text:
    Mosaic Templars of America v. Miller.
    Opinion delivered February 20, 1928.
    Insurance — benefit certificate — right of assignee. — Crawford & Moses’ Dig., § 6074, naming the classes of beneficiaries under a fraternal benefit certificate, has no application to benefit certificates issued before the statute was passed, so that one to whom a benefit certificate was assigned in 1926 under a certificate issued prior to the passage of such act was entitled to recover.
    Appeal from Conway Chancery Court; W. E. Atkinson, Chancellor;
    affirmed.

      Scipio A. Jones, Thomas J. Price, for appellant.

      A. J. Gilmer, for appellee.
   Smith, J.

This case is similar to and is controlled by the opinion in .the case of Mosaic Templars of America v. Beam, 147 Ark. 24, 226 S. W. 525.

In 1915 Lizzie Moore was initiated into and became a member of a subordinate lodge of the Mosaic Templars of America, a fraternal benefit life association, and a benefit certificate was issued to her in the sum of $300, payable at her death, if the certificate was then in force, to' the beneficiaries there named. The certificate was kept in force by the payment of the monthly assessments against it until 1925, at which time, the health of the member failed, and she entered into a contract with Rena Miller, whereby she assigned a two-thirds interest in the certificate to the said Rena Miller upon condition that the said assignee would take care of her during the remainder of her life and pay the assessments upon the benefit certificate. The insurance society was advised, of this assignment, and thereafter received from Rena Miller the monthly assessments until the date of the death o.f the insured, which occurred March 16, 1926.

When proof of the death of the insured was furnished, it appeared that Rena Miller was not related to the insured in any degree which permitted her to become a beneficiary under the provisions of § 6074, C. & M. Digest, which reads as follows:

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

The section quoted was enacted as § 6 of the act of March’28,1917, (act 462, volume 2, Acts 1917, page 2087), entitled “An act pertaining to the regulation and incorporation of fraternal beneficiáis associations, societies or orders, and other matters pertaining thereto * * The section quoted was amended by act 13 of the Acts of 1927 (Acts 1927, page 37), but the eligibility of Rena Miller as a beneficiary was not affected by the amendatory act.

The ineligibility of Rena Miller being made to appear, the insurer paid the amount of the certificate to the beneficiaries named in the certificate, after declining to pay 'any portion thereof to the said Rena Miller, who thereupon brought this suit, and in the trial below, which occurred in the chancery court, she recovered a decree for the portion of the certificate which had been assigned to her.

It is insisted, for the reversal of the decree of the court below, that the fraternal association could not consent to an assignment of the certificate to a person ineligible to become a beneficiary under the statute quoted, and that the assignment thereof was-therefore nugatory.

Legislation very similar and in many respects identical with the act of 1917 has been enacted in a number of the States, and the legislation has been uniformly upheld.

At § 214 of Bacon on Life & Accident Insurance (4th ed.), vol. 1, page.371, it is said:

“'Benefit societies differ from other mutual insurance organizations in that their charters generally impose restrictions upon the issue of certificates by limiting the persons who may be beneficiaries of the members to those who are heirs, relatives or dependents of such members. Wherever these restrictions are imposed by statute, or contained in the charter of the society, it has no power to pass beyond them by issuing 'a certificate in which any one other than of the specified classes is beneficiary. The Court of Appeals of Kentucky early established this doctrine when it said: ‘ The charter prescribes who may become members of the company and their obligations, and who shall be the beneficiaries of the membership 'after the death of the member, and it is not in the power of the company or of the member, or of both, to alter the rights of those who by the charter are declared to be the beneficiaries, except in the mode and to the extent therein indicated’.”

It would appear therefore that the association properly refused to pay the portion of the certificate assigned to appellee, Rena Miller, but for the fact that the certificate here sued on was originally issued, before the passage of the act of 1917, appearing as § 6074, C. & M. Digest, supra. The case of Mosaic Templars of America v. Bean, supra, and that of Mosaic Templars of America v. Crook, 170 Ark. 474, 280 S. W. 3, held that the statute was not retroactive, and did not apply to certificates issued before its passage. In the Bean case, supra, it was said:

< ‘ The record shows that the plaintiffs are not in any of the classes permitted by the statute to be made beneciaries. Therefore counsel for the defendant contend that the plaintiffs cannot recover on the benefit certificate sued on because the statute in question became a part of the contract of insurance, 'and there is no power to make a beneficiary one who is not within any of the classes designated by the statute. Counsel rely upon the rule laid down by the Supreme Court of Minnesota in Logan v. Modern Woodmen of America, 137 Minn. 221, 163 N. W. 292, and cases cited in the opinion. We need not decide upon the correctness of the rule announced in those cases, for we are of the opinion that the statute relied upon has no application under the facts of the present case. The benefit certificate sued on was issued prior to the passage of the act. So far as the record discloses, at the time the benefit certificate was issued the member had the right to change the beneficiary to the plaintiffs, and this right or privilege was recognized by the grand scribe of the order, in 1919, at the time the change of beneficiaries was made.”

What was there said is equally applicable here, and, as a recovery by an assignee was sustained there, a similar recovery must be sustained here, and it is so ordered. The decree is therefore affirmed.


source: Caselaw Access Project

author: Hart, C. J.,

license: Public Domain

text:
    Massachusetts Bonding & Insurance Company v. Chapman.
    Opinion delivered February 27, 1928.
    1. Insurance — knowledge of soliciting agent. — Where an applicant for accident insurance stated to the insurer’s soliciting agent that he was working part time as freight brakeman and part time as passenger brakeman, notice to such agent became notice to the insurer, though his occupation was classified in the application as a passenger brakeman.
    2. Insurance — recovery of payment on policy — effect of mistake. — Where an applicant for accident insurance stated to the insurer’s soliciting agent that he was working both as passenger and as freight brakeman, and where, under policy classifying him as a passenger brakeman, the insurance company paid the loss on the basis of proof showing that the insured was injured while working on a freight train, there being no fraud or misconduct on insured’s part, the company was not entitled to recover payment on the ground of mutual mistake, or mistake on its part due to ignorance, by reason of the fact that the insured was at the time of the accident engaged as freight brakeman.
    Appeal from Pulaski Circuit Court, Third Division; Richard M. Mann, Judge;
    affirmed.
    STATEMENT OE FACTS.
    Massachusetts Bonding* & Insurance Company instituted this action in the circuit court against C. Gr. Chapman to recover the sum of $690, alleged to have been paid the defendant by mistake upon an accident insurance policy. The defendant denied all the material allegations of the complaint.
    According to the evidence adduced by the plaintiff, it issued an accident policy to C. Gr. Chapman in the sum of $1,000, on the 18th day of October, 1926. Chapman made a written application for the insurance, in which he stated his occupation to be that of passenger brakeman. On the 3d day of November, 1926, Chapman started to go out on a freight run, and was injured by falling under the freight train before he got on it and had reported to the conductor. He was injured so badly that his left leg had to be amputated just above the ankle. His sister made proof of loss for him, under the direction of E. L. Bloom, a soliciting agent of the plaintiff, who had also taken the application for the insurance. In the proof of loss, it was stated that Chapman was injured while working as a brakeman on a -freight train. On the 6th day of December, 1926, the plaintiff paid Chapman $989 in full settlement of all his present and future claims under the policy.
    According to the testimony of R. H. Brusoe, superintendent of the claim department of the plaintiff company, this payment was made by mistake. E. L. Bloom was only a soliciting agent, and had no authority to change any qualification, classification, or an occupation, limit of risk, or rate of premium. He was not authorized to make a settlement with Chapman. He made the payment thinking that Chapman had been properly classified as a passenger brakeman, and did not know that his occupation had been changed to that of freight brakeman at the time he was injured.
    C. Gr. Chapman was a witness for himself. According to his testimony, he explained to the agent of the plaintiff company that he wias working as freight brakeman, passenger brakeman and train baggageman. E. L. Bloom, the soliciting agent, told him that he was entitled to be classified as a passenger brakeman, and, for that reason, his occupation was so written in the application. Bloom told him that, if he ever quit passenger work, he would have to change it to freight brakeman. Bloom also told him that, if he got hurt while on a freight train, he would get the full value of the policy just the same.
    The policy contains a provision as follows:
    "This policy includes the indorsements and attached papers, if any, and contains the entire contract of insurance, except as it may be modified 'by the company’s classification of risk and premium rates in the event that the insured is injured or contracts sickness after having changed his occupation to one classified by the company as more hazardous than that stated in the policy, or while he is doing any act or thing pertaining to any occupation so classified, except ordinary duties about his residence, or while engaged in recreation, in which event the company will pay only such portion of the indemnities provided in the policy as the premium would have purchased at the rate but within the limits so fixed by the company for such more hazardous occupation.”
    Chapman was paid the amount under the policy which he should have received if he had lost his leg while working as a passenger brakeman.
    The jury returned a verdict for the defendant, and from the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      Sam Robinson, for appellant.

