text:
    La Vasque v. Beeson.
    Opinion delivered April 28, 1924.
    1. Landlord and tenant — delay in asserting fraud. — Where the lessee of a newspaper plant was induced to enter into a. lease by the lessor’s fraudulent representations that he could earn $250 per month, and, immediately after taking possession, learned that such representations were false, an unreasonable delay of one year without asserting fraud and repudiating the lease constituted a waiver of the fraud.
    2. Fraud — unreasonable delay in repudiating contract. — While it is generally a question of fact whether a given time is unreasonable, a delay of one year in repudiating a contract on the ground of fraud is unreasonable.
    3. Landlord and tenant — breach of contract — Where the lessee of a printing plant, leased for such time as the lessor should be in the military service, abandoned the plant before that time, it was not error to instruct as matter of law that the lessee was liable for breach of contract.
    4. Landlord and tenant — breach of contract — liability.— Where the lessee of a newspaper plant leased for the period of the lessor’s military service, abandoned the plant before that time, he will be liable for the monthly rent of the plant from the time of such abandonment until the discharge of the lessor from the military service.
    5. Landlord and tenant — breach op lease — damages.—On a breach of his contract by a lessee of a printing plant, the lessor was entitled to recover the difference in value of a going business at the time the lessee breached the lease and its value at the time the lease was to expire, the loss to the plant from deterioration from not having been operated, and sums paid for storage from date of breach to the periods of expiration of the lease.
    6. Landlord and tenant — breach op lease — duty to minimize damages. — On breach by the lessee of a lease of a printing plant for a definite period, it was the duty of the lessor, after knowledge of such breach, to use reasonable efforts to minimize the damages sustained, and his failure so to do was for the jury’s consideration in assessing the damages.
    Appeal from Ashley Circuit Court; Turner Butler, Judge;
    affirmed.

      G. P. George and Gordon £ Combs, for appellant.

      Compere £ Compere and Strait £ Strait, for appellees.
   Wood, J.

This is an action by the appellees against the appellants to recover damages for an alleged breach of contract. This is the second appeal in the case. Beeson v. LaVasque, 144 Ark. 522.

The appellee, V. A. Beeson, alleged that he was the owner of a newspaper plant known as the “Morrilton Headlight,” in the town of Morrilton, Conway County, Arkansas; that on June 30, 1917, he entered into a written contract with Arthur W. LaVasque by which he leased to LaVasque the newspaper plant; that LaVasque agreed to operate said plant for the period that Beeson was absent in the military service of the United States in the war with Germany, and until his discharge from said service, for a period not less than one year from July 1,1917, for the consideration of $60 per month, payable on the first of each month during the life of the contract; that A. R. Bradley signed the said contract as surety and guarantor of LaVasque for the performance thereof; that appellant LaVasque abandoned and closed up the plant about July 1, 1918, and thus violated his contract, and, by.reason of .snch violation, tbe plant, machinery and fixtures deteriorated and became practically worthless, the business totally destroyed, to the plaintiffs damage in the sum of $3,000; that, in addition to this damage, LaVasqne and Bradley, his guarantor, were indebted to the plaintiffs for rent of the plant at the rate of $60 per month for 13% months, and1 for rent of the building in which the plant was located at the rate of $25 per month for such time, making a total sum due the plaintiffs of $4,147.50, for which they prayed judgment.

There was a demurrer to the complaint on the ground that the lease was void for uncertainty of the length of time of its duration; and also that, as to Bradley, it could not be enforced because he was not notified of the acceptance of his guaranty by Beeson, and that there was no consideration for it. The trial court sustained the demurrer and dismissed the complaint, and, on the former appeal, we held that the court erred on both grounds, and remanded the cause, with directions to overrule the demurrer. When the cause reached the circuit court on remand, the defendants filed an answer in which, after denying the allegations of the complaint, they set up that they were induced to enter into the contract with the plaintiffs because of the false and fraudulent representation of Bfeeson to the effect that he knew that if LaVasqne would lease said printing plant he could make, over and above his expenses of operating and rents upon same, an income of at least $250 per month; that Beeson knew these representations to be false, and made them for the' purpose of inducing the defendants to enter into the contract; that defendants relied upon said representations. The defendants further set up that, at the time the parties entered into the contract, it was not intended that same should be in force for a longer period than one year: that LaVasque fulfilled his contract to the letter during the period of one year, as stipulated, and duly notified plaintiffs that he would not operate the same for a longer period than one year, and, in pursuance of such notice, on the 30th of June, 1918, he delivered possession of the plant and premises to plaintiffs ’ agent and attorney, W. P. Strait, hy surrendering to him the key; that plaintiffs thereupon took posséssion of the plant, and, after the publication of the paper for a time, they suspended its publication, and then again resumed it on the first of September, 1918, and continued thereafter to operate the plant, except for a period of about a month and a half, until the first of the year 1919, when the plaintiffs sold the plant.

Testimony was adduced by the respective parties to sustain the allegations of their pleadings. At the conclusion of the testimony the court instructed the jury as follows: “1. You are instructed that, under the testimony in this ease, the court holds as a matter of law the defendants are liable, and you are directed to return a verdict for the plaintiffs for the amount of the unpaid rent at $60 per month from July 1, 1918, to August 19, 1919, with interest thereon .at the rate of six per cent, per annum from the date of the maturity thereof up to this date, and for such other and further damages, if any, which you may find plaintiffs sustained as a direct and proximate result of defendants’ breach of the contract.

“2. You are instructed that, on the question of damages in addition to the rents as mentioned above, plaintiffs would be entitled to recover the difference, if any, in the value of a going business at the time defendant breached the contract and the condition found and existing at the time Beeson was discharged1 from the military service, and such further loss as may have been caused by reason of deterioration of the property caused by same not having been operated, and such sums as plaintiffs may have paid for storage of the plant from the date of the breach of contract to the date of Beeson’s discharge from the military service of the United States.

“3. The court further instructs the jury that it was the duty of the plaintiffs, when they learned that the contract had been breached, to use all reasonable efforts to minimize the damage which they may have sustained1, and, if they failed to do so, the jury should take that into consideration in assessing the amount of damages sustained by the plaintiffs on account of said breach of contract.”

The jury returned a verdict in favor of the plaintiffs in the sum of $1,280. Judgment was entered in their favor for that sum, with interest from the date of the judgment, from which is this appeal.

The appellants contend that there was testimony tending to prove that they were induced to enter into the contract by reason of fraudulent representations on the part of Beeson to the effect that LaVasque, if he leased the plant, could make from $150 to $300 per month net, and that therefore the court erred in not submitting the issue of fraud to the jury. We find it unnecessary to set out and discuss the testimony on the issue of fraud, for, if it be conceded that there was testimony which would have warranted the submission of this issue to the jury, the undisputed testimony proves that LaVasque waived the fraud, if there was fraud, and the right to forfeit the contract because' of such fraud, by reason of his unreasonable delay in not asserting the alleged fraud and repudiating the contract on that account.

LaVasque testified that he assumed possession of the plant July 1, 1917. He learned immediately that the representations of Beeson were false. He learned this from the job-books turned over to him by Beeson. The amount of net profit would be $30.10 for April, 1917, and the profit was less for March than April. He operated the plant for one year under the lease. On June 8, 1918, he wrote to Bieeson stating: “As my lease contract with you and Mrs. O. L. Beeson expires (as far as time is specified) on July 1, 1918, and as further time after that date is indefinite and subject to termination by either party, I hereby notify you and Mrs. C. L. Beeson, as parties of the first part, that I wish the lease contract on the Morrilton Headlight terminated at the specified time, July 1,1918.” He- consulted with counsel, showing him the lease contract, and1 was informed by his counsel that the contract was no good for more than a year, and wrote Beeson to that effect. That was not all the reason he had for quitting, but that was the only reason he gave Beeson. He never did mention to the Beesons that they had made misrepresentations to him.

It thus appears from LaVasque’s own testimony that he took possession of the plant under the lease contract July 1, 1917, and he immediately discovered that a fraud had been perpetrated upon him, yet he continued to hold and operate the plant for an entire year before repudiating the contract, and even then he did not tell the Beesons that he was ignoring the contract on account of the fraud he had discovered, but notified them that he Avas surrendering it because he had been advised by his counsel that the contract was no good for more than a year, and therefore that the same would expire July 1, 1918. Under the above testimony the appellants are estopped from setting up a forfeiture of the contract on the ground of deceit and fraud. They could not operate the plant a whole year under a contract which they knew to be fraudulent and then set up such fraud in defense of an action by the other party seeking to enforce the contract.

