author: Smith, J.

text:
    Lutesville Sand & Gravel Company v. McLaughlin.
    Opinion delivered April 14, 1930.

      J. jE. Townsend and G. J). Frierson, for appellants.

      Eugene Sloan, Ij. B. Poindexter and David, L. King, for appellee.
   Smith, J.

Margretta McLaughlin and her husband, T. F. McLaughlin, brought this suit against the appellant Gravel 'Company to recover the value of certain gravel alleged to have been taken from land owned by Mrs. McLaughlin, and judgment was rendered in her favor for the sum sued for.

The controlling question in the case is the one of fact whether Spring' River, from which the gravel was removed, is a. navigable stream. Mrs. McLaughlin amended her complaint to allege that the bar from which the gravel was removed was an accretion to her land, but the court held — and properly, we think — that under the undisputed testimony the bar was not an accretion to her land, and no complaint is made of that ruling.

Mrs. McLaughlin has title to a tract of land which is described in her deed and in the deeds to her predecessors in title as “All that part lying on the left or east bank of Spring River of east half of the northeast quarter of section 9, township 17 north, range 1 west.” Therefore, if Spring River is a navigable stream, Mrs. McLaughlin takes only to the high water mark, whereas if the stream is not navigable, she has the right of a riparian owner to have her boundary extended in accordance with a rule well defined. The rule is as follows:

The riparian owner upon a navigable stream, deriving title .from the United States, takes only to the high, water mark, the title to the bed of the stream being in the ‘State; but the riparian owner upon a non-navigable stream is entitled to the center of it, ratably with the other riparian proprietors, the extent of the interest depending upon the frontage upon the stream. Barboro v. Boyle, 119 Ark. 377, 178 S. W. 378; St. L. I. M. & Sou. Ry. Co. v. Ramsey, 53 Ark. 314, 13 S. W. 931, 8 L. R. A. 359, 22 Am. St. Rep. 195; Rhodes v. Cissel, 82 Ark. 367, 101 S. W. 758; Little v. Williams, 88 Ark. 37, 113 S. W. 340; Glasscock v. National Box Co., 104 Ark. 154, 148 S. W. 248.

It is conceded that under the rule for the apportionment of the beds of non-navigable waters Mrs. McLaughlin owns the bar from which the gravel was removed if Spring River is non-navigable.

Opposing counsel have cited and reviewed many cases upon this subject, but, as the law has long been at rest in this State, we will not review or discuss an3r cases from any other jurisdiction.

The case of Little Rock, M. R. & T. R. R. Co. v. Brooks, 39 Ark. 403, announced the .test of navigability, and that case has been consistently followed. The .question there involved was that of the navigability of Bayou Bartholomew, and the court there held that the burden of proving navigability, when that fact was in dispute, was upon the party asserting that fact. It was there said: “By the American doctrine, tide water, ais a criterion of navigable character, has been discarded. Nor is it any objection to the public easement for navigation, that riparian proprietors of lands, along fresh waters, own to the thread of the stream. Nor is it necessary that the stream should be capable of floating boats or rafts the whole, or even the greater part of the year. Upon the other hand, it is not sufficient to impress navigable character that there may be extraordinary times of transient freshets, when boats might be floated out. For, if this were so, almost all insignificant streams would be navigable. The true criterion is the dictate of sound business common sense, and depends on the usefulness of the stream to the population of its banks, as a means of carrying1 off tlie products of their fields and forests, or bringing to them articles of merchandise. If, in its natural state, without artificial improvements, it may be prudently relied upon and used for that purpose at some seasons of the year, recurring with tolerable regularity, then, in the American sense, it is navigable, -although the annual time -may not be very long*. Products may be ready and boats prepared, and it may thus become a very great convenience and materially promote the comfort and advance the prosperity of the community. But it is evident that sudden freshets at uncertain times cannot be made available for such purposes. No prudent man could afford the expense of preparation for such events, or could trust to such uncertainty in getting to market. The result of the authorities is this, that usefulness for purposes of transportation, for rafts, boats or barges, gives navigable character, reference being had to its natural state, rather than to its average depth the year round (citing authorities).”

This statement of the law was quoted and approved in Barboro v. Boyle, supra.

The defendant admitted in its answer the removal of the gravel from the bar in question, but in paragraphs numbered 11, 12, 13 and 16 of its answer alleged certain facts by way of defense, which, on motion of the plaintiff, were stricken from the answer.

. . In paragraph 11 it was alleged that prior to the installation of defendant’s plant for removing the gravel the War Department of the United States announced its decision that 'Spring* River at the point in question was a navigable stream, and that the Department was exercising jurisdiction over it as such, and that a permit would be required before an overhead cableway across the river could be erected, and that this permit ivas obtained from the War Department, a copy of which ivas made an exhibit to the answer.

Paragraph 12 alleged that the point in controversy on Spring River is only two miles from Black River, into -which Spring River empties, and is only about a mile below the mouth of Eleven Points. River, -which is itself a navigable stream emptying into Spring River. That ¡Black River connects with the White River, which empties into the Mississippi River, which, in turn, empties into the Gulf of Mexico, and that these streams, together, make a navigable waterway and channel for commerce, both interstate and foreign, and are therefore within the exclusive jurisdiction of the War Department of the United States.

In paragraph 13 it was alleged that two bridges across Spring River had been erected at points higher up the stream, and that the War Department had required that permission to erect them be first obtained, and that this permission had been obtained through special Acts of the 'Congress of the United States, copies of which were made exhibits to the answer.

Paragraph 16 denied that any sand or gravel had been removed from the banks of -Spring' River, but alleged that the sand and gravel had been taken from bars within the meandered lines and within the permanent bed of the river.

We think the court erred in striking out these paragraphs, and that the matters there alleged were and are evidentiary facts, to be considered in passing upon the ultimate question to be decided — that is, the navigability, in fact, of Spring River at the point where the gravel was removed.

In the case of Little Rock, M. R. & T. R. R. Co. v. Brooks, supra, it was insisted that the plaintiff, who there asserted the navigability of Bayou Bartholomew, “had failed to show by any legal proof that the bayou is a navigable stream by law, ’ ’ but the court said: ‘ ‘ Parol proof ivas admissible. It is not necessary that the bayou should have been declared navigable by any statute of the State or Federal governments.”

The authorities are also to the effect that, while, the action of the War Department in assuming jurisdiction over a stream as being navigable, and that of the Congress in passing legislation granting permits to bnild bridges, are not conclusive of the question of navigability where there is no express declaration of that fact, yet such action should be assigned weight in view of the power of legislative inquiry and judgment, although their effect- is not to declare a river navigable in its natural state when the Acts of Congress do not purport to do so. United States v. Brewer-Elliott Oil & Gas Co., 249 Fed. 609; United States v. Cress, 243 U. S. 316, 37 S. Ct. 380.

At § 14 of the chapter on Navigable Waters, 45 C. J. 416, it is said: “While the attitude of the Federal government, not amounting to a definite declaration, is to be considered upon the question of navigability, as is also the attitude of a State, navigability is not established by the fact that Congress has granted authority to construct a bridge in accordance with the general statute governing the bridging of navigable Avaters, nor by a precautionary proviso in such grant or permission that there shall be no interference with navigation, nor by congressional appropriations for the improvement of a river. ’ ’

Here we have the action of the War Department in requiring and granting permission to extend cables across the river upon the theory that jurisdiction had been assumed oA^er it as a navigable stream. We have also two special acts of Congress granting permission to build bridges across the stream at points above the gravel bar in question.

There Avas also offered in eAddence an application made to the Commissioner of Insurance and Revenues of the 'State of Arkansas pursuant to the laws of this State (§ 6789 C. & M. Digest and Act 88 Acts of 1925 page 260) to remove the gravel. The permission required by the laws of this State to remove gravel from navigable streams was granted October 14, 1927, by the Commissioner of Insurance and Revenues of the State for tlie agreed prices of two and one-half cents per cubic yard for sand and five cents per cubic yard foa’ gravel, but upon the condition that the applicant “will not use this permit for the purpose of taking' sand or gravel from said streams at any point where the same is not navigable, and * * will not remove any sand or gravel from above mean high water mark.”

There was also offered in evidence the official plat of the government survey of this stream, with the field notes of the survey, which show that the stream had been meandered in such survey.

Upon the subject of meandering streams in government surveys the following statement of the law appears at § 15 of the chapter on Navigable Waters, 45 C. J. page 416: ‘ ‘ The running of a meander line along the bank of a stream does not establish its navigability, although it has been held that a body of water which has been meandered is prima facie navigable, but is not necessarily or conclusively so. Similarly the fact that a stream has not been meandered and returned as navigable does not show that it is non-navigable, but raises that presumption. ’ ’

Among other cases cited in the note to this text is that of Harrison v. Fite, 78 C. C. A. 447. This case involved the navigability of Big Lake and Little River in this State, and affirmed the decree of the circuit court of the United States for the Eastern District of Arkansas (148 Fed. 781.) holding that those waters were not navigable. Much that ivas said in the opinion in that case is relevant here, and upon the question of meandered streams it was there said: “The action of the government surveyors in meandering’ a body of water or in surveying its bed is to be considered as evidence upon the question of its navigability or unnavigability at the time; but it is not conclusive. The surveyors are invested with no power to foreclose inquiry into the true character of the water. If the United States has disposed of lands bordering upon a meandered unnavigable water course or lake, by a 'patent containing no reservations, and there is nothing else indicating an intention to -withhold title to the lands within the meander lines (Niles v. Cedar Point Club, 175 U. S. 300, 20 Sup. Ct. 124, 44 L. Ed. 171) it has nothing left to convey; and whether the title to the bed of the waters is in the State or passes to the grantee in the patent is determined by the local law. (Lamprey v. Minnesota, 52 Minn. 181, 53 N. W. 1139, 18 L. R. A. 670, 38 Am. St. Rep. 541). * * * Courts take judicial notice of the navigable character of our important rivers and inland lakes — those that are so within our common knowledge; but there are many of such insignificant capacity and doubtful utility that the question, being one of fact, is to be determined by the evidence produced, and in such case the burden of proof rests upon him who asserts the existence of the public servitude. ’ ’

