author: Butler, J. Johnson, C. J.,

text:
    State ex rel. Bailey v. Taylor.
    4-3432
    Opinion delivered May 21, 1934.

      Carl E. Bailey and Lawrence C. Auten, for appellant.

      Coleman •<& Riddick, for appellee.
   Butler, J.

The State, on relation of the prosecuting attorney of the sixth judicial circuit, brought this action against Walter E. Taylor as disbursing agent for the State Banking Department, and the Massachusetts Bonding & Insurance Company as surety on the bond of Walter E. Taylor as such disbursing agent. Both Walter E. Taylor and the defendant surety company filed their several and separate demurrers, that of Walter E. Taylor being-overruled, and that of the defendant surety company sustained. The plaintiff elected to stand on its complaint, and a decree was entered dismissing the same, from which this appeal is prosecuted.

The complaint alleged that Taylor was the disbursing agent of the State Banking Department, and, as such, executed a bond with the Massachusetts Bonding & Insurance Company as surety; that among the duties of the Bank Commissioner was the supervision of building and loan associations; that the salary of the Bank Commissioner under act No. 46 of the Acts of 1927 was fixed at $5,000 per year, and that by act No. 128 of 1929 an additional salary of $1,000 per annum was allowed him for the additional duties entailed in supervising building and loan associations; that the General Assembly for each, of the years 1929 and 1931 appropriated the sum of $5,000 per annum to pay the annual salary of the Bank Commissioner and an additional salary for said .Bank Commissioner in the sum of $1,000 for each of said years as provided by act No. 128 of 1929 aforesaid; that the bond executed provided for the payment by Taylor as principal and the surety company of $5,000 upon the following conditions: ‘ ‘ The conditions of the above bond is such that if the said Walter E. Taylor, as such disbursing agent, or any one he may designate to act for him, shall well, truly and faithfully disburse appropriations of said office according to laws governing same and especially act 781 of the 1923 General Assembly. At the expiration of his term of office he shall render unto his successor in office a correct account of all sums of money, books, goods, valuables and other property which shall be in his possession as such disbursing agent of said office. And shall further pay and deliver to his successor in office, or any other person authorized to receive same, all balances, sums of money, books, goods, valuables and other property, which shall be in his possession and due by him, then the above obligation shall be null and void ; else the same to remain in full force and virtue.”

The complaint further alleged that the Bank Commissioner, as disbursing agent, procured warrants on vouchers issued by him for the salary of $5,000 per annum as Bank Commissioner and also for the $1,000 per annum additional salary for his services in relation to building and loan associations; that the amounts so drawn on the last-named salary from and after the execution of the bond amounted to $2,125; that the disbursement of said sum to the said Taylor was unauthorized and unlawful because the act granting additional salary was in violation of § 23 of art. 19 of the Constitution and therefore void.

The statute under which the aforesaid bond was required and given is act No. 781 of the Acts of 1923. Section 3 of said act provides: “Each disbursing agent shall be required to give bond in such a manner as shall be deemed necessary by the Auditor of State, and said bond shall be protection to the State or any of its creditors in case of losses sustained by reason of the acts of said person.” And § 4 of said act provides that: “Any sucb person (disbursing agent) incurring an obligation which cannot be paid because of no appropriation or the lack of sufficient appropriation shall be liable on his bond as hereinbefore mentioned for the amount of such obligation. ’ ’

It is the contention of the appellant that, when these sections are read into the bond, it would cover the alleged unlawful payment of additional compensation by the disbursing agent to any employee, of his department, and especially where the employee and disbursing agent are one and the same. The surety in this case was a corporation conducting its business of writing fidelity bonds for a profit, and, as it is such, it is insisted that the rule strictissimi juris has no application, but that its contracts of surety will be construed most strongly against it and in favor of the indemnity which the surety has reasonable grounds to expect, and that, where the bond is open to two constructions, one of which will support, and the other defeat, the surety’s liability, that which will support liability will be adopted. There can be no doubt of the correctness of this rule, but, when the allegation of the complaint and the provisions of the bond are considered, it appears that in any view of the case there was no violation of the conditions of the bond, or the insurance company liable for any indemnity which it had reasonable grounds to expect from the language of the act and bond. It appears that the Legislature regularly passed acts appropriating the money which the disbursing agent disbursed to himself which is sought to be recovered in this action. The obligation which the surety undertook was to indemnify the State where money was disbursed for which there had been no appropriation or a lack of appropriation and the losses referred to in § 3, supra, necessarily relate to those incurred by reason of the unlawful acts of the disbursing agent in incurring an obligation where no sufficient appropriation was made therefor.

The Legislature in 1923 passed the act requiring the bond and stating its conditions. Afterwards, by act No. 128 of the Acts of 1929, it authorized the expenditures which are complained of here. The funds were disbursed by the disbursing agent in accordance with the appropriations made by the Legislature, and this is all that the insurance company, by its bond, undertook that he should do.

It follows that the trial court correctly sustained the demurrer of the Massachusetts Bonding & Insurance Company, and its judgment is hereby affirmed.

Johnson, C. J.,

(dissenting). The majority opinion presents the anomalous situation of the principal being held liable for unlawful and unauthorized acts during the paid life of his surety 'bond and his paid surety being determined not liable, for the same expenditures.

Taylor, who was held liable by the trial court, was the duly qualified and acting Bank Commissioner of this State, and as such executed a bond Yvhich was signed by appellee surety company in the principal sum of $5,000, conditioned that Taylor ‘ ‘ shall well, truly and faithfully disburse appropriations of said office according to laws governing same, etc.” Apparently, Taylor unlawfully withdrew, as salary, the aggregate sum of $2,125 during the life of appellee’s suretyship; therefore, should be held liable therefor.

The majority holding is anomalous in that it holds that the act of the Legislature, appropriating $1,000 per annum as extra salary to Taylor as supervisor of building and loan associations is void, when applied to Taylor, being prohibited by § 23, article 19, of the Constitution of 1871 as follows:

“No officer of this State, nor of any county, city or town, shall receive, directly or indirectly, for salary, fees and perquisites more, than five thousand dollars net profits per annum in par funds, and any. and all sums in excess of this amount shall be paid into the State, county, city or town treasury as shall hereafter be directed by appropriate legislation;” and yet it determines that the surety is not liable because of the protection of said appropriation act. Just how or why an act of the Legislature may be unconstitutional and void as to one person and valid and binding as to others, is not pointed ont in the opinion. My conception of the law is that an act of the Legislature which is determined to be unconstitutional and void is so even when applied to a paid surety company. Apparently Taylor cannot deny his liability for the withdrawals because the appropriation act awarding it is unconstitutional and void; he is in the same position he would have been had there been no appropriation act. A fortiori the surety company is likewise liable because the appropriation act is unconstitutional and void and can not be pleaded in defense or as lawful authority for such acts or in justification of such unlawful disbursements.

The crux of the. majority opinion seems to be that, since § 4 of act 781 of 1923 provides for liability against the surety only when “no appropriation,” has been made by the Legislature; that, when such appropriation is made, even though unconstitutional and void, it is full protection to the paid surety. No authority is cited in support of the holding thus stated. The majority overlooked the fact that there has been no valid appropriation in this case; therefore “no appropriation.” The Legislature of this State is without power or authority to make such appropriation because in conflict with the constitutional provision heretofore quoted. The status is just this: This money was disbursed by and to Taylor without a valid appropriation authorizing it. Therefore, there is “no appropriation” in the eyes of the law. It is an elementary principle of law that ignorance thereof excuses no man, and I know of no authority to the contrary. Until now, it has had full application by this court. It ought to be now said that ignorance of the law excuses no man or corporation. Under this view the Surety Company knew these disbursements were being made by and to Taylor without valid appropriation therefor. It is almost the universal rule that an unconstitutional statute is no law and is wholly void. Cohn v. Virginia, 6 Wheat. 264. And that in legal contemplation it as ineffectual as if it had never been passed. Louisiana v. Pillsbury, 105 U. S. 78. And such unconstitutional statute affords no protection to any one, Huntington v. Worthen, 120 U. S. 97, 7 S. Ct. 469. And no courts are bound to enforce it. United States v. Realty Co., 163 U. S. 427, 16 S. Ct. 1120. For authority generally on the subject, see 6 R. C. L., page 117.

In conformity to the law, this case should be reversed and remanded.

I am authorized to say Mr. Justice. Humphreys agrees with the views here expressed.


source: Caselaw Access Project

author: Johnson, C. J.

license: Public Domain

text:
    Equitable Life Assurance Society v. Felton.
    4-3475.
    Opinion delivered May 28, 1934.

      D. S. Plummer and Rose, Hemingway, Cantrell & Loughborough, for appellant.

      Daggett & Daggett, for appellee.
   Johnson, C. J.

On the threshold of this case we are confronted with the contention, advanced by appellee, that appellant’s contentions, as evidenced in the motion for new trial, cannot here be considered for the reason that said motion was filed without the time given by § 1314, Crawford & Moses’ Digest, of the laws of Arkansas. Although this contention presents a very serious question, it relates to this case only. Therefore we pretermit consideration or determination thereof, because the case must be affirmed on its merits.

In 1924 appellant issued and delivered its contract of insurance to one William F. Felton, by the terms of which it agreed to pay the sum of $5,000 in the event of death and, in addition thereto, agreed:

“Total and Permanent Disability
“(1) Disability benefits before age 60 shall be effective upon receipt of due proof, before default in the payment of premium, that the insured became totally and permanently disabled by bodily injury or disease, after this policy became effective and before its anniversary upon which the insured’s age at nearest birthday is 60 years, in which event the society will grant the following benefits :
“ (a) Waive payment of all premiums payable upon this policy falling due after receipt of such proof and during the continuance of such total and permanent disability; and
.“(b) Pay to the insured a monthly disability-annuity, as stated on the face hereof; the first payment to be payable upon receipt of due proof of such disability and subsequent payments monthly thereafter during the continuance of such total and permanent disability, provided, that, if this policy is continued under the endowment conversion option, the disability-annuity shall continue only during such total and permanent disability until the maturity of the endowment.”

