed by the Legislature of 1917. Prior to that time, in the case of Leathem & Co. v. Jackson County, 122 Ark. 114, this court held that the county court, being the general fiscal agent of the county, is possessed .of supervisory power over the collection and preservation of its funds, and that it had the implied power to employ an expert accountant to audit the hooks, accounts and public records of county officers.

There is nothing in § 661, or in any other section of the act creating the Auditorial Department, which shows that the Legislature intended to take away from the county court the power to employ accountants to audit the books of the county officers, as held in the case of Leathem & Co. v. Jackson County, supra. On the other hand, the very language used seems to indicate that it was the legislative intention to give the county court an added power, and that is, in its discretion, to apply to the Auditorial Department of State for experienced auditors to make the audit called for by him as county judge. • In plain terms the section recognizes that the power is already vested in the county court to have made an audit of the books of the county officers and to employ expert accountants for that purpose, and § 661 merely gives the county judge the privilege, in his discretion, of applying to the State Auditorial Department for such experienced auditors or accountants.

But it is claimed that the section is mandatory because it fixes a minimum fee which the experienced auditors may receive, which is a salary of not less than $10 a day for each day while engaged in the work of audit, and actual traveling expenses. This might or might not be a cheaper way to make the audit. The county court might be able to employ accountants at much less than the salary fixed by this section of the statute. It is easy to see that in many instances an audit of the books might be made by local accountants at much less expense than to call on the Auditorial Department for experts employed by it. The evident purpose of the statute was to enable the county court to call on the Auditorial Department for accountants when, in its discretion, it was deemed best to do so.

The authority of making the audit is vested in the county court, and the rights of the public are only to have a correct audit, and tlieir rights, are not in any manner affected by vesting in the county court the power to appoint expert accountants in the first place, or in giving it discretion to call upon the Auditorial Department for expert accountants to make the audit.-

It is next insisted that the amount allowed by the county court for making the audit is too much. The proof on this branch of the case is in direct conflict, and no useful purpose could be served by setting it out in full. We deem it sufficient to say that an audit of the books and records of the various county officers for a period of five years was made. Buron was engaged eighty days in making the audit. He had two assistants most of the time. Other expert accountants testified that the services pérformed were worth the amount charged, and that the amount charged was no more than was customary to be paid by banks and other concerns for similar services.

It is true that the testimony as to the amount charged was contradicted by the witnesses for appellant; but the case was tried before the circuit court sitting without a jury. On this question of fact the circuit court sustained the finding of the county court, and, under the settled rules of this court, where circuit courts are required by law to pass upon questions of fact, the findings are as conclusive on appeal as the verdicts of juries. Jones v. Glidewell, 53 Ark. 161; Matthews v. Clay County, 125 Ark. 136; and Cady v. Pack, 135 Ark. 445.

It follows that the judgment will be affirmed.


text:
    Ferrel v. State.
    Opinion delivered October 13, 1924.
    1. Forgery — intent to defraud. — In order to constitute the offense of uttering and publishing a forged writing, it is necessary that there be an intent to defraud, and that there be a knowledge of the falsity of the instrument on the part of the defendant.
    2. Forgery — intent to defraud — sufficiency of proof. — Proof that defendant indorsed another’s name to a check payable to the latter, representing himself to.be the payee, would not justify an inference that he did not have authority to sign the payee’s name as indorser of the check.
    Appeal from Jefferson Circuit Court; T. G. Parham, Judge;
    reversed.

      E. Jordan Monlc, for appellant.

      J. S. Utley, Attorney General, and John L. Garter, Assistant, for appellee.
   Hart, J.

Frank Ferrel prosecutes this appeal to reverse a judgment of conviction against Mm for uttering a forged instrument, in violation of the provisions of § 2460 of Crawford & Moses’ Digest.

The main reliance of the defendant for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict.

According to the testimony of C. M. Leavitt, the defendant came into bis store and purchased several articles of wearing apparel, and gave in payment thereof a check signed by J. K. Smith, payable to the order of Tom Newton, for the account of "Walter Davis. The check was drawn on the Bank of Winchester, at Winchester, Arkansas. The defendant represented himself to be Tom Newton at the time he presented the check in payment, and he indorsed the check “Tom Newton.”

