author: McCulloch, C. J.

text:
    Rogers v. Magnolia Oil & Gas Company. Crain v. Magnolia Oil & Gas Company.
    Opinion delivered December 4, 1922.
    1. Mines and minerals — validity of oil and gas lease. — Where purchasers, under an executory contract, were present at the time of the vendor’s execution of an oil and gas lease, and expressly agreed with the lessee that the vendor should execute a lease in his own name and collect the rentals, the subsequent conveyance of the land pursuant to such contract did not constitute a revocation of the purchaser’s agreement that the vendor, should be authorized to collect the rentals.
    2. Mines and minerals — tender of installment of rent. — Where a lessor commenced suit to cancel an oil and gas lease, it was unnecessary for the lessee to tender payment of an installment subsequently due in order to avoid a forfeiture, since the commencement of the action w.as tantamount to a refusal in advance to accept such installment.
    3. Mines and minerals — sufficiency of description in oil and GAS lease. — A lease describing the land by section, township and range, in accordance with the public survey, is sufficient to identify the land without mentioning the county and State in which it is situated.
    4. Evidence — judicial notice. — Courts take judicial notice of public surveys and of county lines.
    5. Mines and minerals — surrender clause — mutuality.—Where an oil and gas lease recited a consideration of one dollar and “the further consideration hereinafter mentioned” and required the lessee to commence operations within one year or extend term of lease by payment of a specified rent, a provision entitling the lessee to cancel the lease at any time, and providing that, on the exercise of the right of surrender, “this contract and all liabilities and payments under it, from and after such time, shall cease and determine,” held not void for lack of mutuality, since such provision was not separable from the other provisions of the contract, and therefore was supported by the original consideration of the contract.
    Appeal from Columbia Chancery Court; J. 7. Stevens, Chancellor;
    affirmed.

      Joe Joiner, for appellant.
    The lease is void for. uncertainty in description. 30 Ark. 657; 3 Ark. 18.

      Appellee had knowledge that a part of the land had been sold to J. G. and M. A. Rogers without a reservation of rents or royalties yet continued to pay rentals to Jno. D. Rogers. The purchasers were entitled to the rentals on their land, but no tender or payment of same was made to them. 103 Ark. 175. 1 Thornton on Oil and Gas, p. 404. Such rentals must be paid in advance, else there is a forfeiture. 225 S. W. (Ark.) 45. The lease is unilateral and void, as no consideration is provided for a surrender of the lease and a release from existing liability. See 234 S. W. 501; 214 S. W. 33. See note in 3 A, L. R. 352.

      McKay & Smith, for appellee.
    -A mutual mistake was made in omitting the- State and county from the lease, and such mistakes may be reformed- ias to the parties to the contract. However the recital in the lease “under and by virtue of the homestead and redemption hvws of the State of Arkansas” fixes the State. The description by section, township and range is sufficient to show that Columbia County was intended and could not be any other county in Arkansas. See 35 Ark. 470. The lease is not unilateral, because na payment is provided for surrender. The consideration paid for the lease extends to the whole contract and was sufficient. 145 Ark. 310; 237 U. S. 101; 3 A. L. R. 378.
   McCulloch, C. J.

These two cases are separate and distinct, but, having been submitted at the same time and involving the same principal question, we will dispose of both of them in one ouinion. They involve the validity of oil and gas leases, identichl in form and substance, executed by the respective appellants.

In the Rogers case the lease was executed by appellant John D. Rogers, and he later conveyed fifty acres of the leased lands to his coappellants, M. A. Rogers and J. G. Rogers, and it is contended that, by reason of the fact that the rentals were not paid in accordance with the terms of the contract, there was a forfeiture by appellee of all of its rights.

In the Crain case the lease was executed by D. B. White and his wife, the then owners, to appellee, and the lessors subsequently sold and conveyed the land to appellant Crain, and it is contended that there was a forfeiture by reason of failure to pay rentals.

The controversy with regard to the payment of rentals relates entirely to questions of fact, and is determined upon the weight of the evidence.

In the Rogers case the evidence justified the finding that appellants, M. A. Rogers and J. G. Rogers, were present at the time of the execution of the lease by John D. Rogers, there having been a previous executory contract on the part of the latter to convey the land to the former, who expressly agreed with appellee’s agent that John D. Rogers should execute the lease in his own name and collect the rentals therefor. The rentals were deposited to the credit of John D. Rogers, in accordance with the agreement, and the subsequent conveyance of the land to M. A. Rogers and J. G. Rogers did not constitute a revocation of the former express agreement that John D. Rogers should be authorized to collect the rentals on their part of the land.

In the Crain case the testimony also sustains the finding that there was an express agreement by Crain that the rental sums should be deposited in a certain bank, and that , this agreement was complied with by appellee’s agent.

It is true that the quarterly installment of $5, due December 13, 1920, was not paid to the bank until January 18, 1921, but this action was commenced prior to the due date, and was still pending. The institution 'of the action to cancel the lease was a. repudiation of the continued existence of the contract, and was. tantamount to a refusal in advance to accept payment of the installment. Under those circumstances the lessee was not bound to tender payment on or before maturity in order to avoid a forfeiture, for it would have been fruitless to make a tender of payment which had already, in effect, been refused. The subsequent payment of the amount to the bank during the pendency of the action was sufficient.

It is also contended in the Rogers case that the lease is void on account of insufficient description of the lands. There is no reference made, in the words of description or elsewhere in the contract, to the county and State where the lands are situated, but they are described by section and township subdivisions in accordance with the public survey. The courts take notice of the public surveys and of county lines, and we therefore are advised of the location of this land in Columbia County, and the description was sufficient.

This brings us to a consideration of the principal question in the cases, which turns upon the validity of the leases. It is in the ordinary form of such leases, and provides, in substance, for the lease of the lands in question to the lessee for the purpose of mining and drilling for-coal, oil, gas or other minerals.' The contract recited that it was executed “in consideration of the sum of $1” paid by the lessee, “and the further consideration herein^ after mentioned.”- It provides that, if oil be discovered and produced, the lessor shall receive one-eighth thereof; that, if coal or other ore is produced, the lessor shall receive one-eighth of the market value, and that, if gas or other- minerals should be produced, the lessor shall be paid the sum of $100 for all of the product during each year. There are other stipulations with respect to drilling within a' certain distance of buildings, and also with regard to the laying of pipe lines. There is a clause which provides that if operations for drilling or mining be hot commenced “and prosecuted with due diligence within one year from this date, then this grant shall immediately become null and void as to both parties; provided, that second party may prevent such forfeiture from year to year for five years by paying to the first party the sum of 25 cents per acre per year, in quarterly ■payments, until such well, is commenced, ‘ o.r until shipanents from such mines have begun.” Another clause providés that, if minerals be produced in paying quantities, the lease shall be in full force and effect for twenty-five years from the time of the discovery of such product.

There is a surrender clause which reads as follows:

“The party of the second part may at any time execute an instrument admitting and declaring this contract canceled, and, upon delivery of same to party of the first part, or upon the filing of same for record, this contract and all liabilities and payments under it, from and after such time, shall cease and determine.”

It is 'contended by counsel for appellants in each case that, on account of the surrender clause without additional consideration therefor, the contract is unilateral, lacking in mutuality, and void. Counsel invokes the rule ■ announced by the decision cited in his brief that “a gas and oil lease which provides for its surrender at any time, without payment of rent or fulfillment of any of its' covenants on the part of the lessee, creates a mere right of entry at will, which may be terminated by the lessor at any time before it is executed by the lessee.” Eclipse Oil Co. v. South Penn. Oil Co., 47 W. Va. 84.

We are of the opinion that this question is concluded against the contention of appellants by the decision of this court in the case of Lawrence v. Mahoney, 145 Ark. 310, and the decision of the Supreme Court of the United States in Guffey v. Smith, 237 U. S. 101, which we expressly approved and followed.

The contract in Lawrence v. Mahoney, supra, was similar to that involved in the present case, except that there was no surrender clause, and in the case of Guffey v. Smith, supra, the contract was substantially the same as in the present case, except that the surrender clause provided for the payment of the sum of one dollar as additional consideration for the exercise of "that right.

It is earnestly argued that both of these cases are distinguishable from the present ones on account of the differences mentioned in the terms of the several contracts. We do not think that the cases are distinguishable in principle. In Lawrence v. Mahoney the contract, as in these cases, contained no absolute and unavoidable obligation on the part of the lessee to commence drilling or mining operations, nor did the.contract involved in Guffey v. Smith, supra, contain any such obligation. But in each of those cases it was held that the payment of one dollar for the purpose of prosecuting such operations at the expense of lessee, and the payment of royalties upon the production of oil, gas or other minerals, constituted sufficient consideration to support the contract. There being no absolute obligation on the part of the lessee to commence operations, it added nothing to the contract to provide for a surrender, and the necessary effect of the decision in Lawrence v. Mahoney was to ■hold that there was sufficient consideration, and that the contract was not unilateral, even if a clause was inserted without additional consideration for a surrender by the lessee. It is true that in Guffey v. Smith, supra, the contract stipulated for the payment of a consideration of one dollar for the exercise of the right of surrender, but the court laid no stress upon the agreement to pay that sum. The necessary effect of that decision is that there was an original consideration for the whole of the contract, which included the right to surrender. The various provisions of a contract of this sort are not separable, and the original consideration supports the whole contract and every provision thereof.