In New York Life Ins. Co. v. Adams, 151 Ark. 123, this court announced the following principle which is applicable here: “It is generally a question of fact for the determination of the jury whether or not a given time is unreasonable, but the circumstances may be such that the court should declare as a matter of law Avhether the delay is or is not unreasonable.” Here the court was justified in declaring as a matter of law that the defense of fraud could not avail the appellants. After discovering the alleged fraud, they had no right to hold appellees’ property and speculate on same to determine whether it would be a profitable venture. If they intended to declare a forfeiture because of fraud, they should have taken such action within a reasonable time after discovering the fraud. The facts of this record do not bring it within the doctrine of Matlock v. Reppy, 47 Ark. 148, where we held that false representations in the sale of lands are in the nature of warranties, and must he made good. Here the transaction was an executory contract for the leasing of a printing establishment; and1, after appellees had performed their part of the contract by delivering the possession thereof to the appellants, and the appellants had entered upon the performance of the contract and retained the possession of the plant for a year, appellants then seek to avoid the contract for fraud. This cannot be done. The facts bring the ease within the doctrine-announced in McDonough v. Williams, 77 Ark. 261; Remmel v. Griffin, 81 Ark. 269; Josephs v. Baker, 95 Ark. 150-154; Webster v. Carter, 99 Ark. 458-461.

The appellants next contend that, on the evening of June 30, 1918, LaVasque surrendered the possession of the printing plant and premises by delivering the key thereof to W. P. Strait, the agent and attorney of the appellees, and who, for the appellees, took possession of the plant, and thereafter for a time operated the same. But the undisputed testimony shows that, before the key to the plant was delivered to Strait, LaVasque had determined to abandon the lease. LaVasque himself testified that, before he delivered the key to Strait, he had informed Strait positively that he was going to close the plant on July 1, 1918; that Strait at that time, in Beeson’s behalf, endeavored to get him to go ahead with the operation of the plant, and that he refused. LaVasque stated that Strait called his attention to the fact that Beeson had received his (LaVasque’s) letter stating that he was going to quit July 1, 1918, and Strait informed him that Beeson intended to insist on the contract; that, notwithstanding this fact, when July 1 came, he quit; that, at the time he locked up the plant and quit, he took the keys to the office of Strait & Strait, and told Strait that he was going to send the keys to Beeson, and Strait said, “You can leave them with me.”

Strait testified concerning this, that he received a letter from Beeson in June, 1918, stating that LaVasque Was breaking Ms contract, and requesting witness to do what he could to keep him from throwing up his contract and quitting; that he called on LaVasque and urged him to stay in business, and LaVasque said that he had consulted counsel and had the contract examined, and that it expired on July 1, 1918, and that he had given Beeson notice. Thereupon witness returned to his office and wrote LaVasque a letter, and also wrote a letter to Bradley, in which he called attention to the fact that the Bee-sons flatly refused to release them from the contract, and, if they failed to keep the premises and carry out the contract, the Beesons would hold them liable in damages. In this letter Strait specified the elements of damages which the Beesons would insist on if LaVasque failed to carry out his contract, and notified Bradley that he would be held responsible as surety for LaVasque for such damages as might accrue to the Beesons if LaVasque surrendered the lease on July 1, 1918, as he had declared he Would do. Strait also testified that he had no authority to accept the surrender of the lease from LaVasque.

This undisputed testimony shows that LaVasque violated his contract by abandonment of the lease on July 1, 1918, and it further shows there was no acceptance of the surrender on the part of the appellees. The trial court therefore did not err in instructing the jury as a matter of law that the appellants were liable to the appellees in damages for the violation of the contract by LaVasque.

LaVasque testified that, if he had stayed on, he would have owed the appellees $60 a month from July 1, 1918, when he closed, until he was discharged from the army, August 19, 1919. The court therefore correctly instructed the jury to return a verdict in favor of the appellees for the unpaid rent at $60 per month from July 1,1918, to August 19,1919, with interest at the rate of six per cent, per annum from date of maturity to date.

The court did not err in declaring the law as set forth in its instructions Nos. 2 and 3. These instructions submitted to the jury the proper elements for their consideration in determining the amount of damages, if any, which had accrued to the appellees because of the violation of the contract on the part of LaVasque. It was proper for the court to tell the jury that it was the duty of the appellees, after they learned that the appellants had violated their contract, to use all reasonable efforts to minimize the damage, and, if they failed to do so, the jury would take that into consideration in assessing the amount of damages sustained by the appellees. It could serve no useful purpose to discuss the testimony relating to the measure of damages. Suffice it to say it was purely an issue of fact for the jury, and there was substantial testimony to sustain the verdict.

The record, upon the whole, presents no reversible error in the rulings of the trial court, and the judgment is therefore affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Black Brothers Lumber Company v. Varner.
    Opinion delivered April 28, 1924.
    1. Frauds, statute op — promise to pay another’s debt. — In a suit against a corporation and another on an account for supplies furnished to the latter, whether the corporation agreed to purchase the supplies as an original undertakiAg or as security for the latter, held for the jury.
    2. Frauds, statute op — original or collateral undertaking.— Where a corporation promises to pay for supplies furnished to another, as an original undertaking, the undertaking is not within the statute of frauds, but, if the corporation is merely surety for the purchaser, the case is within the statute, and must be evidenced by writing.
    Appeal from White Circuit Court; W. D. Davenport, special judge;
    affirmed.

      Brundidge S Neelly, for appellant.
    The promise to pay was a collateral undertaking, and not an original one. 102 Ark. 438; 12 Ark. 174; 88 Ark. 592.

      J. N. Rachels, for appellee.
   Wood, J.

This is an action by H. W. Varner against J. F. Cooper and Black Brothers Lumber Company, a corporation (hereafter called lumber company), to recover the sum of $309.35 on an account which he alleged the lumber company purchased for Cooper and one or two other parties. The lumber company denied that it was indebted to Varner for the account of J. F. Cooper, and also pleaded the statute of frauds.

Varner testified that he was a merchant at Searcy, and was acquainted with Frank Cooper and Black Brothers, composing the lumber company. On the 5th of August, 1921, Frank Cooper had a little account with witness. He went to work for the lumber company, and was running a boarding-house down there, at which the lumber company timbermen boarded. H. W. Black was then in charge of the lumber company as local manager. Cooper applied to witness for credit, and witness refused him. After that he sold some stuff for the boarding-house on the credit of Black, who was representing the lumber company. The witness exhibited his account, and testified to the items purchased by Cooper, which' were charged to Cooper and the lumber company, amounting to $878.60, on which there were credits bringing Cooper’s account down to the sum of $284. Witness sold goods to Black for one Beatty in the sum of $9.30, and also to one Bates in the sum of $10.30, which made the total amount of the account of Cooper and the other parties $309.35, as claimed. The lumber company knew that Cooper was behind with witness, and agreed to pay witness if he would extend credit to Cooper, which witness did, and the lumber company admitted its liability on the account from time to time. Black begged for time in which to pay the account, saying that lumber and ties were slow about moving, and asked witness to give him time to collect for the lumber that he had sold. Black never denied liability for Cooper’s account until Cooper moved away. When Black first agreed to pay Cooper’s account, the account was charged in Cooper’s name, and Black told witness he would be responsible for it. He told witness to say to Cooper that whatever he needed to run the .boarding-house the lumber company would pay for. Some of the orders from Cooper were brought in by him, and some were brought by Black. In the new book that witness opened witness entered the account on one page in the name of the lumber company and at another page in the name of the lumber company and Cooper.

Cooper testified that, beginning some time in 1921, he had a contract for running the mill, about fifteen miles from Searcy, for the lumber company, by the thousand, and also running the boarding-house at so much a meal. Varner refused to credit him. Witness told Black that he would have to have stuff to run his boarding-house, and Black said that he would see that witness got it, and witness did get it. Very often Black bought the goods himself, and frequently witness would make out the bills and give them to Black. Witness identified the orders which he wrote to .Black, gave or sent them to him, and he would see that it came down either over the railroad or in the wagon, and a few times he brought the stuff himself. There had never been a settlément between witness and Black. He owed witness $371, and, including Varner’s account, about $600. The lumber company had nothing to do with running the boarding-house or with the mill, as witness was cutting under a contract at so much a stick. Black had admitted liability to witness several times for Varner’s account. He asked witness how much the account was.