The insured died on March 19, 1933, and the death benefit, as provided in said contract, has been paid. The controversy here arises under the total and permanent disability clauses heretofore quoted.

It is admitted by appellant that William F. Felton, the insured, became totally and permanently disabled, in the purview of the contract of insurance, in May, 1930. Therefore there is no contention of no liability on this account.

However, it is earnestly contended by appellant that liability should be restricted to the sum of $48.06, same being the amount which accrued after the filing of proof of total and permanent disability, which occurred on March 10, 1933, and the death of the insured.

By invitation of the plaintiff in the court below, and appellee here, the case was tried upon the theory that the insured became mentally incompetent or insane in May, 1930, upon the occurrence of total and permanent disability, and was therefore excused from giving notice or filing proof of such disability with the insurer during the period of such disability. Much evidence was adduced upon this branch of the case. Even so, appellant contended below and contends here that the< evidence offered was not sufficient to warrant submission to the jury of the issue of insured’s mental condition. The evidence tended to establish the following facts:

That prior to May, 1930, insured was strong and alert in body and of robust health; that he was mentally sound and alert; that suddenly he was beset with vertigo, blindness, dizzy spells and frequent lapses of consciousness which continued up to his death; that he ignored advice of attending physicians to desist from all labor, and, on the contrary, continued his efforts though resulting in a waste of time and energy; that he assumed an attitude of coolness and indifference towards his family which had not existed prior to May, 1930; that he advised his son that his mind was impaired and directed him to remove and hide the firearms from their accustomed places; that he could not carry on an intelligent conversation, in that he would suddenly leave the subject and jump to another; that he seriously objected to his son submitting his policies of insurance to an attorney for legal advice because he feared that it might destroy his insurance. The attending physician testified, in effect, that during the period from May, 1930, up to the death of the insured his mind was confused, and when asked: “Q. Would you say from your association with Mr. Felton, and your treatment and observation of bim, that the mental impairment was such that he conld not transact the ordinary affairs of life? ’’ stated: ‘£A. I don’t believe. I conld answer that question yes or no, because the question of his judgment and the question of his reason would come into it; he could transact it but he might transact it wrong.”

On the evidence thus adduced, appellant requested a directed verdict in its behalf, which was refused by the trial court, and thereupon the cause was submitted to the jury under the following instructions. For appellee, request No. 2, as follows: “If you find from a'preponderance of. the evidence that during the period between May, 1930, and the date on which the said William F. Felton died, he was, by reason of disease and illness, mentally impaired to the extent that he was incapable of carrying on the ordinary affairs of life; and was incapable mentally of such sustained effort as would enable him to comprehend such affairs as needed his attention, then you are instructed that his failure to give the defendant notice of such disability would not bar the right of the plaintiff to recover in this action.”

For appellant, the following requests:

“No. 3A. You are instructed that proof of the inability to perform the ordinary affairs of life, does not entitle the plaintiff to recover. In order to recover more than the amount admitted to be due, the plaintiff must show that the insured did not have mentality enough to understand the ordinary things and affairs of life.
“No. 4. If you find from the evidence that in May, 1930, the insured, William F. Felton, became disabled by physical disease, but that his mind was not continuously impaired from that date until the time of his death, but on the contrary he had during a substantial portion of that time sufficient mental capacity to understand the ordinary affairs of his life, then he would not be entitled to recover disability benefits except for the month which intervened between the receipt of the proofs of disability and his death.
“No. 5. You are instructed that an intermittent inability to comprehend the ordinary affairs of life would not excuse the insured from furnishing proofs of disability. If at intervals he had control of his faculties for considerable periods to such an extent that he could understand the ordinary affairs of life, then the plaintiff would be entitled to recover only for the period which commenced with the time when he became continuously unable to comprehend the ordinary affairs of life.
“No. 7. You are instructed that the plaintiff would not be entitled to recover the disability benefits for the period during which he Avas capable of exercising the sustained mental effort which Avould enable him to understand and comprehend the ordinary affairs of life. If he did not reach this stage of mental impairment until sometime subsequent to May 30,1930, then your verdict should in no event be for an amount which would exceed the amount of the premiums paid, if any, the disability benefits which accrued during such period of mental impairment as above described.”

In reference to the status of mentality, which would excuse an insured from giving notice to the insurer or filing proof of such total and permanent disability, we stated the rule in Pfeiffer v. Missouri State Life Ins. Co., 174 Ark. 783, 297 S. W. 847, as follows:

“He must have been able to carry on the ordinary affairs of life, and this meant that his mind must be capable of sustained effort, so that he would comprehend such affairs as needed his attention, and not merely that he might talk Avith seeming intelligence upon a subject brought directly to his attention by some one. ’ ’

Appellee’s requested instruction No. 2 conformed to the rule as announced above, and we think it is a correct guide in cases of similar import.

Neither can we agree that the evidence Avas not sufficient to submit the mental condition of the insured to the jury. Under the settled practice in this court; it is our duty to sustain the jury’s findings when supported by substantial evidence. When thus considered, we cannot say that the verdict of the jury is without substantial evidence to support it.

The contention that the instructions given upon request of appellant are in conflict with those given upon request of appellee is likewise without merit. Appellee’s instruction No. 2 is easily harmonized with appellee’s requests 3A, 4, 5 and 7. These instructions, when read together, conform to previous decisions of this court even though they present different theories as reflected by the evidence. Lastly, it is contended that appellee’s instruction No. 3 is in conflict with appellant’s requested instruction No. 7 heretofore quoted. Appellee’s, requested instruction No. 3 is as follows:

“If you find for the plaintiff under instruction No. 2, you will find a verdict for disability benefits at the rate of $48.06 per month from June, 1930, to March, 1933, inclusive, a period of thirty-three (33) months, an aggregate sum of $1,585.98; and you will also find a verdict in favor of plaintiff for premiums paid by plaintiff’s intestate on August 14, 1932, and February 14, 1933, in the aggregate sum of $1,222.40.”

Viewed from appellee’s theory of the case, this instruction was a correct declaration of law, and, conceding that it is in conflict with appellant’s instruction No. 7, it avails appellant nothing, because, if error, it was invited. St. L.-S. F. Ry. Co. v. Cole, 174 Ark. 10, 294 S. W. 357.

Moreover, if we are in error in all the conclusions heretofore stated, this case must be affirmed for still another reason. Appellant admits that William F. F'elton, the insured, became totally and permanently disabled in the purview of the contract of insurance in May, 1930, and that this total and permanent disability continued until his death in March, 1933.

We have repeatedly held, in cases arising under contracts of insurance not dissimilar to the one here involved, that liability against the insurer and in favor of the insured attaches and comes into being- upon the happening- of total and permanent disability. Smith v. Mutual Life Ins. Co., 188 Ark. 1111, 69 S. W. (2d) 874. Also Ætna Life Ins. Co. v. Davis, 187 Ark. 398, 60 S. W. (2d) 912; Ætna Life Ins. Co. v. Phifer, 160 Ark. 98, 254 S. W. 335. See especially Missouri State Life Ins. Co. v. Case, ante p. 223, wherein all our previous decisions are reviewed on this subject. Under the plain terms of the contract here under consideration, recovery is not limited or postponed to or by any certain contingency, as was the contract in Smith v. Mutual Life Ins. Co., supra, and other cases there cited. In the contract here under consideration liability attached in May, 1930. The requirement for proof of loss or notice under this contract, being a condition subsequent, suit might be maintained for the liability at any time until barred by the statute of limitations. Ætna Life Ins. Co. v. Davis, supra; Missouri State Life Ins. Co. v. Foster, 188 Ark. 1116, 69 S. W. (2d) 869. Under the view as thus stated, the trial court might have directed a verdict in favor of appellee for the amount sued for.

The judgment is affirmed.


author: Smith, J.

text:
    State v. Neil.
    Crim. 3872
    Opinion delivered May 28, 1934.

      Ilal L. Norwood, Attorney General, and John W. Nance, for appellant.

      Blansett & Holyfield and Duty $ Duty, for appellee.
   Smith, J.

Appellee was placed on trial, under an indictment charging him with the commission of the crime of grand larceny, alleged to have been committed by stealing an electric lighting plant, the property of the National Old Line Life Insurance Company. The theory npon which the insurance company claimed title to the articles alleged to have been stolen was that they were a part of the realty, the title to which had been secured through purchase under a decree foreclosing a mortgage upon which land the light plant was located. The mortgage described only the real estate, and contained no reference to the light plant.

At the conclusion of the testimony, the jury returned a verdict of not guilty under the direction of the court, and it is said that the reasons inducing this action were:

(1) that the property alleged to have been stolen was not annexed to the realty in such a way as to become a part of it and subject to the lien held by the mortgagee, and

(2) that, if said property was so annexed to the realty as to become a part of it, it was not the subject of larceny. It is apparent that the decision of these questions would involve a consideration of questions of fact. The decision of these interesting questions is foreclosed because they are not property presented for our review.

A motion for a new trial was filed on. the ground “That the court erred in its judgment in directing the jury to return a verdict in favor of the defendant.” It appears, however, that this motion was not pressed to a ruling thereon, and that the court adjourned without disposing of the motion.