An interesting discussion on this subject may be found in the annotations.to the case of Rich v. Donaghey (Okla.) 177 Pac. 186, 3 A. L. R., p. 352. After the citation of authorities, the rule is stated as follows:

“In accordance with the general principles referred to, with reference to the test to determine the validity of a contract as affected by the -question of mutuality of obligation imposed thereby, by the great weight of authority a lease of land for the development and production of oil and gas is not rendered invalid on the ground of want of mutuality 'by inclusion therein of a provision in effect entitling the lessee to surrender the lease and be relieved from further liability, especially where he is required, as a condition of the surrender, to pay some designated sum of money; the consideration for the lease being otherwise sufficient, although not expressly referable to the surrender clause. ’ ’

Many authorities are cited (on page 381) sustaining the view that the rule just stated is unaltered by the fact, that the original cash consideration for the lease was only one dollar, and that there was no requirement for the payment of any additional sum in order to be entitled to exercise the rights under the surrender clause. We are of the opinion that, where the original consideration was sufficient, as we held in Lawrence v. Mahoney, supra, this is sufficient to uphold the right of surrender, and no new consideration therefor is essential to prevent the contract from being unilateral.

It will be observed that the surrender clause in the contracts now under consideration only gives the right to escape such further obligations as would accrue subsequent to the surrender. It provides that., upon the exercise of the right of surrender, “this contract and all liabilities and payments under it, from and after such time, shall cease and terminate.”

The decree in each of these cases is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Masonic Mutual Accident Company v. Campbell.
    Opinion delivered December 4, 1922.
    1. Insurance — suit on policy — parties.—Where suit is brought against an insurance company by a plaintiff claiming as sole beneficiary, it is not error to permit the joinder of another as party plaintiff who claims as joint beneficiary.
    2. Insurance — -accidental injury — visible marks. — In a suit on an insurance policy indemnifying against bodily injuries caused ' “solely by accidental means, which injuries shall leave visible marks of contusions or wounds upon the body,” evidence that insured’s foot was cut or bruised by stepping on some sharp object, whereby infection set in, which ultimately resulted in death, held to justify a finding that the injury was by accidental means, leaving visible marks of contusions or wounds.
    3. Evidence — hypothetical question to expert. — In an action on an insurance policy covering bodily injuries resulting from accident, a question put to an expert witness as to whether it was possible for gangrene or infection to have been caused by some break of the skim that healed and became infected in healing, was not erroneous where it stated all the conditions essential to taking the opinion of the witness.

      4. Witnesses — answer of expert witness — responsiveness.— Where, in a suit on an accident insurance policy, an expert witness was asked -as to the possibility of infection in a wound while healing, an answer that such an infection might occur, and that the condition in the patient’s limb was one of infection, -and not gangrene, was, responsive.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    affirmed.

      L. II. Southmayd, for appellant.
    The answer of Dr. Parehman, expert, should have been excluded, as it was- a voluntary- statement of facts entirety at variance with the allegations in the complaint, and not responsive to the hypothesis in the question asked. See 100 Ark. 518; 120 Ark. 530; 148 Ark. 456. Certain testimony of Dona Campbell was incompetent under the doctrine of non-expert testimony, or opinion evidence, and should have been excluded under the ruling in 66 Ark. 494.

      J. E. London and P. II. Dickerson, for appellee.
    A verdict based upon legally sufficient evidence to sustain it will not be disturbed on appeal. 97 Ark. 486; 87 Ark. 109; 104 Ark. 162; 100 Ark. 330; 103 Ark. 260; 92 Ark. 120; 101 Ark. 120; 97 Ark. 86; 86 Ark. 603; 84 Ark. 74-.
   McCulloch, C. J.

This is an action instituted by appellee against appellant to recover the sum of $800, alleged to be due on a policy of insurance indemnifying against ill health, and bodily injuries resulting from accident. The policy was issued to James A. Formby, and the beneficiary originally named therein was B. E. Lloyd, but there was a subsequent change in the designation of the beneficiary. On the face of the new designation, the appellee, Dona Campbell, who is a sister of James A. Formby, together with W. N. Formby, is named as beneficiary.

During the pendency of the action W. N. Formby Avas, on his oavh application, joined as a party plaintiff in the action. This was done over the objections of both appellant and appellee, but the court overruled the objections and permitted the action to proceed in the name of both of said plaintiffs.

There was an issue submitted as to whether the name of W. N. Formby had not been wrongfully and without authority entered in the designation of beneficiary. The claim of appellee, Dona Campbell, was that she was the sole beneficiary. The jury found in her favor on that issue, and there has been no appeal by the other plaintiff, W. N. Formby.

The policy provided for indemnity against accident disability at the rate of twenty dollars per week for not exceeding 104 consecutive weeks, where bodily injuries Avere caused “solely by accidental means, whióh injuries shall leave visible marks of contusions or wounds upon the body.” Another clause of the policy affords in- ’ demnity against illness, and still another clause provides that, if death results within 180 days after an accident of the character described above, there should be paid the sum of $800 in lieu of any other indemnity. The death of James A. Formby occurred within 180 days after the alleged accident, and appellee sued for $800.

It is conceded by appellant that there is due under the policy the sum of $235 under the clause affording indemnity 'against illness, and there was a tender made of that amount.

The answer contained a denial of the allegation that Formby’s injuries and illness resulted from accidental means, as the term is defined in the policy.

The verdict of the jury Avas for $800, the total amount of indemnity allowed under the policy.

The first contention for reversal of tlie case is that the court erred in permitting W. N. Formby to be joined as a party plaintiff. It is argued that tlie effect of this was to mislead the jury and to divert them into settling merely a controversy between the two claimants. We do not think there was any error committed in this respect. Both of the parties claimed to be beneficiaries — -appellee claiming to be the sole beneficiary, and W. N. Formby claiming to be a beneficiary jointly with Mrs. Campbell. The effect was the same as if two separate actions had been brought by the- several claimants and the actions consolidated under the statute on the ground that the issues were the same in each case. Crawford & Moses’ Digest, § 1081; St. L. I. M. & S. Ry. Co. v. Broomfield, 83 Ark. 288. Appellant was not interested in the issue between the two claimants, and that feature of the case passes out of tlie judgment in appellee’s favor, from which no appeal has been prosecuted by the other claimant.

It is next contended that the evidence was not legally sufficient to show that the illness of Formby resulted - from accidental means which left “visible marks of contusions or wounds upon the body.”

According to the proof, Formby resided during the summer of the 3rear 1919 at the town of Marlow, Oklahoma, and was engaged in operating a swimming pool, and was also employed to attend to the operation of an engine which produced power for pumping water over a dam a short distance from the swimming pool. The contention of appellee at the trial below was that the injury occurred during the month of August, and that it resulted from accidental means while Formby was engaged in his ordinary, duties of cleaning out the swimming pool and in walking back and forth from the pool to the engine to which he was giving attention. The theory of appellee is that Formby injured the big toe on one of his feet, either by stepping on a stone or piece of glass, while he was cleaning out the swimming pool, or by cutting it on a piece of sharp cane while he was walking in his bare feet from the pool to the place where the engine was located.

The first account, in the testimony, of the injured condition of Formby’s foot begins with September 5, 1919, when, according to the testimony of a physician in Oklahoma, Formby was treated and his foot or toe was found to be in a gangrenous condition, resulting either from diabetes or arterio sclerosis. This physician testified" that there was gangrene, and that it resulted from the causes named above. After treating the disease, the physician amputated the toe, and, as this did not arrest the progress of the disease, he made a second and third amputation, the last amputation being of the leg just below the knee.

Another witness testified in corroboration, and the testimony tended to show that the condition of Formby’s toe resulted from diabetic or senile gangrene-, and not from accidental causes.

Other witnesses introduced by appellee testified that early in September they examined Formby’s foot and observed a discolored bruise on the ball of his big toe, which extended down and across the ball of his foot. There were several of these witnesses, including appellee herself and her brothers, as well as other witnesses, and the testimony of each tended to show that there was an observable bruise and discolored condition of Formby’s toe, that it seemed to come to a head after being poulticed, and that the place suppurated and broke. All of these witnesses were non-experts, but a physician at Van Burén was introduced as an expert witness, and he testified, giving his opinion that gangrene does not result without some kind of external injury. This witness testified also that he examined Formby’s leg after the last . amputation, 'and that in his opinion the condition had never been gangrenous, but had resulted from infection. He also testified that a person “might have an infection by a breaking of the skin where an instrument is infected; the place may heal up and be so slight that he would not notice it.”

Another witness, who was associated with, or worked for, Formby in the operation of the swimming pool, testified that Formby washed out the swimming pool every day, and in doing so he stripped off his clothing and put on a bathing suit and went into the water to clean out the pool as the water ran out, and that he often observed in the bottom of the pool, in the mud, small pieces of stone or broken glass and blocks of wood, sometimes coins. He also testified that Formby went back and forth from the swimming pool to the dam where the engine was operated, being garbed only in his bathing suit, and was barefooted, and that he had to walk through a patch of cane. The testimony of this witness went only to show an opportunity for Formby to receive an accidental injury on the bottom of one of his feet.