It was also shown by the State that the defendant went to J. K. Smith, the drawer of the check, and represented himself to be Walter Davis, and to be living upon the farm of Tom Newton. He said that he was dissatisfied, and wanted to move. He stated further that he owed Tom Newton $47.80 for supplies. J. K. Smith gave him a check for that sum on the Bank of Winchester, payable to the order of Tom Newton. Smith sent a servant with the defendant to Newton for the purpose of paying Newton and hauling back the defendant’s things from there to Smith’s farm. After they got near where the defendant said that Newton lived, the defendant left Smith’s servant in the truck for the purpose of going to Newton’s place by himself. Later the defendant came back, and said that Newton had told him that he would not get out of his chair and go anywhere to get the check. The check was then given to the defendant for the purpose of being delivered to Newton.

In order to constitute the offense of uttering and publishing a forged writing, it is necessary that there be an intent to defraud, and that there be a knowledge of the falsity of the instrument on the part pif the defendant. Elsey v. State, 47 Ark. 572; Maloney v. State, 91 Ark. 485; and Rickman v. State, 135 Ark. 298.

Therefore one of the material averments of the indictment is that the defendant uttered and published the forged instrument with fraudulent intent. To establish this averment, it was essential for the State to prove that the defendant knew when he indorsed the check that he had no authority to do so. The only evidence which it can be claimed has any tendency to prove this fact is the circumstance that the defendant falsely represented that he was Tom Newton, the payee of the check. This was not sufficient. It may be that this circumstance would justify the suspicion that the defendant knew the character of the instrument, but it falls short of proving the fact that-the defendant did not have the authority of Tom Newton to indorse the check and use it in pavment of the goods purchased by him. The defendant did not testifv in the case at all, and it did not devolve upon him to introduce evidence tending to disprove anv fact material to the establishment of the crime -charged against him.

On the other hand, the burden was on the State to prove everv material fact charged in the indictment and involved in the -commission of the crime, beyond a reasonable doubt. Tbe mere suspicion of tbe guilt of tbe defendant would not meet the requirements of the law. There must be some substantive evidence tending to show his guilt, and the mere fact that he represented himself to be Tom Newton would not justify the inference that he did not have authority to sign Tom Newton’s name to the check as an indorser thereof. In short, his representations that he was Tom Newton did not justify the jury in finding that he signed Tom Newton’s name as indorser of the check without his authority. Surmise, conjecture, or suspicion cannot take the place of proof.

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


author: Smith, J.

text:
    Citizens’ Investment & Security Company v. Daniel.
    Opinion delivered October 13, 1924.
    Bills and notes — failure of consideration — renewal.—The giving of a renewal note without the knowledge at the time of the failure of the consideration for the original note, does not waive such defense, and the maker is not thereby estopped from pleading such failure in an action on the renewal note.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      McConnell & Henderson, for appellant.
    Defendant had no right to rescind1 the contract. To do so he must return or offer to return the stock. Fletcher, Cye. on Corp., vol. 6, p. 6555, par. 3880: he cannot do so if guilty of laches, ^ 6557, nor if he has ratified the transaction by accepting a dividend or a renewal of a note. The offer to rescind comes too late. 35 Ark. 483; 38 Ark. 334. For other authorities on rescission, see 137 Ark. 574 and 7 R. C. L., § 211. Defendants cannot vary the written subscription agreement by parol. 126 Ark. 400; 92 Ark. 504; 125 Ark. 502; 111 Ark. 238; 106 Ark. 462. Appellees are estopped from setting up failure of consideration of the note. One who gives a note in renewal for another note, with knowledge of a partial failure of consideration for the original note, cannot plead estoppel. Ill Ark. 353; 118 Ark. 465. They could not speculate on the success of the company, participate in its affairs, receive dividends, etc., and then plead failure of considération. See 104 Ark. 517. Under the same state of facts this court held a subscriber liable to the same company on a similar contract. 160 Ark. 320.

      B. W. Robins, for appellee.
    The case (160 Ark. 320) relied on by appellant is not like the case at bar. There the subscriber was notified of the change in plans of the company, but here the appellees received no such notice or information. On the other hand, they were led to believe that the original plans were being carried out. There was therefore here a failure of consideration for which the note was given, and no liability can be imposed upon appellees. 48 Ark. 426.
   Smith, J.