In addition to this evidence, all of which, except the permit from the State, was apparently treated by the trial court as being Avithout evidentiary value, but which, as we have shown, does have evidentiary Amlue, the following testimony was offered. W. E. Verlder testified that he Avas a boatman and timberman, -with an experience of forty years on Spring River, and that he had license from the Federal goAurnment to operate boats on Spring River. Of this AAdtness appellee says: “No one attempted to impeach his testimony or to question his sincerity.” This AAdtness testified that at different times he had operated on Spring River the Blue Goose, Ruby Pearl, the Quick Step, and the Boll Weevil, all of Avhich AArere stern Avheel steamboats, and that these boats had toAArnd barges four feet deep, thirty feet wide, and sixty feet long, and upon these barges carried anything he pleased. That he made a. number of trips up Spring River to defendant’s plant, and delivered there railroad steel which Avas used in the construction of the plant, and that he had towed in barges to points higher up the stream material used in the construction of the two bridges authorized by Acts of 'Congress which have been referred to. He also testified that when the toll bridges was built at Powhatan on Black Eiver he brought out from Spring Eiver on 'barges twenty feet wide and sixty-six feet long the gravel used in the construction of that bridge. He also testified that he had had a large number of logs, of all sizes, rafted down Eleven Points Eiver to 'Spring River, and down Spring River to Black River, and that some of these logs would draw as much as forty-six inches of water, that is, the logs would sink that deep in the water in floating, and he further testified that if a few snags were taken out and some work done on the shallow places or “riffles” as he called them, boats could go up and down Spring River at any time of the year, and that you can go up and down the river with light craft now at any time.

Other testimony corroborative of this was offered, but after hearing six witnesses on the subject the court announced that only that number would be permitted to testify on either side.

The defendant offered — but the court excluded— testimony to the effect that other boats, the names of which were stated, had run to points higher up the stream carrying and delivering- various articles of commerce.

There was offered in evidence photographs taken March 20, 1929, which showed the river at defendant’s plant to be about five hundred feet wide, and soundings made on that day showed its depth to be ten feet in the shallowest water, and when the pictures were made the Boll Weevil, a steamer, a deck and a half high, was pushing a large barge. The pictures show the river to be well within its banks. It was admitted by the plaintiff and the witnesses who testified in her behalf that the river was in fact navigable, even for steamboats, at certain seasons of the year, but their testimony was to the effect that this navigable condition was intermittent and irregular, and did not exist except after rains, and did not O'ccur at fixed periods of time or continue for any definite duration, and that in low water the river was not navigable for rafts; that there were bars in the river over which the rafts could not be floated, and that the rafts would have to be broken up and the logs floated over, one at a time, and in some instances the logs had to be rolled over in the shallow water. Plaintiff also offered testimony to the effect that there were certain fords which cou'ld be crossed in low water, and that on one occasion an automobile had been driven over one of these fords, and one witness testified that he had on several occasions driven a reaper across the river at one of these fords. It was not contended, however, that this could be done or had been done except at low stages of the river, and, even then, only at the fords, but the testimony shows that even at those places and at the lowest stages of the niver boats of light draft called “John Boats” could be propelled.

We have concluded that the undisputed testimony is to the effect that Spring River is a navigable stream under the tests of navigability laid down in the previous decisions of this court hereinabove referred to. Except at the shallows or bars there is, at all seasons of the year, enough water to carry rafts and similar commerce, and except during the periods of low water the river has a sufficient depth to accommodate substantial commerce, and, while this period of time varies somewhat, it does continue for a period of several months every year, and may be reasonably anticipated to exist except in the summer and fall when the river is at a low stage.

We conclude, therefore, that the-court should have held, under the undisputed testimony, that Spring River is a navigable stream, and, being such, that the plaintiff had no cause of action to recover the value of the gravel taken from the stream opposite her land, and a verdict should, therefore, have been directed in defendant’s favor, and for the error in not so doing the judgment is reversed, and the cause will be dismissed.

Humphreys, J., disqualified and riot participating.


source: Caselaw Access Project

author: Humphreys, J. McHaney, J.

license: Public Domain

text:
    Bledsoe v. McKeowen.
    Opinion delivered April 14, 1930.

      8. P. Morton and Rose, Hemingway, Cantrell <& Loughborough, for appellant.

      Paul G. Matlock, for appellee.
   Humphreys, J.

A petition to form a new Special School District out of Rural Special School Districts Numbers 30-31-6, three sections of Number 5 and Common School District Number 8 in Dallas County, duly signed by a majority of the electors residing therein, was filed with the county hoard of education of said county under the provisions of act 156 of the Legislature of 1927. A remonstrance against the formation of the district was filed before said hoard by electors residing in Special School District Number 6.

On a hearing of the petition and remonstrance, said board formed the territory described in the petition and shown by the plat accompanying same into a new special school district designated “Rural Special School District Number 42” of said county, from which order and consolidation electors in districts 5, 6 and 8 prosecuted an appeal, to the circuit court of said county.

The cause was there tried by the court upon the petition, remonstrance and agreed statement of facts, together with the testimony of witnesses introduced by the respective parties upon the issue of whether or not it would be to the best interest of all parties affected to form the new district, resulting in a finding that it would be to the best interest of said districts numbers 30 and 31 for said territory embraced in said petition to be formed into a nevr rural special school district; that it woidd not be to the best interest of the other parties affected for said new district to be formed or created, and therefore it would not be for the best interest of all parties affected for the new district to- be formed as proposed; and a rendition of a judgment vacating the order of said board and dismissing the petition, from which is this appeal.

It is apparent from the finding and judgment of the trial court that he gave no weight to the finding and order of said board. Section 1 of said act is, in part, as follows: “Upon a petition being filed with the county board of education signed by a majority of the qualified electors in the territory to be affected, said county board of education of any county within the State of Arkansas shall have the right to form new school districts, and to change the boundary lines between any school district heretofore formed, where, in the judgment of such board of education, it would be for the best interest of all parties affected.”

The part of the section quoted clearly invested the board with a sound discretion in the formation of a new school district. Its orders forming new districts will not be disturbed on appeal unless it appears that such orders were arbitrary or unreasonable. No such finding was made in the instant case. Unless the testimony refiected that the order of said board was arbitrary and unreasonable, it was improper-to vacate same and dismiss the petition. Discretion to form new districts is vested by the act in the several boards of education and not in the circuit court.

It is also apparent that the trial court in his finding and conclusion of law treated the several districts involved as the parties in interest, rather than treating the parties residing in the whole territory involved as the interested parties to be affected. He based his finding that it would not be to the best interest of all parties affected to form the new district upon the fact that it would not be to the best interest of parties residing in Districts 5, 6 and 8 to consolidate said districts with Districts Numbers 30 and 31, although a large majority of the parties to be affected resided in the two latter districts. In our view this was not a correct interpretation of the act quoted. The language used clearly refers to parties residing in the territory to be incorporated in the new district as a whole, and not to parties residing in some particular part thereof. The proper interpretation of the language used in the act is that the board may consolidate the proposed territory into a new district if, in the judgment of the board, it would be to the best interest of all parties residing in the district as a whole, meaning, of course, a substantial majority of all the parties residing in the territory. The exercise of a sound discretion on the part of the board in the organization or formation of a new district upon proper petition does not mean that the board may greatly inconvenience, oppress or outrage any parties residing in any part of the territory. The true interpretation of the statute is that the wishes and convenience of a substantial majority in the whole territory should be respected if, in doing so, it would not greatly harm the other parties affected. Our interpretation of the, statute finds support in the cases of Stephens v. School District No. 85, 104 Ark. 145, 148 S. W. 504; Carpenter v. Leatherman, 117 Ark. 631, 176 S. W. 113; Irons v. Independent School District No. 2, 119 Minn. 119, 137 N. W. 303; School District No. 36 v. School District No. 31, 134 Minn. 82, 158 S. W. 729; and Chicago B. & Q. R. Co. v. Byron School Dist. No. 1, 37 Wyo. 259, 260 Pac. 537, and oases cited therein.

On account of the errors indicated the judgment is reversed, and the cause is remanded with directions to retry the cause in accordance with the interpretation we-have placed upon act 156 of the Legislature of 1927.

McHaney, J.

Conceiving, as I do, that the effect of the evidence before the court wholly fails to show that the county board of education acted arbitrarily or in an unreasonable way, I am of the opinion that the judgment should be reversed and that the cause be dismissed. I agree with the majority that the cause should be reversed, and that the proper construction of the act has been made. I therefore concur in the judgment.

Mr. Justice Kirby also concurs.


author: Kirby, J.

text:
    Brown-Hinton Wholesale Grocery Company v. Ware & Son.
    Opinion delivered April 14, 1930.

      Joseph B. Brown, for appellant.

      George W. Johnson, for appellee.
   Kirby, J.

This suit was brought by appellant corporation against Ware & Son, a partnership, to recover a balance alleged to be due upon an account for goods and merchandise sold to appellee partnership, and is the second appeal herein, a full statement of which appears in Brown-Hinton Wholesale Grocery Co. v. Ware & Son, 177 Ark. 1141, 9 S. W. (2d) 553.

The former judgment was reversed because of the giving of an erroneous instruction directing the jury, if it found that plaintiff participated in the assignment made for the benefit of the creditors by filing proof of its claim with the trustee and dealing with him, that it should find for the defendant. The court said therein: “Appellant would not be bound by merely filing its claim with the trustee, unless in so doing it thereby assented to accept its pro rata share of the proceeds of the trusteeship in full settlement of its claim, and the proof of the custom was competent as tending to show whether, in conforming thereto, appellant had agreed to cancel such portion of its debt as the receiver did not pay.”

