text:
    Joe Lyons Machinery Company v. Wiegel.
    Opinion delivered April 13, 1925.
    1. Evidence — self-serving .statement — effect.—-Where the purchaser of a truck, defending a suit for the purchase money on the ground that the truck was not in condition as represented, introduced a letter from the seller written after the sale stating that the understanding was that plaintiff’s responsibility ceased after the truck reached a certain city, such letter was not conclusive as to the facts recited as against the purchaser, who introduced it merely to attack the credibility of a witness for the seller testifying that there was no understanding as to the condition of the truck.
    2. Sales — false representations. — Testimony held to sustain a finding that material and false representations were made by the seller in the sale of a truck, and that the buyer had a right to and did rely upon such Representations.
    3. Sales — false representations ignorantly made. — Though a seller was ignorant of the condition of a truck, and the buyer had equal opportunity to know the facts, this would not relieve the seller from liability for material representations which proved to be false, were intended to deceive, and were relied on by the buyer.
    4. Trial — refusal of instruction already covered. — Refusal of an instruction that representations as to the condition of the truck sold must have been “substantially” untrue to defeat recovery, held not error where another instruction, required a finding qf materially false representations.
    5. Sales — false representations. — A seller may not say that the buyer should not have believed statements made by him as to the condition of the truck sold, if investigation would have shown them to be untrue, especially when the defects were not discoverable until after the truck had been driven after the sale.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      F. T. Murphy and Emerson é Bonham, for appellant.
    A party Las no right to rely npon statements of the other when the means of knowledge is equally open to both. Yeates v. Prior, 11 Ark. 58; Matlock v. Reppy, 47 Ark. 148; Gaty v. Holcomb, 44 Ark. 216; Johnson v. St. L. Butchers’ Supply Co., 60 Ark. 387. Fraud is never presumed. Russell v. Brooks, 92 Ark. 509; 144 Ark. 87.

      Carmichael $ Hendricks, for appellee.
    It is not necessary that the false representations should have been knowingly made; it is sufficient if defendant asserted them to he true of his personal knowledge and made them with intent to have appellee act on them, and that plaintiff did act thereon to his injury. Bell v. Fritts, 161 Ark. 371.
   Smith, J.

On the 28th day of July, 1923, appellee, who was a road contractor, purchased from appellant a second-hand five-ton White truck, with dump body and steel wheels, for the price of a thousand dollars, of which $250 was paid in cash and the balance of $750 was represented by a cheek drawn by appellee on the bank in which he carried his account. Appellee became dissatisfied with his purchase, and stopped the payment of the check. Appellant thereupon brought suit for the amount of this check. Appellee filed an answer denying liability, and, by way of counterclaim, prayed judgment for the $250 cash he had paid. The allegations of appellee’s answer and counterclaim were sustained by the jury, and there was a verdict and judgment in his favor for $250, from which is this appeal.

At the time of the sale of the track a bill of sale was executed, which appellee contended was intended only to evidence the passing of the title, and that a blank form of contract was used which was not intended to evidence the terms of the sale made, but was a form of' contract intended to be used when machinery was sold on partial payments, and that the provisions of this contract were inapplicable to appellee’s purchase. Appellee insisted that there was an express warranty of the contract, which he sought to prove on the theory that the writing was not intended to and did not in fact cover the entire contract of sale. The court, however, held against this contention, and refused to permit appellee to engraft a warranty on the bill of sale.

Appellee defended on the ground that the sale of the truck was procured by fraud, and the cause was submitted to the jury on that issue.

On behalf of appellant the following testimony was offered: The truck was a second-hand one, and had been previously used by appellee for several days. The truck'had been rebuilt in Memphis at a cost of $733.61, and was believed to be and in fact was in good condition. Appellee was familiar with machinery, and examined the truck before purchasing it, and no false representations to induce appellee to purchase were made.