A motion for a new trial is essential to the review of an alleged error which does not appear upon the face of the record, and is essential in this case to a review of the action of the court in directing the jury to return a verdict of not guilty. The purpose of a motion for a new trial is to call the alleged errors occurring during the trial to the attention of the court, and to afford an opportunity for correction by granting a new trial if the errors may not otherwise be corrected. Nordin v. State, 143 Ark. 364, 220 S. W. 473.

In the case of Incorporated Town of Corning v. Thompson, 113 Ark. 237, 168 S. W. 128, a judgment was entered imposing a fine npon the defendant pursuant to the verdict of the jury returned in that case. A motion for a new trial was filed, hut the court adjourned without disposing of the motion, and, at the succeeding term of the court, the motion was sustained, upon the ground that there was not sufficient evidence to support it, and the judgment was set aside and the defendant discharged. An appeal was duly prosecuted and that judgment was reversed. Section 2421, Kirby’s Digest, which now appears as § 3218, Crawford & Moses’ Digest, was quoted. That section reads as follows: “The application for a new trial must be made at the same time (term) at which the verdict is rendered unless the judgment is postponed to another term, in which case it may be made any time before judgment.” It was there said that this statute contemplates that the motion for a new trial should .be made at the same term of the court at which the verdict was rendered, and' should be acted upon at that term unless the rendition of the judgment is postponed to another term. It was further said that, inasmuch as the judgment was entered at the term of court at which the trial was had, and the term of court had adjourned without setting the judgment aside, the judgment became final, as the order of the court continuing the cause after the motion for a new trial was filed did not have the effect of setting aside the judgment. Further construing this statute, it was there said that, when the motion for a new trial was filed, the court might have postponed entry of the judgment until the next term of the court, and have continued hearing of the motion, which action would have operated as a continuance of the cause, in which event the motion could have been passed on at the subsequent term, but as this was not done, the defendant lost the benefit of his motion when the term of the court, at which the trial was had and the judgment entered, was adjourned until court in course. See also Thomas v. State, 136 Ark. 290, 206 S. W. 435; Collatt v. State, 165 Ark. 136, 262 S. W. 990; American Ins. Co. v. Dutton, 183 Ark. 595, 37 S. W. (2d) 875.

The motion for a new trial in this cause was not acted upon, nor was the judgment set aside at the term at which it was rendered. It therefore became final with the adjournment of the term; and as no error appears upon the face of the record, the judgment must be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Equitable Life Assurance Society of United States v. Felton.
    4-3476
    Opinion delivered May 28, 1934.

      D. S. Plummer and Bose, Hemingway, Cantrell <& Loughborough, for appellant.

      Daggett Daggett, for appellee.
   Humphreys, J.

Appellee instituted this suit on the 29th day of June, 1933, against appellant in the circuit court of Lee County to recover $3,040.64 on a life insurance policy issued by appellant to her husband in October, 1924, in which she was the beneficiary, together with the statutory penalty and attorney’s fee provided by § 6155 of Crawford & Moses’ Digest for refusal to pay same.

The cause was submitted to the court, sitting as a jury, upon the pleadings and testimony adduced, which resulted in a judgment against appellant for $3,040.64, the amount admitted to be due after deducting the loan on the policy, and the sum of $36480 statutory penalty, being 12 per cent, of the amount recovered, and $350 as attorney’s fee, from which is this appeal.

Appellant has paid in partial satisfaction of the judgment $3,108.72, being the amount admitted to be due on the policy, together with interest thereon, so the only question presented by this appeal is whether appellee was entitled to recover the statutory penalty and attorney’s fee.

The record reflects the facts to be that the policy sued upon provides an indemnity of $5,000 payable to the beneficiary in ease of the death of the insured, William F. Felton, and for an indemnity payable to the insured in case of his disability; that, prior to his death, he presented a claim for about $3,000 to the appellant under a disability benefit in the policy, which was being investigated at the time of his death; that, upon proof being made of his death, appellant admitted its liability on that account and offered to pay same to appellee if she would surrender the policy; that appellee refused to surrender the policy until her claim on account of the disability of her husband was allowed or settled, but offered to receive the amount tendered and execute an acquittance on account of the death claim; that appellant refused to accept the acquittance and pay the death claim, but demanded a surrender of the policy before it would pay the amount admitted to be due; that the policy provides that appellant “agrees to pay at its home office in the city of New York $5,000 to his wife, Sarah E. Felton, beneficiary, with the right of the insured to change the beneficiary or assign this policy upon receipt of due proof of death of the insured, provided premiums have been duly paid and this policy is then in force and is-then surrendered properly released.” Section 6155 of Crawford & Moses ’ Digest, relative to a failure to pay insurance claims, is as follows:

“In all cases where loss occurs, and the fire, life, health, or accident insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable to pay the holder of such policy, in addition to the amount of such loss, twelve per cent, damages upon the amount of such loss, together with all reasonable attorneys’ fees for the prosecution and collection of said loss; said attorneys ’ fee to be taxed by the court where the same is heard on original action, by appeal or otherwise and to be taxed up as a part of the costs therein and collected as other costs are or may be by law collected. ’ ’

The purpose of this suit was to force the payment of the admitted death claim and as an incident thereto the recovery of a penalty and attorney’s fee for failure to pay same. The right to maintain the suit for the recovery of the death claim depends upon a correct construction of the clause in the policy providing for a surrender of the policy upon payment of the claim. The policy contains two contracts, one covering the -death of the insured, and the other covering his disability. "Where the disability of the insured is a- matter in dispute and the subject of an existing claim at the time of his death, to require the surrender of the policy as a condition precedent to the payment of the admitted death claim would take from the beneficiary or claimant the evidence of the disability contract or the instrument upon which to base a suit for the recovery on account of the disability. It seems to us in such a contingency the only reasonable construction to give the policy surrender clause is that the surrender or delivery of the policy must be postponed until the claim for disability is adjusted or paid. Of course, there could be no reason for withholding the policy if no disability claim had arisen prior to the insured’s death, but where such a claim exists, there is good reason for retaining the policy, and the clause should be construed in accord with reason. The insurer could suffer no injury by paying the admitted death claim and taking a receipt therefor pending the adjustment of the disability claim. According to the record, the beneficiary offered to execute such a receipt upon the payment of the death claim. Appellant embraced both contracts in the same policy or instrument, and, if inconvenience results therefrom, it (the insurer) should bear the burden of such inconvenience.

The right existed to bring suit to enforce payment of the death claim under the circumstances without surrender of the policy, so the 12 per cent, penalty followed the judgment. We cannot reduce it. The amount of the attorney’s fee is not fixed by the statute, but is dependent upon the value of the services rendered. This suit involved the question of enforcing the payment of an admitted liability and not that of a disputed liability, and for that reason we have reduced the fee allowed to $175, and the judgment, as modified, is affirmed.

Butler, J., dissents.


author: Mehaffy, J.

text:
    Hanna v. Magee.
    4-3364, 4-3469
    Opinion delivered May 28, 1934.

      J. D. Cook, Sr., J. D. Cook, Jr., and B. E. Carter, 'for appellants.

      Shaver, Shaver $ Williams, for appellees.
   Mehaffy, J.

J. O. Magee died on July 17, 1932. The record shows that in 1918 J. O. Magee made a will, which was left with the bank in Texarkana, Arkansas.

On January 23,1924, J. O. Magee made another will. This will.made in 1924 was written by Judge Pratt P. Bacon, who was at that time practicing law in Texarkana, Arkansas. At Judge Bacon’s suggestion, Mr. Magee gave him $1 to pay to the clerk and the will was deposited with the county clerk of Miller County.

After the death of J. O. Magee, this will was probated and F. F. Magee, the. executor named in the will, took charge of. all the property of the deceased. F. F. Magee was a brother of J. O. Magee. On November 18, 1932, F. F. Magee died, and his widow, Mallie Magee, was appointed administratrix of the estate of J. 0., Magee.

The will made in 1924 was identical with the will made in 1918, except the will in 1918 did not mention the brothers and sisters of J. O. Magee, and the will of 1924 gave them $1 each. All of the estate of J. O. Magee, except $1 each to his brothers and sisters, was bequeathed to F. F. Magee. In the will of 1918, all the property was bequeathed to F. F. Magee.

After the death of F. F. Magee, on April 21, 1933, the appellants filed suit in the Miller Chancery Court, alleging that prior to the death of J. O. Magee, on or about the last day of March or the first day of April, 1932, he executed his last and final will and testament, and by its terms revoked all former wills; and that said will, alleged to have been executed by J. O. Magee, had been lost, destroyed or suppressed, and that a former revoked will had been probated. It was alleged that F. F. Magee, a brother of J. O. Magee, was named as practically the sole beneficiary in the will alleged to have been revoked; that he had caused the same to be probated, and letters testamentary issued to himself, by virtue of which he took possession of all the property of J. O. Magee, deceased; that either Fleet F. Magee, who had since died, suppressed, lost or destroyed said will during his lifetime, or the same at his death fell into the hands of his successor in administration, Mallie Magee, or into her hands as administratrix of the estate of F. F. Magee, and said administratrix had suppressed, lost or destroyed said will; that said last will was written entirely in the handwriting of J. O. Magee, and was declared by him to be his last will and testament, and the written terms thereof revoked any and all former, wills made by him.

The complaint then set out the provisions of said lost, suppressed or destroyed will. It further alleged that Mallie Magee was appointed administratrix of the estate, of J. O. Magee, and also administratrix of the estate of Fleet F. Magee; that Mallie Magee as administratrix has made no report of the property that came into her hands, and that she was at that time asking for an order of distribution. It was also alleged that the estate was of the value of $120,000.