Appellant complains that instructions Nos. 2 and 3 given on this trial are erroneous in that they told the jury, if they found the custom existed and if plaintiff filed its claim with the trustee with the knowledge that by such usage and custom of trade its claim would be extinguished by the amount it would receive from said trustee, it could not recover and they will find for the defendants. Both of the instructions are erroneous in that they told the jury that, if there was a custom in the trade territory to wind up the estates of insolvent debtors by a trustee and an advisory committee of creditors, the creditors relinquished all claim to any further payment than realized from the dividends distributed by the trustee, and that the filing of a claim by any creditor with the trustee bound him by the custom to relinquish all further rights to the payment of any excess of his debt or claim over the amount of the dividends distributed in closing the insolvent’s estate. It is the consent or agreement of the creditor to relinquish the balance of his claim and accept in settlement of it the amount of the dividend distributed by the trustee in winding up the insolvent debtor’s estate in accordance with the trade custom which binds him to do so and not the custom ¡itself, proof of which was competent as tending to show whether in conformity with it appellant had agreed to cancel or relinquish such portion of its debt as was not paid by the dividend.

In International Shoe Co. v. Pinkus, 278 U. S. 261, 49 S. Ct. 108, the court reversing the decision of this court, held the plain purpose of the Bankruptcy Act to establish uniformity necessarily excludes State regulation of the subject-matter, whether interfering with the. act or complementary, additional or auxiliary thereto. It said: “The enforcement of State insolvency systems, whether held to be in pursuance of statutory provisions or otherwise, would necessarily conflict with the national purpose to have uniform laws on the subject of bankruptcy throughout the United States.” In that ease the insolvent debtor was upon petition adjudged insolvent, and a receiver appointed with directions to take charge of his property, and liquidate it, directing the creditors to make proof of their claims “with the necessary stipulation that they will participate in the proceeds in full satisfaction of their demands. ’ ’ In pursuance of the statute1, the court ordered a receiver after a fixed time to pay costs and salaries, and then the claims with stipulations, etc. One of the ereclitors, who had not agreed to be bound or stipulated for relinquishment of the balance of his claim after a pro rata division, brought suit and had a garnishment issued against the trustee who was compelled to pay the whole amount of his claim out of the proceeds on hand. Appellant denied that there was any such custom as attempted to be proved; denied having given its consent to any agreement to wind up the insolvency’s estate by a trustee and an advisory committee, and, although it did file its account with the trustee showing the amount thereof, it refused to accept the dividend tendered it in payment of the whole amount of its claim, returning the check to the trustee. There could be no estoppel in its conduct since the trustee for liquidating the affairs of the insolvent partners had already been appointed and had taken charge of the assets before the filing of appellant’s claim, and it is conceded that no reply was made by appellant to the trustee’s letter consenting to the arrangement for winding up the estate or anything else done indicating an agreement thereto.

Brown Shoe Co. v. Stone, 172 Ark. 1156, 292 S. W. 117, has no application here since the creditor there agreed to accept a pro rata dividend in full settlement of his claim against the insolvent’s estate and accepted a check sent in full satisfaction of its account, reciting that such was the fact. Doubtless appellant could have agreed and bound itself to accept a less amount in full settlement of its entire claim against the insolvent debtor’s estate, but appellees were bound to show that it had done so upon suit brought for payment of the account, which is undisputed, and proof of filing the claim with the trustee for the whole amount without any agreement at the time to accept a pro rata dividend in full settlement, and a refusal to do so upon tender of such dividend check is not sufficient to show a discharge of the debtors from further liability for the account sued upon.

The instructions objected to were erroneous, and the court erred in not directing a verdict for the appellant. For such error the judgment must be reversed, and the cause will be remanded with directions to enter judgment for appellant company for the amount due on its account. It is so ordered.

Justices Humphreys and McHaney dissent.


author: Kirbv, J.

text:
    Rogers v. Farnsworth.
    Opinion delivered April 14, 1930.

      A. F. Smith, for appellant.

      W. A. Bates, Sam T. Poe and Tom Poe, and McDonald Poe, for appellee.
   Kirbv, J.

The question here presented for determination is whether an accommodation maker of a joint and several negotiable promissory note can escape liability thereon to one entitled to subrogation to the payee’s right to payment having been compelled to pay the note to protect shares of stock owned by him wrongfully pledged by the payee as collateral -without knowledge or consent of the owner to secure the payment of the note.

The agreed statement of facts shows and the court found that appellee, C. 0. Farnsworth, was an accommodation maker of the note, and, having received no part of the consideration for which the note was given, was not liable to the payment thereof, having executed same on condition that the other joint maker pledge with the note as collateral the stock of the par value of $1,000, which was done, and that the withdrawal of the stock first pledged 8 months thereafter and the substitution of other certificates of the same land of stock belonging to appellant, -without her knowledge or consent, could make no difference as to his liability.

Appellee, though an accommodation maker, was liable primarily on the note, being by its terms absolutely required to pay it, and his rights and liabilities thereon as to third parties the same as those of the other joint maker who received a valuable consideration for its execution. Section 7762, C. & M. Digest; 3 R. C. L., § 336 and notes.

Appellant was not a party to the note sued on, had no knowledge or information of its execution and terms or that her stock had been wrongfully pledged as collateral seven months after its execution, nor until she sought to pay her notes given for the purchase price of the stock in accordance with the contract of sale, and for which the stock was held as collateral.

The court erred in not holding appellee liable, and rendering judgment against him, for the same amount as recovered against the other maker of the note, and the decree will be reversed and the cause remanded with directions to enter such judgment. It is so ordered.


author: McIíaney, J.

text:
    Smith v. State.
    Opinion delivered April 14, 1930.

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

Appellant was convicted of the crime of selling liquor, and sentenced to one year in the penitentiary. No brief has been filed in her behalf. The first three assignments of error in the motion for a new trial challenge the sufficiency of the évidence. We have read all the evidence given as abstracted 'by the Attorney General’s Assistant, and find it ample to support the verdict. It appears that two indictments, one in August and one in November, were returned against appellant, both charging the crime of selling liquor, and that appellant objected to a trial on the November indictment. The court required the State to elect, and it elected to try on the August indictment, so she is in no position to complain. She also moved for a continuance, because certain of her witnesses for whom attachments were issued could not be had. The motion did not comply with the requirements of the statute, § 1270, C. & M. Digest, and the court was therefore justified in overruling the motion.

Another assignment is that the court erred in permitting the State’s witness, Gover, deputy sheriff, to testify that he had information that appellant had liquor at her home, and found a small quantity by a search; also similar testimony given by the sheriff. We think the testimony was competent as tending to show the nature of the business in which appellant was engaged. Herren v. State, 169 Ark. 636; Lynn v. State, 169 Ark. 880.

The last assignment relates to certain instructions, which we find unobjectionable. We do not set them out and comment on them separately, as it could serve no useful purpose. The court fully and fairly instructed the jury, and the evidence was amply sufficient to support the verdict. The judgment is accordingly affirmed.


author: McHaney, J.

text:
    Fulton County v. Barham.
    Opinion delivered April 14, 1930.

      Northcutt & Northcutt and Shields M. Goodwin, for appellant.

      Oscar E. Ellis, for appellees.
   McHaney, J.

In August, 1926, appellees, Barham, Martin and Worthington, filed separate claims against appellant for damages alleged to have been sustained by them 'by reason of the 'construction of .State Highway No. 11 through their respective farms. Barham’s claim was for $659.17, Martin’s for $435.97, and Worthington’s for $1,229.06, and each claim was for all damage sustained including land taken, damage to land not taken, fencing, labor, fruit trees, crops, etc. In October, 1927, after the road was completed and fences constructed, the county court appointed viewers to view the premises, and assess such damages as appellees had sustained, which they did, and made report to the court that Bar-ham was damaged $50, Martin $50 and Worthington $100. An order was then made directing the clerk to draw warrants on the treasurer in these amounts, payable to the respective parties. The warrants were so drawn, delivered to and cashed by the appellees. No formal order was at that time made disallowing the balance of the claims as filed, but on December 31, 1928, the claims were disallowed, and no order entered. On April 1, 1929, the county court entered an order mmc fro tunc as of December 31, 1928, disallowing each claim, from which appellees appealed to the circuit court. A trial there resulted in verdicts and judgments against the county as follows: Barham, $193.20; Martin, $130; Worthington, $380,' which amounts included costs advanced by each. This appeal challenges the correctness of these judgments.

The county defended on the ground among others that the claims had been adjudicated by the county court in October, 1927, by an allowance and payment in the sums heretofore stated, from which there was no appeal, and that the claimants were then barred from prosecuting the appeals, and moved to dismiss the appeals for this reason. We think appellant county is correct in this contention. As before stated, the claims were filed in August, 1926, were allowed in part in October, 1927, and paid in the sums allowed. The allowance in the sums stated was tantamount to á disallowance or rejection of the balance of the claim,' from which an' appeal should have been taken if claimants were not satisfied. A similar situation existed in Farmer v. Franklin County, 179 Ark. 373, 16 S. W. (2d) 10. It was there stated that: “It is the settled rule in this 'State that county courts act judicially in the allowance or disallowance of claims against the county, ’ ’ and it was further held that wnere a claim is presented and allowed in a sum less than the claim, it is a final judgment, and operates as a disallowance or rejection of the balance claimed, from which an appeal lies to the circuit court. If no appeal is taken in the time prescribed by law, the claimant loses all rights to question the allowance thereafter. 'So here, when the county court allowed the claims in part, he disallowed and rejected the balance. No appeal having been taken from that order of allowance, appellees lost their rights in the premises.'