Dr. Gray testified that he attended Frank Cooper’s family as physician and surgeon while they were at Black Brothers ’ mill in 1921, part of the time, and that Black stood for part of it. Black called witness up and asked him if he would go down there, and witness replied that he would if Black would stand for it, and Black said that he would.

Black testified that, when. Cooper moved down to take charge of the boarding-house, they had a contract with him for cutting ties at so much per thousand feet. Varner asked witness if he would stand for Cooper’s account, and witness told him that they would not stand for anybody’s account. After that, Varner asked witness several times for money on Cooper’s account, and witness told him that he would pay it when Cooper had it coming. One day Varner told witness that Cooper had got in pretty deep with him, and asked witness if he was going to pay the account, and witness told him that he would not; that the lumber company had not stood for the account, and that they would not pay it. Cooper then owed the lumber company three, four, or five hundred dollars. Cooper sent in. orders by W. A. Cooper, who was down there every day, asking Varner to send out groceries. Witness turned over some checks to Varner and charged them to Cooper. Witness would be down at the plant, and Cooper would send orders in for groceries by witness, with the request for witness to bring them out, and witness would have Varner send the bill so that he could take it out to Cooper. Witness sometimes took the groceries out. Witness credited Cooper with all the lumber and board bills of the men working for the lumber company, and sent him the money for the difference between the board of the men and the amount due him on his contract for sawing lumber. Cooper would say to witness that he had so many logs in the woods, and request witness to pay Varner for them. Witness drew those checks direct to Varner. Often he sent Cooper money for his pay-roll. Witness was ready to settle with Cooper any day lie would bring his books up. The lumber company had an account against Cooper, and it was ready to settle with him any time he would bring his papers up, if there was anything due him. He never at any time agreed to pay the Varner account.

The court instructed the jury to return a verdict in favor of Varner against Cooper, and that, if they found from the testimony that the lumber company promised Varner to pay for the goods as an original undertaking on its part, then the jury should return a verdict in' favor of Varner against the lumber company for the amount of Varner’s account; but that, if the goods were purchased by Cooper, and the lumber company was a mere surety for the debt, then, before the jury could find in favor of Varner against the lumber company for Cooper’s account, they would have to find that the lumber company agreed in writing to pay such account; that the only question for the jury to determine was whether or not it was the lumber company’s debt or Cooper’s debt; that, if it was an original undertaking of the lumber company, it did not have to be in writing. The lumber company objected and duly excepted to these instructions.

The lumber company prayed the court to instruct the jury that, before it could be held for the debt of Cooper, it must have agreed to pay for same in writing, and, if the jury found from the evidence in the case that there was a promise to pay, but that the same was not in writing, then the verdict should be for the lumber company so far as the amount owing by Cooper is concerned, which prayer the court refused, and to which ruling the lumber company duly excepted. The jury returned a verdict in favor of Varner in the sum of $309.35. From the judgment against the lumber company in Varner’s favor for that sum is this appeal.

In Jonesboro Hdw. Co. v. Western Tie & Timber Co., 134 Ark. 543-546, it is said: “We have several times held that a parol promise to pay the debt of another is not within the statute of frauds when it arises from some new and original consideration of benefit or harm moving between the newly contracting parties.” (Citing cases).

In Millsaps v. Nixon, 102 Ark. 435, we said, at page 438: “ It is the settled law in this State that, in determining whether an oral promise is original or collateral, the intention of the parties at the time it was made must be regarded; and, in determining such intention, the words of tlie promise, tlie situation of tlie parties, and all of the circumstances attending the transaction should be taken into consideration.”

Applying the above doctrine to the facts of this record, it occurs to us that it was an issue of fact for the jury, under the evidence, whether or not the appellant agreed to purchase the goods of the appellee as an original undertaking and not merely as a security to the appellee for Cooper in the amount of appellee’s account against Cooper and the appellant. Such ¡being our conclusion, the court did not err in refusing appellant’s prayer for a directed verdict. The court likewise submitted the issue of fact to the jury under correct declarations of law. Arkadelphia Milling Co. v. Green, 142 Ark. 565.; Grady v. Dierks Lbr. & Coal Co., 149 Ark. 306.

The record does not show any error in the rulings of the trial court, and its judgment is therefore affirmed.


text:
    Missouri Pacific Railroad Company v. Havens.
    Opinion delivered April 28, 1924.
    1. Railroads — proximate cause op injury. — Where plaintiffs, after starting to cross defendant’s tracks, were flagged, and, in stopping, killed their motor engine while on the main track, where it was struck hy a train, though the driver testified that, if he had not been flagged he would have got across, held that it was a question whether defendant’s failure to sound a whistle or ring a bell was the proximate cause of the injury.
    2. Railroads — contributory negligence. — Whether the driver of a car who, after looking and listening for trains, and seeing none, started to cross several1 railway tracks, and was flagged, and, in stopping his car, killed his engine while on the main track, where it was struck by a train, the question whether he was guilty of contributory negligence was a matter for the jury.
    3. Railroads — duty to look and listen — instruction.—Where an automobile driver, before attempting to cross several tracks, looked both ways without seeing any train, and, after getting on the main track, was flagged, and, in stopping, killed his engine, which was struck by a train, an instruction that it was not negligence in every ease for a traveler to fail to look and listen, that it was for the jury to determine whether or not conditions existing were such that an ordinarily prudent person might have expected a train to pass, held a correct statement of the law under the facts of the case.
    4. Appeal and error — instruction—necessity of specific objection. — An instruction, in an action for damages to an automobile struck by a train at a crossing, that the jury should consider the incident in the light of the circumstances “as they appeared to the plaintiffs” at the time held erroneous, but not reversible in the absence of a specific objection.
    5. Negligence — contributory negligence. — The jury, in determining the question of contributory negligence, must consider the incident in the light of circumstances as they actually existed at the time, and not as plaintiff viewed them.
    6. Trial — instructions. — Failure of particular instructions as ignoring the defense of contributory negligence was not reversible error where the only objections to such instructions were general, and the defense was fully covered by other instructions.
    Appeal from Faulkner Circuit Court; George W, Clark, Judge;
    affirmed.

      TJios. B, Pryor and Vincent M. Miles, for appellant.
    1. 'The failure to sound a whistle or ring the bell was not the proximate cause of the injury. It was error therefore not to direct a verdict for the defendant. 84 Ark. 270. The driver of the automobile was guilty of contributory negligence as a matter of law, and this entitled the defendant to an instructed verdict. 61 Ark. 549; 97 Ark. 442 ; 69 Ark. 134.
    2. Instruction No, 3y2 tells the jury that it is a question for them to determine whether or not the plaintiff should have looked and listened. The situation here is even more extreme than pointed out in the two dissenting of opinions in the case of Bush v. Brewer, 136 Ark. 246, upon the majority opinion of which case the instruction is based.

      R. W. Robins, for appellee.
    1. The burden was on the appellant to excuse itself for the collision. There is no evidence whatever that either of the occupants of the automobile had any notice or knowledge of the approach of the train, until just before it struck. 84 Ark. 270, relied on by appellant, does not apply.
    2. Instruction No. 3% merely qualified the general rule by informing the jury that there were circumstances which might relieve the traveler of the duty to look and listen, and this court has approved that instruction. 136 Ark. 246.
   Wood, J.

On June 20, 1921, J. H. Havens was the owner of a Ford car on which the Bank of Conway had a mortgage. During the year 1921 Havens had a contract for carrying the mail from Conway to Bee Branch. Havens used the Ford car for carrying the mail. Mitchell Odom was his driver. On the above day Havens and Odom got in the car, which they had parked on the public square a short distance from the right-of-way of the Missouri Pacific Railroad Company, on the east side thereof, and they started west along Oak Street. In crossing the right-of-way they would first cross the main line track, then the passenger track, and then switch tracks. On this occasion the local freight engine, which had been switching, was standing- on the passing track just south of the street crossing. As Odom drove the car up to the railroad right-of-way, he looked both ways for a train, but didn’t see any. Just as the car got on the rails and partly across the main line track, the conductor of the local freight train came from behind the engine on the passing track, and motioned to Havens and Odom to stop. Odom stopped the oar, and, in doing so, killed his engine. About this time the eastbound passenger train (designated by the witnesses as <£the dinkey”) came into view around the curve from the northwest. Odom and Havens got out of the car, and made some effort to push the same off the track, but discovered that the train was going at a very rapid rate, so they left the car and escaped injury. The car was struck by the passenger train, and demolished. The bell of the locomotive was not rung nor was the whistle sounded until just before the crossing was reached and the automobile struck.