      Raymond Jones, for appellee.
   Hart, C. J.,

(after stating the facts). According to the. evidence for the defendant, the soliciting agent of the insurance company had full knowledge of the fact that he was working part of the time as a freight brakeman and part of the time as a passenger brakeman at the time the policy was applied for by him and issued by the company. It was his duty to explain fully his occupation, and the notice to the soliciting agent, became the knowledge of the company. American National Ins. Co. v. Hale, 172 Ark. 958, 291 S. W. 82, and cases cited; Bankers’ Reserve Life Co. v. Crowley, 171 Ark. 135, 284 S. W. 4; and Old Colony Life Ins. Co. v. Julian, 175 Ark. 359, 299 S. W. 366.

Chapman testified that he told the soliciting agent of the plaintiff that he was working both as a passenger and as a freight brakeman at the time he applied for the insurance. He is corroborated in this testimony by another witness who was present, land no denial thereof is made by the soliciting agent. Chapman then had a right to assume that, when the company issued the policy and delivered it to him, he was properly classified as a passenger brakeman under its terms. It is true he was injured while starting out on a freight run, but this was only a temporary change, and he was still in the service of the railroad company as a passenger brakeman just as he was when the policy was issued. He stated in his proof of loss that he was injured while working on a freight train. This put the company upon notice of that fact, and, notwithstanding this, it paid him under his classification as a passenger hrakeman. Under these circumstances it can-' not be said that the payment was made under a mutual mistake. Chapman thought that he was entitled to be paid as for an injury to a passenger brakeman, and that he had been properly classified as such when the policy was issued. Neither can it be said that the payment was made under mistake on the part of the company, coupled with fraudulent conduct on the part of Chapman. It is not claimed that he was guilty of any fraudulent conduct. At least there is no proof whatever tending to show such to be the fact. So far as the record discloses, Chapman acted in the utmost good faith throughout the whole transaction.

'The contention of the plaintiff is that the payment was made because of a mistake on its part due to its ignorance of the facts, entitling it to avoid the policy. In discussing a question of this sort in National Life Insurance Co. v. Minch, 53 N. Y. 144, the court said:

“A policy of insurance is an. executory contract. The time for insisting upon the breach of any warranty contained in the original application was when the claim was made for the execution of the contract. Mere ignorance of a fact which might have enabled the company to defend an action upon the policy on 'account of such breach is not such a mistake of fact as will enable it to recover back the money. It will be presumed that the company either knew the fact or intended to waive any such defense, and voluntarily paid the money. Otherwise there would be no end to controversy and litigation, and the party receiving the money would hold it subject to a lawsuit until the statute of limitations intervened. ’ ’

This rule has been applied according to varying facts in other cases. Smith v. Glen’s Falls Ins. Co., 62 N. Y. 85; Stache v. St. Paul Fire & Marine Ins. Co., 49 Wis. 89, 5 N. W. 36, 35 Am. Rep. 772; and Kansas City Life Ins. Co. v. Blackstones (Court of Civil Appeals of Texas), 143 S. W. 702.

The plaintiff was. not induced to issue the policy because of any fraud practiced upon it, and it does not claim it was induced to make the payment to the defendant because of any misconduct on his part. It had notice of facts which, if pursued with ordinary diligence, would have led to a full discovery of everything connected with the issuance of the policy. Hence it cannot urge that it made the payment by mistake on account of lack of knowledge.

It follows that the judgment of the circuit court was 'correct, and it will therefore be affirmed.


text:
    Root Refiners, Inc., v. Robertson.
    Opinion delivered February 27, 1928.
    1. Waters and watercourses — pollution op running stream. — A finding- of the jury that an oil refining company was liable for polluting- the water irf a running stream by a flow of oil from . its.refineries was warranted, where the evidence showed that the oil escaped from the refineries into a stream used by plaintiff for watering cattle, and that defendant had- previously run its oil in another direction and might easily have diverted the oil from the stream.
    2. Waters and watercourses — pollution of stream. — Pollution of water in a running stream by oil from a refinery was a temporary and not a continuing nuisance, and entitled a tenant to recover the depreciation in rental value caused by such pollution.
    3. Waters and watercourses — damages.—A verdict for $550 for polluting, with oil from a refinery, a runjiing stream used by a tenant as a watering place for his cattle, held sufficiently supported by competent evidence.
    Appeal from Union Circuit Court, Second Division; W. A. Speer, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    B. H. Bobertson sought to recover damages from Boot Befineries, Inc., on account of the alleged pollution •of a running stream of water on'his dairy fiarm by the defendant discharging large quantities of oil from its refineries in the stream.

      According to the evidence of J. M. Sheppard, R. H, Robertson was a nephew of his wife, and he gave Robertson the use indefinitely of 40 acres of land, on which there was a branch running 'all the year ’round. Robertson used the branch to water his dairy cattle. The defendant allowed oil to escape from its refineries and to flow into the stream. This rendered the water unfit for cattle to drink. It was fit for them to drink before it was polluted.
    According to the testimony of R. H. Robertson, he had from 50 to 75 head of cattle in his dairy, and owned the forty acres of land upon which his dairy was located. There was no branch or running stream from which to water his cattle on his land. Dr. Sheppard jjave him permission to use the running stream of water on 40 acres of land belonging to him, for the purpose of watering his cattle, and he had used it for that purpose. There was an ample supply of the water, and it was sufficient for the purpose of watering his cattle before it was polluted by the defendant allowing its oil to flow into the running- branch. After this was done, the water became polluted and was not fit to be used for watering the cattle. The defendant began polluting the stream about April 1, 1925, and continued to do so up to the time suit was commenced on the 15th day of June, 1926, and up to the time of the trial on the 25th day of May, 1927. The rental value of the 40 acres on which the running stream was located was worth about $50 per month. For watering purposes alone it was worth $35 per month.
    According to the evidence of the defendant the stream in question did not contain running water and never had been fit to use for watering cattle. The soil wias boggy, and the water was slimy. Very little oil escaped from the refineries of the defendant onto the land in question.
    The jury returned a verdict for the plaintiff in the sum of $550, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      Marsh, McKay & Marlin, for appellant.

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

(after stating the facts). According to the evidence adduced 'by the plaintiff, oil was allowed to escape from the refineries of the defendant and to flow into a running stream on 40 acres of land used by the plaintiff for watering the cattle on his dairy farm. The evidence for the plaintiff also shows that formerly the oil from the defendant’s refineries had flowed in another direction, and that it might easily be diverted from flowing- into the stream used by the plaintiff for watering- his dairy cattle. Under these circumstances the jury was warranted in finding that the defendant was liable for the pollution of the water in the running stream. Standard Oil Co. of Louisiana v. Goodwin, 174 Ark. 603, 299 S. W. 2.

It is nest insisted that the evidence showed that .the pollution of the stream was a permanent injury to the property rather than a continuing nuisance, and that the court erred in instructing the jury that the measure of damages would be the depreciation in the rental value caused by the pollution of the stream by the defendant allowing the oil from its refineries to flow into it. We do not think the court erred in instructing the jury on the measure of damages. According to the evidence for the plaintiff, the defendant had previously allowed the oil from its refineries to flow in another direction, and could easily have changed the flow of the oil from its refineries so as not to allow it to escape and flow into the running stream on the 40 acres of land used by the plaintiff in watering- his dairy cattle. The plaintiff did not own the land, but had a lease on it during the will of the owner. He used the stream in watering his dairy cattle, and it was suitable for that purpose before it was polluted by the defendant allowing- the oil from its refineries to flow into it. Under these circumstances there was only a temporary nuisance to the land, and the measure of damages in such cases is the diminished rental or usable value of the land. St. Louis S. W. Ry. Co. v. Mackey, 96 Ark. 297, 129 S. W. 78, and Standard Oil Company of Louisiana v. Goodwin, supra.