The claims filed in August, 1926, were the only claims appellees had against the county, or ever filed against it, on this account. The appointment of viewers to assess the damages and the order of payment in the amounts stated necessarily referred to these claims, since there were no others. Appellees contend that the payments made to them covered additional dirt and additional right-of-way taken. But no additional claim was ever filed by either of them. It is difficult to perceive why the county court would appoint viewers to go out and assess damages to appellees for additional dirt and right-of-way taken, when no claim was filed for same, and when, at the same time, appellees had filed large claims for all kinds of damages growing out of the construction of said road. The conclusion is irresistible that the allowances made by the court had reference to the whole of appellees’ claims as filed.

It necessarily follows that the court erred in entertaining these claims. The judgment in each case is therefore reversed, and the cause dismissed.

Justices Humphreys and Me happy think the judgment of the circuit court is correct, and that it should be affirmed.


author: McKaney, J.

text:
    Ketchum v. Johnson.
    Opinion delivered April 14, 1930.

      Berry II. Randolph and J. II. Long, for appellant.

      Witt <& Witt, for appellee.
   McKaney, J.

This is a replevin action, brought in the justice court by appellant against appellees for the possession of one sow and five pigs of the value of $30. The venue was changed to the court of common pleas, where, on-a trial, judgment was entered for appellees, and an appeal was taken to the circuit court, where, on a trial de novo, judgment was again entered for appel-lees. The court instructed a verdict for appellees for the possession of the hogs, or their value, and submitted the question as to their value to the jury, and the jury found them to be of the value of $30, and judgment was entered accordingly.

For a reversal of the case, appellant contends that the, court erred in refusing to submit the case to the jury as to appellant’s right to the possession of the hogs. The undisputed proof in the case- shows that appellee, Johnson, found the hogs in controversy running at large and in his inclosure, and that he impounded them under the act of March 20, 1923, p. 1130, Special Acts of 1923, gave the notices as required by that act five days before the date of sale, and, nobody appearing to claim the hogs, he offered them for sale as per the notices. There being no bidders, he bid them, in himself for the amount due by the terms of said act at ten cents per day per hog. He thereafter sold the hogs to appellee, Suit. More than one year after that time appellant brought this action to replevin the hogs, and made no tender of the amount the law provides shall be paid to one who takes up stock in a stock law district. The court therefore held that appellant was not entitled to replevin the hogs until he had tendered the -amount provided by law for their keep. As stated, this evidence is undisputed, and the court was correct in so holding. It appeared that appellant had obtained possession of the hogs by reason of his replevin bond, given at the time the action was instituted. The court correctly ordered him to return the hogs to appel-lees or pay them their value, which the jury found to be $30. It will therefore be seen that there was no question to be submitted to the jury, as the undisputed evidence showed that no tender had been made.

Appellant says, however, that there is no sufficient proof of the notices as required by said act. Appellee, Johnson, testified that he posted two of them, and John Manser testified that he posted the other one. Manser says he put up one of the notices, although he did not read it. We think this fact was -therefore established by the undisputed testimony.

No error appearing, the judgment is affirmed.


author: Butler, J.

text:
    Armstrong v. Armstrong.
    Opinion delivered April 14, 1930.

      G. N. Cannon and J. E. Haivldns, for appellants.

      Wade Kitchens, for appellees.
   Butler, J.

A negro family, brothers and sisters, were the joint owners by inheritance of one hundred and sixty acres of land, which, at the death of the ancestor, was burdened by a mortgage to secure a debt of five hundred and fourteen dollars ($514) due a firm of merchants. The mortgage debt was past due, and foreclosure proceedings were threatened, and on February 17, 1914, ap-pellees conveyed the land to Monroe Armstrong*, their elder brother.

Shortly after this conveyance Monroe Armstrong borrowed from appellant P. C. Grayson money with which he paid off: and satisfied the mortgage then existing, and, to secure Grayson for the money borrowed of him, Monroe executed to Grayson a mortgage and went into the possession of the land, occupying* and farming it, Grayson advancing tlie necessary money for the farming operation. A number of renewal notes and mortgages were given to Grayson and 'finally, on the 26th day of April, 1922, Monroe executed a note for $1,800, due November 1st following, and bearing interest at ten per cent., and executed another mortgage which covered the lands, some livestock, a wagon and a crop of cotton to be grown on thirty-five acres of land and a crop of corn to be grown on twenty-five acres of land to secure the payment of said note.

This suit was filed by appellees, April 23, 1928, who allege that the deed was executed to Monroe for the purpose of enabling him to borrow money to pay on a mortgage due the mercantile company, with the understanding that they still owned the beneficial interest in the property conveyed, and that Monroe should manage the same and pay the indebtedness from the rents and profits of the land; that the money borrowed from Gray-son and the mortgage executed to him were to carry out the agreement, of which Grayson had full knowledge at the time he loaned the money to Monroe and took the mortgage; that the money borrowed from Grayson had been paid, and that, although the purposes for which the deed to Monroe had been accomplished, Monroe was claiming to be the owner of the land by virtue of deed aforesaid.

Plaintiffs prayed for a decree cancelling the deed to Monroe, and the mortgages to Grayson. The court below found in favor of appellees cancelling the deeds and mortgages as prayed. To reverse the decree of the court below, this appeal is .prosecuted.

Appellants insist: (1) That the decree of the court below was not supported by the evidence. (2) If the evidence established the agreement alleged, the same was void because of § 4867 of Crawford & Moses’ Digest. (3) That the title was vested in appellant Monroe Armstrong by virtue of his adverse possession for the statutory period of limitation.

As to appellant, Grayson, the court held that the note and mortgage executed April 26, 1922, was inadmissible, because no marginal notation was made and attested on the record as prescribed by law showing any payment on said note or deed of trust within five years from the due date, and that a mortgage executed March 21,1925, on the pine timber on said land to secure an indebtedness of one hundred fifty dollars ($150) from Monroe Armstrong to appellant Grayson, had been paid and decreed a cancellation of both of said mortgages.

It is the contention of Grayson that the evidence fails to show that he had any knowledge of the agreement between the Armstrongs; that, as to them, he was an innocent purchaser for value, and that, appellees are not in position to complain of any failure to make a proper marginal notation on the mortgage record, as they are not “third parties” within the meaning of the statute. Section 7408, C. & M. Digest.

Monroe Armstrong testified that there was no agreement such as claimed by the appellees, but that, finding they would be unable to pay the $514 mortgage, they conveyed the land absolutely to him.

All the appellees, his brothers and sisters, testified in support of the allegations made by them, and their testimony was corroborated by that of disinterested witnesses, among whom was the justice of the peace who drew the deed from appellees to Monroe and took their acknowledgments. According to all this testimony, the deed was made to Monroe as the elder ’brother, so that he might secure money to pay the indebtedness then existing, and to manage the land and pay whatever indebtedness he might thus incur out of the rents and profits, and that, when this purpose was accomplished, he and his brothers and sisters would be the owners of the land, share and share alike. To our mind, this evidence is clear, satisfactory and convincing, and warranted the chancellor in the conclusion reached.

The contention of appellant, Monroe Armstrong, tbat this state of facts, if proved, would not entitle appellees to the relief prayed because of the statute of frauds cannot be sustaineol for the reason that the statute, § 4867, Crawford & Moses’ Digest, refers to express trusts, and the facts established by the evidence in this case establish a contractive or a trust ex maleficio, to which the statute has no reference.

It is well settled that equity impresses a constructive trust in favor of those entitled to the beneficial interest against one who secures the legal title by means of an intentional false verbal promise, who held the same for a certain specified purpose, and having thus obtained title he retains and claims the property as absolutely his own. Ammonette v. Black, 73 Ark. 310, 183 S. W. 910; Reeder v. Meredith, 87 Ark. 111, 93 S. W. 558; McDonald v. Tyner, 84 Ark. 189, 105 S. W. 74; Bragg v. Hartney, 97 Ark. 55, 121 S. W. 1059.

The burden was upon appellant Monroe Armstrong to establish his title by adverse possession by a preponderance of the testimony. The trial court found against him on this question, and we do not think the court’s finding should be disturbed because it has not been clearly shown that appellees had full knowledge of his intention to claim exclusive and sole ownership for a full seven years before the institution of their suit. The appellees ara ignorant negroes, some of them almost imbeciles, and their testimony as to their knowledge of Monroe’s intention is neither clear nor definite, but, as Monroe was the elder brother, apparently the most intelligent, and in whom they had trust and confidence, the chancellor might have reasonably concluded that they did not realize the intention of Monroe until he made a conveyance of the timber standing upon the land, which the evidence shows was within seven years before the filing of this suit.

While we think the decree of the trial court as to appellant Monroe Armstrong is supported by the testimony, we fail to find that preponderance which wonld warrant the 'conclusion that appellant Grayson knew of any trust relationship existing between Monroe and his brothers and sisters. He testifies that he did not, and there is no competent testimony to the contrary, except the statement of Isaiah Armstrong, who testified as to a conversation with Mr. Grayson in which he stated that Grayson knew that the land was to go back to the heirs when the money was paid. We think the trial court also erred in its refusal to permit the introduction of the note and mortgage because of the failure to make the indorsement required by law upon the margin of the record.

It is unnecessary to decide whether the marginal notation of the record was a sufficient compliance with the law for the appellees were not “third parties” within the meaning of the statute. They were not strangers to the transaction. They knew that the money for which the first mortgage was given was to satisfy a mortgage then existing, and the loan from Grayson was procured and the mortgage to secure it was given with their knowledge and for their benefit. Morgan v. Kendrich, 91 Ark. 394, 121 S. W. 278, 134 Am. St. Rep. 78; Clark v. Lesser, 106 Ark. 207, 153 S. W. 112; McKinley v. Black, 157 Ark. 280, 247 S. W. 1046; Tyson v. Mayweather, 170 Ark. 660, 281 S. W. 1.