This action was instituted by Havens and the Bank of Conway to recover damages against the railroad company for the destruction of the automobile. They alleged that the railroad company negligently ran its passenger train violently against the car “without having given any warning or signal for said crossing, as required by law, and completely wrecked said automobile.” They prayed for damages in the sum of $350. The company answered, denying the allegations of the complaint, and pleaded contributory negligence on the part of the driver of the automobile.

The above are substantially the facts which the testimony tended to prove. The court, in an oral instruction, told the jury, in effect, that, if the evidence showed that the plaintiffs owned an automobile which was struck at the street crossing by the locomotive of defendant, that created, under the law, a prima facie case of liability against the company, and, unless it established by a preponderance of the evidence that it was not negligent in the operation of the train, they should find for the plaintiffs ; and the court gave, at the request of the plaintiffs, a written instruction to the same effect. The court also gave, at the request of the plaintiffs, among others, the following instructions:

“3y2. You are instructed that it is not negligence in every case for the traveler to fail to look and listen for the approach of trains. Ordinarily this is the rule, but that is not required in every case. It is for the jury to determine, from the circumstances and facts in this case, whether or not the conditions existing at the time of the accident were such that an ordinarily prudent person might have expected to pass along at that particular time. It is the duty of the jury to consider the incident in the light of the circumstances as they appeared to the plaintiffs at the time, and then to say, by your verdict, whether or not the plaintiffs were guilty of imprudent or negligent conduct which, caused or contributed to the collision.
“4. The court instructs the jury that, if you find from the evidence that the defendant had an employee stationed at said street crossing for the purpose of giving a warning of the approach of a train to persons crossing at said street crossing, and said employee of the defendant did not warn or stop the plaintiffs until they had got on the main line of the defendant at said street crossing, then the plaintiffs had a right to rely upon the action of said employee of the defendant, unless the plaintiffs actually saw the train themselves, or were actually careless in not looking for the train.
“5. You have been told that contributory negligence on the part of the plaintiffs would be a bar to plaintiffs’ recovery in this case; but, unless you find from the evidence that said plaintiff failed to look and listen for the approach of the train as he went upon the tracks, and failed to use such reasonable care for his safety as an ordinarily prudent man would have done under the circumstances, then he was not guilty of contributory negligence, and you should not consider that as any defense to the plaintiffs’ action in this case.”

The court also instructed the jury, at the instance of the plaintiffs, that contributory negligence on the part of the plaintiffs would be a bar to the plaintiff’s recovery. But, unless the plaintiff failed to look and listen for the approach of the train as -he went upon the tracks, and failed to use such reasonable care for his safety as an ordinarily prudent man would have done under the circumstances, then he was not guity of contributory negligence, and the jury should not consider that as a defense to the plaintiff’s action in the case.

The defendant asked the court to instruct the jury to direct a verdict in its favor, which prayer the court refused. The defendant also asked the court to instruct the jury that the burden was on the plaintiff to show that the defendant failed to ring the bell or sound the whistle. The defendant also requested the court to give an instruction on the lookout statute, which the court refused. The court, at the instance of the defendant, instructed the jury, in effect, that it was sufficient if either the hell was rung or the whistle sounded from a point eighty rods back of the crossing; that it was the duty of any one approaching the crossing to look and listen to ascertain if a train was approaching, and, if the situation was such that ordinary care required him to stop, that it would be his duty to stop his car before going on the track, and, if the driver of the automobile, in this instance, failed to comply with these duties, which contributed to the injury, the verdict should be for the defendant; that it was the duty of one approaching a railroad right-of-way to look and listen for a train, not only in one direction but in both directions, and that, even though the defendant failed to ring the bell or blow the whistle as the train approached the crossing, yet, if the driver of the automobile, by looking and listening, could have seen and heard the train, then the verdict of the jury should be in favor of the defendant; that the only acts of negligence on the part of the railroad company that the jury could consider were the alleged failure to sound the whistle or ring the bell, and that the only purpose for which the jury could consider the testimony as to the silence of the crossing-bell or gong was for determining whether or not plaintiff Havens was guilty of contributory negligence.

The jury returned a verdict in favor of the plaintiffs in the sum of $350. Judgment was rendered for that sum, from which is this appeal.

The appellant contends, first, that the court erred in not directing a verdict in its favor, because there was no testimony to prove that the failure to sound the whistle or ring the bell was the proximate cause of the injury. The driver of the automobile testified that “if the railroad company had not had a man there trying to flag us, I think we would have got across all right.” Counsel for appellant insist that this testimony shows that the proximate cause of the injury was the fact that the flagman stopped the driver of the automobile on the main line, and not the failure to sound the whistle or ring the bell of the passenger train. But we are convinced that it was an issue for the jury, under the evidence, to determine whether the failure to sound the whistle or ring the bell was the proximate cause of the injury. The jury might have found, from the testimony of the occupants of the automobile, that, if the statutory signals had been given, the automobile would not have been driven upon the main line; that, if these signals had been given, the occupants of the automobile would have heard the same, and therefore would not have proceeded upon the main line track and thus been caught in a predicament where they had to abandon the car and leave same standing on the track. The occupants of the car testified that they listened, and looked both ways for the trains, and didn’t hear the signal. They stopped the car at the flagman’s signal, and they saw the “dinkey” coming, and it was all they could do to get out of the car. It was for the jury to say, under these circumstances, whether, if the statutory signals had been given, the car would have been struck and the injury resulted.

The appellant next contends that the undisputed testimony shows that the contributory negligence of the occupants of the automobile was the cause of the injury. But it occurs to us that the issue of contributory negligence was likewise an issue of fact for the jury, under the evidence, and the court did not err in refusing to declare the driver of the automobile guilty of contributory negligence as a matter of law.

The appellant next contends that the court erred in giving instruction No. 3y2, at the request of the appellees. Only a general objection was urged to this instruction, and we are convinced that, when taken in connection with instructions which the court gave at the instance of the appellant, the jury, could not have been misled under the facts adduced by the giving of instruction No. 3y2, because the court had told the jury, in instructions given at the instance of the. appellant, that it was the duty of a traveler approaching a railroad crossing to listen and look in both directions for trains, and, if the situation were such as to require a person of ordinary care to stop, then it would be the duty of the traveler to stop before going upon the track of the railroad.

Instruction No. 3y2 is substantially a copy of an instruction (No. 9) the granting of which was held not, to be prejudicial error in the case of Busch v. Brewer, 136 Ark. 246-254. The reason the instruction was not condemned in that case was because the facts there tended to prove that the railroad company maintained a gong, an electrical device, that warned travelers, when nearing the crossing,.of the approach of trains. This gong could be heard for a long distance from the crossing. It began to ring when a train approached from either direction, and, when not ringing, was notice to the public that there was no danger from approaching trains. “Its silence was in a measure an invitation to the public to cross.” In refusing to condemn the instruction given in Busch v. Brewer, supra, we tout followed the doctrine previously announced by this court in Chicago, R. I. & P. Ry. Co. v. Hamilton, 92 Ark. 400-406, where we said: “The burden of proof was upon the defendant to establish contributory negligence, and, before it was entitled to an instruction placing upon the plaintiff the absolute duty to look and listen, it devolved on the defendant to show a state of facts which, as a matter of law, constituted-negligence for him to fail to look and listen. * # * But, in acting upon an invitation to cross the tracks, it cannot be said as a matter of law that he is guilty -of negligence because he fails to look up and down the track or to listen for approaching trains. ’ ’

Instruction No. 3y2 is sound doctrine, and it is not error to give it where the facts justify its application. The facts in the present case warranted the court in giving the instruction. The alarm bells located at the crossing were not ringing. A switch engine was below the crossing, and the crossing was open. When the local freight train is in Conway switching, ordinarily one of the brakemen flags this crossing. The engine was on the switching track by the crossing, and the flagman came out to flag the automobile. Under these facts it was an issue for the jury to say whether or not there was an invitation to the occupants of the automobile to cross the track, and it was for the jury to say whether the occupants of the automobile were thrown off their guard because they had not been flagged before they reached the passing track. There was enough similarity between the facts of this case and the facts of Busch v. Brewer, supra, to warrant the court in giving the instruction.