It is. next insisted that there is no legal evidence to establish the rental value of the land. According to the testimony of the plaintiff, he had between 50 and 75 head of cattle in his dairy. The running stream was amply sufficient to' water these cattle before it was polluted by the defendant. The plaintiff had no other place to water them. The land belonged to the husband of his aunt, and he was given permission to use it as long as he wished to. He testified that the rental value of the land for the purpose of watering the cattle alone was $35 per month. The defendant polluted the stream by allowing the oil from its refineries to flow into it on • April 1, 1925, and continued to do so until the time of the trial in May, 1927. In stating the rental value of the land on which the running stream was located, the plaintiff was not speculating upon the value existing under conditions which he had never observed, but was basing his opinion upon a state of facts known to him. Hence it cannot be said that the evidence is not legally sufficient to support the verdict, or that there is no competent testimony of the usable value of the land for the purpose of watering the cattle.

The judgment therefore will be affirmed.


author: Smith, J.

text:
    Fulbright v. Phipps.
    Opinion delivered February 27, 1928.
    1. Appeal and error — conclusiveness op verdict. — The Supreme Court will not reverse a judgment for $5,000 based on substantial testimony, though the testimony would have justified a verdict of $10,000.
    2. New trial — verdict contrary to evidence. — The trial court should grant a motion for a new trial, if convinced that a verdict is contrary to the preponderance of the evidence.
    3. Judgment — authority to render judgment notwithstanding verdict. — Where the jury returned a verdict for $5,000, and a preponderance of the evidence would have justified a verdict for $10,000, the court was without authority' to enter judgment for $10,000.
    Appeal from Washington Circuit Court; J. 8. Maples, Judge;
    reversed.

      J. W. Nance and J. W. Grabiel, for appellant.

      H. L. Pearson and J. Wythe Walher, for appellee.
   Smith, J.

Appellee brought suit against the administratrix of the estate of Jay Fulbright, deceased, upon a demand for alleged unpaid salary amounting to $10,000, and offered testimony tending to show that the demand was just, and that he was entitled to receive the amount sued for.

Testimony was offered by the defendant administratrix to the effect that nothing was due appellee, and that the demand upon which he sued had been compromised and settled. Had the verdict been for the defendant we would be required to hold that the testimony was ample to sustain the finding.

After the jury had had the case under consideration for some time, a report was made to the court that the jury was unable to agree. The court required the jury to further consider the case, and a verdict was finally returned for the plaintiff for the sum of $5,000, one-half the amount sued for, thus indicating that a compromise verdict had been reached, as the verdict should consistently have been for $10,000 or for nothing.

'Both parties filed motions for a new trial, and both motions were overruled. Appellee filed a supplementary motion praying the court to render judgment for $10,000 notwithstanding the verdict, and that motion was sustained, and judgment was rendered for that .amount, and this appeal has been duly prosecuted from that judgment.

We do not review the testimony, for, as has been said, it was sharply conflicting, and is legally sufficient to support la verdict for $10,000 in favor of the plaintiff or one in favor of the defendant. There appears to be no assignment of error requiring discussion except the action of the court in rendering judgment for $10,000 notwithstanding the jury had returned a verdict in favor of the plaintiff for only $5,000.

The case of Jackson v. Carter, 169 Ark. 1154, 278 S. W. 32, was a suit' upon three notes which had been executed in payment of the purchase price of ¡an automobile. The defendant denied liability upon the notes on the ground that the automobile had been stolen, and there was a verdict and judgment in his favor. Upon the appeal to this court it was held that the defendant had failed to prove that the automobile had been stolen, and that the proof was insufficient to show that the consideration for the notes had failed. It was therefore held that, as the undisputed testimony showed that plaintiff was entitled to a judgment for the amount of the notes, judgment should be rendered here for the plaintiff, notwithstanding a verdict had been returned in favor of the defendant, and this was'done. It was there said, however: .

“But § 6271 of Crawford & Moses’ Digest provides: ‘When a trial by a jury has been had, judgment must be entered by the clerk in conformity with the verdict, unless it is special, or the court orders the case to be reserved for future argument or consideration.’ And § 6273 provides: ‘Where, upon the statements in the pleadings, one party is entitled by law to judgment in his favor, judgment shall be so entered by the court, though • a verdict has been found against such party. ’ The facts of this record do not bring the case within either of the above sections of our statute. The verdict was not special, the case was not reserved by the court for future judgment or consideration, . and there was no statement in the pleadings to justify the court in- entering a judgment in favor of the appellant. Therefore the appellant was not entitled to a judgment non obstante veredicto. ‘The motion in arrest of judgment in civil causes is unknown to our system of practice, and, where it does obtain, can be maintained only for a defect upon the face of the record, of which the evidence constitutes no part’ (Citing cases).”

It is apparent that neither section of the statute quoted in the case cited above is applicable to the facts in this ease. Here the answer denied any liability, and the testimony on behalf of the defendant would have sustained that finding. The plaintiff was therefore not entitled to a judgment under the pleadings nor under the undisputed proof. Ryan v. Fielder, 99 Ark. 374, 138 S. W. 973; Collier v. Newport Water Co., 100 Ark. 47, 139 S. W. 635, Ann. Cas. 1913D, 45; Sharff Distilling Co. v. Dennis, 113 Ark. 221, 168 S. W. 141; Coleman v. Utley, 153 Ark. 233, 240 S. W. 10; Trippe v. Duval, 33 Ark. 811.

We have held that where a jury found, under conflicting testimony, that a plaintiff was entitled to recover damages, and the undisputed testimony showed the damages were substantial, the judgment for nominal damages only was an error, to correct which this court would reverse the judgment. This is true, however, because a judgment for nominal damages is, in effect, a refusal to assess damages. Krummen Motor Bus & Taxi Co. v. Mechamics’ Lumber Co., 175 Ark. 750, 300 S. W. 389; Martin v. Kraemer, 172 Ark. 397, 288 S. W. 903; Dunbar v. Cowger, 68 Ark. 444, 59 S. W. 951; Carroll v. Texarkana Gas Co., 102 Ark. 137, 143 S. W. 586; Bothe v. Morris, 103 Ark. 370, 146 S. W. 1184.

Here the verdict and judgment was not for a nominal sum, but was- for a very substantial amount, to-wit, the sum of $5,000. There was therefore no refusal to render judgment for more than a nominal amount.

It is true that the verdict is not consistent, but this is not ground for us to reverse the judgment, as it is supported by very substantial and sufficient testimony.

A very similar question was presented in the case of Washa v. Harris, 167 Ark. 186, 266 S. W. 944, and it was there said:

‘ ‘ It must be conceded that the verdict does not appear to be consistent with either theory of the case, but we cannot say that it is unsupported by the testimony. The testimony in Harris’ behalf would have supported a verdict for the entire amount in controversy, except the price of the pulley, which was only $42.50, which would, of- course, have included the $3,000 paid in cash, yet the verdict of the jury included only so much of the $3,000 as was necessary to extinguish the note and the price of the pulley, ¡and we will not therefore disturb the verdict, because the jury’s finding on the facts against appellant sustains the verdict, and would support a larger recovery against him than the mere extinguishment of the note.”

The trial court might have granted the motion of either party for a new trial, ¡and should have done so if convinced that the verdict was contrary to the preponderance of the evidence. Twist v. Mullinix, 126 Ark. 427, 190 S. W. 851. But the jury having returned a verdict for a substantial amount, and the plaintiff not being entitled, under the pleadings or the undisputed pr'oof, to recover a larger amount, the court was without authority to render judgment for a larger sum than that fixed by the verdict.

The trial court should properly have granted the appellee’s motion for a new trial if convinced that the verdict was contrary to the preponderance of the evidence, or have overruled both motions for a new trial if not so convinced. But the action of the court does very clearly indicate a finding on the part of the trial court that the verdict for $5,000 was not contrary to the preponderance of the evidence, because the court has actually increased the recovery. There can therefore be no error in affirming* the judgment for $5,000, if appellee elects to have that done. But, unless this election is made, the judgment must be reversed, ¡and it will be so ordered unless appellee shall, within fifteen days, remit $5,000 of the judgment, thus leaving the verdict of the jury undisturbed.


author: Humphreys, J.

text:
    Old Colony Life Insurance Company v. Fetzer.
    Opinion delivered February 27, 1928.
    1. Insurance — 'Misrepresentation in application. — Misrepresentations, -willfully and knowingly made with intent to deceive, in an application for life insurance will avoid the policy.
    2. Insurance — finding as to misrepresentations. — In a suit to cancel a life insurance policy on the ground of misrepresentations made in the application, a finding that insured did not willfully and knowingly misrepresent that she had not been treated for chronic stomach trouble or cancerous condition of the stomach within 10 years next before applying for the policy, held not contrary to the preponderance of the evidence.
    3. Insurance — condition of insured. — In a suit to cancel a life insurance policy,' on the ground of misrepresentations as to insured’s health, evidence held to show that insured was in good health when the policy was delivered to her.
    4. Insurance — allowance of attorney’s fee. — In a suit to cancel a life insurance policy for $1,000, in which defendant filed a cross-complaint praying for recovery on the policy and a reasonable attorney’s fee, an allowance of $200 as attorney’s fee was not excessive where defendant recovered judgment in the lower court and on appeal and her attorney filed a brief on appeal.
    Appeal from Jackson Chancery Court; A. 8. Irby, Chancellor;
    affirmed.