The complaint prayed that they be permitted to prove the. existence and possession of said will and contents of same, and the. legal execution; that said lost will be restored and caused to be probated, and that the will already probated be canceled and set aside. The appellees filed answer denying all the material allegations in the complaint. The appellants prosecuted an appeal from the probate court to the Miller Circuit Court, and there filed the complaint, which was substantially the same as the complaint in the chancery court.

On May 16, 1933, the chancery court heard the case in the suit to restore the lost will, and dismissed the complaint for want of equity. On November 29, 1933, the case was tried in the circuit court, and judgment entered admitting the will executed in 1921 to probate as the last will and testament of J. O. Magee, and approving and confirming the judgment of the probate court admitting said will to probate. The chancery case is here as No. 33'64 and the appeal from the circuit court is here as No. 3469. The two cases are consolidated and briefed together.

It is admitted that the will probated, the one executed in 1924, was duly made and published, but appellants contend that it was revoked by a later will, which is alleged to have been lost, destroyed or suppressed.

Mrs. Will Green testified that she had known Mr. J. O. Magee the last six years of his life; that she and her husband lived about one-half mile from Magee’s house; that Magee talked to her about making a will several times before he made it; that there were some he felt he should leave things to; that she and her husband witnessed the will made some time the last of March or first of April; that Jake Davis, a negro boy, came to their house and took them over to Mr. Magee’s, and he said he wanted them to witness a will for him; he had not prepared the will at the time; he prepared it in the presence of witness and her husband; they went to his house about ten o’clock, and he sat down and got some paper and said he had a general form to go by; he said that the donations and gifts he was going to make he had on a slip of paper; said he had made two former wills, but this one revoked all other wills; the will said J. O. Magee declared it to be his last will" and testament, and something about sane and disposing mind; said he revoked all former wills; this was in the will; that he wanted Paralee Brown to have $500 and 60 acres of land; gave a description of the land, but witness does not remember it; he gave I. D. Miller $500 and Jake Davis $250 and any car he would have at Ms death; and Mrs. Bettie Dodson at Garland $5,000 and a brick store building; witness does not know the description of the property, but testified that he gave it to Bettie Dodson before the will was made; that he gave to Fleet Magee $1, and a $5,000 life insurance policy and forgave Fleet Magee all his debts; he said he wanted the balance of his property to be divided among his brothers and sisters; said he wanted it distributed according to the laws of inheritance; that Magee signed the will and read it to witness and Mr. Green; there was a little paragraph after he signed it, and witness and her husband signed it at his request and in his presence and in the presence of each other; witness read it before she signed it; his mental condition was normal; the will was dated at the top; she saw the will again on Sunday before Magee went to Texarkana sick, and read the will at that time; Mague took the will out of a wallet where he kept it in the right-hand drawer of a dresser locked; he kept money and other papers there; some insurance and receipts and some notes; he wrote the will with an indelible pencil; made his will in March or April, 1932, using large sheets of heavy writing paper; it took one and one-half sheets; this was the first will witness ever saw; no one was present except Magee, witness and her husband; she does not think her husband read the will over; she said Magee told them he had made two other wills; she remembers that because she asked him; his mental condition was all right; she testified that the occasion of Magee’s showing her the will was, she asked him about some notes he had of theirs; she asked Magee to let her see their notes, and he did, and it was then she saw the will again and read it.

Will Green, husband of Mrs. Will Green, testified to substantially the same facts as Mrs. Green about the writing and the bequests and the signing of the will. He never saw the will again; he testified that he read the will and just signed on one page, the last- one; this was the only will witness ever saw or had anything to do with.

Several witnesses testified that J. O. Magee, during his lifetime, told them he had made a will.

Numbers of witnesses testified for the appellees that Magee had talked to them during his lifetime and told them that he intended for his brother, Fleet Magee, to. have all of his property.

Judge Pratt Bacon testified that he had known J. O. Magee and Fleet Mague all their lives, and had represented them both for probably 25 years. He prepared the will made in 1924. There was a prior will made in 1918. He testified that the will made in 1924 was the last will made by J. O. Magee. Witness testified that the last time he saw Mr. Magee he was very sick, and that his right arm was paralyzed; he was there in February, 1932, and ate dinner there, and Magee could not use his right arm to cut his food; he fed himself with his left hand; the relation between J. O. Magee and his brother, Fleet, was the very best; it was always stated by him in all their conversations that at his death he wanted Fleet to have all his property; he testified that the Greens owed J. O. Magee $3,000 and it was evidenced by three notes; that he drew the notes and mortgage and kept them; turned them over to Fleet Magee after J. O. Magee died. Since the death of Fleet Magee, a payment has been made on the Green notes, and new notes have been made, and witness has possession of them; he prepared the papers; they never were down in the wallet of Jake Magee; were always in witness’ possession until J. O. Magee died; one note was past due, and J. O. Magee had been talking about foreclosing when he became sick; that Mrs. Green, on February 17th, paid $250 cash and signed new notes; witness returned to Mrs. Green the $3,000 notes and mortgage; witness went down to the farm with Mrs. Magee after Fleet Magee died to get an inventory of the property; Paralee Brown had been Magee’s cook for some time; witness asked her if she ever heard Mr. Magee say anything about the disposition of his property ; she said Mr. Magee always said Fleet was to get it; she did not say anything about $500 and 60' acres of land; and when Will Green executed the notes, he did not say anything about having seen the draft of another will.

The undisputed evidence shows that J. O. Magee had a stroke of paralysis about December, 1931, and he died July 17, 1932. There is some conflict in the testimony as to his ability to write after the first stroke of paralysis. He could sign his name, but after the stroke he did not write checks nor other instruments, but, when necessary, he. would sign his name. This condition continued up until May or June, at which time he arranged with the bank for Mrs. Mallie Magee to sign all his checks, because his handwriting became so bad that the bank would not pay checks signed by him.

Section 10,545 of Crawford & Moses’ Digest reads as follows: “No will of any testator shall be allowed to be proved as a lost or destroyed will, unless the same shall be proved to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator; nor unless its provisions be clearly and distinctly proved by at least two witnesses, a correct copy or draft being equivalent to one witness.”

The Greens, husband and wife, testified that about the last of March or the first of April, 1932, J. O. Magee wrote with an indelible pencil his will, and that he signed it, and they signed it as witnesses. They then undertake to give the provisions of the will. Each of them testifies that this was the first will they ever saw; they have no knowledge, about such instruments at all.

While there is some conflict in the eivdence as to J. O. Magee’s ability to use his hand, we think the evidence as a whole cleaiiy shows that he could not have-written the will with all the provisions testified to by the Greens in the manner in which it is alleged to have been written. The preponderance of the evidence shows that Magee kept his valuable papers in a bank at Texarkana, and the Greens testify that he wrote this will, signed it and they signed it, and that he put it in a wallet and put it in a dresser drawer. The key to this drawer, as shown by the undisputed evidence, was kept by Magee’s negro cook. After it is alleged that this will was written, nothing was said about it by either of the Greens, except one witness testified that the Greens told him immediately after it was done. Magee died, and the will that was in the custody of the county clerk was probated, Fleet Magee made executor, and no claim was made that a will had been made and lost until November 18, 1932. The suit was filed in chancery court April 12, 1933, more than a year after it is claimed the will was made.

There is a total lack of evidence that either Fleet or Mallie Magee destroyed the will. When all the circumstances are considered, we think the proof fails to establish that the will claimed to be lost Avas ever made.

“The policy of the law has thrown around last wills and testaments as many, if not more, shields to protect them from frauds, impositions and undue influence than any mode of conveyance known to the law. Can there be a doubt that, in cases like the present, where the object is to establish the contents of a paper which has been destroyed, as and for a last will, that policy does require the contents of such paper to be established by the clearest, the most conclusive, and satisfactory proof? We think not.” Allnutt v. Wood, 176 Ark. 537, 3 S. W. (2d) 298.

“The burden of proof to establish the execution and contents of the lost will is upon the party who claims under it. The petitioner is usually required to prove the execution and the contents of the lost will by evidence which shall be strong, cogent and convincing. It is sometimes said that the evidence must be clear, full and satisfactory, though he is never required to produce evidence sufficient to remove all reasonable doubt from the mind of the court.” 1 Underhill on Law of Evidence, § 275.

“To support a recovery upon or under a lost instrument, the evidence must be clear and satisfactory that the instrument once existed, but has been lost, and, though diligent search for it has been made, cannot be found, and as to its contents it must be proved in all its substantial parts.” 8 Enc. of Ev., 359.

“On no subject, perhaps, are statutes so strict in requiring a writing executed and attested in certain forms as in the. case of wills, and, while it is firmly established that a lost will may be proved by secondary evidence, the courts have always required such evidence to be direct, clear, and convincing’.” Clark v. Turner, 38 L. R. A. 433; 14 Enc. of Evidence, 465.

We think the circumstances introduced in evidence are sufficient to overcome the evidence of the Greens as to the execution of the will. The persons testifying to the execution of the will, as we have already said, had never seen a will before, knew nothing about instruments of that kind, and were called to testify about a year afterwards. We think the circumstances also show that Magee could not have written the will in the manner in which it is alleged to have been written.

“The settled rule, which has been many times approved by this court, is that a well connected train of circumstances is as cogent of the existence of a fact as an array of direct evidence, and frequently outweighs opposing direct testimony, and that any issue of fact in controversy can be established by circumstantial evidence when the circumstances adduced are such that reasonable minds might draw different conclusions.” Pekin Wood Products Co. v. Mason, 185 Ark. 167, 46 S. W. (2d) 798; 23 C. J. 48.