We are of the opinion, after consideration of all the evidence, including that of the expert witness, that the jury could have drawn the inference that Formby’s foot was cut or bruised by accidental means, that the injury left “visible marks of contusions or wounds,” and that this was the cause of the condition which brought about Formby’s death. There was, in other words, legally sufficient testimony to support the verdict. There was other testimony introduced by appellant tending to show that Formby’s injuries were not accidental, and that there was merely an illness resulting from natural causes. This, however, made an issue for the jury, which has been settled by the verdict.

' Finally, it- is contended that the court erred in admitting the testimony of Dr. Parchman, introduced as an-expert. The question and answer, both of which were objected to, read as follows :

“Q. Doctor, you have already been qualified. Taking as a basis the fact that bruises upon the ball of the foot, a black or discolored place that afterwards suppurates and becomes filled with pus, T will ask you now, if you were called upon to examine that kind of an injury and that kind of a condition, would it have been possible for that to have been caused by some break or rupture of the skin that had healed and become infected in healing? A. A man might have an infection by a.breaking of the skin where an instrument is infected; the place may heal up and be so slight he would not notice it. I think it was purely an infectious condition when I saw him. The flap was not gangrenous, it was an infected flap. No gangrene about it, in my judgment— never was.”

Counsel for appellant objected to the question on the ground that it did not include undisputed facts, and then objected to the answer of the witness on the ground that it was not responsive to the question. ¥e are of the opinion that each of the objections was prouerly- overruled by the .court. Appellee had introduced testimony tending to show that there was a bruised condition of Formby’s toe, which had suppurated and then broken, and she was entitled to take the opinion of the expert as to whether or not this condition could have resulted from a healed wound which had become infected. All of the conditions were stated which were essential to taking the opinion of the witness on this subject, and there was no error in the form of the question.

■ We also conclude that the answer of the witness contained no inadmissible matter, even though it was not strictly confined to the question propounded. The first sentence in the answer was responsive to the question, and the witness stated that infection might follow from a breaking of the skin, and that the place might heal up so that it would not be noticed. The witness then proceeded to state that he saw Formby’s leg after it was amputated, and that it did not show a gangrenous condition, but that the condition resulted from infection.

The discussion thus far covers all of the grounds urged for reversal .of the judgment, and, as before stated, we have reached the conclusion that there is no error in the record. The issues were submitted to the jury upon correct instructions.

The judgment is therefore affirmed.


text:
    Kansas City Southern Railway Company v. Road Improvement District No. 3, Sevier County.
    Opinion delivered December 4, 1922.
    1. Highways — appeal from assessment of benefits. — On appeal from a trial at law concerning' the correctness of assessment of benefits from a projected road improvement, the only question for determination is whether the- evidence is legally sufficient to sustain the findings of the trial court.
    2. Highways — legislative confirmation of assessments. — It is within the power of the Legislature to ratify or confirm assessments of benefits from a road improvement during the pendency of litigation attacking same.
    3. Highways — legislative confirmation of assessments. — Where, pending an attack in court upon the validity of assessments of benefits to be derived from a road improvement, the Legislature by statute ratified. and confirmed such assessments, such statute constituted a legislative determination as to the correctness of such assessments, which will not be overturned by the courts unless obviously erroneous.
    4. Highways — assessment of benefits — sufficiency of evidence. —Where a railroad company obj'ected to assessments of benefits in a road improvement district, evidence held to support a finding of benefits by the circuit court.
    Appeal from Sevier Circuit Court; James S. Steel, Judge;
    affirmed.

      James B. McDonough, for appellants.
    1. The assessment was unreasonable, arbitrary and confiscatory, amounting to a deprivation of property without due process of law, contrary to § 1, Fourteenth Amendment. 139 Ark. 424; 89 Ark. 513; 50 Ark. 116; 64 Ark. 555; Kansas City Southern Railway Company v. Road Improvement District No. 6, 154 U. S. 439; 183 U. 5. 79; 249 U. S. 274; 193 IT. S. 490; 86 Ark. 1; 92 U. S. 579; 193 U. S. 490; 239 II. S. 478; 240 U. S. 55; 270 U. S. 269.
    2. An assessment based upon a theory of enhaúcement in value covering a period of years is illegal and void. The enhancement must be immediate. 21 Ark. 40; Page & Jones on Taxation by Assessment, § 652; 86 Ark. 1, 15.

      3. The assessments' are remote, contingent and speculative; therefore illegal and void. 36 Conn. 255.
    4. Legislative approval of the assessments adds nothing to their validity. 119 Ark. 188; 32 Ark. 31; 83 Ark. 54; 86 Ark. 1.

      Hal L. Nonaood, E. K. Edwards and B. E. Isbell, for appellee.
    The district was regularly organized under the statutes of the State, the constitutionality of which has been upheld 'by both this court and the Supreme Court of the United States. The ratification of the assessment of benefits b}^ subsequent act of the Legislature cured any defects therein, and was valid. 147 Ark. 112. It cannot be said that an injustice wias done by adopting the zone system, or by taking the valuation placed on the property by the taxing authorities for general purposes, as a basis for assessing benefits. 145 Ark. 382. Neither can the act of the Legislature in ratifying the assessment of benefits be held ias arbitrary, .capricious or confiscatory in violation of the Fourteenth Amendment. 251 U. S. 182. The act of the Legislature confirming the assessment is, of itself, due process of law. 64 Ark. 556. In assessing benefits to a railroad from building a hard surface road, the Legislature may consider the benefits resulting from- the development of the territorv. 145 Ark. 382; 154 U. S. 439; 251 U. S. 183. Prospective increase in traffic for twenty years to come gives the railroad property a direct and immediate increase in value. 107 Ark. 290; 100 Ark. 366. The courts can interfere with the legislative taxing power only where there is an arbitrary abuse of that power. 147 Ark. 116.
   McCulloch, C. J.

This is -an appeal from the assessment of benefits of railroad property in a road improvement district formed under the general statutes of the State. Crawford & Moses’ Digest, § 5399 et seq. Assessors were appointed, and the list of assessed benefits was filed with the county court, in accordance with the terms of the statute. Appellants appeared there and resisted the assessment on the ground that no benefits would accrue to the railroad property from the construction of the improvement. There was an appeal to the circuit court, and a trial there de novo.

The property of appellants which is assessed is in the city of DeQueen, in Sevier County, and the road to be improved runs east of DeQueen to the boundary of the county. The railroad runs north and south, and the road to be improved runs east at right angles- to the railroad.

The assessed property of appellants consists of two-miles of main line of the railroad, which was assessed for general taxation purposes at $54,000, and the benefits were assessed at the sum of $7,000, or $3,500 per mile; also of nine and three-fourths miles of side-tracks, assessed for general taxation purposes at $29,250, and the benefits were assessed at $5,000; also depot buildings and other buildings, assessed for general taxation at $46,365, the benefits being assessed at $9,270, the total assessment being $21,270.

The district is shown to be about six miles wide, and the board of assessors and commissioners adopted what is termed the zone system, • except as to railroad property, which was assessed at the actual benefits; according to the judgment of the ássess’ors.

After the assessment list was filed with the county court, the General Assembly enacted a statute, approved February 7, 1920, at the extraordinary session, amending the statute in some particulars and expressly approving and confirming the assessments on file.

The contention of appellants is that the assessment of railroad property is arbitrary and unreasonable; and that no benefits at all will accrue to that property from the construction of the improvement.

It is settled by our former decisions that, on appeal from a trial at law concerning the correctness of assessments of benefits and as to the amount of benefits to accrue, the only question for our determination is whether the evidence is legally sufficient to sustain the findings of the trial court. St. L. & S. F. Rd. Co. v. Fort Smith & Van Buren Bridge District, 113 Ark. 493; C. R. I. & P. Ry. Co. v. Road Improvement District No. 1 of Prairie County, 137 Ark. 587. There have been many other later decisions of this court to the same effect.

An affirmance of the judgment in this case might be rested entirely on the confirmation of the assessments by the statute cited above. There is no reason shown why the statute is not applicable, for we have decided that, even during the pendency of litigation, a statute may be enacted ratifying and confirming assessments. Sudberry v. Graves, 83 Ark. 344; Tims v. Mack, 147 Ark. 112; Gibson v. Spikes, 143 Ark. 270; Burr v. Drainage District, 145 Ark. 55; Payne v. Road District, 149 Ark. 491.

This statute constituted a legislative determination of the correctness of the assessments, and that decision will not be overturned unless found to be obviously and demonstrably erroneous. See cases supra.

In addition to this, it may be said that there is abundant evidence in this case to sustain the finding of the trial court. Many witnesses were introduced, including the assessors themselves, and there is a conflict in the testimony as to whether or not there will be real and substantial benefit accruing to the railroad property. The testimony introduced on behalf of the district is that there will be great benefit accruing to the railroad property from the construction of the improvement, as the improved road will be a feeder to the railroad and will considerably enhance its business by the development of the contiguous and Puttying territory. It is not a case of a parallel road, but of one which runs out into territory which will afford access to the railroad property and augment its business. We have decided that, “in assessing the benefits to a railroad from building a hard-surfaced road, the Legislature may consider the benefit resulting from development of the territorjr. ” Hines v. Road Improvement District, 145 Ark. 382. The Supreme Court of the United States, in Branson v. Bush, 251 U. S. 182, made the same declaration. It was said in that- case that it is obvious that “anything that develops the territory which the railroad serves must necessarily be a benefit to it, and that no agency for such development equals that of good roads.”