      Boyce & Stayton, for appellant.

      Gustave Jones, for appellee.
   Humphreys, J.

On March 18, 1926, appellant instituted suit against appellee in the chancery court of Jackson County to cancel a life insurance policy for $1,000 issued by it on the 24th day of May, 1924, to Lora Fetzer, insuring her life in favor of her husband, the appellee herein, in consideration of an annual premium of $24.46, upon the ground that the 'policy was induced and procured through misrepresentations as to the condition of her health, willfully or knowingly made, with intent to deceive.

One of the alleged false, fraudulent and untrue statements was her answer to the effect that she had never been afflicted with any disease contained in the list of sixty-odd ailments set out in her application for insurance, embracing, among other ailments, disease of cancer and stomach trouble, whereas she had been afflicted with chronic stomach trouble and cancer of the stomach prior to the date of her application for insurance.

The other alleged false, fraudulent and untrue state- ■ ment was to the effect that she had been afflicted with acute indigestion in 1922, and was attended by Dr. Ivy of Tuckerman, in answer to the following question asked by appellant’s medical examiner when she applied for insurance, to-wit:

“Name all ailments, physical injuries and surgical operations said person has had in the last ten years,giving the names of all persons who attended said person in connection therewith, together with date and address.” Whereas she had been treated for chronic stomach trouble in the years 1921, 1922 and 1923, by another physician.

Lora Fetzer died on the fourth day of February, 1926, after having paid two annual premiums on the policy, which amount appellant tendered to appellee, with an offer to rescind the contract, which was declined and refused by him. The policy provided that it would be incontestable after two years from its date, except for nonpayment of premiums. This suit was brought after appellee refused to accept the tender and before the expiration of the two-year limitation.

Appellee filed an answer and cross-complaint, in which he denied the material allegations of the complaint, and prayed for a recovery on the policy -for $1,000, with interest from April 4-, 1926, with a 12 per cent, penalty, and a reasonable attorney’s fee.

The cause was submitted to the court on the pleadings and testimony introduced by the respective parties, and which resulted in a decree dismissing appellant’s complaint for the want of equity, and in a recovery by appellee against appellant for $1,000, the amount of the policy sued on, with interest at 6 per cent, per annum f-rom April 4, 1926, and $120 as penalty and $200 as attorney’s fee, from which is this appeal.

In part II of the application for insurance, made a part of the policy, sixty or more ailments are listed, with the following question adjoined: “Of all the ailments mentioned, said person has had only the following: (if none, so state) “None.” The list contained diseases of stomach and cancer.

The following question and answer also appears in part II:

“Q. Name all ailments, physical injuries and surgical operations said person has liad in the last ten years, giving the names of all persons who attended said person in connection therewith, together with date and address? A. Acute indigestion, 1922, Dr. Ivy, Tuckerman.”

In addition to the list of ailments embraced in the first question set out above, which was question 20, there were thirty-eight other questions relating, in one way or the other, to the health and history of the applicant, which the medical examiner, Dr. E. O. Norris, was instructed to propound to the insured. In addition to these questions the examiner was directed to make an extensive examination of the applicant, especially covering pulse rate, blood pressure, heart action, and specific gravity of the urine. Dr. Norris was a witness in the case, and testified that he made a physical examination of the applicant at her home. When he called at her home to make the examination he found the applicant, her husband and daughter, picking strawberries. His examination revealed that she was a strong, healthy-looking woman, normal in every respect. He testified that the examination was made in the house, and that no one was present except the applicant and himself, and that he propounded all of the questions contained in the application to her, and recorded her answers correctly. Dr. Norris testified further that he treated the insured in her last illness, and that she died from cancer of the stomach; that it Qould be possible, but not probable, that she had incipient cancer of the stomach when he examined her for insurance ; that it is a disease of slow duration; that she would not and could not have known of the existence of an incipient cancer, because it would have required an X-ray or gastric examination to have discovered it at the time she applied for insurance, and he made neither.

Agnes Batten, a daughter of appellee and the insured, testified that, when Dr. Norris came to their home to make the medical examination of her mother for insurance, her father, mother and herself were picking strawberries close to the house, and that she remained in the room with Dr. Norris and her mother during the entire time the examination was being' made.

Appellee testified that the examination of Dr. Norris was short, and that he remained in the room with them the entire time; that Dr. Norris had some blanks containing questions; that he wrote the answers to some of the questions without reading them to his wife; that he asked her only a few questions; that he did not ask her to give him the names of all the doctors who had treated her in the last ten years; that he spoke of having called to see her himself on one occasion, and asked who was treating her at that time, and .she said Dr. Ivy.

Dr. L. S. Slayton testified that he treated the applicant about thirty-seven times in 1921, 1922 and 1923; that about thirty of the treatments were for chronic stomach trouble. In answer to a hypothetical question based upon the result of the physical examination made by Dr. Norris when he examined her for insurance, Dr. Slayton testified that her condition indicated that she had recovered from the stomach trouble for which he had treated her in those years.

The sole question arising out of the pleadings and testimony on this appeal is whether the insured willfully and knowingly misrepresented that she had been treated for chronic stomach trouble or a cancerous condition of the stomach within ten years next before applying for the policy, in order to procure same. This court is committed to the doctrine that misrepresentations willfully and knowingly made, with intent to deceive, in an application for life insurance, will void the policy. Metro politan Life Ins. Co. v. Johnson, 105 Ark. 101, 150 S. W. 393; Bankers’ Reserve Life Co. v. Crowley, 171 Ark. 135, 284 S. W. 4.

It cannot be said that the finding of the chancery court, to the effect that the alleged misrepresentations were not made, are contrary to a clear preponderance of the evidence. There is a direct conflict between the testimony of Dr. Norris and appellee as to whether the questions which were asked the insured elicited the answers claimed to be untrue. Dr. Norris testified that he asked every question ¡and recorded the answers correctly. To have done so, and to have made the physical examination he said he made, would have required a long time. Dr. Norris said that no one was present when he made the examination, except the insured; appellee testified that he was present- all the time; that the examination was short, and that the questions referred to were never propounded to the insured. Appellee’s . daughter corroborated the statement of her father to the effect that he was present during the examination.

Appellant contends that appellee w-as not entitled to recover on the policy without showing by the weight of the testimony that the insured was in good health, when the policy was delivered to her. Its contention is based upon the following provision in the policy:

“3. That there shall be no contract of insurance unless the premium is paid and the policy delivered to and accepted by the applicant during the lifetime and good health of the person proposed for insurance, and that then the policy shall relate back to and take effect as of such date as may be fixed by the company in the policy.”

Dr. Norris testified that the insured was thirty-seven years of age when he examined her; that her pulse beat was 78, her blood pressure systolic was 118 and her diastolic 84; that the heart action was correct; that the condition of the mouth, gums, teeth and tonsils was good; that he could find no evidence of disease of the liver, gall bladder, stomach or pancreas. The result of Dr. Norris’ examination was incorporated in detail in a hypothetical question propounded to Dr. Slayton relative to her state of health, and his reply thereto was that the result indicated that she had recovered from her, chronic stomach trouble for which he had treated her in 1921, 1922 and 1923.

The ability of the insured to do hard labor like picking strawberries in the heat of the day indicated that she was in good health when the policy was delivered to her.

Appellant also assails the amount allowed the attorney on the ground that it was excessive. We do not think a $200 fee is incommensurate with the services rendered, considering extensive litigation, together with the amount involved. The case has been brought'to this court "on appeal for trial de novo, and the attorney for appellee has filed a brief in the case.

No error appearing, the decree is affirmed.


text:
    Bland v. Jones.
    Opinion delivered February 27, 1928.
    1. Principal and surety — right of surety to contribution. — In a suit by a surety against principals on a note and plaintiff’s eo-sureties, plaintiff having paid the note, the co-sureties were not entitled to a reduction from their pro rata liability to plaintiff because of a set-off which the court ■ allowed to the principals against plaintiff, in which the co-sureties were not interested.
    2. Principal and surety — judgment for contribution. — In an action by sureties to recover from co-sureties their pro rata of a note which had been paid by plaintiff, a joint and several judgment against the co-sureties was erroneous, since the judgment should have been for the pro rata share due by each co-surety, there being no showing that any of the co-sureties were insolvent.
    Appeal from Dallas Circuit Court; Turner Butler, Judge;
    reversed.