It is insisted, for the reversal of the judgment in this case, that the finding of facts upon which the judgment was based is unsupported by the testimony; and, further, that the case is similar to and is controlled by the case of Harrington v. Citizens’ Inv. & Sec. Co., 160 Ark. 320. This case, like the Harrington case, was one to enforce a stock subscription, the appellant here being the plaintiff in both cases.

As appears from the statement of facts in the Harrington case, it was alleged, and testimony was offered tending to show, that, while the plaintiff investment company solicited and received subscriptions upon the representation that it proposed to increase its capital stock from twenty-five thousand to one hundred thousand dollars and to reincorpórate as a trust company, this plan was not consummated because sufficient subscriptions were not received for that purpose. In the Harrington case the fact is recited that Harrington was advised of this failure, and that his subscription as originally made had been applied to the increase of the capital stock of the investment company from twenty-five thousand to seventy-five thousand dollars, and that, after the receipt of this notice, he executed a renewal of his original note. Upon this finding we applied the familiar rule that the giving of a renewal note with the knowledge, at the time, of the failure of the consideration for the original note, waives that defense, and the maker is thereby estopped from pleading such failure in an action on the renewal note.

It is conceded that the subscriptions were obtained upon the representation that a trust company was to be formed when subscriptions for one hundred thousand dollars were obtained, and that this subscription was not obtained.

It is contended by appellant that appellees had knowledge of this failure, and that the investment company had determined to treat the subscriptions which .had been received as subscriptions to be applied to the increase of its capital stock from twenty-five thousand to seventy-five thousand dollars. If such were the facts, the case would be similar to and controlled by the Harrington case.

■But here the facts are by no means undisputed. On the contrary, appellee, Mrs. Mary F.' Daniel, the subscriber, testified that she was never advised that the plan to organize a trust company had been abandoned, and, while she admits renewing the note, she testified that she was assured at the time of each renewal that the plan would be finally consummated; that it was always understood that she was subscribing, not for a part of the increased capital stock of the investment company, but for stock in a trust company, and that the trust company was never organized, and the consideration for the note therefore failed.

The answer recited that the subscription had been ■obtained by fraud and misrepresentation; but upon these allegations the court made no finding. But the court did expressly find that the consideration for the note had failed; that the' plaintiff investment company had contracted with the subscribers to perfect the organization of a trust company, which it failed to do, and that appellee was not advised of the abandonment of the plan when she renewed the note; and the testimony of appellee is legally sufficient to support that finding, which was made by the court sitting as a jury, and, this being true, we do not stop to inquire whether that finding was contrary to the preponderance of the evidence, and, if such was the fact, she was not estopped to plead failure of consideration.

Certain other questions are raised in the briefs, but the view we have expressed renders it unnecessary to discuss them in this opinion.

The judgment is therefore affirmed.


text:
    Missouri Pacific Railroad Company v. Smith & Company.
    Opinion delivered October 13, 1924.
    1. Carriers — damages to shipment — instruction.—An instruction, in an action for damage to cotton caused by the carrier’s negligence in exposing it to the weather, that it was the duty of the shipper immediately to recondition the cotton in order to minimize the damages, was properly modified by adding, “unless you find from the proof that a custom prevailed in Memphis [the destination] to do this as the cotton was sold;” the testimony tending to establish such custom, and there being no evidence that such custom did not meet the requirements of ordinary care.
    2. Carriers — damages to shipment — -market price. — Where the cause of action against a carrier was for damage to a shipment of cotton by permitting it to become unnecessarily water-soaked, and not for failure to deliver the cotton in time for any particular market, it was not error to refuse an instruction which would have permitted the jury to take into account the fact that the market price of cotton on the day the cotton was delivered was higher than on the day when the cotton should have been delivered, had there been no negligent delay.
    Appeal from Cross Circuit Court; W. W. Bandy, Judge;
    affirmed.

      Thos. B. Pryor and Daggett S Daggett, for appellant.