There are other circumstances tending to disprove the execution of the will. All of the evidence shows the good feeling between the brothers, J. O. and Fleet Magee, and the evidence also shows that when J. O. Magee would come to Texarkana, he always stayed at Fleet Magee’s house; that after it is alleged this will was executed he authorized the bank to accept checks signed by Mrs. Magee. He told many people that all of his property would go to his brother, Fleet Magee. He had made two wills, one in 1918 and one in 1924, and in each of them Fleet Magee was the beneficiary. We think therefore, when all the evidence is considered, that appellants have not established the execution of the will by that land of evidence required under the law. Having reached the conclusion that the. evidence fails to show the execution of the will that is alleged to have been lost, it becomes unnecessary to decide the other questions discussed by counsel.

The judgment of the circuit and decree of the chancery courts are affirmed.


author: McHaney, J.

text:
    W. P. Brown & Sons Lumber Company v. Oaties.
    4-3473
    Opinion delivered May 28, 1934.

      W. W. Sharp, for appellant.

      E. P. Smith, for appellee.
   McHaney, J.

Appellant owns and operates a narrow-gauge railroad in connection with its sawmill, over which it hauls logs to its mill. Appellee was employed by appellant as tong-hooker in loading logs onto its cars in the woods. On August 24, 1933, after having worked ail day in the woods, appellee and the other employees were transported back to the mill on the log train. All the employees, except the engineer, fireman and appefiee, left the train before reaching the mill, but these latter continued for the performance of other duties, one of which was to place the other engine at the water tank, spot it to go out next morning. The log cars were coupled to the engine and to each other by the link and pin system. After cutting the engine loose from the cars, appellee," as he says, under direction of the engineer, attempted to couple the live engine to the dead one for the purpose of spotting it as aforesaid. The engineer obeyed his lantern signal (darkness having overtaken them) to back up, but negligently failed to obey his stop signal when he attempted to make the coupling, and his hand was caught between the draw-bars of the two engines and severely injured. Trial resulted in a verdict and judgment in his favor for $500.

For a reversal of the judgment, appellant insists that there was no negligence on its part established; that appellee himself was negligent; and that he was a mere volunteer at the time he was hurt. In other words, that the evidence is insufficient to support the verdict. We cannot agree, but are of the opinion that the evidence was sufficient to take the case to the jury, considering it in the light most favorable to appellee, as we must do. He had been working for appellant since 1925 as a tong-hooker, except the time the mill had not been in operation because of depressed business conditions. Operations had only recently been renewed. During all his work he had frequently made couplings of cars in the woods to the knowledge 'of all the officials and other employees. He was a kind of handy man, doing whatever he was told to do. He says he was instructed by the engineer to make the coupling at the time he was injured. He attempted to obey this order, and the engineer knew he was doing so, as he responded to his signal to back up slowly. Appellee stepped between the engines to make the coupling and gave the stop signal. The engineer obeyed the first and failed to obey the second. The drawbars came together with such force as to knock the dead engine about one foot, and appellee’s hand was injured. Under these facts we think it a question for the jury as to whether this was negligence and was the proximate cause of the injury.

Contributory negligence would not bar a recovery, even though it be conceded he was contributorily negligent. Sections 7144, 7145, Crawford & Moses ’ Digest. In this respect appellee’s instruction No. 1, given by the court, was more favorable to appellant than the law justified.

•Whether appellee was a mere volunteer and acting without the scope of his employment was a question of fact, and was submitted to the jury under instructions requested by appellant. We cannot say as a matter of law that he was a mere volunteer.

No error prejudicial to appellant appearing, the judgment must be affirmed.


author: Butler, J.

text:
    Ogden v. Pulaski County.
    4-3474
    Opinion delivered May 28, 1934.

      Brickhouse •& Brickhouse, for appellants.

      Carl E. Bailey and Murray O. Reecl, for appellee.
   Butler, J.

On January 9,1933, plaintiffs in the court below filed a claim with the Pulaski County Court for $13,-299.31, and asked that the same be paid out of the county turnback fund accruing to the county under the provisions of act No. 63 of the Acts of 1931. This is the identical claim that was before this court in the case of Ogden v. Pulaski County, 186 Ark. 337, 53 S. W. (2d) 593. The county court disallowed the claim, and, on appeal to the circuit court, the action of the county court was sustained, the court finding that the action was founded on the same contract and for the same debt involved in a former action between the same parties which was adjudicated on appeal to the Pulaski Circuit Court in favor of the defendant, Pulaski County, and affirmed by this court; that in the said former action it was found that the contract and claim was valid, and there was a subsisting indebtedness for the amount claimed, but that’the expenditures by the county for the year in which the claim was filed were in excess of the income for said year, and the claim was therefore void because within the inhibition of amendment No. 10 of the State Constitution; that at the time of the former trial there existed in the county treasury a fund known as the county general road fund, and another known as the county highway turnback fund in which was deposited only gasoline taxes accruing to the county by virtue of the provisions of act No. 63, supra, and that the claim of plaintiffs is res judicata.

It is insisted by the plaintiffs on appeal that, while this action is between the same parties as was the former, it is upon a different demand or cause of action; that the present claim was not within the issues of the former action, and that there was no judgment on the merits of the cause. In developing- this contention, and in support thereof, appellant argues that the improvement made was on a farm-to-market road, payment of which was proper to be made out of the county turnback fund under the provisions of act No. 63, supra, and especially so because the contract for the improvement made between the appellants and the county did not specify any particular fund out of which payment was to be made.

They insist that the only question raised and settled in the former suit was whether or not payment of the money due out of the county general road fund would violate Amendment No. 10 to the Constitution, and that this suit, unlike the former, is not a suit against the county general road fund, but one against the turnback fund, and presents a different question than the one formerly adjudicated,

We are cited to a number of cases of our own court and to those of courts of other jurisdictions to sustain the doctrine that a former judgment, to be a bar to a later proceeding, must have been a decision on the merits of the cause between the same parties or their privies and the point of controversy in the latter case must have been within the issues in the former. We think this rule well established, but cannot agree with the appellant that the point involved in the instant case was not within the issues raised in Ogden v. Pulaski County, supra, or that the merits of the case were not there considered.

It appears that the court found upon the testimony-adduced that the contract was valid, and that the claim represented a subsisting indebtedness, but was uncollectable because of constitutional inhibitions. The agreed statement of facts discloses that at the time of the institution of the first suit all the revenue accruing to the county for road purposes was carried in one fund, denominated the county general road fund, a part of which was a donation from the State to the county commonly known as “turnback fund.” "While the suit was still pending, however, the turnback fund was taken out of the general road fund and carried on the books of the county in a separate account. The turnback fund was capable of being segregated at any time, and, as we have seen, this was actually done during the pendency of the suit, and the question whether the claim could be paid out of this fund was a matter properly belonging to the controversy, and therefore was within the scope of the issue. Although this question was not formally litigated in the first action, it might have been, and the judgment holding that the question was res judicata was correct. It is the general rule, which has been frequently announced by this court, that the parties to an action are bound to make the most of their case or defense and that a judgment of a court of competent jurisdiction operates as a bar to all questions in support of the cause or the defense, either legal or equitable, which were, or could have been, interposed in the case. This rule was reaffirmed in the recent case of West Twelfth Street Road Imp. Dist. No. 30 v. Kinstley, ante p. 126, in which a number of cases supporting the rule were cited.

It is therefore ordered that the judgment of the trial court be affirmed.


text:
    Wasson v. Moose.
    4-3481
    Opinion delivered June 4, 1934.

      Edward Gordon, for appellant.

      Henry Bonham, R. E. Wiley and Cooper Jacoway, for appellee.
   Johnson, C. J.

On January 10, 1931, the People’s Bank & Trust Company, of Morrilton, Arkansas, by and through its president, J. S. Moose, and its cashier, Benton Grarrett, executed, acknowledged and delivered its warranty deed by which it conveyed to Howard and Melbourne Moose, sons of J. S. Moose, real estate of- the book value of $13,500 belonging to it. The deed reciting a consideration of $13,500 cash in hand paid. Thereafter on January 20, 1931, the grantees in said deed executed, acknowledged and delivered their real estate mortgage upon all lands described in said deed to H. M. Jacoway. This mortgage was conditioned for the due and prompt payment of .a recited indebtedness aggregating $12,400. Immediately after the execution and delivery of the mortgage and accompanying notes the mortgagee and payee therein transferred and assigned the same to the Harvey Investment Company of El Paso, Texas.

After the transactions heretofore recited, the People’s Bank & Trust Company became insolvent and was taken over for liquidation by Walter E. Taylor, then Bank Commissioner of this State. Thereupon this suit was instituted by Taylor, as Bank Commissioner, against J. S. Moose, Howard and Melbourne Moose and H. M. Jacoway, seeking the recovery of the real estate conveyed by said bank and to recover judgment against H. M. Jacoway^ for a 100 per cent, stock assessment against $2,400 in par value of the bank stock owned by the said Jacoway.

In reference to the real estate transaction, it was alleged that the conveyance by the bank to Howard and Melbourne Moose was without consideration and therefore void. In reference to the stock transaction, it was alleged that Jacoway, prior to November 30, owned $2,400 par value of the capital stock of the said People’s Bank & Trust Company and that on November 17, 1930, said bank became insolvent and remained so thereafter; that in January, 1931, said Jacoway transferred his stock to J. S. Moose, who was and is insolvent; that said transfer and pretended sale was made with intent to avoid his stock assessment.

The Harvey Investment Company intervened in said cause and alleged that it purchased for value and before maturity the notes and mortgage securing same from Jacoway, and was therefore an innocent purchaser and holder; that default had been made in payments as provided in said mortgage and notes; that it therefore-prayed for judgment and foreclosure.