Counsel for appellant complain especially of the latter part of the instruction as follows: “It is the duty of the jury to consider the incident in the light of the circumstances as they appeared to the plaintiff at the time, and then to say, by your verdict, whether or not the plaintiff was guilty of imprudent and negligent conduct which caused or contributed to their injuries.” Counsel contend that this portion of the instruction was not called to the attention of the court in Busch v. Brewer, supra, and that the language, “it is the duty of the jury to consider the incident in the light of the circumstances as they appeared to the plaintiffs at the time,” is inherently erroneous. Counsel are correct in saying that this language of the instruction' was not called to the attention of the court in Busch v. Brewer, supra, and they are also correct in saying that this language is erroneous. But we do not concur with their view that the language, when taken in connection with all the other language in which the instruction is couched, and also in connection with the other instructions, is inherently erroneous. To be sure, it was not correct to tell the jury that it was their duty to consider the incident “in the light of the circumstances as they appeared to the plaintiffs.” That would be creating a false criterion. The jury would have to consider the incident in the light of the circumstances as they existed at the time, and not as the plaintiff viewed them. But we are convinced that it was the duty of the appellant to direct the attention of the court to this inaccurate phraseology by a specific objection. Not having done so, the error in giving the instruction in the particular language to which objection is here made is not one which could be reached by a general objection, and the judgment should not be reversed on that account. Roach v. Scott, 157 Ark. 152; Miller v. Fort Smith L. & T. Co., 136 Ark. 272; Chancellor v. Stevens, 136 Ark. 175.

The appellant contends, in the last place, that the court erred in giving its oral instruction to the jury, and also in its instruction No. 1, because these instructions ignored appellant’s plea of contributory negligence. In other instructions the court fully and correctly defined the issue of contributory negligence, and objections to the above instructions were only general objections. The instructions, when considered as a whole, are not in conflict. If appellant conceived that they were defective in the particulars of which it now complains, it should have drawn the attention of the court to those defects by specific objections. It is manifest, when the court’s charge is considered as a whole, that it does not shut out appellant’s plea and defense of contributory negligence. See cases cited in division 3 of this opinion.

There is no reversible error in the record, and the judgment is affirmed.


author: Hart, J.,

text:
    Green v. Jones.
    Opinion delivered April 28, 1924.
    1. Taxation — support and maintenance op state penitentiary.— As the State Penitentiary is a State institution, taxation for its support and maintenance may be levied upon the property situated within the State.
    2. Convicts — power op legislature. — The Legislature was authorized to create a Penitentiary Commission and vest it with authority to manage and control convicts sentenced to the State Penitentiary.
    3. Convicts — powers op penitentiary commission.— The Penitentiary Commission is merely an administrative board, created for carrying into eifect public policy of the State as expressed by its Legislature with regard to the management of those eon- . victed of felonies.
    4. States — authority op citizen and taxpayer to sue. — Each citizen and taxpayer has an interest, where his pecuniary or property rights are involved, in seeing that no administrative board, such as the Penitentiary Commission, shall discharge its duties in a manner violative of the statute creating it and defining the duties that it may perform and the things which it may not do.
    5. States — injunction against leasing convicts. — Where the Attorney General failed to do so, citizens and taxpayers were entitled to bring a suit against the Penitentiary Commissioners to restrain them from leasing convicts, in violation of Crawford & Moses’ Digest, § 9694.
    6. Convicts — lease.—A contract leasing convicts to a corporation to construct a dam is in violation of Crawford &. Moses’ Dig., § 9694, though physical control and custody of the convicts were under the supervision and control of guards and wardens appointed by the Penitentiary Commission.
    Appeal from Pulaski Chancery Court; John E, Martineau, Chancellor;
    reversed.
    STATEMENT OE PACTS.
    W. E. Green and others brought this suit in equity against J. Walker Jones and others to restrain them from hiring out and leasing the convicts now confined in the penitentiary, and under the control of the defendants as a Board of Commissioners for the management of the State Penitentiary.

      According to the allegations of the complaint, the plaintiffs are residents, citizens, and taxpayers of different counties in the State of Arkansas, and the defendants constitute the members of the 'Board of Penitentiary Commissioners and the clerk thereof. The complaint also alleges that the board, in violation of. law, has entered into contracts with different persons for the hire and lease of convicts sentenced to confinement in the State Penitentiary.
    It is also specifically alleged that the board had hired out and leased a great number cf convicts to a corporation constructing a dam known as the Remmel Dam, located in Hot Spring County, Arkansas, and that the convicts have, for many months prior to the bringing of this suit, been employed by said corporation in the construction of said dam. The complaint alleges that the plaintiffs are without legal remedy in the premises, and that the hiring" and leasing of said convicts is in violation of our statutes regulating and prescribing the methods of keeping and working convicts sentenced to confinement in the State Penitentiary.
    A demurrer was first interposed to the complaint. Subsequently an answer was filed by the defendants in which they claimed that they had a right to lease the convicts to the corporation in question, and a copy of the lease contract was made an exhibit to the answer. Proof was taken to establish the allegations of the complaint and the averments of the answer.
    The chancellor was of the opinion that the plaintiffs had no such interest in the matters complained of as to entitle them to maintain this action, and it was decreed that the complaint be dismissed for want of equity.
    To reverse that decree the plaintiffs have duly prosecuted an appeal to this court.

      Webb Covington, for appellant.
    Taxpayers have the right to resort to a court of equity to prevent a misapplication of public funds, such right being based upon the fact that they are equitable owners of such funds, and their liability to replace the funds in the public treasury to cover the deficiency which would be caused by the misapplication. 32 C. J. § 425; 101 U. S. 601; 89 Calif. 215; 65 Colo. 443; 34 Conn. 105; 270 111. 304; 124 111. 123; 13 111. 336; 177 111. 97; 177 111. 194; 208 111. 328; 266 111. 443 ; 46 Ind. 96; 32 Ind. 244; 88 la. 579; 166 Mass. 347; 13 Mich. 540; 65 Mfrnn. 176; 37 Mo. 250; 52 Mont. 378; 175 N. Y. 432; 85 Ark. 89; 123 Ark. 255. It is a violation of law to permit the convicts to be worked at places other -than those mentioned in the statute. 'Crawford & Moses’ Digest, ^ 9693. The board has no discretion in the matter. The bringing of such a suit as this is not a suit against the State. 91 Ark. 537. The contention that the right to injunctive relief must be grounded upon financial injury is without merit. Citizens have a right to demand that officers obey the law, and, in case of an infraction, any citizen may invoke the help of the courts. 205 U. S. 230; 180 U. S. 208; 185 IT. S. 125; 239 IT. S-. 121. The Attorney General having failed to act, plaintiffs have the right to maintain the suit. •

      J. S. Utley, Attorney General, John L. Garter and Wm. T. Hammock, Assistants, for appellee.
    Appellants have no legal capacity to sue. Crawford & Moses’ Digest, §§ 1089, 1095. They do not fall within the exceptions to the requirements of these statutes as set out in §§ 1091, 1092 and 1094, C. & M. Digest. See also 25 Ark. 304 and 41 Ark. 526. The chancery court had no jurisdiction, unless plaintiffs show an individual or property right personal to them as being trespassed, and that they have no remedy at law. See 43 Ark. 62; 82 Ark. 236; 93 ASrk. 7. An injunction shall not be granted where plaintiff has a full, adequate and complete remedy at law. 20 Ark. 340; 48 Ark. 510; 92 Ark. 118. Plaintiffs’ action was in a court of law. The action of plaintiffs is an attempt to control the discretion of the board, which may not be done, except it interferes with some individual right. 28 Ark. 455. A chancery court has no jurisdiction to restrain acts simply because they are criminal, "where they do not injure oí invade any property or civil right of the public. 81 Ark. 117; 85 Ark. 230; 98 Ark. 437; 98 Ark. 521; 99 Ark. 636.
   Hart, J.,

(after stating the facts). It may be stated at the outset that a State Penitentiary is necessarily a State institution, and that taxation for the support and maintenance of it may be levied upon the property situated within the State. Thfe Legislature has full power to pass statutes relative to the custody, care and control of persons convicted of crime. Our Legislature has created a Penitentiary Commission and vested it with authority to manage and control convicts sentenced to the State Penitentiary under the provisions and regulations prescribed by the statute. Crawford & Moses ’ Digest, chapter 164, subdivision 13, and General Acts of 1921, p. 50.