As before stated, we are not called on to determine where the preponderance of the evidence lies,and we have no difficulty in reaching the conclusion that there is testimony of a very substantial nature which supports the finding of the trial court. It is unnecessary to- discuss the evidence in detail or to call attention to the various circumstances which tend to support the theory that the railroad property will be substantially benefited, and that the appraisal of benefits is not excessive.

The judgment is therefore affirmed.


text:
    Franks v. Rogers.
    Opinion delivered December 4, 1922.
    1. Appeal and error — conclusiveness op verdict. — Where there was a conflict in the testimony on all issues, and sufficient testimony to support the jury’s finding, all issues of fact will on appeal be treated .as settled in favor of the prevailing party.
    2. Witnesses — wife testifying for husband. — Where a wife acted as agent .for her husband, her testimony relating to matters within the scope of her agency is competent, under Crawford & Moses’ Dig., § 4146, subdiv. 2.
    3. Landlord and tenant — breach—damages.—On a breach by a landlord of the contract of lease, the tenant may recover as damages the expense of moving on and off the premises.
    4. Appeal and error — harmless error. — Where a tenant claimed damages for an eviction constituting a breach of contract by the landlord, the error of instructing the jury that the tenant could not recover “for the expenses of moving on or off the place” was harmless where the only evidence of such expenses was a general statement of the tenant that it cost him so much to get over there and to get away; such statement being a mere conclusion of the witness.
    5. Appeal and error — harmless error. — Where, in an action against a tenant for the balance of the rental of land and for damages to the property, the tenant counterclaimed damages for money paid to a third person for possession of part of the land, an instruction denying defendant’s right to recover therefor was harmless where defendant failed to prove such damages.
    6. Landlord and tenant — breach of agreement to repair. — If a landlord breach his contract to repair or to make improvements, the tenant may treat the relation as at an end, or may himself do what his landlord fails to do, charging it against the landlord; hut if he remains in possession under his original contract, he waives the breach, and he cannot remain in possession and refuse to pay rent.
    7. Landlord and tenant — partial eviction — reduction of rent.— Where, in an action by a landlord to recover rent, .there was testimony tending to prove that the landlord rented 40 acres of land but delivered only 20, the other 20 acres belonging to a third party, an instruction that the tenant waived the discrepancy in acreage by continuing in possession after ascertaining the deficiency was erroneous; the failure to deliver the other 20 acres entitling the tenant to a reduction in the rent.
    Appeal from Pulaski Circuit Court, Third Division; A. F. House, Judge;
    reversed.

      Tsqrig & Dillon, for appellant.
    The fundamental rule of damages is that all loss to one party directly traceable to the wrongful acts of another, is chargeable to him as damages. 149 Ark. 448; 233 S. W. 694. The cost of moving to and from the place was a proper element of damage. 76 Ark. 468; 110 Ark. 504; 5 L. R. A. (N. S.) 855; note 5 Ann. Cases, 460. There was an unlawful eviction by the appellee. 103 Ark. 318. The court erred in giving plaintiff’s instruction No. 9. 53 So. 912. It was misleading. 39 Ark. 344. A lessee who remains in possession notwithstanding the landlord’s breach of covenant to repair is not relieved, from his liability for rent, 96 Ark. 78, but is entitled only to a claim for damages for such breach. 96 Ark. 78; note 34 L. R. A. (N. S.l 977. Instruction number five is erroneous. 42 Ark. 257; 102 Ark. 109.
    Where a tenant is evicted by a stranger under a paramount title, the rent will be apportioned, and the landlord permitted to recover a proportionate rent for the part retained by the tenant. 96 Pac. 642; 16 R. C. L. 955; 41 L. R. A. (N. S.) 430; 36 Ark. 316. The court erred in permitting the wife of appellee to testify. C. & M. Digest, § 4146; 71 Ark. 192; 77 Ark. 431.
   McCulloch, C. J.

The plaintiff, E. M. Rogers, owned a small farm in Pulaski Comity, with twenty acres in cultivation, and a dwelling house and other improvements thereon, and in the year 1919 he rented it to defendant, R. A. Franks, for a term of three years at the annual rental of two hundred dollars. The defendant occupied the premises for a little over a year, and then a controversy arose between the parties, as a result of which the defendant removed from the premises.

There is a conflict in the testimony as to the terms of the rental contract, which was oral, and there was also a controversy as to who broke the contract. The statute of frauds is not pleaded, and no question arises concerning that matter. It is agreed however that, according to the terms of the contract, two hundred dollars was the annual rental price.

Plaintiff contends that the defendant was to make certain improvements on the place, as well as to pay the stipulated money rent, and that defendant removed from the premises without making the improvements.

Plaintiff also alleges that the defendant negligently permitted cattle to destroy a strawberry patch, two acres in size, and some fruit trees, and that there was injury to the property as a result of such negligence in the sum of $489.74.

This action was instituted to recover the sum of $283.30, as the rental for the time the premises were actually occupied by the defendant, and the additional sum named above as damages for the negligence of defendant in permitting the stock to. destroy the berry patch and trees.

Plaintiff’s brother owned an adjoining farm with twenty acres in cultivation, there being no fence between the two places, and the contention of defendant is that plaintiff, represented to him that he owned forty acres of land in cultivation, and that he (defendant) did hot ascertain, until after he had moved on the premises, that' twenty acres of the cultivated land was owned by plaintiff’s brother and did not pass under the lease.

Defendant also contends that plaintiff agreed to make certain improvements,. and that he (defendant) advanced to plaintiff the sum of $157 in money to expend in said improvements, and he also contends that he was damaged in the sum of $300 by being ejected from the premises by plaintiff. Defendant filed a cross-complaint, in which he prayed for recovery of said sum of $300 damages and for said sum of $157, return of the 'money advanced.

There was a trial of the issues before a jury, and the verdict was in favor of the plaintiff for the recovery of $100.

There was a conflict in the testimony upon all the issues; and, since there was sufficient testimony to support the finding of the jury, we must treat all of the issues of fact as being settled in favor of plaintiff.

The first ground urged for reversal is that the court erred in permitting plaintiff’s wife to testify. The testimony of the witness shows, however, that the wife was acting as the agent of her husband, and her testimony was confined to such matters as fell within the scope of her agency, and this renders her testimony competent. Crawford & Moses’ Digest; § 4-346, subdivision 3.

Errors are assigned in the giving of four of the instructions.

In the first of the ones objected to, the court told the jury that the defendant could not recover “for expenses of moving on or off the place.” This instruction was erroneous (McElvaney v. Smith, 76 Ark. 468; Byers v. Moore, 110 Ark. 504), but it was not prejudicial, for the defendant did not prove any legitimate expenses which could be properly charged up as damages. He testified in general terms that it cost him “four hundred dollars to get over there and to get away,” but he failed to state what the items of expense related to. In order to justify an award of damages for this item, defendant should have proved what he paid out the expenses for, and his general statement as to what it cost him to move to the place and away from it is, in effect, the statement of a conclusion. There was no prejudice therefore in the court giving this instruction, inasmuch as the jury would not have been warranted in allowing defendant anything on this feature of the case.

Another instruction objected to was one which told the jury that defendant could not claim the return of money paid to a tenant for possession of a portion of the place. This instruction would be erroneous under a proper state of facts, which showed that it was essential to obtain the removal of other tenants on the premises, and that the lessee was damaged to the extent of the sums paid by reason of the failure of the lessor to deliver possession. The only item on this subject is the payment of five dollars to another tenant for his potatoes on the land, but the testimony is not sufficient to show that defendant was damaged, even to that extent, in failing to get possession of the small portion of the land covered by the potato patch. It devolved upon the defendant to prove his damages, and he failed to show that he was damaged to the extent of the sum paid by failing to get possession of this small portion of the premises, and therefore failed to show prejudice in the giving of this instruction.

The giving of the following instruction was assigned as error:

“If the landlord breaches his contract to repair or make improvements, the tenant may treat the relations at an end, or may do himself what his landlord fails to do, charging it against tito landlord, but, if he remains in possession under his original contract, he waives the breach. ’ ’

We think that this instruction was a correct statement of the law, for the retention of the premises constituted a waiver of the breach of the contract. A tenant is, however, as stated in this instruction, entitled to make repairs which the lessor agreed to do but failed to do, and charge the cost against the lessor. He cannot, however, remain in possession and refuse to pay rent. Young v. Berman, 96 Ark. 78.

The next and last of the instructions which were objected to as erroneous reads as follows:

“Although you may find from the evidence that defendant contracted for forty acres, and afterwards ascertained that there were but twenty, but continued his tenancy under the terms of the contract, he thereby waived any discrepancy in acreage.”