The Mooses answered by admitting the execution of the deed, the mortgage and notes, but otherwise denying the material allegations of the complaint.

H. M. Jacoway answered by pleading purchase for value of the notes and mortgage and the transfer and assignment thereof to the Harvey Investment Company for value. Jacoway further answered that in January,. 1931, when he sold his bank stock to J. S. Moose, said bank was solvent and a going institution; and that tbe sale and transfer was in all things approved by the State Banking Department.

Upon the issues thus joined, a voluminous amount of testimony was taken which was not in all particulars responsive to the issues joined. The following is a concise resumé of the testimony:

Prior to November 30, H. M. Jacoway owned $2,400 par value of the capital stock of the People’s Bank & Trust Company of Morrilton; that J. S. Moose and his sons, Howard and Melbourne Moose, were also stockholders in said bank, J. S. Moose, being the president of said bank and in the actual charge and management thereof; that on November 17, 1930, said bank became insolvent and closed its doors to business, which condition continued until December 30, 1930, when it was opened for business under the following circumstances: More than 90 per cent, of the depositors in said bank executed stipulations by which they agreed to not withdraw any amount of their respective, deposits for a period of three years; a great majority of the stockholders, including Jacoway, signed a stipulation agreeing to not sell or transfer any of their respective stock holdings in said bank until all depositors were paid in full or for a period of three years. Upon the execution of the agreements aforesaid, the State Bank Department authorized and permitted the reopening of said bank for a restricted banking business. This restricted banking business was in progress and being* pursued when the stock sale was effected and when the deed to the real estate was executed. Practically uncontradicted testimony shows that the Harvey Investment 'Company purchased the mortgage and accompanying notes before maturity and paid full value therefor without notice of defects therein. The evidence further discloses that Walter E. Taylor, State Bank Commissioner, was advised of the stock sale by Jacoway to Moose, prior to its consummation and gave his consent and approval thereto.

The evidence further shows conclusively that the bank did not receive the consideration expressed in the deed or any part thereof. The proceeds from the sale of the mortgage to the amount of $10,000 was used by Howard and Melbourne Moose to liquidate their personal indebtedness to the bank.

The chancellor determined that the Harvey Investment Company was an innocent purchaser for value of the notes and mortgage, and decreed judgment and foreclosure accordingly; that the stock sale by Jacoway to Moose was in good faith and valid, and this appeal is therefrom.

Appellant’s most serious contention for reversal is that the People’s Bank & Trust Company, of Morriltou became insolvent on November 17, 1930, and continued in such condition thereafter; therefore that in January, 1931, when the stock sale and transfer was effected by Jacoway to Moose and when the deed to the real estate was executed by the bank to Howard and Melbourne Moose, the liability for the stock assessment had previously accrued against Jacoway and for the same reason the deed was void being executed subsequent to insolvency.

By act 113 of 1913 and amendments subsequent thereto, the State Banking Department was created and vested with full power and authority to authorize and supervise the opening, closing and the administration of all banks created under the laws of this State, and the State Bank Commissioner is designated as the administrator thereof. So it was when the People’s Bank & Trust Company was authorized and permitted to open for business on December 30, 1930, with the. assent and approval of the State Bank Commissioner, all persons dealing with said bank had a right to presume that the institution was solvent and that the officers in charge thereof were vested with authority to transact its business as authorized by law.

It follows therefore that the Harvey Investment ■Company is an innocent purchaser for value of the mortgage and notes, if the sale of the lands was authorized by the board of directors of said bank. See § 34, act 113, 1913, as amended by act 627, 1923. On this branch of the case it suffices to say that a great preponderance of the testimony shows that at a meeting of the board of directors held on January 10, 1931, a sale of this land was authorized. It is true the purchasers thereof may not have been designated in the authorizing resolution and said resolution may not have been in writing but these are of little significance. The minutes of the meeting should have reflected the authorizing resolution and the action of the board thereon, and this necessarily would have been a substantial compliance with the statute. At any rate, equity treats that as done which should have been done. It appears therefore that the sale of these lands was authorized by the board of directors in substantial compliance with the statute and a valid title passed by reason thereof.

Neither can appellant’s contention of liability for stock assessment against Jacoway be sustained. Although a stockholder in this institution, Jacoway was not a member of the board of directors and had only such superficial knowledge of its affairs as other stockholders and citizens. He had a right to presume that the bank was solvent when it was permitted to open by authority of the State Banking Department. The stock which he owned in this bank was property and subject to sale and transfer as other property except for such restrictions as may appear in the law or be created by his own acts. Section 2 of act 102 of 1929 restricts the right of sale and transfer of bank stock by its owner by requiring the approval of such sale and transfer by the State Bank Commissioner. This approval was obtained by Jacoway prior to the sale therefore the only statutory restriction on the sale and transfer of bank stock was effectually removed. It is urged, however, that Jacoway signed a stipulation with other stockholders not to sell or transfer his stock for a period of three years or until “frozen deposits” were paid in full, and that his stipulation estops him in now asserting the validity of such sale and transfer. The first answer to this contention is that the State Bank Commissioner by his act of approving the sale and transfer waived enforcement of this stipulation. Secondly, Jacoway testified that he signed the stipulation on the express condition that all other stockholders would do likewise. According to the chancellor’s finding, this condition was never performed, and we can not say that his finding of fact in this regard is against a clear preponderance of the testimony.

It follows from what we have said that the decree must be affirmed.


text:
    Commercial Credit Company, Inc. v. Ragland.
    4-3484
    Opinion delivered June 4, 1934.

      Barber $ Henry and M. F. Elms, for appellant.

      A. G. Meehan and John W. Monorief, for appellee.
   Smith, J.

-On July 2, 1931, H. S. Ragland purchased from C. D. Conrey Company, a domestic corporation dom-. iciled at Stuttgart, a new automobile for $610, of which $260 was. paid in cash. The balance was to be paid in 12 monthly installments, evidenced by promissory notes, each for $33.46, the first of which matured on August 2, 1931, and one on the second day of each month thereafter until all had been ¡paid. A sales contract or agreement was entered into, to which the notes referred, and the title was retained until all the notes and the interest thereon had been paid in full. It was provided that in case of default to make payments promptly the possession of the car might be retaken, wherever found, without notice to or demand upon the purchaser, and the car sold, either publicly or privately, and the proceeds of sale applied to the notes, which also recited the retention of the title. On the day of the execution of the contract of sale and the notes the Conrey Company, for a valuable consideration, assigned them to the Commercial Credit Company, Inc., hereinafter referred to as the Credit Company, a domestic corporation domiciled at Little Rock, and having no place of business or agent elsewhere. Installment payments were made as follows: The August 2d payment was made August 11; the September 2d payment was made October 7; the October 2d payment was made November 7; the November 2d payment was made November 30; the December 2d payment was made January 9, 1932; and the January 2d payment was made February 5. The Credit Company, the assignee and holder of the contract of sale and the notes, insists that no other payments were made. Ragland insists that a seventh payment was made to an agent of the Credit Company to whom other payments had been made and which had been remitted by the agent to his principal.

The last payment which the Credit Company admits receiving was made by a check, which was first dishonored by the bank upon which it was drawn, but was later redeposited for collection and was paid upon its second presentation.

The car had been converted into a truck, and Rag-land testified that this added to the actual and to the usable value thereof.

About the last of December, and before the payment due on the 2d of that month had been paid, a representative of the Credit Company went to Ragland’s place of business in Stuttgart to make collection of the payment then due. Ragland proposed to give a check, which the agent declined to receive, because of the trouble over the last check, and because it was then after banking hours. Ragland stated that he did not have the cash, but insisted that the check be taken and went into his office to draw the check. While Ragland was thus engaged the agent went to the ear and removed the ignition key and departed with it before the check could be delivered. Rag-land thereupon mailed the check to the Credit Company at Little Rock, and requested the return of the key. This check was deposited for collection, and' was duly paid, but the key was not returned. The Credit Company admits receiving an additional payment on February 5, covering the note due January 2. The return of the key was demanded at the time this payment was made, but the key was not returned. Ragland testified that he made other demands for the return of the key, but it was not returned, and he finally stated that he would make no more payments until the key had been returned. Ragland sought to acquire a key to the car from various sources without success, and he was unable to operate the car without it until he finally “wired around the ignition,” a method of operating the car winch was suggested to him by the machinist and foreman of the Conrey Company garage. This proved unsatisfactory, and largely destroyed the usable value of the truck, as “it would cause the ignition points to short out and the motor backfired, and the pistons kicked through the block.” This happened in the latter part of January, and the car was hauled to the Conrey Company’s garage, where repairs were made costing slightly more than $75. Payments on the repairs were made in installments of $25 each, the first payment being made March 1, the second March 16, and the last March 19. The testimony shows this damage was occasioned by the removal of the key and the attempt to run the truck by “wiring around the motor.” While the car was in the garage for repairs, a purchase-money note matured and was not paid. According to the credit company’s contention, there were two of these notes. The Credit Company advised the Conrey Company, as indorser, that notes were in.default, and the latter advised the former that the truck was in its possession, and, pursuant to directions so to do, the Conrey Company drove the truck to Little Rock and delivered it to the Credit Company. It is not seriously questioned that the conversion was the joint act of the two corporations. The Credit Company sold the car for $215.

Thereupon suit was brought against both corporations for the alleged wrongful conversion of the truck, its value being alleged to be $500. Judgment was also prayed for the cost of the repairs and for the usable value of the car.