The chancery court held that the plaintiffs had no legal capacity to bring the suit, and, on this account, dismissed their complaint for want of equity. This holding was based upon the opinion of the chancellor that the plaintiffs had no such special interest in the matter as would entitle them to bring the suit.

We think the learned chancellor erred in so holding. Section 13 of article 16 of the Constitution of 1874 provides that any citizen of any county may institute a suit in behalf of himself and all others interested to protect the inhabitants thereof against the enforcement of any illegal exactions whatever. Under this section this court has uniformly upheld the jurisdiction of chancery courts, upon the application of citizens and taxpayers, to enjoin the collection of illegal taxes levied on their property.

As we have already seen, the Legislature has created the Penitentiary Commission and intrusted it with the duty of controlling and managing convicts sentenced to the State Penitentiary, and also of operating the State prison under the regulations prescribed by statute. Such a commission is merely an administrative board created by the State for carrying into effect the public policy of the State with regard to the management of its convicts as expressed by its legislation. The control and management of the State convicts and the operation of the State prison necessarily involves the expenditure of large sums of money, which can only be obtained by taxes levied upon the property situated in the State, or by profits derived from working the convicts in some way. The management and operation of the State Penitentiary may be wrongfully administered by the officers intrusted with its management, so as to make such administration an illegal burden and exaction upon the taxpayers of the State. The public policy of the State is to be determined from the acts of the Legislature regulating the management of the penitentiary; and if those intrusted herewith 'Should violate the statutes designed to regulate their conduct- in the premises, it will be readily seen that illegal taxation may be the result of such mismanagement and violation of the .statute. The question is, not so much what has been done, as what can be done in the premises.

Each citizen and taxpayer has an interest, where his pecuniary or property rights are involved, in seeing that no administrative board like the one now under consideration shall discharge its duties in a manner violative of the statute creating it, and specifically defining the duties that it may perform as well as the things which it shall not do. This holding conforms to our previous decisions on the principles of law involved. Russell v. Tate, 52 Ark. 541; Griffin v. Rhoton, 85 Ark. 89, and Farrell v. Oliver, 146 Ark. 599.

In the first mentioned case it was held that the taxpayers of a town may maintain a suit in equity to prevent the misapplication of its funds, and that a chancery court has power in such a case to grant affirmative as well as injunctive relief.

In -the second case cited the court held that a citizen and taxpayer may bring suit to compel a State officer to refund the excess of his salary or fees over the constitutional limit thereto, after the Attorney General has refused to do so.

In the case last cited the court held that a citizen and taxpayer, under the clause of the Constitution above referred to, can maintain a suit in equity to prevent a misapplication of State funds as well as of the funds of counties, cities or towns. In that case the court sustained the suit of a taxpayer seeking to enjoin an appropriation for the maintenance • of the industrial schools, which appropriation was not made in the manner required by the Constitution, and was therefore invalid. In that case the court also approved the doctrine announced by the Supreme Court of Illinois to the effect that taxpayers may resort to a court of equity to prevent the misapplication of public funds, and that this right is based upon the taxpayers’ equitable ownership of such funds, and their liability to replenish the public treasury for the deficiency which would be caused by the misappropriation.

It appears, from reading the contract which is sought to be enjoined in this case, that it provides that the Arkansas State Penitentiary Commission shall furnish all board, including food and its preparation for the convicts supplied under the contract, and all blankets, and cover needed1; and shall deliver the convicts to the place where they are to work, and remove them therefrom, as well as supply, at the commission’s expense, all guards, cooks and help needed for the care and handling and support of said convicts, without responsibility upon the part of said corporation not expressly assumed in the contract.

In order to perform this condition of the contract, it is evident that money would be needed to be taken from the public treasury. It is no answer to say that the money received from hiring the convicts would repay the sum so expended. This might or might not be the case. The taxpayer has a special interest in the matter because, in the first instance, the expense agreed to be borne must necessarily come out of the public treasury.

But it is insisted that, under the authorities cited above, the taxpayers could not bring suit,because the bill contains no allegation that the Attorney General was requested to bring the action and failed or refused to do so. While there is no direct and express allegation in the bill that the Attorney General refused to bring the action, yet the facts disclosed by the record show what is equivalent to such refusal. The present suit was filed on January 25, 1924. The present Penitentiary Commission was created by the Legislature of 1921. The complaint alleges that many convicts are now and have been for many months prior to the filing of the suit hired and leased to individuals, firms, partnerships and corporations for the purpose of clearing land, constructing houses, levees, dams, and public improvements, in violation of the statute.

The complaint further alleges that a great number of convicts are now and have, for many months prior to the filing of the suit, been employed in constructing a dam known as the Remmel Dam, in Hot Spring County, Arkansas.

It appears from the record that the Attorney General is representing the Penitentiary Commissioners in the defense of this action. The facts expressly show that the Attorney General has failed to act, and that the delay has been for such length of time, without any excuse therefor, that a legal presumption arises that he has refused to bring the action. Therefore the plaintiffs are entitled to maintain the suit, under the authorities above cited. This makes it necessary for us to determine whether or not the contract in question is illegal.

Section 9692 of Crawford & Moses’ Digest provides that the convicts in the penitentiary shall not be worked within the corporate limits of the city of Little Rock, except on public improvements and buildings and grounds owned by the State.

Section 9693 provides for their employment on a State farm, and prescribes the manner of regulating their employment there.

Section 9694 provides that the commission shall not hire out or lease, or permit any person to hire out or lease, any of the convicts of this State, to any person or persons whomsoever.

Section 9695 provides for their work on public roads leading into the convict farms, at certain times and under certain circumstances.

The language of § 9694 is-plain and unambiguous. It provides that no convicts shall -be leased, and the contract under consideration leasing them to the corporation to be used in constructing the itemmel dam is in violation of the statute, and void as against public policy.

It is urged that the -convicts have not been leased within the meaning of the statute, because their physical control is under the supervision and direction of guards and wardens appointed by the Penitentiary -Commission. The physical custody of the convicts by the guards and wardens appointed by the Penitentiary Commission does not and cannot prevent the contract from being one of hiring out or leasing the convicts. Such a construction of the statute would, in effect, render it useless and ineffectual for the purpose for which it was enacted.

The public policy of the State, as shown by the legislative will, was to prevent letting of the convicts to persons or corporations to be worked by them for private gain. To allow the contracts to stand would be contrary to the policy of the law, as tending obviously to result in the violation of the purpose and spirit of our statute prescribing the rules and regulations which are to govern the Penitentiary Board in the control and working of the State convicts.

The result of our views' is that the decree must be reversed, and the cause will be remanded with directions to the chancery court to grant the prayer of the complaint and to restrain the .Arkansas State Penitentiary Commission and the members thereof from hiring out and leasing the State convicts.

It is so ordered.


author: Smith, J.

text:
    Cox v. State.
    Opinion delivered April 28, 1924.
    1. Perjury — indictment.—An indictment for perjury need not refer to the statute pursuant to which the oath was administered.
    2. Perjury — indictment.—An indictment for perjury in procuring a marriage license, alleging that it was material that an affidavit be made to secure the license, need not set out the facts making it material.
    3. Perjury — indictment—An indictment for perjury in making an affidavit for a marriage license was not defective in failing to allege specifically that the affidavit was in writing, where it alleged that the affidavit was material to secure the license, being the affidavit required by Crawford & Moses’ Dig., 7062, which contemplates a written declaration under oath, as provided by § 4106, Id.

    4 Perjury — indictment.—An indictment for perjury in making a false affidavit to procure a marriage license is sufficient, though it does not specifically allege that the affidavit was required or authorized by law.
    5. Perjury — indictment.—An indictment for perjury in making a false affidavit to procure a marriage license is not fatally defective in alleging that defendant “did feloniously, falsely and' corruptly testify and swear,” etc., and that “said statement and affidavit” was wilfully and corruptly false.
    6. Perjury — instruction..—Where the State’s contention was that defendant committed perjury in making a false affidavit as to the girl’s age in applying for a marriage license, a requested instruction requiring the jury to find that “the statements” made in the affidavit were false was properly refused, as it was not requisite that all the statements in the affidavit be false, but only the statement as to the girl’s age.
    7. Perjury — knowledge op falsity. — For defendant to be guilty of perjury in making an affidavit for marriage license, it was not necessary that the affidavit should have been read to or by him if h'e knew that it contained the false recital as to the girl’s age.
    8. Criminal law — instruction.—On a prosecution for perjury in making an affidavit for marriage license by falsely stating the age of the girl, an instruction given by the court held to cover defendant’s requested instruction as to his knowledge of such falsity.
    9. Perjury — method of swearing. — Where defendant signed an affidavit for the purpose of swearing to it, knowing that the clerk regarded his act of signing as a method of making affirma-tion, a finding that he was sworn is warranted.