We are of the opinion that this instruction was an incorrect statement of the law, and that it may have been prejudicial to the rights of the defendant. There was testimony tending to show that plaintiff failed to deliver twenty acres of land, which, according to his representations, fell within the terms of the contract. Defendant testified to this effect, and said that he did not find out that the other twenty acres were owned and occupied by plaintiff’s brother until after he had moved on the premises. Defendant did not waive the discrepancy in the amount of land covered by the contract merely hy remaining in possession; he had the right to hold the premises and claim a reduction of the rent to the extent of the breach in the contract’. The failure to deliver the other twenty acres of land was tantamount to an eviction of the tenant under paramount title, and the tenant was therefore entitled to a reduction of the: rent to the extent of that portion of the premises to which he was denied possession. We cannot tell what effect this instruction had in inducing the verdict of the jury. • It appears from the verdict that the jury allowed the full amount of the rent, but charged the plaintiff with the amount of the advances made by defendant for improvements. The jury might have, on the strength of this instruction, refused to allow defendant a reduction in the rent, and in that way the instruction was prejudicial.

For this error the judgment must be reversed, and the cause remanded for a new trial.

It is so ordered.


author: Wood, J.

text:
    Caldwell v. Dunn.
    Opinion delivered December 4, 1922.
    Evidence — parol evidence to vary writing. — -No rule of evidence is violated by allowing proof of a subsequent parol agreement changing the terms of a prior written agreement; but where a party 'by his pleading relies upon an unambiguous written agreement he may not contradict or explain or modify its terms by oral testimony. •
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourlcmd, Chancellor;
    affirmed.

      Cravens, Oglesby S Cravens, for appellant.
    The defendant should have been ¿allowed to prove a subsequent contract entered, into, even though it varied or changed the terms of the former agreement, and the court erred in refusing to permit appellant to prove the contract. Jones on Evidence (2d ed.) par. 442, p. 557; 85 Ark. 605; 113 Ark. 15; 126 Ark. 548.

      Sill $ Fitshugfo, for appellee.
    There was no offer on the part of appellant to prove a subsequent contract, and the very rule which appellant is contending for was offered in this case. The court offered to allow proof of a subsequent contract. No offer of evidence was made as to what witnesses Caldwell or Beckerdite would have testified to, and what was said by this court in 137 Ark. 232, “we are unable to determine whether there was any prejudice in excluding the question,” applies here. To establish prejudice the record must show what the testimony would have been if admitted. To the same effect see 88 Ark. 562; 89 Ark. 95; 97 Ark. 567.
   Wood, J.

This is an action in the Sebastian Chancery Court by the appellee against the appellant. The appellee alleged that he had performed certain work and furnished certain material in the construction of a building situated on a certain lot in the city of Fort Smith, Arkansas. He alleged that in due time he had filed his lien on the property improved. He attached to his complaint an itemized statement of his account, and alleged that there was a balance due of $670.39, with interest, for which he prayed judgment, and that a lien be declared upon the property described.

The appellant, in his answer, admitted entering into the contract with the appellee whereby the appellee was to furnish pipe for water and gas and install the same complete, and in addition was to furnish three bath-tubs, three stools, three lavatories and three sinks in a seventeen-room house and a six-room cottage situated on the property described, for the sum of $852. He alleged that he had paid to the appellee all of the contract price except $26, and set up that, subsequent to the contract and before the completion of the work, appellant and appellee entered into a contract whereby the appellee was to furnish and install the following articles, to-wit: One sink, $76; one bath-tub, $42; one Ruud heater, $175, making a total sum of $293. Appellant alleged that the appellee was to pay him $50 for old pipe and material and pay him $10 for services he had rendered appellee. Appellant admitted that, after deducting the above amounts, he was due the appellee the sum of $259, and offered to confess judgment for that sum.

In the trial appellee proved the contract upon which his action was predicated, and testified that he had performed the terms of tlie contract, except that a Ruud heater had been substituted for a Marvel boiler. He and his witnesses also testified that, during the performance of the contract on the part of the appellee, he had done extra work, the amount due for which constituted the principal claim upon which his action was founded. The testimony of the appellee and his witnesses tended to estabhsh the claim of the appellee. The testimony was taken ore tenus before the trial court, and has been property brought into this record.

During the taking of the testimony for the appellant, he was asked the following question: “State just what took place down there in the presence of Mr. Beckerdite and Mr. Bateman about the installation of gas and water in your property on Fifth Street.” Counsel for appellee objected to the question, announcing that they were relying upon the contract set up in the pleadings. Counsel for appellant then announced that they had a subsequent contract to that, whereupon the court announced as follows: “The terms of this new contract must be explicit. They can’t modify this (written contract) by oral stipulation, but if they by agreement novated this contract, they can set up a new one, but they cannot make a new one in explanation of this- one.” Counsel for appellant then stated as follows: “Here is our contention: that Mr. Caldwell, Mr. Beckerdite, and Mr. Bateman stood by him, and he agreed for us to have the work done down there sufficient to adequately supply this property, and that Mr. Dunn agreed to it.” To this the court replied as follows : ‘ ‘ That is undertaking to read into the contract something that is not there. There is nothing in this contract that would justify that. That was just a sort of general statement, if that is all he agreed to. But here is the thing he must be bound by, unless the parties met and agreed to repudiate it.” Further, while one of appellant’s witnesses was being examined, he was asked by appellant’s counsel the following' question: “I will ask you to state whether or not, down there the next morning, Mr.’ Caldwell told Mr. Dunn, and Mr. Dunn agreed, that he was to pipe both houses, both the big house and the little house, with sufficient gas and water fittings for the price stated in that contract.” Counsel for the appellee objected, whereupon the court announced as follows: ‘ ‘ That is going into the contract and' changing the terms of it, it looks like, or at least trying to construe it.” Whereupon counsel for appellant stated to the court as follows: “I just want to ask this specific question now, if, when you went down there the next morning, Mr. Caldwell and Mr. Dunn were there, and Mr. Dunn, in the presence of you and Mr. Beckerdite, agreed to supply both houses with gas and water fittings for the price of $852'?” Counsel for the appellee objected, and the. court sustained the objection.-

The court rendered a judgment in favor of the appellee, from which is this appeal.

The appellant contends that the court erred in refusing to permit him “to prove that a subsequent contract was entered into between the parties,” and cites to support, his contention Von Berg v. Goodman, 85 Ark. 605; Brickey v. Continental Gin Co., 113 Ark. 15; Nothwang v. Harrison, 126 Ark. 548; and Jones on Evidence, 557. The law is well established that the parties to a written contract may abandon the same by a subsequent parol agreement. Or, they may rescind it in part or in "toto by substituting a new agreement therefor. In addition to the above cases, see Weaver v. Emerson-Brantingham Implement Co., 146 Ark. 379; Glenn v. Union Bank & Trust Co., 150 Ark. 38. These authorities hold that “no rule of evidence is violated by allowing proof of a subsequent, parol agreement changing the terms of a prior written contract.” But the appellant’s conténtion here in not justified by the record. The facts, as above copied from the record, show that the court was thoroughly familiar with the rule of law announced by the above authorities, upon which the appellant relies, and conformed its rulings to those authorities. The court made the distinction clear between an offer to attempt to set up a new oral contract, different in its terms from the written contract upon which the parties were relying, as set up in the pleadings, and an effort or attempt to contradict or explain such written contract, or modify its terms by oral testimony. The court held that the former could be done, but the latter could not. In other words, the effect of the court’s holding was that the appellant could prove a new oral contract different in its terms from the contract set up in the pleadings, if he relied upon such new contract, but could not introduce testimony which tended to contradict, vary or explain the terms of the written contract. These terms were unambiguous. .

The uourt thus blazed a plain road that appellant might take, but he failed to do so. For, as we view the facts above set forth, the appellant did not offer to prove that the contract between the appellee and the appellant as set up in the pleadings had been abandoned or rescinded by the parties to it, or that the parties, by a subsequent oral agreement, had entered into a new and different contract changing in whole or in part the contract upon which the appellee grounded his action, and had substituted such oral contract for the written contract.

The ruling of the court was really more favorable to the appellant than he was entitled to, because in his-answer he pleaded that, under the written contract, the appellee was to furnish the material and do all the work contemplated and all the work that was done for the sum of $852, the consideration named in the written contract.

There is no error in the rulings of the trial court, and the decree is therefore affirmed.


text:
    Cypress Drainage District of Perry and Conway Counties v. Blair.
    Opinion delivered December 4, 1922.
    1. Evidence — opinion op non-expert. — The work of clearing land is not of such character as to call for expert testimony as to its value, and non-expert witnesses who have done such work and know what it is reasonably worth may testify as to what it is worth.
    2. Accord and satisfaction — acceptance of check in payment.'— - The question whether a check reciting that it was “in payment of account for balance on clearing contract” was in full payment was for the jury, where the evidence was conflicting.

      3. Evidence — parol evidence to explain check. — A check which recited that it was “in payment of account for balance on clearing contract” did not show on its face that it was given in full payment, and parol evidence was admissible to show whether Such was the agreement.
    Appeal from Perry Circuit Court; A. F. House, Judge;
    affirmed.

      John L. Hill, for appellant.
    Appellant was entitled to a peremptory instruction. The check for $160.60 was issued and accepted by appellee in full settlement, and bears such statement on its face, and he wias therefore estopped to claim anything’ further. 114 Ark. 559.
    Witnesses Maberry, Summers, Edwards and Blair testified as experts, without having qualified as such, and their testimony was inadmissible. 55 Ark. 65; 120 Ark. 1.