A number of motions were made which questioned the jurisdiction of the court. As suit had been brought for the value of the car at the time of its conversion, the court sustained a demurrer to so much of the complaint as prayed judgment for the cost of the repairs and the usable value of the truck, whereupon the motion to dismiss was renewed as to the Credit Company, it having been served with process in Little Rock, but that motion was overruled.

Although the court sustained a demurrer to the action for repairs and for usable value, it permitted proof thereof to be made, as it was shown that both the repairs and the usable value of the car exceeded the two notes which the Credit Company claimed were due and unpaid at the time of the conversion of the truck. The theory upon which this testimony was admitted was that it tended to show that the Credit Company had no right to declare a forfeiture of the contract of sale, because, at the time it did so by converting the truck, damages had been sustained by Ragland which exceeded the notes then due, even though neither of them had been paid, that is, that the damages which had been sustained were greater than the notes claimed to be due.

It is true, of course, that the Credit Company, as the assignee of the sales contract, had the right to demand that the payments be made promptly as agreed, and to repossess the car in case of default. But it is true also that none of the payments were made when due — they were all made out of time — yet they were all accepted when made. Even the payment which was made by the check which Ragland was engaged in drawing when the ignition key was removed was accepted.

Having extended indulgences, which it was not required to do, by accepting the delayed payments, the Credit Company should, before taking possession of the truck, have advised Ragland that the practice would no longer be continued. General Motors Acceptance Corporation v. Hicks, ante p. 62. Indeed, Ragland was attempting in good faith to pay the only note then due when the truck was put out of commission by the removal of the ignition key, and that payment was actually received, as was also another payment, before the conversion occurred, and subsequent payments were not made only because of the continued refusal of the Credit Company to return the key. There appears to be no question- — at least the jury was warranted in so finding — that the Credit Company took the key for the purpose of preventing appellee having the use of the car. We conclude therefore that the jury was warranted in finding that the conversion was wrongful, and, as it was the joint act of both defendants, Ragland had the right to bring suit against both defendants in any county where either was domiciled and could bé served. The suit was brought in the county in which the Conrey Company was domiciled, and the service was therefore valid on the Credit Company in another county. Section 1176, Crawford & Moses’ Digest.

The case of Ames Iron Works v. Rea, 56 Ark. 426, 19 S. W. 1063, affords authority for the holding of the trial court that the damages for the repairs to the truck could be considered in determining whether anything was due the Credit Company at the time of the conversion. In the case cited a suit in replevin was brought to recover a cotton gin which had been sold under a reservation of title. The vendor had failed to deliver the property at the time and in the manner required by the contract of sale, and the vendee set up the damages thus occasioned as a counterclaim against the debt for the purchase money. It was there held that the purchaser had the right to recoup these damages and hold the property upon paying the balance of purchase money, less the damages.

So here, if, as the jury has found, the Credit Company was responsible for damages exceeding the debt then due, the right did not exist to retake the truck without allowing credit for the damages, and the conversion was therefore wrongful. When the additional wrong of conversion was added, the purchaser then had the right to sue for the value of the truck, less the purchase money due thereon.

Upon this issue the court, at the request of the defendants, charged the jury as follows: “You are instructed that, if you find that plaintiff is entitled to recover in this case, then the measure of his damage would be the market value of the automobile taken at the time it was taken, less the balance he is indebted to the defendant on the purchase price of the same, plus interest at six per cent, per annum on the difference of net balance from the time it was taken. ’ ’

The verdict of the jury for the sum of $223.45 was responsive to this instruction, and is fully sustained by the testimony. The judgment pronounced on this verdict appears to be correct, and it is therefore affirmed.


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    Wasson v. American Can Company.
    4-3471
    Opinion delivered June 4, 1934.

      J. H. Black, for appellant.

      S. W. Woods, for appellee.
   Humphreys, J.

This was. a suit brought by appellee against appellant on two acceptances or drafts with bills of lading attached, drawn by appellee on W. IT. Burford for cans shipped by appellee to him for the purpose of canning tomatoes, etc., the payments of which acceptances were guaranteed in ninety days by “Citizens’ Bank” and “The Citizens’ Bank,” in Marion County, which failed before the payment of the drafts and which were taken over by the appellant for the purpose of being liquidated as insolvent concerns.

The record reflects that the cans were shipped by appellee to W. H. Burford and delivered to him upon guarantees of said banks executed on the 26th day of July, 1930, and the 1st day of December, 1930, respectively, through their officers at the time they were going concerns ; that the custom had been for the banks to accommodate their customers by guaranteeing the payment for the cans so they could get and fill them and sell same to the trade in time to take up the drafts or acceptances before they became due, and to enable them, as well, to pay the banks a ¡part, or all, of what they might owe them when they disposed of the tomatoes and other canned products; that Burford was a regular customer of the banks and owed them about $3,000 when the guarantees were made; that the officers of the banks guaranteed payment of the acceptances or drafts, without any written authority from the boards of directors of said banks, but that the boards of directors had turned the business of the banks over to the presidents and the cashiers and knew said officers were hypothecating and pledging the credit of the banks by guaranteeing the payments for the cans and had been conducting the business in this manner for several years.

The trial court rendered a judgment against appellant for the amount of the drafts or acceptances, from which is this appeal.

Appellant contends for a reversal of the judgment on the ground that since the passage of the amending statute of act 252 of the Acts of 1931, to act 113 of the Acts of 1913, that the officers of the banks were without authority to hypothecate the credit of the banks by guaranteeing the payment of said drafts. Under act 113 of the Acts of 1913, this court ruled in the case of Bank of Morrilton v. Skipper, Tucker & Co., 165 Ark. 49, 263 S. W. 54, that the bank had authority to guarantee payment of a debt or to make a contract of guaranty, where same was made in connection with its own business or for its own protection or benefit. This ruling was confirmed in the case of Citizens’ Bank of Booneville v. Clements, 172 Ark. 1023, 291 S. W. 439.

The court found in the instant case that the guaranties were for the benefit of the banks. The evidence detailed above was sufficient to support the finding. The amendatory statute has no application in the instant case because it was not passed until after the guaranties were made.

No error appearing, the judgment is affirmed.


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    Harvell v. Matthews.
    4-3435
    Opinion delivered June 4, 1934.

      O. E. Sumpter, for appellants.

      James R. Campbell and Murphy <& Wood, for appellees.
   Mehaffy, J.

The appellees brought suit in the Garland Circuit Court against appellants, alleging that they were the owners of the property described in the complaint, and that on July 19, 1932, the Arkansas Trust Company, one of the appellees, rented said real estate to the appellants at a rental price of $40 per month, payable monthly in advance; that the appellants agreed on said date to lease the property and to pay $40 a month rent.

The appellants filed a demurrer, which was overruled, and then filed answer denying all the material allegations in the complaint, and alleged that the Arkansas Trust Company was never at any time in the actual and peaceable or exclusive possession of the property described in the complaint, nor any part of said property; and appellants specifically deny that the other appellees were at any time in the actual, peaceable or exclusive possession of said property. They deny that they are indebted to appellees, Matthews, in any sum. They specifically deny that the relation of landlord and tenant has ever existed between appellees or either of them, and appellants or either of them. They allege that they are the owners of the property described and every part of it, and that they have had more than three years uninterrupted possession of the same and every part of the property, immediately preceding the filing of the complaint.

The undisputed evidence shows that the appellants were indebted to the Arkansas Trust Company in the sum of $3,500, and that the property here involved was mortgaged to the Arkansas Trust Company to secure the payment of this debt. The debt was past due, and the officers of the bank told appellants they would have to do something about collecting the debt. Finally appellants were told that proceedings to foreclose would be begun. A decree of foreclosure was entered, the property sold under said decree, the Arkansas Trust Company became the purchaser, and a commissioner’s deed was made to it. The appellants contend, however, that the officers of the bank agreed to take care of appellants and look after their interests, and that for that reason this suit cannot be maintained, because they say that the bank bought the property at the foreclosure sale for the benefit of the appellants.

There is no claim that there was any fraud practiced in obtaining the decree; in Tact, the undisputed proof shows that appellants were notified when the decree was entered, and were notified when the bank obtained the Commissioner’s deed.

If there were any agreements or promises made with reference to the foreclosure suit that would in any way affect the foreclosure suit or the deed, this would have to be corrected in the chancery court. As we have already said, there is no claim that any fraud was practiced.

At the time of the foreclosure and sale of the property, the debt, with interest, was more than $4,300. The evidence on the part of the appellees is to the effect that after the bank had received the deed, it made an agreement with the appellants, by which it rented to appellants the property described, for the sum of $40 per month, payable in advance, and that appellants agreed to pay this amount of rent.

Appellants’ testimony on this issue is to the effect that they did not rent the property, but that they agreed to pay $40 a month interest, and intended to pay the entire debt. However, there never was but one payment made, and it was about $42.

The sole question therefore for our determination is, whether the relation of landlord and tenant existed, and this was a question of fact.

The appellants contend that the court erred in permitting the appellees to introduce in evidence the Commissioner’s deed, and quoted: “Title not being involved in the action of forcible entry and detainer, it is the general rule that no evidence can be introduced pertaining to title.”

The above quotation is from Encyclopedia of Evidence, vol. 5, 782, and as supporting the text, several Arkansas cases are cited.

Section 4857 of Crawford & Moses’ Digest is as follows: “In trials under the provisions of this act, the title to the premises in question shall not be adjudicated upon or given in evidence, except to show the right to the possession, and the extent thereof.”

The only purpose therefore for which the Commissioner’s deed could have been introduced, was to show the right to the possession and the extent thereof. It was, however, competent for this purpose. Appellants had owned this property'- for a long Avhile, and appellees had foreclosed a mortgage and purchased the property at the foreclosure sale, and a Commissioner’s deed was made. It was necessary in this case to introduce this deed to shoAV the right of possession.