Appellee admitted'that he had used for several days a second-hand truck belonging to appellant, but he did not know whether this was the truck which he had purchased. He knew the truck he bought was a second-hand one, but he was told that it had been rebuilt and overhauled in Memphis, and was assured that it was in good order, and that he relied on and was deceived b.y this statement of fact, and that he was induced to buy the truck by his reliance on this statement of fact. He admitted that he was somewhat familiar with machinery, and had examined the truck before purchasing it, but he testified that no one could tell what the truck’s condition was without seeing it run. inasmuch as it was second-hand, and that he bought it before running it, relying on the representation that it was in good order. Appel-lee stated to appellant’s salesman who made the sale that he intended to drive the truck from Little Rock to Shreveport, and, after the purchase, one of appellee’s employees drove the truck from appellant’s salesroom to appellee’s home, a distance of only a few blocks, and the truck became overheated, and was driven to the shop by appellant’s agent after appellant was notified of the trouble. Appellee was assured that the defect causing the trouble had been repaired, and the truck was again turned over to appellee’s employee, who started on the trip to Shreveport, but, after getting out twelve or fourteen miles on the way, a bearing burned out. Appellant was notified of this fact, and a mechanic was sent to make the necessary repair, and one of appellant’s representatives undertook to drive the truck, but the trouble continued, and, when a sandy place in the road between Benton and Mal-vern was struck, the truck stalled and could go no farther. Appellee had gone on ahead, and was in Arkadel-phia when he was notified of the trouble, and he immediately stopped payment of the cheek, and wrote appellant that the truck was of no value. He stated in this letter that he would like to have the truck if it were in usable condition, and that he would carry out his contract if appellant would place the truck in condition to be used. Appellant replied by filing this suit.

Appellee further testified that he saw the bearing-after it was taken out by the mechanic, and that no oil grooves had been cut in the bearings. A witness for appellant testified that the grooves had been stopped with dirt, but witnesses for appellee testified that the trouble developed in driving the truck only a few blocks, and that the engine heated at once, and that the bearing burned out at Rhd Gates, a point between Little Rock and Benton.

During the trial appellee offered in evidence á letter which he had received from appellant on August 11,1923, which reads as follows: 1 ‘ The understanding was that, if the truck reached Benton, all responsibilities on our part ceased, although this truck was sold to you to be delivered to you at our warehouse in the condition it was in at that time.”

Appellant insists that, as appellee introduced this letter, he was hound by it, and that he could not, and did not, contradict the statement of fact therein contained that, if the truck reached Benton, appellant’s responsibility ceased.

It appears, however, that this letter was introduced on the cross-examination of a witness for appellant, who had testified that there was no understanding whatever about the condition of the truck, and for the purpose of attacking the credibility of the witness, The letter was a self-serving statement of appellant, and we do not think it is conclusive of the facts therein recited. Moreover, it appears that the trouble developed before the truck reached Benton, first in Little Bock, where it was purchased, and later at Red G-ates.

The testimony in the case cannot be reconciled, but, if that offered on behalf of appellee is credited, the jury was warranted in finding that appellee relied upon the representation that the truck had been overhauled and was in good condition, and that he was induced by this representation to purchase, and that these representations were material, and were false.

It is insisted by appellant that a verdict should have been directed in its favor, and that any statements made by its officers and agents in negotiating the sale were mere expressions of opinion, upon which appellee had not relied and did not have the right to rely, as he knew as much about the truck as did any one who participated in the sale upon behalf of appellant. But we do not think the jury’s finding to the contrary, under the.instructions, is unsupported by the testimony. *

It is insisted that, if there was a defect in the truck, the testimony does not show that appellant knew of it. But it was not essential that this showing be made, as appellant was as much responsible for a material misrepresentation made in ignorance of the facts as for a representation which was known to he false. On this issue appellant requested the court to give the following instruction: “No. 2. Although you may believe that plaintiff’s officers, or one or more of them, represented to defendant that the truck had been sent to the factory and overhauled, and that said truck was in good condition in every way, yet you are instructed that, unless said statements were false and fraudulent at the time of making them, and were made for the fraudulent purpose of deceiving, defrauding and misleading defendant, that defendant relied upon said false statements in purchasing said truck, and that he had not had an equal opportunity with plaintiff’s officers to know the condition of said truck, still you should find for plaintiff.”

We think no error was committed in refusing this instruction. The undisputed testimony shows that appel-lee made no test of the truck until it was driven out of the shop, and that the trouble developed before it reached appellee’s home, a few blocks away. This trouble was apparently remedied by appellant’s mechanic, who also undertook to remedy the additional trouble which developed on the way to Red Gates.