      Instruction No. 3 requested by appellant correctly states the law with reference to the duty of the consignee to receive the cotton when it was tendered, recondition it, and thereby minimize the damage. 4 B. C. L., Carriers, § 285; 101 Arle. 172; Ann. Cas. 1914A, note 66. The measure of damages, as declared in the instruction requested, is elementary. 74 Ark. 358; 90 Ark. 452. Of course, the failure to deliver in a reasonable time is a breach of the contract, but the consignee cannot refuse to accept the goods and sue for conversion, and the measure of damages is as stated. 90 Ark. 524; 99 Ark. 568. The liability of the carrier ceases on delivery of the goods, and damages accrued to that time is the full measure of liability. 124 Ark. 490. The claim for damages accrues on delivery of the goods in a damaged condition. •Damages accrued at that time only are recoverable. 88 Ark. 594.

      T. E. Lines, Killough, Killough & Killough, for appellee.
   Smith, J.

W. M. Smith & Company sued the Missouri Pacific Bailroad Company,'alleging that on March 15, 1920, plaintiffs delivered to defendant' at Parkin, Arkansas, 33 bales of cotton consigned to Memphis, Tenn.; that the cotton was delivered in Memphis on April 27, 1920; that defendant negligently permitted the cotton to get wet; and prayed for damages in the sum of $3,000. The jury returned a verdict for plaintiff in the sum of $2,108.55, with interest at 6 per cent, from April 26, 1920. Prom the judgment on the verdict defendant has appealed.

The theory on which appellee recovered judgment in the court below is reflected in an instruction numbered 3, requested by the appellant railroad company, the defendant below. This instruction was given, after modifying it by adding the clause, “unless you find from the proof that a custom, prevailed in Memphis to do this as the cotton was sold.” This clause is set out in the instruction as given, and is inclosed in parentheses, and, as thus modified, the instruction reads as follows: “You are instructed that, even though you find that the cotton was damaged by exposure to the elements, such damage being occasioned by the negligence of the defendant in allowing the said cotton to .remain on the platform at Parkin from the date bill of lading was issued until the date of shipment, and that said cotton was delivered to the consignee in Memphis in a damaged condition, you are further instructed that it was the duty of the plaintiff’s agent to consignee to immediately (unless you find from the proof that a custom prevailed in Memphis to do this as the cotton was sold) recondition said cotton and thereby minimize the damage to that part of the cotton not damaged at the date of delivery. And in determining the amount of damage accruing to the plaintiff as of the date the cotton was delivered in Memphis, the measure of damages will be the difference in the value of the cotton as of the date delivery should have been made in Memphis by the defendant company and the value of the cotton as it would have been in its reconditioned form as of the date delivery was actually made.”

Appellant excepted to the modification and the giving of the instruction as modified.

The testimony shows that the cotton was delivered to the appellant company at Parkin, Arkansas, a station on appellant’s railroad, on March 15, 1920, for shipment to Memphis, Tennessee, thirty-three miles distant, but was not delivered in that city until April 27, 1920. During the larger part of this time the cotton stood on an uncovered platform, and frequent heavy rains fell on it, and it is conceded this testimony is sufficient to support the finding made by the jury, as reflected by the verdict returned, that the cotton was damaged by reason of a negligent delay of appellant company to transport the cotton within a reasonable time.

The testimony shows that the cotton was sold in various quantities by the consignee, a cotton factor, and that the last of it was not sold until about a year after its receipt. The testimony also shows that the cotton was not “reconditioned” until it was sold, but each bale was reconditioned as it was sold. By reconditioning the cotton is meant the removal of the damaged cotton from the bale of which it was a part. It is the insistence of the railroad company that this should have been done immediately upon delivery of the cotton to the consignee, and the instruction numbered 3 as asked so advised the jury, but the instruction was modified as set out above; the effect of the modification being to tell the jury that it was not the consignee’s duty to recondition the cotton immediately, unless a custom prevailed in Memphis to do this as the cotton was received. The correctness of this modification presents the principal question in the case.

It is the insistence of the appellant railroad company that, the cotton having gotten wet, the damage to the cotton on that account would continue to increase until the wet cotton was removed from the bale that is reconditioned, and that the consignee, in discharge, of the duty to minimize the damage, should have reconditioned the cotton immediately upon its receipt, and that the carrier should not be held liable for any augmentation of the damage resulting from the failure to recondition immediately, and it is therefore insisted that the modification of instruction numbered 3 set out above was error calling for the reversal of the judgment rendered in appellee’s favor.