      Appellant pro se.

   Humphreys, J.

Appellee brought suit for $721.69, in the circuit court of Dallas County, against H. E. Jones,' Cecil Futch. and appellants, upon a note which all of them executed to the Bank of Fordyce, and which appellee paid at maturity, alleging that he was surety for the other signers of the note.

H. E. Jones and Cecil Futch filed a separate answer, admitting that they owed the note, but claimed that they were entitled to a credit thereon for Í125.35 for repair work done by them on automobiles belonging to appellee.

Appellants filed a separate answer, admitting the execution of the note, and alleging that, instead'of appellee being surety for all the signers thereof, they, together with appellee, were sureties for H. E. .Jones and Cecil Futch. They further allege that, as co-sureties, each was liable for one-fifth of the amount paid to the bank by appellee, less the amount owed H. E. Jones and Cecil Futch for repairs on his. automobiles.

The cause was submitted to the court sitting as a jury, upon the pleadings and testimony adduced by the respective parties, which resulted in a judgment against H.-E. Jones and Cecil Futch for the full amount of the note, less $125.35 allowed Jones and .Futch as a set-off for repair work on appellee’s automobiles, and a joint and several judgment against the appellants for $577.24, being four-fifths of the amount paid by appellee to the bank in discharge of the note, from which judgment against them appellants have duly prosecuted an appeal to this court.

The facts are practically undisputed, and, in substance, are as follows:

On August 13, 1926, appellants and appellee became, sureties for H. E. Jones and Cecil Futch on a. note which they all executed to the Bank of Fordyce for $700, bearing interest at the rate of ten per cent, per annum from date until paid. After maturity of the note appellee paid the bank the face of the note and the unpaid interest, amounting to $713.77, and took an assignment of the note to himself. IT. E. Jones and Cecil Futch did repair work on automobiles belonging to ajipellee amounting to $125.35;

Appellants contend for a reversal of the judgment upon two grounds, the first being that the court should have deducted the claim of H. E. Jones and Cecil Futch for the amount paid by appellee in discharge of the note, and then have apportioned the remainder among the sureties; and the second being that the court should have entered a several judgment against each for one-fifth of the remainder instead of a joint and several judgment for the total amount of the remainder against them.

(1) . Appellants are in error in their first contention. Their co-surety paid $721.69 to the bank in discharge of their mutual obligation as sureties, and he was entitled by way of contribution to a judgment against each for one-fifth of the total amount he paid the bank. They had no interest whatever in the claim of H. E. Jones and Cecil Futch against appellee for repair work. This was a matter between appellee and H. E. Jones and Cecil Futch. H. E. Jones and Cecil Futch were entitled to offset their claim against appellee’s claim against them, but appellants, having no interest in the JonesFutch claim, could not use it as an offset against appellee’s claim against them. The court did not err in disallowing them a credit for the Jones-Futch account before ordering contribution on their part.

(2) The court did err, however, in rendering a joint and several judgment against appellants, co-sureties with appellee, for their contribution. He should have rendered a judgment against each for one-fifth of the amount as his contribution, it not appearing that any of them were insolvent. Appellee was. entitled to a judgment against each for the amount he had paid for him, but was not entitled to a judgment by way of contribution against them all for the amount he had paid for each.

On account of the error indicated the judgment is reversed, and judgment is ordered to be entered here against each appellant for one-fifth of $721.69, or $144.34, together with interest thereon from the date of the rendition of the' original judgment by the trial court.


text:
    Wright v. Skelton.
    Opinion delivered February 27, 1928.
    1. Pleading — amendment of complaint — waiver of objection.— In a suit in ejectment, where the plaintiff filed an amended complaint changing' the nature of the action from one in ejectment to one of unlawful detainer, and defendant made no objection thereto, but consented to proceed to the trial of the cause, he waived the objection to change of issues in the action.
    2. Pleading — amendment of complaint — evidence.—In a suit in an action of ejectment, where plaintiff amended his complaint by asking relief in unlawful detainer and the cause was submitted on the issue whether a contract of sale had been superseded by an oral agreement establishing the relation of landlord and tenant, held that the admission of testimony showing the relationship of landlord and tenant under an oral agreement was not error.
    Appeal from Crawford Circuit Court; J. O. Kincannon, Judge;
    affirmed.

      Chastain & Taylor, for appellant.

      D. H. Sowell, for appellee.
   Humphreys, J.

Appellee instituted suit in ejectment in the circuit court of Crawford County against appellant to recover lands which he had contracted in writing to sell him for $880, payable as follows: $280 payable November 1, 1925; $300 payable November 1, 1926; $300 payable November 1, 1927. It was alleged in the complaint that appellant failed to pay the notes in 1925 and 1926, but made default, thereby forfeiting his right to possession of the lands.

Appellant filed an answer, admitting the execution of the contract and a failure to pay the notes,, except a small amount thereon, due to crop failure the first year and overflow the second, land interposing as a defense against the alleged forfeiture of his right to the possession of the land the following paragraph in the contract:

“The party of. the first part (appellee) agrees to let the party of the second part (appellant) have more time on notes which he can not meet.”

On the day of the trial appellee was permitted to file an amended complaint, alleging that, in the spring of 1926, the contract of sale and purchase was abrogated by au oral 'agreement to the effect that, if appellant failed to pay the notes in 1925 and 1926, with interest, he would pay rent for the use of the lands and surrender possession thereof to appellee. Appellant filed no pleading to the amended complaint.

The cause was •submitted, upon the pleadings and testimony adduced by the respective parties, resulting in a verdict and consequent judgment in favor of appellee for the possession of the lands, from which is this appeal.

In the course of the trial appellant objected and •saved an exception to the introduction, of testimony establishing the relationship of landlord and tenant between the parties. Appellee testified, and his testimony was not contradicted, that, in the spring of 1926, he went to see appellant, and told him that he would not permit him-to retain possession of the land, as he had failed to pay the note due in 1925, and if appellant was not able to pay ¡any more he would have to turn the land back, as it was not right for him to keep the place and not pay the first note, as he had agreed to. Whereupon appellee agreed to take the land back, with the understanding that appellant might cultivate the land in 1926, and that, if he could not pay all of the notes due in the fall of 1926, he would pay crop rent and deliver up the possession of the premises at the expiration of the year to appellee. Appellee further testified that appellant failed to pay the notes or rent.

The testimony tended to show that appellant had cleared up several acres of the land, and had planted some strawberries on a part of it.

Appellant contends for a reversal of the judgment because the court permitted appellee to file an amended complaint changing the nature of the action from one in ejectment on account of an alleged-forfeiture of his right to possession under the contract, to one of unlawful detainer, and in allowing appellee to introduce proof of an oral agreement in support of the allegations of his amended complaint.

The cause was submitted to the jury upon the issue tendered in the amended complaint of whether the contract for sale and purchase of the lands had been superseded by the oral agreement establishing the relationship of landlord and tenant between the parties.

When appellee failed to demur or move to strike out the amended complaint, and consented to proceed with the trial of the cause, he waived the right to object to a change of the issues in the action and to object to the introduction of testimony responsive to the issues tendered iby the amended complaint.

The court did not err in admitting the' testimony showing the relationship of landlord and tenant, and in sending the case to the jury upon the issue tendered by the amended complaint.

The judgment is affirmed.


author: McHaney, J.

text:
    First Baptist Church of Bald Knob v. Central Baptist Church of Bald Knob.
    Opinion delivered February 27, 1928.
    1. Religious societies — title to building. — Where two church congregations consolidated on agreement that one would worship in the house of the other, and that each would retain title to its building until a new joint edifice was erected, held, upon dissolution of the consolidated organization into its component parts, that the building used for worship had not become the property of the congregation which had left its old building, since no new structure had been erected at the time of its dissolution.
    2. Religious societies — effect of consolidation agreement.— Where two churches consolidated under an agreement that, while they worshiped in one building, each would retain ownership of its own building until such time as a new edifice would be erected, held, on dissolution of the consolidation, that the organization which had remodeled and mortgaged its church for a residence was alone responsible for debts thereby incurred, no new edifice having been erected.
    Appeal from White Chancery Court; Frank H. Doclge, Chancellor;
    affirmed.

      John E. Miller and Culbert L. Pearce, for appellant.