As has been said, the testimony does not affirmatively show that appellant knew of the defects in the truck, but, if it did not know, it had no right to make material misrepresentations concerning a fact of which it was ignorant, yet the requested instruction would have relieved appellant of liability for such misrepresentations if appellee had an equal opportunity with plaintiff’s officers to know the condition of the truck. The parties may have had equal opportunities to know the condition of the truck, and yet neither may have known what that condition was, but such mutual ignorance would not relieve appellant from responsibility for material misrepresentations, if they were in fact relied on.

The ease was submitted to the jury under the following-instruction : “Gentlemen of the jury: This is a suit by the Joe Lyons Machinery Company against E. N. Wiegel as defendant, in which the plaintiff seeks to recover $750, the admitted balance on the purchase price of a certain truck. The defendant claims in defense, gentlemen of the jury, that this contract — the contract for the purchase of the truck — was made by him because of the fraudulent representations by the plaintiff as an inducement to him to purchase this truck, and on which he relied in purchasing the truck. G-entlemen, the burden is on the defendant in this case to prove these fraudulent representations, as the court will hereafter instruct you. Representations, gentlemen, in order to be fraudulent, must be of a reliable character and hold out inducements calculated to mislead the purchaser and induce him to buy on the faith and confidence of such representations. In other words, gentlemen, if you find from the testimony in this case that the plaintiff made to the defendant false representations — material false representations — about the contract, and, at the time they were made, the plaintiff either knew that they were false, or, not knowing that they were false or true, nevertheless made them, and made them with the intention of deceiving the defendant, and that the defendant relied on those representations, then, gentlemen, that would be a fraud, and the plaintiff cannot recover. If, on the other hand, you find from the testimony that false and fraudulent representations, as the court has defined them to you, were not made, or that the defendant did riot rely on such statements as were made, then they would not be fraudulent or fraud in this case, and you should find for the plaintiff.”

It will be observed that this instruction told the jury that a representation to be fraudulent must be concerning a material fact, which the seller knew to be false, or, not knowing whether they were true or false, made them, and made them with intention of deceiving the purchaser, and that such representations must be calculated to mislead the purchaser and induce him to buy on the faith and confidence of such representations. In addition, the instruction told the jury that, if there were no false representations, as defined in the instruction, or if the purchaser did not rely on such statements as were made, the representations would not be fraudulent, and to find for appellant — the plaintiff. In other words, the instruction required the jury to find that material false representations were made; that they were calculated to mislead the purchaser and to induce him to buy; that they were made with the intention of deceiving the purchaser, who relied on such statements as were made. If all these facts were found in favor of the purchaser, it would necessarily follow that he had the right to rely on the representations and had the right to say that the sale was fraudulent.

Another instruction requested by appellant required the jury to find that the representations made by appellant were substantially untrue. We think no error was committed in refusing this instruction, as the one given, set out above, required the jury to find that there were material false representations before finding for the purchaser.

The only other instruction requested by appellant, except a request that a verdict be instructed in its favor, was one in which the jury would have been told, had the instruction been given, that, if appellee was sufficiently skilled to investigate and determine the condition of the truck, and yet relied, not on investigation which he might have made, but upon the statements of plaintiff’s officers, to find for the plaintiff. This instruction was properly refused. Appellant has no right to say that appellee should not have believed the statements of its officers, if an investigation would have shown that they were untrue, especially as the defects were discoverable only after the truck was tested by being driven, and such test was not made until after the sale.

The legal principles here applied have been often announced in the numerous cases cited in the briefs of counsel, and we think no useful purpose would be served by reviewing those cases, and, as we find no reversible error, the judgment of the court below is affirmed.


source: Caselaw Access Project

author: HumphReys, J.