“While deeds cannot be introduced as evidence of title, they are sometimes admitted as proof of the right of possession.” Encyc. of Evidence, vol. 5, 786.

The Commissioner’s deed Avas not introduced for the purpose of showing title, but only for the purpose of showing the right to possession, and was proper for that purpose.

It is next contended by the appellants that the decision of the court is contrary to law because “the action of forcible entry and unlawful detainer can be sustained only by proof of an actual possession of the premises sued for, held by the plaintiff prior to the unlawful entry made by the defendant.”

Of course, there would not have to be an unlawful entry. The statute provides that every person who shall willfully hold over any lands, tenements or possessions without right, or a person who may peaceably and lawfully obtain possession and hold same willfully and unlawfully, etc.

The appellants are correct in their contention that the relation of landlord and tenant must have existed, and on this question the evidence is in conflict. After the purchase of the property by appellees, the evidence on the part of the appellees shows that they entered into a contract with appellants, by which they rented the property to appellants, and that appellants agreed to pay the rent, and thereby became tenants of the appellees. On the other hand, it is contended that the appellants never did agree to rent or to become the tenants of appellees, but they agreed to pay $40 a month interest. This is really the sole question in the case.

A verdict supported by substantial evidence will not be set aside on appeal, as the Supreme Court does not pass on the credibility of witnesses or the weight of the testimony. Home Sewing Machine Co. v. Westmoreland, 183 Ark. 769, 38 S. W. (2d) 314; Lofton v. King, 185 Ark. 421, 47 S. W. (2d) 578; Powers v. Wood Products Corp., 184 Ark. 1032, 44 S. W. (2d) 324; Kansas City Fiber Box Co. v. F. Burkart Mfg. Co., 184 Ark. 704, 44 S. W. (2d) 325.

This case was by agreement, tried by the court sitting as a jury, and his finding is as conclusive as the finding of a jury. American Ins. Co. v. Brannan, 184 Ark. 978, 44 S. W. (2d) 346.

The court, in this case, after hearing the evidence, found that under the evidence the appellants were the tenants of appellees from month to month that they had paid approximately one month’s rent under the contract, and had defaulted in the payment of rent for one year. This finding of fact by the circuit court is conclusive on appeal, and the fact that the finding of a jury ,or a court sitting as a jury appears to be against the preponderance of the evidence does not authorize this court to reverse the judgment if there is any substantial evidence upon which to base it. These are matters within the province of the jury or the court sitting as a jury, and we are not authorized to pass on the credibility of the witnesses or the weight to be given to .their testimony.

There was substantial evidence to support the finding of the court, and the judgment of the circuit court is affirmed.


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    Beauchamp v. Jernigan.
    4-3495
    Opinion delivered June 4, 1934.

      Wm. F. Kirsch and Maurice Cathey, for appellant.

      Jeff Bratton, for app»ellee.
   Mehaffy, J.

Hugh McConnell, who lived in Paragould, Arkansas, died on April 24,1933. He was between the ages of 80 and 90. The appellee, Mary E. Jernigan, went to McConnell’s house nine years before his death, and did the work in keeping- and managing the home and also waiting- upon McConnell. After McConnell’s death, the appellee filed in the probate court of Greene County the following claim:

“Mary E. Jernigan v. Estate of Hugh McConnell, deceased.
“Mary E. Jernigan states that the estate of Hugh McConnell, deceased, is justly indebted to her in the sum of three thousand ($3,000) dollars for services rendered by her in keeping house, nursing, caring for and waiting upon the said Hugh McConnell for 9 years next preceding his death:
“From March 1, 1924-March 1, 1925... $200
“From March 1, 1925-March 1, 1926... 200
“From March 1, 1926-March 1, 1927... 200
“From March 1, 1927-March 1, 1928... 200
“From March 1, 192i8-March 1, 1929.. 200
“From March 1, 1929-March 1, 1930... 500
“From March 1, 1930-March 1, 1931- 500
“From March 1, 1931-March 1, 1932... 500
“From March 1, 1932-April 5, 1933.... 500
“Total .....................................................................$3,000
“I, Mrs. Mary E. Jernigan, do hereby state that the above and foregoing claims made bjr me against the estate of Hugh McConnell, deceased, is just, true, correct and unpaid;' and that nothing has been paid or delivered toward the satisfaction of the demand herein made by me against said estate.
her
“ (Signed) Mary X E. Jernigan.” mark

The claim was presented to the administrator of the estate of Hugh McConnell, and disallowed. The claim was then presented to the probate court of Greene County. A hearing was had before a jury, and the jury returned a verdict in favor of appellee for $3,000.

The administrator prosecuted an appeal to the circuit court of Greene County, and the jury in the circuit court returned a verdict for $3,000 in favor of appellee. Motion for new trial was filed and overruled, and judgment entered for $3,000, and the case is here on appeal.

The undisputed evidence shows that appellee stayed at McConnell’s house continuously for approximately nine years; that she was there at the time of his death.

The appellee testified that she was going on 71 years old and lived in McConnell’s house for 9 years; no one else lived there except Sammy McDaniel, who lived there for a little while, and Enzie Thomas, witness’ son-in-law, who boarded there the first four years. The only other members of the McConnell family who were there were visitors who stayed a week at a time. McConnell had six spells of sickness, and the sixth one took him away.

Mrs. Lena Fisher testified that she and her husband had operated the Fisher Drug Store, which adjoined the McConnell residence, for 23 years; she saw McConnell every day; Mrs. Jernigan lived there for 9 years most of the time, and performed services for him; she took care of the house, cooking, washing and ironing, and looked after him when he was sick, without help, except during the last illness, when there was a man there to help her. Witness said she could not say how much the services were worth in dollars and cents but they were worth a lot; she was the only one who pleased him, and her services were worth more than the services of anybody else. When he was sick, she waited on him, stripped beds, and washed quilts and blankets practically every day; heard McConnell say that he wanted Mrs. Jernigan to put in a claim at his death to take care of her as long as she lived; he would say to Mrs. Jernigan: “You will never lose anything by this. You will get your pay.” Witness did not know of Mrs. Jernigan’s getting any pay. Dr. Majors and Dr. Ellington waited on him. Prior to McConnell’s last illness, Mrs. Jernigan would often take his breakfast to the bed; during his last illness Thomas was there night and day and did some of the disagreeable work, but Mrs. Jernigan did most of it. McConnell made a will and left his real estate to witness. During McConnell’s last illness he and Mrs. Jernigan had a misunderstanding, and she threatened to leave him; witness went over to McConnell’s house, and an agreement was made tlat he was to pay her $3.50 a week if she would stay on. This was a short time before he died. Mrs. Jernigan lived with McConnell and got her board. McConnell paid for the medicines which he bought for Mrs. Jernigan. The only money witness ever saw him give to her was checks for household expenses during his last illness. This witness heard McConnell on several occasions say he wanted Mrs. Jernigan to get her pay.

Dr. Majors testified that he was McConnell’s physician during his lifetime; did not know when Mrs. Jernigan came there, but it had been a long period of time; had several spells of sickness; Mrs. Jernigan did the housework, gave him his medicine and baths.

Enzie Thomas, son-in-law of Mrs. Jernigan, heard McConnell say he wanted her paid well. Mrs. Jernigan’s work consisted of washing, scrubbing, giving him medicine, cooking, and general housework. Mrs. Jernigan waited on McConnell all the time that witness and his wife lived at McConnell’s. Thomas testified that it would be worth $4,000 to do what Mrs. Jernigan had done for McConnell.

Dr. Ellington testified that during the last few years he would see McConnell two or three times a week; that he would look pretty gay and be down town; for the last few years McConnell was not able to work; he did not recall seeing Mrs. Jernigan wait on him. The last three or four weeks it was a job to take care of him. ■

H. S. Trice testified that for the past several years McConnell had been feeble, but that he was going around tending to his business most of the time. He had been for nine years in old age and feeble health, but was able to tend to his own business.

The will of Hugh McConnell was introduced in evidence, and the drug store and dwelling house adjoining was left to Mrs. Fisher. His will provided that his debts should be paid.

The evidence was sufficient to justify the jury in finding that appellee did the work for McConnell during his lifetime, and that it was McConnell’s intention and he agreed to pay her for same.

As stated by the Texas court: “ It is a delicate matter to allow a contract of the character of one under consideration to prevail, for the dead man cannot tell about the affair, and the testimony is usually in favor of the living, for the latter are usually the prime favorites as against those whose tongues are closed in death. Such being the condition of affairs, when such a contract is made the basis of recovery, it must be fully and satisfactorily proved.” Dyess v. Rowe (Tex. Civ. App.) 175 S. W. 1001.

But in the instant case the undisputed evidence shows that the appellee lived at McConnell’s house and did his work for several years; that a portion of the work was very disagreeable, and the evidence also' shows that she had not received any pay for it. Two juries heard the evidence, and- found in favor of the appellee. A majority of this court, however, is of the opinion that she cannot recover for any work or labor done more than three years prior to McConnell’s death.

“The following actions shall be commenced within three years after the cause of action shall accrue, and not after: first, all actions founded upon any contract or liability expressed or implied, not in writing.” Crawford & Moses’ Digest, § 6950.

Appellee claims $1,500 for the last three years, and she was awarded that amount by both juries. We have therefore reached the conclusion that she is entitled to recover $1,500, and that the rest of her claim is barred by the statute of limitations.

The judgment will therefore be modified and affirmed for $1,500. It is so ordered.