      Brundidge & Neelly, for appellee.
   McHaney, J.

Prior to January 29, 1922, there were two Baptist churches in the town of Bald Knob, one, the First Baptist Church, being- the Landmark Church, and the other, the Central Baptist Church, being- the Missionary or Conventional Baptist Church. On that date they were consolidated into one Landmark Baptist Church, one of the resolutions adopted on that date by the -Central Baptist Church being- as follows:

“That we, as a 'body, agree to go to Landmark, under the condition that you come and worship in the building- of the Central Baptist Church, until such time as the united bodies agree and erect a new church. We feel that we have gone more than half way in this offer, and that you should be willing to do this much for the uplifting of the Baptist cause in Bald Knob.
“Be it further resolved, that each church or body reserves the right to dispose of its church property until same is placed in -a new church.
“J. T. Reed, moderator.
“Mrs. T. W. Leggett, church clerk.”

After the consolidation, the consolidated body held its church services and meetings in the church-house of the Central Baptist Church. Some time after the consolidation the church-house of appellant was remodeled and converted into a residence, and, in order to obtain the money to make such improvements, they placed a mortgage upon this property in the sum o.f $1,350 to secure a note for borrowed money in such sum. The consolidated body continued to work together until the first Sunday in January, 1927, but with considerable discord for some months prior thereto, at which time the pastor announced that there would be a church meeting that afternoon, and that no one but Landmark Baptists would be permitted to vote at such meeting. This meeting- was held and a resolution adopted withdrawing fellowship from the appellees, the former members of the Central Baptist Church, the effect of which was to turn them out of church. Thereafter appellees took charge of the Central Baptist Church property, excluded the Landmark Baptists from using same, and brought a suit to enjoin them from using the property or from interfering with their possession of said property. A temporary restraining order was granted, and, on a final hearing, the chancellor found that the Central Baptist Church and the trustees thereof were the owners of its church property, including the grounds and the building, and had the fight to occupy, control and manage the same, free from any interference on the part of the appellants, and the temporary injunction theretofore granted was made perpetual. The chancellor further decreed a lien in favor of appellants against the piano belonging to the appellees in the sum of $63, which the appellants had paid on the purchase price thereof, and ordered the $270 then on hand and in bank to be divided equally between the parties. From this decree this appeal is prosecuted.

It is first contended by appellants that, by the act of consolidation on January 29, 1922, the property of the Central Baptist Church became the property of the consolidated bodies, under the name of the First Baptist Church, and that therefore the Central Baptist Church lost title to its property. But for the agreement between the bodies, as exemplified by the resolution adopted by the Central Baptist Church heretofore set out, that each body would retain title to its property until such time as same should be sold and put into a new church, appellants’ contention would undoubtedly be true. We think the chancellor put the correct construction upon the act of consolidation and the resolution adopted in connection therewith, that is, that each body would retain the ownership and title to its separate property until such time as they separately might sell or dispose of same and invest it in a new church to be the property of the consolidated body. The' resolution heretofore quoted specifically so says, and this resolution was accepted by the appellant church. No sale having been made by either body of its church property, it cannot be said that the church property of the' Central Baptist Church became the .property of the consolidated church, known as the First Baptist Church, We therefore hold that the title to the church-house and lot' belonging to the Central Baptist Church never did become the property of the consolidated body known as the First Baptist Church, or the Landmark Baptist Church.

It is next insisted that, if the court should hold that the title to the property of the Central Baptist Church did not pass by the consolidation, since the consolidated church remodeled its property, converting’ it into a residence for rental purposes, upon which a mortgage of $1,350 was placed, the membership of the Central Baptist Church should be chargeable with one-half the cost of such improvements. We cannot agree with this contention. That property belongs to the First Baptist Church, and it and its membership alone are responsible for such debts incurred against it, even though made and incurred with the knowledge, acquiescence, consent or active participation' of some of the present members of the Central Baptist Church. The improved property is still its property, and the membership of the Central Baptist Church have no rights or interest therein. This mortgage was placed thereon by authority of the then membership of the First Baptist Church, and the membership still existing therein are the beneficial owners thereof. Being the owners of this property, the organization as it now stands is responsible alone for this debt. The action of the Landmark members in excluding the other part of their membership was tantamount to an assumption of this indebtedness. The First Baptist Church, being the owner of the property, entitled to receive all the rents and profits therefrom, is likewise liable for its debts. We do not understand just how a court of equity could hold the members who had been expelled from the church by the voluntary action of that church liable for the church’s debts.

It is finally contended that the court erred in finding that the First Baptist Church had paid only $63 on a piano now in use at the Central Baptist Church, for which a lien was fixed on said piano, and that the joint organizations have on deposit in the banks sit Bald Knob the sum of $270 contributed by the congregations of both bodies, which it ordered divided equally between them, because, appellant says, there is no evidence to support such findings. There is evidence to show that a piano owned by the appellants was sold and the proceeds used to pay a balance due on the piano of appellees, and there is evidence in the record to show that, at the time of the separation, the joint body had money, on'deposit in the banks. Just how the court arrived at the exact amount of each item we are unable to tell, but, since appellant has not questioned the correctness of the- amount, only that it is without evidence to support it, we overrule this contention. Appellants did not offer to show that these amounts were other and different from that found by the ■ court.

We find no error, and the decree is affirmed.


text:
    Chalfant v. Haralson.
    Opinion delivered February 27, 1928.
    1. Trial — province of jury. — ‘Questions as to the credibility of witnesses and the weight of testimony are within the province of the jury.
    2. New trial — verdict contrary to evidence. — The trial court should set aside a verdict and grant a new trial where it is of the opinion that the verdict is contrary to the evidence.
    3. Appeal anl» error — conclusiveness of verdict. — The Supreme Court will uphold a verdict sustained by substantial testimony where the circuit court has approved the verdict by refusing to grant a new trial on the ground that the verdict is contrary to the evidence.
    4. Frauds, statute of — purchase of automobile. — Evidence held to sustain a verdict in favor of the buyer of an automobile who denied making an oral agreement to buy and denied that he had received it within the meaning of the statute of frauds.
    5. Frauds, statute of — verbal purchase of automobile. — An instruction that, if there was an agreed price and the alleged buyer or his agent received the automobile, the jury should find for the seller for the purchase price, was properly modified by inserting the word “actually” before the word “received” where the buyer relied on the statute of frauds.
    6. Frauds, statute of — receipt of goods. — Crawford & Moses’ Dig., § 4864, providing that certain contracts for the sale of goods shall not be binding unless a note or memorandum is signed by the party to be charged, or the buyer accepts part of the goods so sold and “actually” receives same or gives something in earnest or part payment, the word “actually” used in the statute means that the buyer shall, in fact, receive the goods alleged-to be bought by him.
    7. Trial — repetition of instructions. — It was not error to refuse to multiply instructions on the same point or to give instructions on the same subject in varying form.
    Appeal from Woodruff Circuit Court, Northern District; W. D. Davenport, Judge;
    affirmed.
    STATEMENT OF FACTS.
    E. J. Chalfant sued John Penn Haralson to recover the sum of $1,200' alleged to be due him for the purchase price of a Buick automobile. The defendant denied that the plaintiff sold and delivered to him a Buick automobile, and ialso pleaded the statute of frauds.
    According to the testimony of E. J. Chalfant, on May 2,1925, he sold and delivered to the defendant, John Penn Haralson, a Buick automobile for the sum of $1,200. On the night before there had been a collision between a Buick automobile belonging to E. J. Chalfant, and driven by his nineteen-year-old. son, and a car driven by the defendant, John Penn Haralson. On the next morning after the collision the plaintiff met the defendant on the street, and the defendant referred to the collision-between the cars, and told the plaintiff that he did not want to blame his boy, but wanted to assume the fault. The car of the plaintiff was wrecked in the collision, and the defendant told him that he wanted to buy him another car. The plaintiff replied that he had had six months’ service out of the car, and that, if the defendant thought the oar was worth it, he would sell it to him for $1,200. The defendant agreed to this, and told the plaintiff that he would bring him a check for $1,200 at twelve o ’clock on that day. This was $257.45 less than the original price of the car. The defendant said that he would send Robert Buchanan, an owner of a g’arage, out to the scene of the accident, and get the car for him. Other witnesses for the plaintiff tended to corroborate his testimony, and to show that the defendant took possession of the car, through Robert Buchanan, under the sale, and left it in his garage.
    According- to the testimony of the defendant, John Penn Haralson, he did not agree to buy the car from the plaintiff, and the car was never delivered to him. He admitted talking to the plaintiff about the accident, and that the plaintiff had told him that, if he would give him $1,200 for the car, he might have it. The defendant told him that he would go home and think the matter over. After doing so, he decided not to accept the proposition of the plaintiff, and did not do so. The car was never delivered to the defendant nor to any one for him.
    The jury returned a verdict in favor of the defendant, and from the judgment rendered the plaintiff has duly prosecuted an appeal to this court.