      J. H. Bowen, for appellee.
    Appellee did not accept the check in full settlement hut specifically asked Colvin about the other $15 per acre, and Colvin promised that the matter would be taken up 'by the board at another meeting. Therefore the authority in 114 Ark: 559 is not applicable. It was a question to be decided by the jury as to whether there was an accord and satisfaction. 203 S. W. 38.
   Wood, J.

The appellee instituted this action against the appellant. He alleged in his complaint that he performed work and labor for the appellant in clearing 26.51 acres of land on appellant’s right-of-way; that the work was reasonably worth $75 per acre; that appellant had accepted the work and paid the appellee the sum of $60 per acre thereon, and was due him a balance of $15 per acre, or a total sum of $397.50, for which he asked judgment.

The appellant, in its answer, admitted that the appellee had done the work, but denied that it was worth the sum of $75 per acre. It denied that it was indebted to appellee as alleged in his complaint. The appellant set up that, after the work was performed by the appellee, he agreed with the commissioners of appellant to receive payment therefor in the sum of $60 per acre, and that appellant thereupon paid appellee the balance due at such price, tó-wit: the sum of $160.60, which amount appellee accepted in full payment of all balance due him.

The appellee 'testified that he received a check for $160.60. He stated that there was no one present when he received the check except Colvin, one of the commissioners of the district. Appellee made no agreement with the board while in session to do the work for $60 per acre. He asked Colvin, when the latter gave' him the check, “What about the other $15 per acre?” and Colvin stated he would get the board together later. Later there was a meeting of the board, and they asked the appellee if he could do the work for $60 per acre. Appellee testified that he had been paid at the rate of $60 per acre, and that the work at a reasonable value was worth the sum of $75 per acre, leaving a balance due him of $397.50. The meeting of the board of commissioners to which the appellee referred was after Colvin had given appellee the check and after he had cashed the same.

There was testimony on behalf of the appellee tending to corroborate his testimony to the effect that the work which he did was worth the sum of $75 per acre.

Gr. B. Colvin testified substantially as follows: He was one of the commissioners. At a meeting of the board, after the work was completed and approved, and at which the appellee was present, they discussed pro and con what price the appellee should receive for his work. “Finally the commissioners agreed to pay him $60, and he agreed to accept the same, and upon that agreement, knowing the number of acres and the amount of money that heretofore had been paid Mm on the-work, and figuring the number of acres at $60, it left a balance due him of $160.60.” Witness drew a check of the district on the Perry State Bank for the balance shown to be due appellee, and marked on the check “In full for balance due on the contract at the lower end, Est. No. 2.” The check was introduced in evidence and reads as follows: “Pay to B. W. Blair, or order, one hundred and sixty and 60-100 dollars out of any funds in your hands belonging to said drainage district. In payment' of account for balance on clearing contract at lower end, est. No. 2. To Perry State Bank, Perry, Ark.

“John S. Harris,
“Chairman Board of Commissioners.
“Countersigned, G-. B. Colvin,
“Secretary Board of Commissioners.”

On the reverse side appears the following indorsement: “B. W. Blair.”

Several witnesses, over the objection of appellant, were permitted to testify that they had had experience in doing the same kind of work as that involved in this action, and stated that such work, at the time it was performed, Avas worth $75 per acre.

At the conclusion of the testimony the appellant asked the court to instruct the jury to return a verdict in its favor, Avliicli the court refused to do, and to Avhich the appellant excepted. The court instructed the jury, in substance, that if they found the appellee performed the Avork, and that same Avas accepted by the appellant, he should be paid a reasonable sum therefor, and, if they so found, they should return a verdict in his favor for such amount as they found to be a reasonable compensation for the Avork, after crediting the amount appellant had already paid him. The court' further submitted to the jury the issue as to Avhether or not the appellee had accepted the $160.60 already paid him in full satisfaction of his account or claim against the appellant for the work done. The jury returned a verdict in favor of the appellee for the sum of $132. Judgment Avas rendered in appellee’s faAror for that sum, from AAdrich is this appeal.

1. The testimony of the Avitnesses as to the value of the Avork done by the appellee was not expert testimony. These AAdtnesses had done the same kind of Avork, and testified that they kneAv the value of same, and that it Avas Avorth the sum of $75 per acre. The subject-matter of the litigation Avas not such as called for expert testijnony. The character of the work was not such as required any special skill or expert knowledge to understand. Therefore, the witnesses did not give their opinion as experts,.but simply testified to facts coming within their observation and experience. The court did not err in permitting the testimony.

2. The court did not err in refusing appellant’s prayer for a verdict in its favor. Under the testimony, the issue as to whether or not the appellee accepted the check for $160.60 in full satisfaction of the amount due him from the appellant was one for the jury. The recital in the check itself, to-wit: “In payment of account for balance on clearing contract at lower end, Est. No. 2,” does not show on its face that it was given in full payment and settlement for all the work done by the appellee for the appellant. "While testimony on behalf of the appellant tended to prove that the check was given to the appellee with the understanding that it was in full payment of the balance due him, and accepted as such, the testimony of the appellee was to the contrary. This made the issue for the jury. The check, standing alone, did not evidence a contract between the parties, and parol testimony was competent on the issue as to whether or not there was a contract of accord and satisfaction between the parties. That issue was submitted to the jury under correct instructions, in harmony with the law as announced by this court in O’Leary v. Keith. 134 Ark. 36-41, and cases there cited. See also Pekin Cooperage Co. v. Gibb, 114 Ark. 559.

The judgment is correct, and it is therefore affirmed.


text:
    Toll v. Toll.
    Opinion delivered March 20, 1922.
    1. Appeal and error — conflict between decree and clerk’s certificate. — Where there is a conflict between the recitals of the decree and the certificate of the clerk to the transcript, the recitals of the decree must prevail.

      2. Appeal and error — presumption.—Where the decree of the court recites that “other evidence” was heard besides the exhibits to the complaint and the depositions, of certain witnesses, and the transcript contains no other evidence than the above-mentioned exhibits and depositions, though the clerk recites that the transcript contains all the evidence introduced, it will be conclusively presumed that every fact essential under the pleading's was established by the absent evidence.
    Appeal from Prairie Chancery Court, Southern District; John M-. Elliott, Chancellor;
    affirmed.

      Emmet Vaughan, for appellant.-
    It is not necessary to file a -schedule in order to protect the homestead against a judgment -or execution. 75 Ark. 593. Failure to file a claim -of homestead or schedule does not work a forfeiture of the homestead right. 141 Ark. 181.
    There was no waiver of the homestead right. 70 Ark. 129. ’ A homestead right can only be waived by complying with the -statute. C. & M. Digest, § 5542.

      Bogle ■& Sharp and W. A. Leach, for appellee.
    Plaintiff cannot object for the first time on appeal that the answer was not verified. 101 Ark. 22; 29 Ark. 500; C. & M. Digest, § 1246. The fact that the answer was not verified does not preclude its consideration by the court. 101 Ark. 22; 94 Ark. 347; 44 Ark. 496.
    The land in controversy was not the homestead of appellant. 136 Ark. 72. The burden was on appellant to show what land was exempt. 76 Ark. 575.
    Where a transcript does not contain all the evidence, the court will presume It was sufficient to sustain the decree. 45 Ark. 240; 77 Ark. 195; 109 Ark. 1; 81 Ark. 427. The recitals in the decree must control. 88 Ark. 604.
   Wood, J.

A. V. Harris, the sheriff of Prairie County, had in his hands several executions against E. H. Toll. He levied these upon certain lands of Toll, including the SE14 of the NW*A of sec.-10, T. 1 N. R. 5 W., and sold the same at execution sale. A. C. Huddles-ton was the purchaser at such sale, and on the 19th of October, 1915, the sheriff executed to Huddleston a deed to the above-described land. On the 26th of June, 1917, Huddleston sold the land to Charles Minton, and on the 23rd of February, 1918, Minton sold the land to George O. Toll. On the 18th of July, 1918, E. H. Toll instituted this action against George O. Toll. After setting up the chain of title in George O. Toll as above set forth, lie alleged that the sale of the land under execution was without authority of law and void, and that the deeds based moon such sale were clouds upon his title. He alleged that the land was his homestead, and that he had been in possession thereof for more than twenty vears, claiming He same .a.s his homestead: that during his temporary absence from home George O. Toll came-upon the land and took possession thereof by force and proceeded to cut the hav standing thereon; that from the date of George O. Toll’s unlawful entry upon the land he had continued to. trespass upon the land. He prayed for an order perpetually restraining George O. Toll. from further trespassing upon his land, and that the deeds, which he made exhibits to his complaint, under which George O. Toll deraigned title, be canceled.

George O. Toll answered the complaint, admitting that'he traced his title to the land as set forth in the complaint. He alleged that he was the owner, and in possession of the land, and had been since his purchase, pa3dng the taxes on the same. He denied that E. H. Toll had been living on the land as his homestead for more than twenty 3rears as set up in the complaint.