We are also of the opinion that the evidence did not justify the trial court in finding that the debt had been paid. Under the testimony, as set out in the record before us, we are unable to determine the extent, if any, of the indebtedness due by Monroe to Grayson; whether there is anything due, or, if any, how much. There is no testimony that anything has been paid on the note of April 26, 1922, except the notation, “'Cash $192.38, date 9-23-1927.” It seems that Grayson has received proceeds of the crops grown on this land for a number of years, and the proceeds of the pine timber sold, but there is no testimony as to how much this amounted to, nor is there any testimony as to what went to make up the $1,800 for which the note of April '26,1922, was given.

This case will therefore he affirmed as to Monroe Armstrong, and is reversed and remanded as to appellant Grayson for such further proceedings with reference to the indebtedness, if any, from Monroe Armstrong to Grayson secured by the mortgage as may be deemed advisable, consistent with the principles of equity and not inconsistent with the views herein expressed.


author: Hart, O. J.

text:
    Duncan v. State.
    Opinion deliverer April 21, 1930.

      Cooley $ Adams, for appellant.

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

William. Duncan prosecutes this appeal to reverse a judgment of conviction against him for the illegal sale of intoxicating liquors.

The evidence for the State warranted the jury in returning a verdict of guilty; and, inasmuch as counsel for appellant do not ask for a reversal of the judgment on the ground that the evidence is not legally sufficient to support the verdict, we do not abstract the testimony, and only state that it was conflicting.

The first ground relied upon for a reversal of the judgment is that the court erred in refusing to quash the indictment on the motion of appellant. The record shows that the indictment was returned on the 16th day of April, 1929, and that it charged William Duncan with unlawfully selling alcoholic, spirituous and intoxicating liquors on the 1st day of November, 1929. We do not think this assignment of error is well taken. This court has held that a late, impossible date after the indictment is an obvious error, which does not affect the validity of the indictment. Kirkham v. State, 158 Ark. 642, 237 S. W. 696. See also Carothers v. State, 75 Ark. 574, 88 S. W. 585; Hunter v. State, 93 Ark. 375, 124 S. W. 1028; and Cooper v. State, 145 Ark. 403, 224 S. W. 726.

The second assignment of error is that the court erred in allowing the sheriff to testify that he obtained a search warrant for the premises of appellant, and in the search thereunder found three gallons of whiskey, and that the appellant entered a plea of guilty to possessing the three gallons of whiskey without fixing any time or date. In the first place, the appellant took the witness stand in his own behalf, and, without objection, testified on cross-examination that he had pleaded guilty to possessing three gallons of whiskey on the occasion testified to by the sheriff. This fact being established by the appellant’s own evidence, no prejudice could have resulted to him by permitting the sheriff to testify to it.

In the second place, the testimony was competent. The record shows that the indictment -was returned into court on tlie 16tli day of April, 1929, and that the trial was had on the 21st of November, 1929. It is fairly inferable from the record that the sheriff made the search of the premises of the appellant a short time before or a short time after the return of the indictment. Hence the testimony was competent to show the nature of the business in which appellant was engaged, and the court at the time instructed the jury to consider the evidence for no other purpose. Casteel v. State, 151 Ark. 270, 235 S. W. 386; Melton v. State, 165 Ark. 448, 264 S. W. 965; and Stephens v. State, 171 Ark. 271, 284 S. W. 17.

Finally, it is insisted that the judgment should be reversed because the jury was improperly influenced by the court. We have examined the record on this point, and do not find that this assignment of error is well taken. We have carefully considered what occurred as shown by the record, and do not deem it necessary to set it out in full. It only shows that, after the petit jury had retired to consider the cause, the court entered into the trial of another case; and, after exhausting the balance of the regular panel, the court sent a deputy sheriff to inquire whether it would likely reach a verdict at an early date. The deputy sheriff did so and reported that the jury told him that they would arrive at a verdict in a short time. After perhaps thirty minutes, the court sent the sheriff to the jury room to make additional inquiry. After inquiring of the jury, the sheriff reported to the court. The court then proceeded with the trial of the other case without any further word to the jury. It was also shown that the sheriff told the jury that the court was inquiring about the matter because it would likely want them in another case. There was no attempt whatever on the part of the court to influence the jury in arriving at a verdict or to unduly hasten its proceedings. In the orderly discharge of the business of the court, the trial judge had the right to send an officer to inquire of the jury whether it would likely be detained for any considerable time in the discussion of the case on trial. There was no intimation whatever on the part of the court that the jury should bring’ in a verdict because of the inquiry made, or that it should in any way hasten its consideration of the case to the end that a verdict mig’ht be reached. Hence we hold this assignment of error is not well taken. Mahan v. State, 179 Ark. 189, 14 S. W. (2d) 1113.

It follows that the judgment must be affirmed.


author: Hart, C. J.,

text:
    Brown v. Turnage Hardware Company, Inc.
    Opinion delivered April 21, 1930.

      A. D. Pope, for appellants.

      Ragsdale & Matheney, for appellee.
   Hart, C. J.,

(after stating the facts). No reversal of the decree can be had on account of vacating the first decree and setting aside the sale thereunder, for the reason that this was done on the motion of appellants, and they could not be prejudiced by the court acting in their favor thereunder.

It is earnestly insisted, however, that the decree should 'be reversed, because it is sought to foreclose a mechanics’ lien on a tract of land comprising 360 acres. The verified account of the material furnished indicated that they all went into one building, and the description of the land shows that it all constituted one tract. We have frequently held that the statute should receive a liberal construction to effectuate its remedial purposes. All that is necessary is that a person of ordinary understanding should be able to find and recognize the premises intended by the description. The mere fact that more land was embraced in the claim filed by appellee under the statute and in the decree rendered by the court will not of itself invalidate the lien; but it -will be good to the extent recognized by the statute. It is sufficient that the description points out and indicates the premises so that, by applying it to the land, the structure into which the materials are placed can be found and identified. Arkmo Lumber Co. v. Cantrell, 159 Ark. 445, 252 S. W. 901; Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S. W. 353; and Georgia State Savings Assn. v. Marrs, 178 Ark. 18, 9 S. W. (2d) 785.

It is insisted, however, that this view is opposed to the holding in the case first cited. We do not think so. In that case the record shows that several buildings were erected on the tract of land comprising 1,380 acres, and there was nothing to identify which of-the tenant houses were intended to be described. In the present case the verified account indicates that there Avas only one house into which the materials entered, and the decree shows that this Avas identified as the home of appellants. This vieAv AAras recognized by the court in Arkmo Lumber Co. v. Cantrell, supra, where it was said:

“The majority does not mean to say that either the acre of land on \\drich the lien is sought, or the building thereon, must necessarily be described in any particular form. All that is essential is that the acre of land or the building be designated in such language as will afford information concerning the situation of the property to be charged with the lien. Of course, if the building be described so as to properly designate its location, this is sufficient, for the statute itself fixes the quantity of land to be charged.”

In the application of this principle the fact that the claim filed under the statute described more land than is subject to the lien does not defeat the lien as to the amount of land subject thereto under the statute where the claim and the account filed with it, duly verified as required by statute, indicate the improA'ement so that it can be identified by persons of ordinary intelligence. To hold otherwise would subject substance to form, and deny the lien to persons clearly entitled thereto under the statute.

It follows that the decree must be affirmed.


author: Hart, C. J., Humphreys, J.,

text:
    Collins v. Humphrey.
    Opinion delivered April 21, 1930.

      Trieber S Lasley and Marsh, McKay & Marlin, for appellant.

      Hal L. Nortoood,- Attorney General, and Walter L. Pope, Assistant, Thompson, Wood & Hoffman and R. E. Wiley, amici curiae, for appellee.
   Hart, C. J.,

(after stating the facts). The constitutionality of the 'Severance Tax Law was sustained in Floyd v. Miller Lumber Co., 160 Ark. 17, 254 S. W. 450, 32 A. L. R. 811, and that of the Income Tax Act of 1929 in Stanley v. Gates, 179 Ark. 886, 19 S. W. (2d) 1000. It will he noted from our statement of the case that our Severance Tax Law of 1923 provides for a distribution of the proceeds derived from the collection of the tax by crediting' two-thirds thereof to a. special fund created to be known as the Severance Tax Fund of the State of Arkansas, and to be wholly dedicated to the common schools of the State; and that the remaining one-third be allocated to the county from which such taxes are collected; and that the proceeds of the Income Tax Act of 1929 are to be paid into the State Treasury, and are to be distributed to the Charities Fund, the Common School Equalization Fund and the remainder to a special fund to be used solely for the purpose of reducing the State tax on property. Each of the acts provides for a continuing levy and collection of the tax for the purpose named.

It will also be observed that act 180 of the Acts of 1929, which creates the Arkansas Construction Commission for the purpose of providing adequate buildings for the Hospital for Nervous Diseases and for the Tuberculosis ’Sanitorium, diverts a part of the proceeds derived from the collection'of taxes under the Income Tax Act of 1929 to the payment of the “State Construction Bonds” authorized to be issued by the Arkansas Construction Commission for the purpose of providing adequate buildings for the State Hospital for Nervous Diseases, and for the Tuberculosis Sanitorium.

Likewise Acts 266, 267 and 364 of the Acts of 1929 appropriated a part of the fund collected under the Severance Tax Law, respectively, to the support and maintenance of the State School for the 'Blind, State School for the Deaf, and State Board of Education. It is earnestly insisted that each of the acts, in so diverting the funds and appropriating them to another purpose, is in violation of article 16, § 11, of the Constitution, which reads as follows:

“No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same-; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.”

It is first insisted that the constitutional provision applies to taxes collected from all sources, and not merely to property taxes, and in this contention we agree with counsel for the plaintiff. The whole of article 16 of the Constitution is devoted to finance and taxation. It is universally recognized that the power of a State to tax exists as a necessary attribute of sovereignty, except as regulated and limited by the Constitution. The reason is that the State government could not exist or perform its functions without it. The Legislature has all the power with reference to taxation that the State has, and consequently has.the right to classify taxes. Therefore the Legislature must decide when and how and for what ^public purpose a tax sha-ll he levied, and must select the subjects of taxation. Cooley on Taxation, 3d ed., p. 255.