The undisputed evidence shows that it was the custom of warehousemen handling and storing cotton in Memphis not to recondition damaged cotton until it was sold, but to do so at that time. When a bale was reconditioned, the undamaged cotton was weighed and reported to the factor for whom it was stored, and the damaged cotton, if salable at all, was sold for the account of the owner. The custom of handling damaged or wet cotton was to store it with the wet end up, the bale being placed where the air could strike it, and when this was done the cotton commenced to dry out, and, while this did not repair the existing damage, it arrested any increase of the damage. The undisputed testimony shows that the cotton in question was so treated, and that the cotton was placed in a court where the air struck it, and the testimony is that, when this was done, the increased damage resulting from the failure to immediately recondition was negligible.

It will be observed that the part of the instruction dealing with the measure of damages took no account of the condition of the cotton at the time of the sale. On the contrary, it correctly told the jury that “in determining the amount of damage accruing to the plaintiff as of the date the cotton was delivered in Memphis, the measure of damages will be the difference in the value of the cotton as of the date delivery should have been made in Memphis by the defendant company and the value of the cotton as it would have been in its reconditioned form as of the date delivery was actually made.” In other words, if the railroad company was liable, the measure of its liability was the value of the cotton which had been damaged or destroyed when the cotton reached Memphis, the extent of which damage would have been then shown, had the reconditioning occurred at that time. Now, if the railroad was liable for the damage then existing, it would not be released from this liability because the exact amount of the damage was not ascertained until the cotton was reconditioned, which was not done until the cotton was sold.

This was the damage for which the appellee sued and the theory upon which the recovery was had. This is shown by an instruction, also numbered 3, given at the request of appellee, in which the jury was told that “your first inquiry will be to ascertain the amount in pounds, as near as you can, of the amount of cotton that was damaged and destroyed, and then you will ascertain from the proof what the full market price of that cotton was in Memuhis on the d'av it was delivered to the consignee, and the measure of the damage will be the market price of that cotton that was lost because of its damaged condition.”

Having given this instruction, the court, upon modifying appellant’s instruction numbered 3, said: “But this instruction as to the measure of damages is really exactly what I have already told you as to the measure of damages, which is to ascertain the amount in pounds of the injured cotton from the proof in the case, and the measure of damages would be the value of that damaged cotton in Memphis on the day the railroad company delivered it in Memphis to the consignee. The two instructions virtually tell you the same thing in different language. ’ ’

It thus appears that the court definitely limited the recovery to a sum which would compensate the damages existing at the time the cotton was delivered to the consignee.

Moreover, there was no showing that the custom prevailing in Memphis to recondition cotton only upon sale did not meet the requirements of ordinary care; and this was the measure of the consignee’s duty in the matter of minimizing the damages, and if this cotton was properly reconditioned, and the effect of the reconditioning was to separate the damaged from the undamag’ed cotton, and thus ascertain the extent of the damage, liability for having damaged the cotton could not be defeated because the extent of the damage had not been ascertained immediately upon the delivery of the cotton to the consignee.

We conclude therefore that no error was committed in modifying the instruction numbered 3.

An exception was saved to the refusal of the court to give an instruction numbered 4, reading as follows: “You are further instructed that, if you believe from the evidence that the value of the cotton on the Memphis market was greater on the 26th day of April, 1920, the date on which the cotton was actually delivered, than the value thereof on a date within which it could have been delivered in Memphis by the defendant company without unreasonable delay, then the damage suffered by the plaintiff will be limited to such damage as accrued to the cotton by reason of the negligence of the defendant in allowing the cotton to remain exposed to the elements from the date of the issuance of the bill of lading until the date of delivery thereof in Memphis. ’ ’

The insistence is that the testimony shows that the market price of the cotton was actually higher on the date of the delivery of the cotton than it was on any of the days when delivery would have been made, had there been no negligent delay in the delivery, and that the jury should have been permitted to take this fact into account.

It sufficiently answers this insistence to say that this is not a suit for failure to deliver in time for any particular market, but is a suit for the damage done to the cotton by permitting it to become unnecessarily water-soaked. Appellees had the right to hold the cotton and to sell it when they pleased, and they sue to recover only the damage which existed at the time the cotton was received in Memphis.