■ The decree of the court recites as follows: “Now on this da3r this cause coming on to he heard, the plaintiff comes not and the defendant (appellee) appearing by his attorneys, Bogle & Sharp and W. A. Leach, and this cause being reached on the call of the calendar is submitted to the court for its iudgment and decree upon the complaint of the plaintiff and the exhibits thereto attached, the answer of the defendant and the depositions of C. F. Minton, C. F. Toll and George O. Toll, and other evidence, and the court finds therefrom that the defendant, George O. Toll, was on the day this suit was instituted and is now the owner of the following-described tract or parcel of land described in the complaint of the plaintiff, to-wit: (Here follows description of land); and that said defendant was on said date, and is now, entitled to the possession of said above-described lands, and that the complaint of the plaintiff, R. IT. Toll, should be dismissed for want of equity, and that the writ of injunction heretofore issued in this cause should be dissolved. It is therefore by the, court considered, ordered, adjudged and decreed that the complaint of the plaintiff, R. H. Toll, be and the same is hereby dismissed for the want of equity; that the writ of injunction heretofore issued in this cause and served on said defendant be and the same is hereby dissolved, and the said plaintiff is hereby ordered .and directed to deliver to the defendant, George O. Toll, the immediate possession of said lands. That the title of the defendant, George O. Toll, in and to said above-described lands be, and the same is, hereby quieted, confirmed and made complete against the said plaintiff, R. H. Toll, or any one claiming by, or through or under said plaintiff, and that a writ of assistance may issue at any time in favor of said defendant. It is further ordered that the plaintiff pay all the costs in this action for which execution may issue.”

Prom the above decree is this appeal.

.It will be observed from the recitals in the decree that the cause was heard upon the pleadings, exhibits thereto, and the “depositions of C. P. Minton, C. F. Toll, George O. Toll and other evidence.” The transcript contains the complaint, the exhibits thereto, the answer and the depositions of the witnesses mentioned, and the clerk certified “that the foregoing pages contain a true and correct transcript of all the papers aucl nrooeedings in the cause pending in' said court wherein R. H. Toll was plaintiff and George O. Toll was defendant, and that the depositions of C. F. Minton, Geo. O, Toll, and C. F. Toll was all the evidence introduced and taken in said cause.”

The recitals of the decree show that there was other evidence heard by the court besides the testimony of C. F. Toll, C. F. Minton and George O. Toll and the exhibits attached to the complaint. Therefore we cannot indulge the presumption that the other evidence recited in the decree had reference to the exhibits to the complaint, as was the case in Turpin v. Beach, 88 Ark. 604. The plain recitals of the decree show that, after considering the complaint and exhibits thereto, the answer, and the depositions of the witnesses mentioned, there was “other evidence” upon which the court based its decree. Where there is a conflict between the recitals of the decree and the certificate of the clerk to the transcript, the recitals of the decree must prevail. Dierks Lumber & Coal Co. v. Cunningham, 81 Ark. 427. Where the record discloses that evidence was considered by the court which is not contained in the transcript, it will be conclusively presumed that every fact essential under the pleadings to sustain the decree was established by the absent evidence. Bradley Limber Co. v. Hamilton, 109 Ark. 1, and cases there cited. See also Hershy v. Baer, 45 Ark. 240; Matlock v. Stone, 77 Ark. 195; Dierks Lbr. & decree was affirmed. Toll v. Toll, ante p. 134.

The issue of whether or not the land in controversy was the appellant’s homestead was one depending upon the facts adduced in evidence. As the record shows that, all the evidence which the trial court considered is not before us, we must indulge the presumption that the absent evidence was sufficient to sustain the findings and decree of the court.

The decree is therefore affirmed.


author: Hart, J.

text:
    Toll v. Toll.
    Opinion delivered December 4, 1922.
    1. Appeal and error — presumption from absence of evidence.— Where all of the evidence was not in the record on appeal, it will be presumed that the absent evidence was sufficient to sustain the finding and decree of the chancellor.
    2. Judgment — res judicata. — A decree of a court of competent jurisdiction directly on a question, or necessarily involving the decision of such question, is conclusive between the parties and their privies in a subsequent suit involving the same issue.
    3. Judgment — bar of former judgment. — Where the issue as to defendant’s homestead claim in certain lands was decided in a for- ' mer case, it could not be litigated in a subsequent suit between the same parties.
    4. Judgment- — adjudication as to homestead. — Where, in a real property action against a married man, his claim of homestead therein was adjudged against him, the judgment barred any right his wife, though not a party, might have to assert a similar claim by virtue of being his wife.
    Appeal from Prairie Chancery Court, Southern District; John M. Elliott, Chancellor;
    affirmed.
    STATEMENT BY THE COURT.
    George O. Toll brought this suit in equity against R. IT. Toll to enjoin him from cutting and removing a crop of hay from a tract of land which had been adjudicated to belong to the plaintiff in a suit between the same parties.
    R. H. Toll filed an answer in which he claimed the land as his homestead and made, as exhibits to his answer the pleadings in the former suit between the parties with regard to the land.
    Clara D. Toll, the wife of R. H. Toll, filed an answer and cross-complaint in which she claimed the land as the homestead of herself and of her husband. She set up that she was not a party to the former suit involving the homestead, and was in no wise bound by the proceedings in that case.

      The plaintiff filed a demurrer to the separate answer of R. H. Toll and to the answer and cross-complaint of Clara D. Toll.
    The court, sustained the demurrer to the answer of R. II. Toll and to the answer and cross-complaint of Clara D. Toll.
    From a decree rendered in favor of the plaintiff the defendants have duly prosecuted an appeal to this court.

      Emmet Vaughan, for appellant.
    The execution for the debt of R. TI. Toll could not be levied against his homestead. 225 S. W. 18. Mrs. Toll was not a part}*" to that suit, nor did she join in the execution of any instrument affecting her homestead right. The execution was for a debt not "'covered by § 5542, C. & M. Digest, and hence not valid as.to Mrs. Toll. She was not called upon to act, nor was it her duty to act, until this suit was brought. 75 Ark. 593, and cases cited. It is not necessary for a homestead claimant' to file a schedule to protect the homestead against a judgment or execution. Cases sufra.

    IF. A. Leach, for appellee.
    A bill of review must allege some error of law apparent on the face of the proceedings 'Sought to be reviewed or new matters that have arisen since the date of the decree. 32 Ark. 600; 33 Ark. 161; 26 Ark. 600; 107 Ark. 405; 98 Ark. 15. The 'oro'S'S-complaint of Mrs. Toll failed to allege any matter calling for a bill of review.
   Hart, J.

(after stating the facts). It appears from the record that R. H. Toll first brought a suit in equity against George O. Toll to quiet, his title to the land in controversy, and asked that the defendant be enjoined from trespassing upon the land.

R. H. Toll filed an answer, setting up title to the land and claiming the same as his homestead. The chancery court in that case held that the land was not the homestead of R. H. Toll, and upon appeal to this court the decree was affirmed. Toll v. Toll, ante p.—

The record on appeal showed that evidence was taken upon the issue of whether the land was the homestead of E. H. Toll, and the decree of the court below wás affirmed, because all of the evidence upon which the case was heard in the chancery court was not in the record on appeal. In such oases on appeal a conclusive presumption arises that the absent evidence was sufficient to sustain the finding and decree of the chancery court.

Therefore, the right of R. H. Toll to his homestead exemption having been pleaded in that suit, and, there being a direct adjudication adversely to his right in that case, the merits of the decree cannot be brought in question in the present proceedings. There is no principle better settled than that the decree of a court of competent jurisdiction directly upon a question, or necessarily involving the decision of the question, is conclusive between the parties and their privies in a subsequent suit involving the same issue. If the court rendering the decree had jurisdiction of the subject-matter and the parties, its decision is conclusive until reversed on appeal or annulled by a proceeding for that purpose. Hence the decree in that case is conclusive against E. H. Toll in the present case. In other words, the court having decided in that case that the land in question was not the homestead of E. H. Toll, the same question cannot be litigated in a subsequent suit between the same parties, Gordon v. Clark, 149 Ark. 173.

But counsel for the defendant insist that, inasmuch as the wife of E. IT. Toll was not a party to the former suit, neither she nor her husband is concluded by that snit from claiming the homestead in the present case. The precise question was determined by this court adversely to their contention in the case of Brignardello v. Cooper, 116 Ark. 103. In that case it was held that where, in an action to foreclose a mortgage on property belonging to a married man, he sets up’ a claim to the homestead, and his claim is ineffectual, an adjudication against him will bar any -right that his wife may have had to assert a similar claim. This principle controls here, and the wife is bound by the adjudication against her husband in the former suit, and cannot reassert the •homestead claim.