It is a fundamental rule of construction that the Constitution should be construed as a whole, and the various provisions on the same subject must be read in the light of each other. Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785. When this is done, we can perceive no good reason why the restrictions of the section under consideration should be held applicable to property taxes alone. Such limitation could certainly do no good, and mig’ht lead to much confusion, and would inevitably lead to great uncertainty in providing for. adequate revenue with which to administer the various departments of the State government. This view is strengthened when § 12, article 16, provides that no money shall be paid out of the treasury until the same shall have been appropriated by law, and then only in accordance with said appropriation. There is nothing in either section to indicate that the framers of the Constitution intended to limit or restiict the provisions to property taxes. On the other hand, when read in connection with the other provisions on the subject, we think it plain that the restriction of the section should apply to all subjects of taxation, and that it was intended that no money arising from a tax levied for one purpose shall be used for any other purpose.

It by no means follows, however, that counsel for the plaintiff are correct in their contention that this section controls the present case. The governing rule in cases of this sort is plainly and clearly stated in 37 Cyc. 1550, as follows :

“Taxes which are set apart by the Constitution of the State for particular uses cannot be diverted by the Legislature to any other purpose. But, subject to this limitation, it is in the general power of the Legislature, not only by appropriation bills, but also by directions incorporated in the revenue laws, to regulate the disposition which shall be made of the taxes collected both by the State agencies and by the local authorities.”

Au examination of the various decisions cited will show that they support the text. A review of our decisions will show that the court has been in accord with the view there expressed.

In Dickinson v. Edmonson, 120 Ark. 80, 178 S. W. 930, Ann. Cas. 1917C, 913, the court held that the common school fund was appropriated by article 14 of the Constitution on the subject of education, which is self-executing, providing for its creation and collection, and that no appropriation thereof was required by the General Assembly. .Section 3 of article 14, which is now Amendment 9, provides for the levy of a millage tax when voted, and the section contains a proviso that no such tax shall be appropriated for any other purpose nor to any other district than that for which it was levied. It was this tax that the court had under consideration in Dickinson, v. Edmonson, supra. The section of the Constitution expressly states that the millage tax is to he levied upon the taxable property of the State. Hence it cannot be levied upon other subjects of taxation.

As said by the Supreme Court of Florida in J. F. McKinnon v. Florida, ex rel., 70 Fla. 561, 70 So. 557, L. R. A. 1916D, p. 90: “The school funds under our Constitution are to be regarded as a sacred trust; and the provisions of law safeguarding- expenditures from such funds should be strictly construed, and the mandate of the Constitution enforced.”

As we have already seen, the power of the Legislature over taxation is unlimited except as restricted by the Constitution. Hence it could supplement the school fund derived from properl y taxes under the Constitution by appropriating a part of the proceeds derived from the Severance Tax Law; and the part so appropriated could be raised, lowered, or altogether withdrawn at the will of the Legislature. In other words, our Constitution has set aside certain revenue raised from property taxes to be held sacred for the benefit of common schools, and the Legislature is without power to divert it. The fund here sought to he diverted from, the common schools is not set aside by the 'Constitution for that purpose. The application of the taxes raised under both the 'Severance Tax Law and the Income Tax Act of 19'29 is left entirely to thp control of the Legislature; there being no restriction of their application in the Constitution.

The power of taxation and the power of apportioning taxes are identical and inseparable unless there is some constitutional restriction. In Moore v. Alexander, 85 Ark. 171, 107 S. W. 305, the court held that the capital fund collected pursuant to a special tax levied for the purpose of building a State Capitol could not be paid out, unless there had been a biennial appropriation in compliance with article 16, § 12, of the Constitution, notwithstanding it was beyond the power of the General Assembly to divert the fund-collected therefor to use for any other purpose under article 16, § 11 of the Constitution. In that case the levy here was a continuing one, but the tax had already been collected. Hence it was held that the Legislature could not divert it, because it was money arising- from a tax levied for one purpose, and could not be used for another purpose. Of course, if there is a surplus left after the purpose is accomplished, and the money is no longer needed for the original purpose, the Legislature maj^ appropriate it to another public purpose. If the framers of the Constitution had meant that a tax levied for one purpose could not be used for another purpose, they would have so provided, as they did in the case of school taxes under article 14. By the xise of the phrase “arising from a tax levied for one purpose” it was evidently intended that, when the tax was collected, it automatically belonged to the purpose for which it was levied, and could not thereafter be diverted by the Legislature to another purpose.

In other words, the Legislature has no power to divert a fund after the tax has been levied and collected, and. transfer it to another and separate purpose. If it could transfer the funds thus levied and collected, it might seriously embarrass the administration of the State government.

Counsel for plaintiff to some extent rety upon School District No. 14 v. School District No. 4, 64 Ark. 483, 43 S. W. 501, where the court said that, under article 16, § 4 of the Constitution “ funds raised and set apart under the law for a specific purpose should not be used for any other. ’ ’ This is, as we have already seen, because of the provision of the Constitution relating- to the millage tax for the common schools.

Again, they rely to some extent on Gray v. Matheny, 66 Ark. 36, 48 S. W. 678, and Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901; but it will be noted in each of these cases the court was discussing- a levy made by the county court under legislative authority for county and State purposes. The power of the county court was exhausted when the levy was made, and, on that account, it could not thereafter divert the funds. As we have seen, the power of the Legislature is unlimited except as restricted by the Constitution.

It is not even essential or vital to an appropriation, that it should be for an amount definitely ascertained prior to the appropriation, since there is no requirement of that kind in the 'Constitution. In Stanley v. Gates, 179 Ark. 886, 19 S. W. (2d) 1000, the court reaffirmed the principle announced in earlier cases that, unless inhibited by some constitutional provision, the Legislature has full power over all matters of taxation and the collection and disbursement of taxes.

It is settled by the principles of law announced in Grable v. Blackwood, 180 Ark. 311, that the diversion of the funds from the purposes declared in the Severance Tax Law and the Income Tax Act of 1929, and the appropriation of them to a different purpose is not viola-tive of the provisions of article 5, § 23 of the Constitution, as an appropriation by reference, which, is prohibited by the section of the Constitution just referred to.

In Skinner, Collector of Internal Revenue, v. Union Pacific Coal Co., 249 Fed. 152, the Court of Appeals of the Eighth Circuit had under consideration the construction of a section of the Federal Income Tax Act, which provides that the tax shall be levied “upon the entire net income arising or accruing from all sources during the preceding calendar year”; and it was held that the words “arising or accruing” meant the same as “received.” Unless the word “arising” is used as the equivalent of “received or collected, ’ ’ it practically means nothing; and instead of providing that “no moneys arising from a tax levied for one purpose shall be used for any other purpose,” the framers of the Constitution would have merely provided that no tax levied for one purpose shall be used for any other purpose. In short, there are “no moneys arising from a tax levied” until the tax is collected.

We have examined acts 180, 266, 267 and 364 of the Acts of 1929, and find each of them to be prospective in its operation. None of them attempt to divert funds or moneys which had already been collected from any subject of taxation to any other purpose than that for which it was levied and collected. The acts of the Legislature passing the Severance Tax Law and the Income Tax Act of 1929 levied the tax, but no moneys could arise or be in existence from the tax levy until the tax had been collected. It follows that the decree must be affirmed.

Humphreys, J.,

(dissenting). I agree with the majority opinion in ruling' that the restriction of § 11 .of article 16 of the Constitution of Arkansas applies to all subjects of taxation, and that it was intended that no money arising from a tax levied for one purpose shall be used for any other purpose. This opinion is a result reached by giving the section in question a broad instead of a narrow construction. I think the same broad construction or interpretation given said section in order to reach this conclusion should govern in ascertaining- and determining what the makers of the Constitution meant or intended by using, in the latter clause of the section, the following language: “No moneys arising from a tax levied for one purpose shall be used for another purpose.” In construing this language the majority opinion has departed from the rule of broad construction and adopted and applied a very narrow construction of the meaning of the words and the connection in which they are used in the sentence. The meaning attributed to this language by the majority opinion is that it only inhibits the diversion of money to another purpose than that for which it was levied, after the collection thereof. This is reading something into the section which is not expressed therein and which is not necessarily implied therefrom. The word “arising” in the sentence is a present participle and refers to money then collected or to be collected in the future as long, of course, as the purpose for which' the levy was made exists. The broad, natural meaning of the language used in the sentence is that when a tax has been levied for a specific purpose the Legislature cannot thereafter (meaning* after the passage of the bill in levying* the same) divert the money arising* therefrom to a different purpose. Any other construction would permit the Legislature to lay a tax upon the people for a certain purpose agreeable to them and provide for the collection thereof, but, before same had been collected, to divert it to some purpose not agreeable to them. This is the effect of the majority opinion. I cannot believe that it is a correct interpretation of the restriction. The construction is too narrow to give much effect to the language used, and wholly ignores the rules of grammar governing the sentence. I think the construction of the section contended for by appellant and adopted by me is fully sustained by reason in the cases of Gray v. Matheny, 66 Ark. 36, 48 S. W. 678, and County Board of Education v. Austin, 169 Ark. 430, 276 S. W. 2. For the reason stated I think act 189 of the Acts of 1929, in so far1 as it diverts income taxes levied for one purpose to another purpose, and acts 266, 267 and 364 of the Acts of 1929 diverting the severance taxes to a different purpose from which it was levied are and were inhibited by article 16, § 11, of our Constitution and are void.

I am impelled therefore to dissent from the majority opinion to the effect that the acts in question are valid.


text:
    Schaefer v. Baker.
    Opinion delivered April 21, 1930.

      Jonas F. Dyson, for appellant.

      Ross Mathis, for appellee.
   Smith, J.