A large amount of testimony was introduced in regard to this damage to the various bales of cotton comprising this shipment, and no useful purpose would be served by setting it out and discussing it. The testimony shows the weight of the various bales on the date of their arrival in Memphis, which totaled 16,392 pounds, and the deductions from this admitted weight, and the number of pounds thrown out upon reconditioning the cotton, which amounted to 5,815 pounds, and if this amount of cotton was damaged upon the arrival of the shipment in Memphis, a verdict for a larger amount than the one returned might have been rendered.

No error appears, and the judgment is affirmed.


author: Humphreys, J.

text:
    Averitt v. Dodd.
    Opinion delivered October 13, 1924.
    1. Highways — deviation- of road plans from prescribed route.— Where the plans, specifications and contract for constructing a highway improvement adopted a different route from that specified and described in the act creating the district, the extent of the departure being 6,500 feet, the changes were material and unauthorized, rendering the contract for the construction of the road and sale -of bonds void.
    2. Judgment — res judicata.- — A judgment upholding the validity of a special act creating a road improvement district and the assessment and levy of benefits is not res jvMccuta as to the question whether a contract let under the act is a compliance with the terms of the act.
    Appeal from Polk Chancery Court; G. E. Johnson, Chancellor;
    affirmed.

      Pipkin & Frederick, for appellant.

      McPhetrige & Martin, for appellee.
    The change in route of the road made by the commissioners was unauthorized, and rendered all proceedings void. 148 Ark. 365. The record introduced by appellant in the Perry ease on which his plea of res judicata is based, showed different parties and different issues from the case at bar, hence there is no ground of estoppel. 136 Ark. 115; 137 Ark. 134; 141 Ark. 453.
   Humphreys, J.

This suit was brought against appellants by appellee in the chancery court of Polk County to restrain said appellants jointly and severally, as road commissioners of Road Improvement District No. 2 of Polk County, Arkansas, from performing any of the provisions of a contract entered into on the 9th day of December, 1922, between said commissioners and the Western Construction Company for the construction of a road and bridges in said district, and to restrain said commissioners, or either of -them, in said capacity, from delivering to any purchaser bonds of said district executed by said commissioners on January 1, 1923.

Appellee was a property owner residing in the district, and sought the injunction upon several grounds, only one of which we shall discuss, as it sustains the decree of the chancellor enjoining the appellants from proceeding with the improvements under contract with the Western Construction Company, and enjoining them from delivering the bonds to the Industrial Investment Company or any other person. The allegation, and testimony introduced in support thereof, which sustains the decree, is that the plans, specifications and contract provided for the construction of a highway along a different route than that specified and described in the act creating said district. The route provided for in the act creating the district was the public road known as the Mena and Womble road. The act described it as the public road leading from Mena to the Montgomery County line, leading to certain places and through certain townships. There were two public roads leading to Big Fork, one by Opal and the other by Bog Springs. The commissioners were authorized to follow either road at this particular point. Under the authority conferred upon the commissioners they had no power to materially deviate from the route in constructing the improvement. According to the undisputed evidence, the plans and specifications prepared by the engineer and adopted as a basis of the contract for the construction of the highway changed the route for nearly two miles and to a considerable distance from the public road.

A. E. Wear testified that he was familiar with the point at Big Fork where the commissioners changed the route from the public road; that they changed it from one side of the creek to the other for a distance of 3,000 feet.

Peter McWilliams, acting engineer for the district, testified that he had examined the plans, specifications and blue-prints for Road Improvement District No. 2, and that the survey as outlined and adopted bv the commissioners departed from the route of the public road as it existed for a distance of 13,600 feet between Mena and the Montgomery County line; that the greatest departure was between Opal and Big Fork, the extent of the departure being 6,500 feet; that the greatest departure at any particular point was 2,900 feet.

We think the changes were material and unauthorized, rendering the contract for the construction of the road and sale of bonds void and of no effect.