      10. Criminal law — evidence—harmless error. — Where defendant was asked on cross-examination whether he had ever been convicted of a crime, and answered that he had never been in court before, the inquiry, being concluded, was not prejudicial.
    11. Witnesses — impeachment.—For the purpose of testing his credibility, defendant may he asked on cross-examination whether he had ever been convicted of crime.
    12. Criminal law — reduction of punishment. — As it is the jury’s province to weigh the testimony, a punishment within the limit fixed by the Legislature will not be reduced as being excessive, even though the punishment seems excessive.
    Appeal from Faulkner Circuit Court; George W. Clarh, Judge;
    affirmed.

      George F. Hartje, for appellant.

      J. 8. Utley, Attorney General, and John L. Carter, Assistant, for appellee.
   Smith, J.

Appellant was tried and convicted under the following indictment: “The grand jury of Faulkner County, in the name and by the authority of the State of Arkansas, accuse Jesse Cox of the crime of perjury, committed as follows, to-wit: The said Jesse Cox, in the county and State aforesaid, on the 31st day of October, 1923, personally .appeared before J. A. Hutto, county clerk of Faulkner County, Arkansas, who was then and there duly authorized by law to administer an oath and to issue marriage licenses, and he, the said Jesse Cox, did then and there make application to said J. A. Hutto, county clerk as aforesaid, for a marriage license for himself and one Oral Curtis, a female person under the age of eighteen years, and, in order to obtain said marriage license from the said J. A. Hutto, county clerk as aforesaid, he, the said Jesse Cox, did feloniously, falsely and corruptly testify and swear, under the sanction of his oath, before him, the said J. A. Hutto, county clerk as aforesaid, that the said Oral Curtis was then and there eighteen years of age, when in truth and in fact the said Oral Curtis was not then and there eighteen years of age, but was then and there, in truth and fact, under the age of fifteen years, which fact was then and there well known to him, the said Jesse Cox, and that the said false, felonious and corrupt statement was material in order for him, the said Jesse Cox, to obtain said marriage license as aforesaid, and, relying’ upon said false, felonious and corrupt statement to be true, the said J. A. Hutto, county clerk as aforesaid, did issue to him, the said Jesse Cox, a marriage license for him, the said Jesse Cox, and the said Oral Curtis, and which said statement and affidavit made by the said Jesse Cox, as-aforesaid, was feloniously, wilfully and corruptly false, and the said Jesse Cox knew the same to be false at the time so made, against the peace and dignity of the State of Arkansas.”

The testimony on the part of the State was to the following effect: Appellant, who was only twenty years old, but who had previously been married, applied, on October 31,1923, to the county clerk of Faulkner County for a license to marry Oral Curtis, a girl under the age of fifteen years. The clerk asked appellant the age of the girl, and appellant replied that she was eighteen years old. The clerk then asked appellant if he was “putting one over on him,” as was sometimes done, and appellant answered that he was not. The clerk then stated that, if appellant would make affidavit to that effect, it would put him (the clerk) “in the clear,” and he then tendered to appellant for his signature an affidavit which recited the girl’s age to be eighteen. Appellant signed the affidavit, and the license was issued, although appellant was not otherwise sworn.

Appellant testified that he merely told the clerk that the girl said she was eighteen years old, and that he was not required to make an affidavit, and did not know that he had signed one. He admitted that he signed his name to two papers, but did not know that either was am affidavit.

Other testimony made it very clear that the girl was only fourteen years old when the license was issued.

For the reversal of the judgment, it is insisted that the indictment was defective in the following respects: (a) it failed to allege that the clerk was in doubt as to the correct age of one of the contracting parties; (b) it did not allege that the affidavit was in writing; (c) it was not alleged that the affidavit was one required or authorized by law. It is also insisted that the court erred in refusing to give instructions requested by appellant; that error was committed in permitting certain questions to be asked appellant on his cross-examination; and that the punishment assessed was excessive.

By § 7062, C. & M. Digest, it is provided that, if the clerk is in doubt as to the true age of the party applying for a marriage license, he may require an affidavit to be made on that subject, the same to be filed in his office for public inspection. This statute therefore furnished the authorization for the affidavit alleged to have been made.

By § 2590, C. & M. Digest, it is provided that, in indictments for perjury, it shall be sufficient to set forth the substance of the offense charged, and by what court or before whom the oath or affirmation was taken, averring that such court or officer had authority to administer the same, together with proper averments to falsify the matter wherein the perjury is assigned, without setting forth any part of the record, proceeding or process, either in law or in equity, or any commission or authority of the court or person before whom the perjury was committed, or the form of the oath or affirmation, or the manner of administering the same.

Section 2588, C. & M. Digest, defines perjury as “the wilful and corrupt swearing, testifying or affirming falsely to any material matter in any cause, matter or proceeding before any court, tribunal, body corporate or other officer having by law authority to administer oaths.”

It was not required therefore that reference be made to the statute pursuant to which the oath was administered. The indictment does allege that it was material for appellant to make this affidavit to obtain the license, and, having alleged that it was material that the affidavit be made to secure the license, it was not required that the facts which made it material be set out. State v. Roberts, 148 Ark. 328.

We do not think the failure to allege that the affidavit was in writing is a fatal defect. The indictment alleges that the affidavit made was material to secure the license, this necessarily being the affidavit required by § 7062, C. & M. Digest, copied above. Besides, an affidavit is defined to be “a written declaration under oath, made without notice to the adverse party.” Section 4196, C. & M. Digest.

The final objection to the indictment is that it does not allege that the affidavit was one which was required or authorized by law. The indictment does allege, however, that the clerk was authorized to administer the oath to secure the marriage license, and that, in order to obtain such license from the clerk, appellant did corruptly testify and swear, under the sanction of his oath, that Oral Curtis was eighteen years of age, and that it was material for appellant to so swear to obtain the license. We think these allegations, which were properly traversed, sufficient to charge perjury and to apprise' appellant of the charge he was called upon to answer.

It is true that the indictment charged that appellant did “corruptly testify and swear, under the sanction of his oath,” without expressly alleging that he “made affidavit” to the facts charged to have been falsely sworn, but, in traversing these facts alleged to have been falsely sworn, the indictment does allege that said statement and “affidavit” wás false.

An indictment drawn in this manner was criticised in the case of Thomas v. State, 54 Ark. 584, and the sufficiency of the indictment was questioned, although the point was reserved, and the judgment of conviction was reversed on other grounds.

It would unquestionably have been better pleading to have conformed the indictment to the views expressed in the case of Thomas v. State, supra, but we do not think the defect is one which requires the reversal of the judgment. The indictment leaves no doubt that appellant was charged with having sworn falsely to obtain the marriage license and that the statement and affidavit made by him for that purpose was false, that the oath was made before an officer whose duty it was to administer the oath and to issue the license, that he made the oath in order to obtain the license, and that the statement that the girl was eighteen years old was material to obtain the license. So that, while it would have been better pleading to have observed the suggestion madé in Thomas v. State, supra, that the averment of the matter alleged to have been falsely sworn and the traverse thereof should strictly conform, we are nevertheless of the opinion that the allegations of the indictment met the requirements of § 2590, C. & M. Digest, quoted above.

Appellant asked, and the court refused to give, an instruction No. 2, which would have told the jury, if given, that appellant could not be found guilty unless the clerk not only had appellant sign the affidavit but that the clerk must have read the affidavit to appellant, or appellant must have read it himself, and must have known what he was signing, and that the statements made in the affidavit were false, and 'known to be false by appellant at the time.

No error was committed in refusing to give this instruction. It was not requisite that all of the statements in the affidavit were false, but it sufficed if the statement as to Oral Curtis ’ age was false. Nor need it have been read by him or to him, if he knew that it contained the recital about which 'the clerk was inquiring, that is, that Oral Curtis was eighteen years old.

Moreover, the court gave an instruction which told the jury that “it is essential that the defendant signed this affidavit knowing the contents thereof. That is, that he signed the affidavit knowing that the affidavit represented that this girl was eighteen years old, based upon the information he furnished the clerk who prepared the affidavit, by this defendant himself and not somebody else. If he signed the affidavit knowing that the affidavit contained the age of the girl at eighteen, and she was not eighteen, and he knew that she was not eighteen, and knew that he was signing an affidavit representing her age at eighteen, then that would constitute perjury under the law. * *” We think this instruction covered appellant’s instruction No. 2 in so far as that instruction correctly declared the law.