Therefore the decree'will be affirmed.


author: Hart, J. Hart, J.,

text:
    Hutchison v. First National Bank of Lepanto.
    Opinion delivered December 4, 1922.
    1. Attachment — removal of property from state. — Evidence held to sustain an attachment on the ground that defendants were about to remove all. of their property out of the State.
    2. Attachment — intervention—burden of proof. — In an attachment suit in which interveners claim the property under a chattel mortgage, the burden is on them to show that the mortgage was executed prior to the issuance of the attachment to secure a bona fide indebtedness, which is unpaid.
    3. Bankruptcy — effect of discharge. — A discharge in bankruptcy does not affect attachment liens obtained more than four months before the petition in bankruptcy was filed.
    4. Attachment — debt not due — judgment.—Under Crawford & Moses’ Dig., § 549, providing that a debtor may have an attachment against his debtor’s property before his claim is due, where the debtor is'about to remove his property or a material part thereof from the State, with the intent or to the effect of hindering or delaying his creditor in the collection of his debt, held where the debt became due before the- action was heard and determined, it was proper, the parties being before the court, to render personal judgment on the debt, without issuing a new summons.
    5. Appeal and error — harmless error. — Whether the trial court erred in refusing to allow interveners in attachment to introduce in evidence a certified copy of their chattel mortgage with- ' out proving that the original could not be produced, was immaterial where they failed to show a valid subsisting debt secured by a bona fide mortgage.
    6. Appeal and error — judgment against attachment defendants. — Where defendants in attachment owed more than the amount of their forthcoming bond, they were not prejudiced by judgments for the full amount of the bond, though there was no evidence that the attached property in value equaled the amount of the bond.
    7. Appeal and error — appeal inuring to surety’s benefit. — An appeal by attachment defendants alone inures to the benefit of the sureties on their bond only as to matters affecting rights of sureties and defendants, and not as to matters which affect the sureties alone.
    Appeal from Poinsett Circuit Court, First Division; J. M. Futrell, Judge;
    affirmed.
    statement by the court.
    Tlie First National Bank of Lepanto, Ark., a corporation, instituted this action against J. G. Hutchison and Horace Gladney to recover the sum of $6,500, alleged to be due on two promissory notes of $3,424 each, both dated December 10, 1920, and due ninety days after date.
    On the 2d day of February, 1921, an affidavit for attachment was filed in said case by the plaintiff, on the ground that the defendants were removing their property, or a material part thereof, out of the State, with the intent of hindering and delaying the plaintiff in the collection of its debt. An attachment bond was also duly executed by the plaintiff, with approved, sureties. The attachment was delivered to the sheriff and levied by him upon fifteen mules, one horse, three wagons, a lot of farming implements, and other property belonging to the defendants of the aggregate value of $2,233.50.
    On February 21, 1921, the defendants gave a forthcoming bond in the penal sum of $3,000 for said property, with the United States Fidelity '& Guaranty Co. as sureties thereon.
    On December 27, 1920, the defendants executed a chattel mortgage on certain mules and farming machinery to E. A. Gladney and J. M. Hutchison.
    On February 9, 1921, J. M. Hutchison and E. A. Gladney filed an intervention in said attachment case and claimed the property attached under a mortgage executed to them by said defendants-on the 27th day of December, 1920, and duly filed it for record on the 22nd day of January, 1921.
    The plaintiff filed a reply to this intervention, and denied that the property attached was the property described in said mortgage, and denied'that said mortgage was given to secure an indebtedness from the' defendants to the interveners.
    ■ At the trial of the case, counsel for the interveners offered to introduce in evidence a certified copy of the chattel mortgage executed by J. G. Hutchison and Horace Gladney to J. M. Hutchison and B. A. Gladney on December 27, 1920.
    Counsel for the plaintiff objected to the introduction of the certified copy, on the ground that the original mortgage was the best evidence.
    John "W. Scobey testified that he was originally employed as attorney by the interveners, and had in his possession the chattel mortgage in question. He either returned the mortgage to the interveners or it was in his office. He was not positive, and did not know where the chattel mortgage was.
    The interveners offered to introduce a certified copy of said chattel mortgage in evidence, which was refused by the court, because the foundation had not been laid for the introduction of it.
    The court also refused to allow the interveners to introduce in evidence a certified copy .of the adjudication in bankruptcy of J. G. Hutchison and Horace Gladney.
    The plaintiff introduced in evidence the notes sued on for $3,424 each. It was also shown by the plaintiff that the defendants had never paid anything on said notes, and that they were about to remove their property out of this State at the time the attachment was issued. They had already loaded their household goods on the cars and were preparing to take their mules and other property from the State of Arkansas to the State of Mississippi.
    One of the tenants on their place said that the defendants told them that they had lost out in their farming operations, and intended to slip out their mules and-other property from this State into the State of Mississippi.

      The circuit court found the issues in favor of the plaintiff, and sustained the attachment.
    From the judgment rendered the defendants and interveners have duly prosecuted an appeal to this court.

      J. T. Coston, for appellant.
    The court erred in holding that a certified copy of the mortgage was incompetent as evidence. Acts of 1921, p. 309; C. & M. Digest, ^ 1531, 4118, 4119; Kirby’s Digest, § 3064; C. & M. Digest, § 4127;_ 89 S. W. 89. Mortgaged personal property is not subject to execution or attachment. 42 Ark. 240. The court erred in holding the bankruptcy proceedings were not properly authenticated. 1st Loveland on Bankruptcy, § 92; U. S. Comp. Stat. vol. 3, p. 3430; § 21-D; IT. S. Comp. Stat. 1918, p. 1553, § 9605-D; U. S. Comp. Stat. 1918, § 1266. The court erred in proceeding to judgment after the defendants went into bankruptcy. 107 U. S. 633. There was no testimony as to the value of the property, and the court erred in rendering judgment against the surety. C. & M. Digest, § 543; 36 Ark. 94.

      J. F. Gautney, for appellee.
    The attachment having been levied, the adjudication of bankruptcy more than four months later did not affect the validity of the attachment. 90 Ark. 165; 90 Ark. 252; 103 Ark. 104; 137 Ark. 232; 130 Ark. 699; 32 L. ed. 1083.
   Hart, J.

(after stating the facts). The court was right in sustaining the attachment. The evidence in behalf of the plaintiff showed that at the time the attachment was issued the defendants owed the plaintiff about $6,500, and that they -were about to remove all of their property out of the State. They had already loaded their household goods on the cars, preparatory to carrying them out of the State, and were also preparing to take their mules, farming implements, and other property from the State of Arkansas to the State of Mississippi.

The ground of attachment is that the defendants are about to remove.their property out of this State,, with the intent of hindering or delaying the plaintiff in the collection of its debt. Crawford & Moses’ Digest, § 549.

But it is contended by counsel for the interveners that the defendants had executed a mortgage to them on the same property, prior to the issuance of the attachment in this case, to secure an indebtedness of $6,000, and that therefore they are entitled to the property. The burden was upon the interveners to establish this fact, and they did not do so. If the certified copy of their mortgage should be considered in evidence, it would not establish the fact that it was given to secure a dona fide indebtedness, and that no part thereof had been paid.

The defendants and interveners having failed to offer any. evidence tending to show that there was a valid and subsisting debt due from the defendants to the interveners under said mortgage, the court properly found against the interveners.

The court also properly excluded what purported to be an adjudication of the defendants as bankrupts. This paper showed that the defendants were adjudicated to be bankrupts on the 9th day of December, 1921, in the Federal bankruptcy court at Tupelo, Miss. The attachment in this case was issued on the 2d day of February, 1921, and was levied upon the property in controversy on the 4th day of February, 1921. This was more than four months before the bankruptcy proceedings were instituted, and it is well settled that a discharge in bank ruptcy does not affect attachment liens obtained four months before the petition in bankruptcy is filed. Booker v. Blythe, 90 Ark. 165; Longley v. McCann, 90 Ark. 252; Gray v. Bank of Hartford, 137 Ark. 232, and Garrett v. Big Bend Plantation Co., 150 Ark. 180.

It is also insisted that, because the notes were not due at the time the action -was commenced, the court erred in rendering a personal judgment against the defendants. This was a suit by attachment, and our statute provides that a creditor may have an attachment against the property of his debtor before his claim is due, where the debtor is about to remove his property or a material part thereof out of the State, with the intent or to the effect of hindering or delaying his creditor in the collection of his debt. Crawford & Moses’ Digest, § 549.

The ground for attachment existed before the plaintiff’s claim became due, and the action of the defendants in attempting to remove their property out of the State made it necessary for the plaintiff to sue out the attachment. The notes sued on became due before the action was heard and determined in the court below. All of the parties were before the court by their attorneys, and it was unnecessary to cause a new summons to be issued after the notes became due.

It follows that the judgment will be affirmed.

Hart, J.,

(on rehearing). It is true, as contended by counsel for appellants in his brief on rehearing, that the court below refused to allow the interveners to introduce in evidence a certified copy of their mortgage, in the absence of a showing that the original mortgage could not be produced. But, as pointed out in our original opinion, it does not make any difference in this case whether or not the court below erred in this respect. The reason is that the burden was on the interveners to show a valid and subsisting debt and a bona fide mortgage to secure the same, and this they failed to do.

Again it is insisted by counsel for appellants that the judgment against the surety was excessive, and that the court erred in rendering judgment for the full penalty of the bond, because there was no evidence that this was the value of the property attached.

The court rendered judgment against the defendants and the surety on their bond for the full amount of the bond, and rendered judgment against the defendants for an additional sum. The defendants were not prejudiced in this respect because they owed more than the- full amount of the bond, and the court did not ren- ■ der judgment against them for more than the proof showed that they owed the plaintiffs. The defendants alone appealed to this court.

But it is claimed that the surety, by signing the bond, became a party to the suit, and that the appeal of the defendants brought the whole matter before this court for review. This would be true as to all matters affecting the rights of the defendants, and, if the judgment had been reversed or modified in any respect as to them, this would inure to the benefit of their surety. But, the judgment having been affirmed in so far as the defendants are concerned, the surety is in no attitude to complain as to any alleged error which affected him alone.

As we have just stated, the appeal taken by the defendants could only inure to the benefit of the surety as to matters which might be prejudicial to the rights of the defendants as well as the surety.

Therefore the motion for a rehearing will be denied.