Isaac J. Brittingham and Mary, his wife, executed a deed of trust on a tract of land in Woodruff County to secure the payment of the following note:

“$1,972 Hailey, Idaho, October 1, 1913.
“Five years after date we promise to pay to the order olf W. W. Wallace nineteen hundred and seventy-two ($1,972) dollars, payable at Brinkley, Arkansas. Value received with interest at 6 per cent per annum. Interest payable semi-annually.
(Signed) “Isaac Brittingham
(Signed) “Mary I. Brittingham
“Due Oct. 1, 1918
“No. 46.”
The following indorsements appear on the back of the note:
“Interest paid to April 1, 1914
“Interest paid to Oct. 1, 1914
“Interest paid to April 1, 1915
“Interest paid to Oct. 1, 1927
“Assigned to J. R. Baker
“Without recourse.
(Signed) “W. W. Wallace.”

After the execution of the note and the deed of trust securing it, Mrs. Brittingham died, and on September 20, 1923, Mr. Brittingham also died. He was survived by Mrs. Della Brittingham Schaefer, his only child and sole heir at law, whose husband, William- Schaefer, qualified as administrator of Mr. Brittingham’s estate. There were only a few debts, and these were paid without having been probated; indeed, there appears to have been no necessity for the administration, and the first settlement was filed by the administrator about the time of the institution of this suit.

The note was purchased by J. R. Baker, who filed suit January 21, 1928, to foreclose the deed of trust securing it, and an answer was filed, in which it was alleged that the note was barred -by both the statute of limitations and the statute of nonclaim. No attempt was made to enforce the payment of the note as a demand against Mr. Brittingham’s estate, and the statute of nonclaim has therefore no relevancy. Rhodes v. Cannon, 112 Ark. 6, 164 S. W. 752; England v. Spillers, 128 Ark. 31, 193 S. W. 86; § 7408, C. & M. Digest. The question in the case is whether the note was barred by the statute of limitations at the time of the institution of the suit.

The deposition of Mr. Wallace, the payee in the note, was taken upon interrogatories, and the questions asked and the answers given do not fully develop the facts in regard to the payments of interest. In direct interrogatory No. 4 he was asked this question: “It appears that various interest payments were credited on the note secured by the deed of trust, the last of these interest payments having been made in October, 1927. Was the interest in fact paid on the note up to October 1, 1927?” and the answer “Yes” was given to this question, and no other explanation was made. October 1, 1927, was apparently the approximate date of the assignment of the note to the plaintiff Baker, and it is insisted that, as the last preceding indorsement of the payment of interest was on April 1, 1915, the note was then barred by the statute of limitations.

The presence or absence of the indorsement of credits of interest or other payments on the back of the note is not conclusive of the fact that the payments were or were not made. As was said in the case of McAbee v. Wiley, 92 Ark. 247, 122 S. W. 623, “the proof of a payment on indebtedness, and of the indorsement of same upon the written evidence of that indebtedness may be made in the same manner as the proof of any other fact. It may be made directly, or by circumstances, or by the admissions of the defendant. It is actually the fact of the payment that tolls the statute, and not the indorsement; the indorsement is only a memorandum, or at most an evidence, of such payment * * The fact, therefore, that no payments of interest Avere indorsed between April 1, 1915, and October 1, 1927, is not conclusive of the fact that there were no intervening payments. The last indorsement is not merely that an interest payment Avas made on October 1, 1927, but is that the interest on the note was paid to that date, and the brief answer of Mr. Wallace to the interrogatory quoted aboAm is to the effect that the interest A\ras paid' to that date.

The testimony taken at the trial from which this appeal comes, and which we shall briefly rewiexv, supports the finding that the note AAras not barred at the time of Mr. Brittingham’s death in 1923, and that, if so, his heir, Mrs. Schaefer, did not intend to interpose that defense, but, on the contrary, recognized the validity of the note and expressly assumed its payment.

The testimony shows the amount of interest paid after Mi\ Brittingham’s death, and that these payments were sufficient only to pay the current interest. If, therefore, the indorsement made by Mr. Wallace that the interest was paid to October 1, 1927, was true, payments must have been made by Mr. Brittingham in his lifetime, as the subsequent payments paid only the interest accruing after his death up to October 1, 1927.

It is not contended that any payments were made after Mr. Brittingham’s death in excess of the current interest; in fact, it is denied that Mrs. Schaefer paid even this; and this question of fact is really the controlling question in the case.

The insistence is that the debt Avas barred Avhen Mr. Brittingham died, and that the payments made by Mr. Schaefer, the husband of the sole heir, were made as administrator of the estate, and not for his Avife as her agent, and that the administrator could not move a note already barred by the statute of limitations.

There is certainly a question of fact as to whether the note was barred at the time of Mr. Brittingham’s death, and we think the testimony supports the finding that Mrs. Schaefer agreed to pay the note, and the statute of limitations could not have run betAveen the date of that agreement, and the date of the institution of this suit.

This suit was brought only for the purpose of foreclosing- the deed of trust securing the note, and there is no attempt to enforce the demand against Mr. Britting-ham’s estate or against his heir personally.

Did Mrs. Schaefer agree to pay the note, thereby tolling the statute of limitations ?

A feAV days after Mr. Br-ittingham’s death Mrs. Schaefer -wrote the following letter:

“Hunter, Arkansas, October '2, 1923.
“Mr. W. W. Wallace,
“Hailey, Idaho,
“Dear Sir: I am very sorry to have to write you the sad news that my father, Mr. Isaac J. Brittingliam, passed away on September 23,1923, his death was caused from cancer of the liver, his last hours were peaceful, am glad to say.
“I believe father’s interest is d<ue, but I am not in a position now to pay and won’t be for about 30 days, please advise me what to do.
'‘From his daughter in sorrow,
(Signed) “Mrs. Wm. H. Schaefer,
“Hunter, Arkansas.’’

We think the purport of this letter is unmistakable, and is to the effect that Mrs. Schaefer recognized the binding obligation of her father’s note to Mr. Wallace’s order, and of her intention to pay it. The letter is, in fact, a plea for indulgence in this respect. Interest payments were later made by Mr. Schaefer, the administrator, but they were not made by him as administrator. The testimony is to the effect that Mr. Wallace always wrote to Mrs. Schaefer about the interest, and that he wrote her one or more letters in regard to each semiannual payment, and, while these letters were answered by Mr. Schaefer, we think he was acting as agent of Ms wife, and not as administrator of the estate of her father. One of the letters written by Schaefer was signed both by himself and Mrs. Schaefer, and while he testified that she did not direct him to sign her name to this letter we think he was her agent in doing so.

We are of the opinion that the testimony warrants the finding that there was a promise to pay by Mrs. Schaefer, and that payments were made by her through her husband as her agent, and not by him as administrator of her father’s estate. The note was never filed for probate, and none of the checks remitted in payment of interest was signed by Mr. Schaefer as administrator. In fact, some of the cheeks used by him in paying interest were checks to his order, which were indorsed by him.

In the case of McAbee v. Wiley, supra, it was said that ££a payment made by an agent is as effectual to suspend the statute as when made by the party himself,” and 25 Cyc. 1384 is cited in support of the principle stated. The test cited reads as follows: ‘ ‘ Payment is effectual to suspend the statute when made by an agent specially authorized to make it; or by a general agent and manager of the debtor’s business, even where the payment is made on a debt owing by the principal to him. * * * Payment made by one acting as agent of an estate will not revive the debt of the ancestor against the heirs.” As we have said, we find the facts to be that Mr. Schaefer made the payments as agent of the heir, and not as administrator of the estate.

In the case of Morris v. Carr, 77 Ark. 228, 91 S. W. 187, we quoted from the Supreme 'Court.of the.United States in Shepard v. Thompson, 122 U. S. 231, 7 S. Ct. 1229, as follows: £ £ The statute of limitations is to be upheld and enforced, not as resting only on a presumption of payment from lapse of time, but, according to its intent and object, as a statute of repose. The original debt, indeed, is a sufficient legal consideration for a subsequent new promise to pay it, made either before or after the bar of the statute is complete. But, in order to continue or revive the cause of action after it would otherwise have been barred by the statute, there must be either an express promise of the debtor to pay the debt, or else an express acknowledgment of the debt, from which his promise to pay may be inferred. A mere acknowledgment, though in writing, of the debt as having once existed is not sufficient to raise an implication of such a new promise. To have this effect, there must be a distinct and unequivocal acknowledgment of the debt as still subsisting as a personal obligation of the debtor.”

Here Mrs. Schaefer took title by inheritance to an incumbered piece of real estate, and she not only ac-lmowledged the validity of the lien against the land, but promised to discharge it, and, pursuant to this promise, made several payments, the last of which was much less than five years before the institution of this suit. The cause of action was therefore not barred by the statute of limitations. A. R. Bowdre & Co. v. Pitts, 94 Ark. 613, 128 S. W. 57; Goodman v. Pareira, 70 Ark. 49, 66 S. W. 147; Tyson v. Mayweather, 170 Ark. 660, 281 S. W. 1.

The decree of the court ordering the foreclosure of the deed of trust is therefore correct, and it is affirmed.


text:
    Malvern & Ouachita River Railroad Company v. Smith.
    Opinion delivered April 21, 1930.

      II. B. Means and Rose, Ilemingivay, Cantrell <& Loughborough, for appellant.

      John L. McClellan and Andrew I. Roland, for ap-pellee.
   Smith, J.

The appellant railroad company, which is building a short line railroad for the purpose of hauling gravel, sought to condemn a right-of-way through lands owned by appellee, and, the parties being unable to agree as to the amount of damages to be paid, a petition for condemnation was filed in the circuit court of the county in which the lands are located. In this petition it is alleged that the railroad company has laid out its line across the southeast quarter of the northwest quarter and the northeast quarter of the southwest quarter of section 21, township 4 south, range 17 west, and a three and one-half acre tract joining it, and it is the right-of-way through these lands which the railroad seeks to condemn.