      J. F. Simmers, for appellant.

      Elmo GarlLee, for appellee.
   Hart, C. J.,

(after stating the facts). The principal ground relied upon for a reversal of the judgment is that the verdict is so clearly against the weight of the evidence as to shook the sense of justice of a reasonable person, and that the ease is controlled by the rule of law announced in Oliver v. State, 34 Ark. 632, and Singer Manufacturing Co. v. Rogers, 70 Ark. 385, 67 S. W. 75, 68 S. W. 153. In so far as it might be said that these cases sustain a holding that this court will set aside the verdict of a jury where there is any substantial evidence to sustain it, they are against the current of decisions in this State and are contrary to the long-settled rule of this court on the subject.

The subject has been discussed at length by this court, and no useful purpose could be accomplished by again going over the same ground. Our Constitution provides that judges shall not charge juries with regard to matters of fact, 'but that they shall declare the law. Hence it is -within the peculiar province of the jury to pass -upon the credibility of the witnesses land the weig’ht to be given to their testimony. It has been held repeatedly to be the duty of the trial court to set aside a verdict and grant a new trial where it is of the opinion that the verdict of the jury is contrary to the weight of the evidence. On the other hand, after the jury has weighed the evidence and the circuit court has given its approval to the judgment by refusing to grant a new trial on the ground that the verdict is contrary to the evidence, it is the duty of this court to uphold the verdict where there is any testimony of a substantial character to support it.

The testimony of the defendant was of a matter about which he claimed to have personal knowledge. He testified in definite terms that he did not agree to buy the automobile in question from the plaintiff, and that the same was not delivered to him or to any one for him. His testimony 'related to matters which might or might not have occurred, according to the truth or falsity of his testimony. His testimony therefore was evidence of a substantial character, and, if believed fey the jury, was sufficient to warrant a verdict in his flavor. Catlett v. Railway Co., 57 Ark. 461, 21 S. W. 1062, 38 Am. St. Rep. 254; St. Louis Southwestern Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768; Chaney v. Mo. Pac. Rd. Co., 167 Ark. 172, 267 S. W. 564; St. Louis-San Francisco Rd. Co. v. Pearson, 170 Ark. 842, 281 S. W. 910; Mo. Pac. Rd. Co. v. Barry, 172 Ark. 729, 290 S. W. 942. Numerous other decisions might be cited in support of this view of the law, but this court has so long and so uniformly adhered to the rule that we do not deem further citations necessary.

It is next insisted that the court erred in modifying and giving as modified instruction No. 1, which reads as follows:

“The question submitted for your consideration is whether there was a sale of the car in question by plaintiff, E. J. Chalfant, to the defendant, John P. Haralson. To constitute a sale there must have been an agreed price between the plaintiff and the defendant, and, if you find there was an agreed price, and the defendant or his agent or agents, if you find there was lan agency, actually received the car, you should find for the plaintiff.”

'The particular objection to the instruction is the use of the words “actually received the car.” There was no error-in modifying the instruction to insert the word “actually” before the words “received the car.” The defendant had pleaded the statute of frauds contained in § 4864 of Crawford & Moses’ Digest, which reads as follows:

“No contract for sale of goods, wares and merchandise, for the price of thirty dollars or upward, shall be binding- on the parties, unless, first, there be some note or memorandum signed by the party to be charged (a); or second, the purchaser shall accept a part of the goods so sold and actually receive same (b); or third, shall give something in earnest to bind the bargain, or in part payment thereof (c).”

That part df the -section applicable to this case was whether the defendant actually received the automobile, and the court was evidently applying the language of the statute so as to present a concrete case to the jury. No objection was made to the action of the court in reading the section of the Digest in question to the jury. The word “actually” as used in the statute simply means that the purchaser shall in fact receive the goods alleged to have been purchased by him. Hence we do not think the objection to the instruction is well taken, and are of the opinion that it is a correct declaration of law as applied to the facts in the case at bar.

It is next insisted that the court erred in refusing to give instructions Nos. 2 and 3, which read as follows:

“No. 2. To constitute a delivery it is not necessary that any particular thing be done by either of the parties, but any act on the part of the plaintiff by which he relinquished control over the oar in question, coupled with an acceptance of control by defendant, would amount to a delivery.
“No. 3. On the question of delivery, you are instructed that delivery is a question of intention of the parties, the one to deliver and the other to accept, as manifested by overt acts, and .a sale would be complete, if you find there was a sale, or rather an agreed price between the parties, where any act was done which was intended by the parties as a delivery by the one and an acceptance by the other. ’ ’

In addition to instruction No. 1, the court gave instruction: No. 4, which reads as follows:

“You are instructed that the defendant could receive the car by 'agent as well as in person, and, if the defendant actually received the car, you should find for the plaintiff. ’ ’

The court, on its own motion, also instructed the jury as follows:

“You are instructed that, before the plaintiff can recover in this case, he must show that a delivery was made on the part of the plaintiff 'and. that an actual acceptance was made on the part of the defendant, and you are to consider any and all facts and circumstances proved in this case in arriving at the intentions of the parties to this suit.”

It will be .observed that the respective theories of the parties to this suit were fully and fairly submitted to the- jury in the instructions given by the court, and, under the settled rules of this court, the trial court is not required to multiply instructions -on the same point or to give instructions on the same subject in varying form. The issues of fact in this case were simple, and the evidence was in direct and irreconcilable conflict. The case was submitted to the jury under instructions fully giving the respective theories of the parties, and, under our settled rules of practice, we cannot disturb the verdict of the jury.

We find no prejudicial error in the record, and the judgment will therefore be affirmed.


text:
    Federal Land Bank of St. Louis v. Craig.
    Opinion delivered February 27, 1928.
    1. Mortgages — effect of payment to mortgagee’s agent. — In a suit to foreclose a prior mortgage, payment by the tenant, renting the premises, of the rent money to mortgagee’s agent to be applied on the mortgage, in accordance with an agreement between the tenant and the landlord, who held the premises as purchaser at foreclosure sale under a subsequent deed of trust, held an absolute payment, and the owner of the premises and the subsequent incumbrancer were entitled to receive credit for the amount paid on the indebtedness, notwithstanding the fact that the mortgagee’s agent had never transmitted the money to mortgagee, but had subsequently paid it over for private purposes of the tenant under the tenant’s order.
    2. Mortgages — application of credit. — A mortgagee in a foreclosure suit is not required to credit on the mortgage indebtedness money paid over to his agent by the tenant on the premises, to be applied to his mortgage indebtedness, where the money was in addition to the rent which the tenant had agreed to pay the landlord holding under a subsequent trust deed, and where the mortgagee’s agent, instead of applying the money to payment of the mortgage indebtedness, used it for a private purpose of the tenant in accordance with the tenant’s request.
    3. Mortgages — provision for attorney’s fee in foreclosure. — A provision in a mortgage that, in case of default, the mortgagor should pay such reasonable attorney’s fees as might be allowed by law, is void and unenforceable in a foreclosure suit as constituting an agreement for a penalty.
    4. Banks and banking — refusal to tax attorney’s fee in foreclosure suit. — In a foreclosure suit by a Federal Land Bank, a refusal to allow an attorney’s fee to be taxed as costs was not an abuse of discretion, where the rights of subsequent mortgagees were involved and plaintiff claimed an additional amount, even if Acts 1924, p. 72, permitting allowance of reasonable attorney’s fee in suits to foreclose deeds of trust given Federal loan banks, Was applicable.
    Appeal from Union Chancery Court, First Division; J. Y. Stevens, Chancellor;
    reversed.
    STATEMENT OE EACTS.
    Appellant 'brought this suit in equity against appellees to foreclose a mortgage on a tract of land in Union County, Arkansas, containing 200 acres, more or less, to secure an indebtedness, of $1,000 in the form of ia promissory note. The complaint alleges that the sum of $959.19 was due and unpaid on said note, and that, under the terms of the mortgage, it was entitled to recover judgment against the mortgagor and have a foreclosure of the mortgage for taxes and the amount paid for a supplemental abstract of title to the land.
    The mortgage was executed on the 17th day of December,' 1917, by Jesse J. Craig* and Corinne Craig, his wife. On May 6, 1920, Jesse J. Craig* and Corinne Craig, bjr warranty deed, conveyed said lands to appellee, Robert Scott. On October 13, 1921, Robert Scott and his wife conveyed said land by deed of trust to W. E. Patterson to secure an.indebtedness to the Citizens’ National Bank of El'Dorado. On Mjareh 1, 1922, Robert Scott and his wife conveyed said land by deed of trust to B. A. Hancock to secure an indebtedness to J. L. Kinard. The deed of trust executed to W. E. Patterson, trustee, was foreclosed by the trustee under the power of sale, and the land was sold under it on April S, 1924, to J. L. Kinard. J. L. Kinard rented the land to Robert Scott for the year 1925 for $150. It was agreed between Kinard and Scott that the rent should be paid by Scott to W. B. Brown, secretary of.the El Dorado National Farm Loan Association, to be applied on the mortgage indebtedness to appellant. Scott paid to Brown the $150 rent for the purpose of being applied towards the mortgage executed by the Craig’s to appellant. In addition, Scott borrowed $278.53 from a third person’ and paid it to Brown, to be also applied towards the satisfaction of the mortgage to appellant. ' This made a total of $428.53 paid by Scott to Brown to be applied to the satisfaction of appellant’s mortgage. Brown never sent the money to appellant at St. Louis; and on March 11, 1926, Scott gave Brown an order to pay said money to Stewart & Oliver, attorneys, at El Dorado, Arkansas, who had been employed by him to defend his son in a murder case. Brown paid the $428.53 to 'Stewart & Oliver on the order of Robert Scott. The record shows that Brown, as secretary of the El Dorado National Farm Loan Association, had the authority to receive payments to be applied towards the satisfaction of the „ mortgage of appellant.
    The chancellor found that W. B. Brown was, on December 31, 1925, the agent of appellant, and that payment to him by Scott of the $428.53 was payment upon the note and mortgage of appellant, and that tlie same should be allowed as a credit thereon. A judgment of foreclosure was entered of record for the balance due appellant, in accordance with findings of the chancellor. The-case is here on appeal.