In addition to denying all the material allegations in appellee’s complaint, appellants interposed the further defense of res jucUcata. In support of this plea appellants interposed the pleadings and decree in a certain cause, No. 884, tried in the chancery court of Polk County, February 14, 1921, wherein J. It. Perry et al. were plaintiffs and the commissioners of Road Improvement District No. 2 of Polk County et al. were defendants. The complaint in said cause alleged that the plaintiffs were citizens and landowners in said district; that the district was wrongfully and illegally established, in violation of §§ 24 and 25 of article 5 of the Constitution of the State, and sets forth the particulars of said violation; that the assessment of benefits was excessive and was arbitrarily made; that the assessment for numerous reasons assigned was illeg’al and void. The plaintiffs prayed that the defendants be enjoined from levying a tax, that the collection of the tax be restrained, and to restrain the issuance of bonds by the commissioners.

The answer denied all material allegations of the complaint, and, upon a trial, the court found all issues in favor of the defendant. An appeal was prayed and granted, but the appeal was never perfected.

The issue of whether the commissioners had made a material change was not an issue in the Perry et al. case, as will be seen by reading the substance of the complaint given above. The only issues involved in that case were whether the act creating the improvement district was constitutional and whether the assessment and levy of benefits was arbitrary and confiscatory. The issue's being entirely different, this action is not precluded by the adjudication in the Perry et al. case.

No error appearing, the decree is affirmed.


text:
    Robert Welch Stave & Mercantile Company v. Burris.
    Opinion delivered October 13, 1924.
    1. Trial — instruction—assumption of disputed fact. — Where, in an action against a foreign corporation, the sheriff’s return to the -summons stated that he had delivered a copy to J. R. W., manager of said compány, -an instruction that, in determining whether or not the defendant was doing business in the State, the jury might “take into consideration representations made by its managers, officers and employees, as well as any and all other facts and circumstances that throw any light on the facts,” is 1 not -objectionable as assuming that J. R. W. was the manager of the defendant.
    2. Corporations — foreign corporation doing business in state.— Testimony held sufficient to sustain a finding that defendant, a foreign corporation, was doing business in the State.
    Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    affirmed.

      A. D. DuLaney, for appellant.
    The motion to quash service should have been sustained, as appellant is a foreign corporation, having no agent, office or place of business in this State. The service to be valid must have been made under authority of § 1152, C. & M. Digest, but none of the terms of said section apply to appellant. See 128 Ark. 321; 115 Ark. 272. Under the decision in 128 Ark. 321 appellant had the right to appear and move to quash service, and then to answer. See also 77 Ark. 412; 59 Ark. 593; 85 Ark. 236. It was error to give plaintiff’s instruction No. 2.

      Seth G. Reynolds and A. P. Steel, for appellee.
   Humphreys, J.

Appellee instituted suit in the circuit court of Little River County against appellant to recover damages on account of a breach of an alleged contract whereby appellee was to haul, by water, 400 cords of stave bolts from Tilson’s Landing on Red River to appellant’s plant at Index, on said river. The sheriff’s return on the summons is as follows:

“On the 6th day of June, 1921, I have duly served the within writ by delivering a copy and stating the substance thereof to the within named Robert Welch Stave & Mercantile Company, by delivering a copy to J. R. Wiseman, manager of said company, as I am herein commanded. (Signed) J. E. Pierce, Sheriff.”

Appellant appeared specially and moved to quash the service on the ground that it was a Missouri corporation, doing business solely in the .State of Missouri, and that it had no place of business in Arkansas. After hearing testimony upon the issue tendered in the, motion as to whether appellant was doing business at Index, Arkansas, the court overruled the motion, to which ruling exceptions were saved; aqd, without waiving any of. its rights under said motion, appellant filed an answer denying all the material allegations in the complaint, and, by way of further defense, interposed the statute of frauds.

The cause was then submitted to a jury upon the pleadings, testimony and instructions of the court, which resulted in a judgment in favor of appellee for $200 and costs’, from which is this appeal.

Only so much of the testimony has been abstracted by the respective parties as they deem necessary for a proper presentation on appeal of the two following- questions :

First, whether the court erred in overruling the motion to quash service.

Second, whether the court erred in giving instruction No. 2 for appellee, over the special objection of appellant, which is as follows:

“2. The court instructs you that, in determining whether or not the defendant was doing business at Index at the time of this contract, you may take into consideration representations made by its managers, officers and employees, as well as any and all other facts and circumstances that throw any light on the facts.”