The testimony heard at the trial, from which this appeal comes, is to the effect that appellee owned, including the land above-described, about 100 acres of land in section 21, township 4 south, range 17 west, and that the line of the railroad ran for about half a mile through his property, leaving about the same number of acres on each side, and that the amount of land actually taken was about 3.6 acres.

There was a verdict and judgment in the sum of $3,000, and for the reversal of this judgment it is insisted that error was committed in permitting witnesses to “express an opinion as to what the damages were without stating the facts upon which the opinion was based,” and that the verdict was excessive.

We think no error was committed in permitting the witnesses to express their opinion, where it was shown that they had some knowledge of the facts about which they testified. The measure of damages in such cases is, of course, the difference in value of the land before and after the construction of the railroad, excluding any enhancement of value by the building of the railroad, and in the very nature of the case this is largely a matter of opinion, and whether a -witness has such knowledge of the facts as to make his opinion of any value is a question largely within the discretion of the trial judge, and the value of such testimony may be tested by a cross-examination of the witness as to the facts upon which the opinion is based St. Louis, A. & T. R. R. Co. v. Anderson, 39 Ark. 167; Texas & St. L. Ry. v. Kirby, 44 Ark. 103, 106. We find no error in this respect.

We have concluded, however, that the verdict was excessive. The defendant himself testified that he had been damaged $5,000, while other witnesses estimated the damages at a less amount, it being placed by some of the witnesses as low as $350. The defendant testified that he paid $14,000 for 130 acres, of which the land in question is a part, and that the land is more valuable now than it was then. Other witnesses placed the value of the land at from $25 to $150 per acre.

Only 3.6 acres of the land -were actually taken, but this, of course, is not the only element of damage. The land was divided into two parts, and the condition in which the land is left is always a proper matter to be considered. The line of the railroad ran within about 44 steps of defendant’s barn, and it was shown that the railroad dump will be placed upon ballast about six inches deep and about four feet wide. Even this dump interfered to some extent with defendant crossing from one portion of the land to the Other, and made it necessary for him to cross at a 'crossing provided for that purpose. This, was, of course, an inconvenience which the jury had the right to consider in assessing the damages. These appear to have been all the elements of damage shown by the testimony except the loss of the use of some amount of land which would result from having to turn the tractors used'in cultivating the land at the railroad right-of-way. There was no evidence of any obstruction of the drainage or increase in the cost of fencing.

In testing the sufficiency of the evidence to support the verdict we must view it in the light most favorable to appellee. In the case of Railway v. Combs, 51 Ark. 324, 11 S. W. 418, Chief Justice Cockrill said: “The same principles obtain in these statutory proceedings as in common law suits in regard to new trials. When the verdict is sustained by competent evidence, we do not interfere.” But we have concluded that the competent testimony does not sustain the verdict. It is true that one or more witnesses for appellee placed the damage at a sum equaling the verdict returned by the jury, but the cross-examination of these witnesses fails to show any fair or reasonable basis for the opinion. This is not true, however, of T. A. Miller, who testified in appellee’s behalf. This witness owned adjoining land, and had owned it for fifty-two years, and was acquainted with the condition of the land, and the effect on it of 'building the railroad across it. On his direct examination Mr. Miller placed the damage at from two to three thousand dollars, but on his cross-examination he placed the difference in value at two thousand dollars, and. this, as we have said, is the true measure of damages.

We have concluded, therefore, that the judgment should be reduced to this sum, and, if appellee will, within fifteen days, remit the excess, the judgment will be affirmed for that amount; otherwise, it will be reversed and remanded for a new trial.


author: Humphreys, J.

text:
    Drown v. White River Levee District.
    Opinion delivered April 21, 1930.

      Emmet Vaughan, for appellant.

      Boss Mathis, for appellee.
   Humphreys, J.

Appellant brought suit against ap-pellee in the circuit court of Woodruff County, Southern District, to recover $5,802.12 for the alleged breach of a contract awarded to liim by it for repairing two crevasses in a levee. The written contract was made the basis of the suit, and it was alleged that, after the execution thereof on the 29th day of March, 1927, and after filing a bond in the sum of $10,000 for the faithful performance thereof, and after equipping himself and making every preparation to perform same, appellee refused to allow him to do the work, although he was always able, ready and willing to comply with the contract.

Appellee filed an answer denying that appellant was ready, willing and able to comply with his contract, but, on the contrary, was unable to do so on account of the floods occurring in the spring following the date of the execution of the contract; and also denying that it breached the contract, or that appellant could have made any profit in the performance of same at the price he agreed to do the work, had he not been prevented from performing the contract by an act of God.

Appellant filed a demurrer to that part of the answer interposing the defense that he was prevented from carrying out the contract by an act of God, which was. overruled by the court over his objection and exception.

When the cause was called for trial, appellee filed a motion for a continuance on the ground that one of its witnesses, R-. A. Latimer, who was its engineer in charge of the work, was sick and temporarily absent from the State, setting out in the motion what he would swear if present. The record reflects that the trial court announced that he would grant the continuance unless appellant should agree that the absent witness would testify, if present, to the matters and facts set out in the motion. Without objecting and excepting to the action of the court, appellant then agreed that the absent witness would testify, if present, to the matters and facts set out in the motion, whereupon the cause proceeded to trial upon the pleadings, testimony and instructions of the court with the result that a verdict was returned for appellee, and a- judgment rendered in accordance with the verdict, from which is this appeal.

Appellant contends for a reversal of the judgment because the trial court abused its discretion in ruling favorably upon the motion for a continuance, for the alleged reason that same did not comply with the requirements of § 1270 of 'Crawford & Moses' Digest relative to the continuance of causes. We deem it unnecessary to pass upon the alleged insufficiency of the motion, as appellant did not object or except to the ruling of the court, but, without doing so, agreed that if the absent witness were present he would testify to the matters and facts set forth in the motion. This estopped him from raising on appeal, for the first time, objections to the form and substance of the motion.

Appellant also contends for a reversal of the judgment because the trial court overruled his demurrer to that part of the answer interposing the defense that he was prevented from performing the contract on account of the spring floods. The demurrer was properly overruled. One who is prevented from performing a contract himself by an act of God cannot recover the loss of profits thereto, growing out of his failure to do so, from the other party upon the theory that the other party breached the contract by not allowing him to perform same.

Appellant also contends for a reversal of the judgment upon the ground that the undisputed testimony reflects that his failure to perform the contract was due to the refusal of appellee to set stakes and allow him to perform same, and not to the spring floods; and that by reason of the breach he was damaged in the sum claimed. It is admitted that the jury was correctly instructed as to the law applicable to the facts, but the argument is made that the jury ignored the declarations of law, peremptory in their nature, and rendered a verdict contrary to the law and facts. This argument is based upon the erroneous theory that the undisputed testimony showed that appellant was prevented from performing his contract by the refusal of appellee to allow him to do the work, whereas there is substantial testimony in the record tending to show that destructive floods on White River occurred soon after the execution of the contract that produced nineteen crevasses in the levee in addition to the two that were to be repaired by appellant under the contract, and that the two were greatly enlarged; that the destruction to the levee by the floods was so great that it had to be relocated entirely at places, and that it was not possible to rebuild those portions of the levee that were to be repaired under the contract with appellant. This testimony is substantial in nature and sufficient to support the verdict and judgment. This court said in the case of Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S. W. 622, that: "It is a well settled principle in the interpretation of contracts that where parties contract for a service that is purely personal, or with reference to the continued existence of some particular thing constituting the subject-matter of the contract,, if the person dies or the thing ceases to exist, then the performance of the contract will be excused because impossible.

Appellant also contends for a reversal of the judgment, because the court admitted incompetent testimony relative to the issue of whether he would have made any profit out of the contract if permitted to perform same. We deem it unnecessary to pass upon the admissibility of the evidence relative to this point, as there is substantial evidence in the record to support the verdict and judgment upon the theory that appellant himself was prevented from performing the contract by an act of God. Every presumption must be indulged in favor of the verdict and judgment, and, as there is nothing in the record to show that the verdict and judgment were based upon the latter issue, we must presume that the jury based it upon the former issue.

No error appearing, the judgment is affirmed.


author: Kirby, J.,

text:
    Crow v. Rogers.
    Opinion delivered April 21, 1930.

      Price Dickson, for appellant.

      J. V. Walker, for appellee.
   Kirby, J.,

(after stating the facts). Appellant urges as the only question for determination that the court erred in holding the lien of his chattel mortgage on the undivided interest in the Williams-Rogers Agency inferior and subject to the equitable lien of the Motor Credit Company, a creditor of the old partnership. Ap-pellee Rogers continued in the partnership business with Williams after he had purchased the McMichael interest, and mortgaged his undivided one-half interest therein to secure his individual debt to Homer Crow, appellant. The rule is announced in 47 C. J. 919, § 410, as follows:

"The rights of the creditor of an individual partner in the firm assets are confined to the share or interest of his debtor in such assets, and since a partner’s share thereof can be ascertained only after the firm debts have been paid, an individual creditor is entitled to be paid only out of the debtor partner’s share in the surplus which remains after the firm debts have been paid, and the equities between the partner and his copartners have been adjusted, and the partner’s share has been ascertained and set apart.” Our case, Parker v. Wells, 84 Ark. 172, 105 S. W. 75, is cited in support of this text. See also 47 C. J. 937, § 437.

The agreement between McMichael and Rogers with Roy Williams, purchaser of McMichael’s interest in the agency, to which appellant Crow was not a party, to pay the debts of the old partnership could not have had effect to release the assets from the equitable lien of the Motor Company or estop it from asserting the superiority of its claim against such partnership assets over the mortgage of Rogers’ interest to Crow. The mortgage was given by a partner of his interest in the firm property to secure an individual debt after the creation of the debt to the Motor Credit Company, a general creditor of the firm, and only covered the partner’s interest in the assets after the payment of the firm creditors, the lien of same being subject and inferior to the rights of the creditor of the partnership in such assets. The decree is affirmed.