      Stewart & Oliver and J. R. Crocker, for appellant.

      Mahony, Yocum & Saye, for appellee.
   Hart, C. J.,

(after stating the facts). The record shows that appellant, Federal Land Blank of St. Louis, Missouri, and the El Dorado National Farm Loan Association of El Dorado, Arkansas, are both incorporated under an act of Congress of the United States, but that they are separate and distinct corporations. The loan by. appellant to Craig was obtained by Brown, as secretary of the El Dorado National Farm Loan Association; and, without reciting the evidence in detail, we are of the opinion that the chancellor was justified in holding that Brown, as secretary of said association, was authorized to receive payment on the mortgage indebtedness of the Craig’s to appellant. Brown acted for appellant throughout in securing the loan and in paying over the amount of it to the Craigs and in applying the amount borrowed to the satisfaction of their debts.

The evidence also shows that, under the circumstances, Brown, 'as secretary of said association, was authorized to receive payments on the mortgage indebtedness for the purpose of transmitting the same to appellant. After giving the mortgage to appellant, the Craigs conveyed the land to Robert Scott, and he, in turn, executed a deed of trust on it to secure an indebtedness of his own. 'The deed of trust was foreclosed, and J. L. Kinard became the purchaser under it, and took possession of the land. He rented it to Robert Scott, whose mortgage had been foreclosed, for the year- 1925, for the sum of $150. Kiuard and Scott recognized that appellant had a prior mortgage on the land, and it was agreed between them that, instead of paying the $150 rent to Kinard, iScott should pay it to Brown, to be applied in satisfaction of the mortgage of the Craigs to appellant. Scott also borrowed $278.53, which he paid to Brown to be so applied to the payment of the mortgage of appellant. This made 'a total of $428.53 which was paid by .Scott to Brown for that purpose.

The chancellor held that Brown, as agent of appellant, had the right to receive the $428.53 to be applied towards the satisfaction of appellant’s mortgage, and that, after Scott had paid that sum to Brown, the payment became absolute, and that the order subsequently given by Scott to Brown to pay the money to Stewart & Oliver was of no avail.

The chancellor was right in so holding as to the $150. Scott owed Kinard this amount as rent, and it was agreed between Kinard and Scott that Scott, instead of paying Kinard, should pay the rent to Brown, to be applied towards the satisfaction of the Craig mortgage to appellant. "When 'Scott paid this sum to Brown, as agent for appellant, it constituted an absolute payment, which could not be returned. To illustrate, suppose Kinard had wished to recall the transaction and have Scott pay the rent to him. Brown,, as agent of appellant, could have refused to do this, and, inasmuch 'as Kinard, under his contract with Scott, had a vested interest in the matter, Brown, after receiving the payment from Scott, could not, to the detriment of Kinard, return the money to Scott to be used by him for his own private purpose.

The case as to the $278.53, however, is entirely different. Scott borrowed the money from a third person, and Kinard had no interest whatever in the transaction. So long as the money had not been actually applied to the payment of the mortgage indebtedness, Scott had a right, by agreement with Brown, to receive the money back and use it for his own private purpose. Until the money had been actually applied to the payment of the mortgage indebtedness, the parties could rescind the transaction, and the money conld -he paid hack to Scott without in any manner interfering with the rights of Kinard. If Scott had sent the money in a letter direct to appellant, and, before appellant had received the money and applied it to the payment of the mortgage indebtedness, had asked that the money be returned to be used by him in employing attorneys to defend his son for murder, and appellant had done so, this would have constituted a new agreement between appellant and Scott, and would have in no wise affected the mortgage, because no payment had been actually received and applied towards the satisfaction of the mortgage by appellant. Scott could not complain, because appellant had done exactly what he asked it to do in the matter. Kinard could not complain, because he had no interest in the matter whatever. It' was no concern of his whether Scott ever made, a payment on the mortgage of appellant or not. lie could only claim any right or interest' in the matter when such payment 'had been actually received by appellant and applied by it towards the satisfaction of the mortgage.

The result of our views is that the chancellor should have held that the $150 owed by Scott to Kinard and paid by Scott to Brown constituted an absolute payment on the mortgage, but that the chancellor erred in so holding as to the $278.53 which Scott had borrowed and paid to Brown as agent of appellant.

It is next contended that the decree should be reversed because the chancery court refused to allow appellant a reasonable attorney fee. In the first place, it is'contended that the allowance should have been made because the mortgage contained a clause providing- that, if default be made in its payment, in addition to his payment of the indebtedness, the mortgagor should also pay such reasonable attorney fee as might be allowed by law. This court has held that the insertion in a note of the stipulation of an attorney fee and costs for the collection of the note does not destroy the negotiable character of the instrument, but such stipulation is void and not enforceable, because it is lan agreement for a penalty, even though, it would be enforceable in the State in which it was executed. Bank of Holly Grove v. Sudburry, 121 Ark. 59, 180 S. W. 470, Ann. Cas. 1917D, 373; Arden Lumber Co. v. Henderson Iron Works & Supply Co., 83 Ark. 240, 103 S. W. 185; White-Wilson-Drew Co. v. Egelhoff, 96 Ark. 105, 131 S. W. 208; and Boozer v. Anderson, 42 Ark. 167.

Again, it is insisted that the attorney’s fee should have been allowed under the provisions of an act regulating the foreclosure of deeds of trust given to Federal Farm Loan banks. Acts of 1924, special session, page 72. The act provides that, where the amount involved is $200 or more and the interest is 7 per cent, or less, the court trying the case may, at its option, allow a reasonable attorney’s fee to be taxed as costs in the case. The act' has a proviso which says that it should apply only to loans made under the Federal .Loan Act. Without deciding’ the question, we are of the opinion that, even if the act be held valid, the chancery court did not abuse its discretion in refusing to ’allow an attorney fee to be taxed as costs in the case. As we have already seen, the rights of • subsequent'mortgagees were involved in the action, and the contest was really between them and the appellant as the holder of the first mortgage. Appellant was claiming, among other things, to have a right to enforce its lien for $224 abstract fees. The court held against it, and it is not now claimed that the holding of the court was erroneous. As we have already seen, appellant was contending that it had a right to enforce .its mortgage against the $150 rent which had been paid its agent, to be applied on the mortgage, and which it had not so applied. .Under these circumstances it was a matter of discretion, in any event, whether or not the chancellor should allow an attorney’s fee under the act, even if valid.

It follows that the decree must be reversed, and the cause will be remanded with directions for further proceedings in accordance with the principles of equity and not inconsistent with this opinion. The costs of the appeal will be taxed against appellees.