The specific objections made to instruction No. 2 were that it assumed that J. E. Wiseman was manager and an officer of appellant, and that the instruction allowed the jury to take into consideration any statement made by any employee of the partnership that existed at Index by which it might bind appellant in the case. The instruction does not mention J. E. Wiseman and does not assume that he was manager of appellant at Index. That was the issue in the case, and the meaning of the instruction is that the jury might consider the statements of the manager, officers and employees at the mill at Index along with all the other facts and circumstances in determining whether they represented appellant, and whether appellant was doing business at that point. The instruction did not tell the jury that agency might be established by the testimony of the agent alone. If the testimony of any of the witnesses was incompetent, the objection thereto should have been preserved and presented on appeal. The competency and relevancy of testimony cannot be reached on appeal in a law case by an objection to an instruction. The objection to the evidence itself must be made in a motion for a new trial, abstracted and presented as error to the appellate court.

As we understand it, the real contention of appellant is that no substantial evidence was introduced tending to show legal service on or liability against appellant. This must depend on whether there was any substantial evidence tending to show that appellant was con - ducting a business at Index. If so, service upon its manager at that point was sufficient to bring it into court and to sustain a judgment and verdict against it. Section 1152, C. & M. Digest.

J. W. Wiseman admitted that he was managing the business at Index, but denied that the business was owned or operated by appellant. He testified that the business was owned by Robert Welch himself and his brother, and was conducted by himself as manager under the partnership name of Welch Stave Company, and that it was an independent business. He testified that Robert Welch was president and his brother secretary of the Missouri corporation, and that the only connection the Missouri corporation had with the business at Index was to lend it money and take a part of its output. In his cross-examination, however, he made the following answers to questions propounded to him:

“Q. Your bank account is handled at-Texarkana under the Welch Stave Company? A. Yes sir. Q. You receive cheeks from the Robert Welch Stave & Mercantile Company to pay the labor at the mill, don’t yon? A. They are furnishing the money. Q. You admit that your payroll comes through the Robert Welch Stave & Mercantile Company of Saint Louis? A. Yes, some of it does. Q. I will ask you if, every time you issue a bill out there at Index, if you don’t immediately send the bill to the office of the Robert Welch Stave & Mercantile Company? A. Yes sir. * * * Q. When the bank at Texarkana .called on yon for rating, did you not state to them that your company was a branch of the Robert Welch Stave & Mercantile Company,. and, for the purpose of investigating the standing of the company, to make their inquiry of the Robert. Welch Stave & Mercantile Company? A. I don’t remember; I expect I did. I will tell you, the Robert Welch Stave & Mercantile Company is furnishing the money to us to run the mill at Index. Mr. Welch and my brother are interested in the business at Index. They are furnishing me the money to run the mill. * * * Q. Did T. H. Wiseman and Robert Welch own fifteen thousand dollars worth of machinery at Ogden in 1921? A. I guess possibly we owned more than that. Q. How many different names have you gone under at Index since you have been there? A. Two. Q. What were they? A. Welch Stave Company and Index Stave Company. Q. I will ask you this question: Didn’t Mr. Robert Welch, or the Robert Welch Stave & Mercantile Company, in sending you money to pay off the payroll, make the checks payable to the Robert Welch Stave & Mercantile Company and send to you to be deposited in your bank here to pay your hands? A. After Mr. Welch got sick they did. Q. You get mail continually addressed to the Robert Welch Stave & Mercantile Company at Index, don’t you? A. No sir. I don’t know. Possibly I get circulars, but they get that,.. I suppose, from the Bradstreet Company.” ,

It was also shown that most of the books relative • to the business at Index were kept in the office of appellant in Saint Louis.

The appellee testified that he made the contract for hauling the staves with J. E. Wiseman, as manager of the Eobert Welch Stave & Mercantile Company; that he had been familiar with appellant and its manager for two years, and had always understood appellant was a corporation.

It is true that the mere act of lending money to a concern and taking the output manufactured by it does not, of itself, show that the concern advancing the money and taking the output is the owner or interested as a party in the concern to whom it furnishes money, but this fact, when taken in connection with the manner of operation and control of the business by the advancing concern, may furnish a basis for a reasonable inference that the business was owned or operated by the concern which advanced the money. We think the facts and circumstances in the instant case were sufficient from which the court and the jury might well draw an inference that the business at Index was owned or operated by appellant.

No error appearing, the judgment is affirmed.