.Appellant asked that the court, read § 4175 and 4176, C. & M. Digest, to the jury, as instructions in the case. These sections deal with the manner of administering oaths, but they do not prescribe the only method of administering oaths. By § 4181, C. & M. Digest, it is provided that, “in all cases in which an oath is required or authorized by law, the same may be taken in any of the forms in this act prescribed in the several cases hereinbefore specified, and every person swearing, affirming or declaring in any such form, or any form authorized by law, shall he deemed to have been lawfully sworn, and to be guilty of perjury for corruptly and falsely swearing, affirming or declaring in the same manner as if he had sworn by laying his hand on. the Gospels and kissing them. ’ ’

So here we think if appellant signed the affidavit for the purpose of swearing to it, knowing that the clerk regarded his act of signing the affidavit as a method of making affirmation, the jury was warranted in finding that appellant was sworn. Fortenheim v. Claflin, Allen & Co., 47 Ark. 53.

At § 8 of the chapter on Affidavits, in 1 R. C. L., p. 765, it is said: “To make a valid oath or affirmation there must be some overt act which shows that there was an intention to take an oath or affirmation on the one hand and an intention to administer it on the other; for, even though such intention actually did exist, if it was not manifested by an unambiguous act, perjury could not be based thereon. If the attention of the person making the affidavit is called to the fact that it must be sworn to, and, in recognition of this, he is asked to do some corporal act, and he does it, the instrument constitutes a statement under oath, irrespective of any other formalities.” See also § 48 of the chapter on Affidavits in 2 C. J. 337, the notes to the texts cited. . ,

Appellant was asked, on his cross-examination, if he had been previously tried and convicted of a crime, and he answered that he had never been in court before. This answer concluded the inquiry, and no prejudice could have resulted from the question and answer. However, the question was proper, even though a different answer had been given, as it is permissible to thus cross-examine a witness, even, though he is the defendant, for the purpose of testing his credibility as a witness.

Tt is finally insisted that the verdict is excessive. The punishment was fixed at six years, but, as the statute fixes the punishment for perjury at imprisonment in the penitentiary at a period of from one to fifteen years, we cannot say that the punishment was excessive, as it is the peculiar province of the jury to weigh the testimony, and we are not at liberty to reduce the punishment, even though we might think it too severe. Hall v. State, 113 Ark. 454.

No prejudicial error appears, so the judgment must be affirmed.


text:
    A. M. Collins Manufacturing Company v. Lawrence County Bank.
    Opinion delivered April 28, 1924.
    1. Appeal and error — motion for directed verdict. — A motion for directed verdict by each side operates to 'withdraw the submission of the case from the jury and submit its decision to the court, in which case the sole question on appeal is whether the testimony is legally sufficient to support the judgment of the' court.
    2. Contracts — breach—evidence.—In an action for breach of a contract, evidence that plaintiff first broke the contract held to sustain a judgment for defendant.
    Appeal from Lawrence Circuit Court, Eastern District; Dene II. Coleman, Judge;
    affirmed.

      W. P. Smith and Lester L. Gibson, for appellant.
    A principal cannot enter into a contract through its agent, and then, in order to breach the same, set up the defense of ultra vires. 77 Ark. 172; 82 Ark. 86; 68 Ark. 299; 138 Ark. 111. A foreign corporation is not doing business within the meaning of the-statute by entering into a contract with a resident of the State where the contract is made to be performed elsewhere. 55 Ark. 625; 61 Ark. 1; 196 Ark. 465. The court erred in instructing a verdict for the defendant. 232 S. W. 582; 148 Ark. 655.

      Ponder & Gibson, for appellee.
    The parties, by requesting’ a peremptory instruction, assume the facts to be undisputed, and submit to the judge the determination -of the inferences to be drawn therefrom. 134 Ark. 560; 136 Ark. 329; 139 Ark. 517; 138 Ark. 172; 131 Ark. 133; 134 Ark. 345 ; 150 Ark. 138; 155 Ark. 506. The tender by the appellee of $94.50 in full'payment and the acceptance thereof by the appellee amounted to an accord and satisfaction of appellant’s claim. 1 Ruling Case Law, 196, § 32; 94 Ark. 158; 98 Ark. 269; 100 Ark. 251; 122 Ark. 212; 148 Ark. 512.
   Smith, J.

This is an action by the A. M. Collins Manufacturing Company, hereinafter referred to as the company, owner and operator of the Collins Service, against the Lawrence County Bank, for certain services based on contract. The company is a Pennsylvania corporation, and operates a general advertising business. In July, 1921, the company and the bank entered into a written contract whereby the company agreed, for a period of eighteen months, beginning October 15, 1920, to furnish the bank certain service and material, and the bank agreed, in consideration therefor, to pay $29 cash monthly for the period of eighteen months. The company alleged that the bank made payments as agreed for the months of October, November and December, but thereafter defaulted in the payments and repudiated the contract, whereupon the company sued for the.unpaid balance. The bank admitted the failure to make payments maturing after December, and sought to excuse this failure by showing that the company had breached the contract by failing to furnish the service and material as required'by the contract.

At the conclusion of all the testimony each side asked that a verdict be directed in its favor, and neither asked any other instructions, and the court found for the defendant, and directed the jury to return a verdict in favor of the bank, and the company has appealed.

The effect of the facts stated, under numerous decisions of this court, was to withdraw the submission of the case from the jury and submit its decision to the court, and, this having been done, the appeal is to be considered by us as if the case had originally been submitted to the court without a jury, and we are required to determine the question only whether the testimony is legally sufficient to support the judgment of the court.

Under the terms of the contract the company agreed to ship to the hank certain supplies each month, and the contract provided that the shipment should, be at the risk of the bank. The bank failed to receive the shipments shown to have been made in December and January, but it is insisted that the testimony clearly shows that the shipments were made, and that the bank was not absolved from its liability under the contract because of the miscarriage of the shipments.

The company agreed, however, to supply certain service through the mails in addition to the shipment of the material by freight.

The contract is quite lengthy, and specifically sets out what the service was to be, it being designated in schedules A, B, C, D, E, F, G and H. Some of the matter to make this service effective came by freight, and a portion of it was to come through the mails.

Schedule A was a business building bulletin, monthly; schedule B, the Collins Forecast, monthly. This forecast covered reports on credit, building operations, railroad earnings, bank clearings, coal output, and other information of that kind. Schedule C, emergency and local service, on request. Schedule D, newspaper advertisements, four each month. Schedule E, business extension counsel, on request. Schedule F, government announcement window posters. Schedule G, government newspaper display advertisements — an announcement and eighteen pieces of illustrated copy, each with composition ready for printing. Schedule H was letters to be mailed to present and prospective depositors.

The cashier of the bank testified that the bank never received any of the material under schedule A, but did receive through the mail, for two or three months, service mentioned in schedule B, after which that service was not furnished. That the bank never received any material and service under schedule C, D, and E. That, under schedule F, the bank was to receive ten posters for windows, but received only two. Schedule H required the company to furnish fifty portfolios, for which the bank was to pay fifteen cents each in addition to the monthly charge of $29, and the company was to furnish a series of constructive educational messages, appearing over the signature of an officer of the bank, it being contemplated that these articles were to be placed in the portfolios furnished the customers. At the end of eighteen months the customers who had received the articles and had filed them would have what was styled a valuable booklet. Every article was related to the one next to follow, and the value of the collection depended upon the possession of all the articles in the series. This service was furnished1 for three months, and then discontinued.

The contract sued on is an entire one, and it was the duty of the company to furnish all the material and service called for, not only that which was to come by freight but that by mail as well, and the breach of this duty absolved the bank from liability under the contract.

On February 17,1921, the cashier of the bank sent the company a check for $94.50, which paid for all supplies and service rendered up to January 1, 1921, and advised that, as no supplies or service had been furnished for January or February, the bank regarded the contract as canceled. If the testimony of the cashier is credited— and that, of course, was a question for the jury — the company’s breach absolved the bank from liability thereunder. This is true, although it be held that the bank was not absolved from liability because of the miscarriage of the freight shipments, as this was not the only service called for. The service which should have come through the mails was not furnished, and the judgment in the bank’s favor is therefore affirmed.