license: Public Domain

text:
    Hyde and Smith v. State.
    Opinion delivered April 13, 1925.
    1. . Indictment and information — omission of word. — Under the rule that the omission of words in an indictment which would not mislead the accused as to the nature and character of the charge will not vitiate the indictment, held that the omission of the word “did” 'before the word “<take” in an indictment for robbery did not render the indictment fatally defective.
    2. Criminal law — inconsistency of verdict. — A verdict convicting two of the defendants and acquitting a third, held not inconsistent, under the evidence.
    3. Robbery — sufficiency of evidence. — Evidence held to sustain a conviction of robbery.
    4. Witnesses — foundation for impeachment. — Where a witness while on the stand was asked whether he had made a certain statement and denied having done so, a foundation for impeaching him was properly laid.
    5. Witnesses — impeachment.—Where a witness testified that defendant did not rob prosecuting witness, proof of his statement that he did not go to the aid of the prosecuting witness because he did not have the courage was admissible to contradict him, after proper foundation was laid.
    6. Criminal law — instruction.—Reading the omitted word “did” before the word “take” in an indictment for robbery in charging the jury, being a word obviously omitted, was no error.
    7. Robbery — allegations of value. — It is not essential that the State prove the value of the goods stolen in a robbery case to be exactly that alleged in the indictment, and a conviction will be sustained, although the proved value is greater or less than the alleged value.
    Appeal from Greene Circuit Court, Second Division; W. W. Bandy, Judge;
    affirmed.

      Jeff Bratton, for appellants.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   HumphReys, J.

Appellants and Bruce Haley were separately indicted by the grand jury of Greene County for robbing Sam Levins. The charging part of each indictment is as follows:

“In the county and State aforesaid, on the 25th day of October, 1924, the said (naming the accused) unlawfully, violently, and feloniously by force and intimidation take from the person of Sam Levins the sum of $150 in gold, silver and paper money, lawful money of the United State, of the value of $150, the property of him, the said Sam Levins.” The cases were tried together by agreement, which resulted in the acquittal of Bruce Haley and the conviction of appellants. As a punishment for the crime, appellants were adjudged to serve a term of three years each in the State Penitentiary, from which judgment of conviction an appeal has been duly prosecuted to this court.

Appellants’ first assignment of error for a reversal of the judgment is the alleged insufficiency of the indictments to charge a crime. It is argued that the indictments are fatally defective on account of the omission of the word “did” between the words “intimidation” and “take.” The omission of the word “did” does not destroy the sense or meaning of the indictment when read as a whole, for, when so read, it is manifest that the intention was to charge a taking of the money by appellants, or that appellants took the money. It is impossible to read the indictments without supplying the word “did” or substituting the past for the present form of the verb. This being the case, appellants could not have misunderstood the purport 'and effect of the charge. The omission of words in an indictment which would not mislead the accused as to the nature and character of the charge will not vitiate an indictment, as such omissions do not prejudice his substantial rights. State v. Ward, 48 Ark. 36; Rinehart v. State, 160 Ark. 129; Jackson v. State, 160 Ark. 198.

Appellants’ next assignment of error for a reversal of the judgment is 'because of an alleged inconsistency of the verdict in convicting appellants and acquitting Bruce Haley. Appellants’ contention is based upon the assertion that the evidence against the three is identical. It is unnecessary to determine and declare the rule of law applicable in such cases, for a complete answer to appellants’ contention is that the evidence against the three is not identical. Appellants were found together early next morning after the alleged robbery, with money in their possession, identified 'by the chief prosecuting witness as the money which had been taken away from him. This was not so in the case of Bruce Haley. Again, each one of the accused parties testified accounting for his whereabouts and conduct on the night of the robbery, and the jury may have believed Bruce Haley’s explanation and disbelieved the explanations of appellants.

Appellants’ next assignment of error for a reversal of the judgment is the alleged insufficiency of the evidence to support the verdict. It is not contended that the evidence detailed by the chief prosecuting witness, Sam Levins, is not sufficient to support the verdict, if believed, but that his evidence is not of a substantial nature, for the alleged reason that he was crazy drunk prior to and at the time he claimed to have been robbed. Sam Levins testified that appellants and Bruce Haley robbed him of about $150 on the night of October 25, 1924, while on his way home, after he and a number of his associates left the home of Grus Hyde, where they had been imbibing liquors (white mule) and playing craps. He admitted that he drank freely during the night, but claimed that he was not drunk or under the influence of liquor to such an extent that he did not or could not understand what happened. Certain witnesses introduced by appellants testified that, on the night and occasion of the supposed robbery, Sam Levins was drunk beyond understanding. This conflicting testimony presented an issue of fact for determination by the jury. We cannot say as a matter of law that Sam Levins was drunk on the occasion of the alleged robbery, as the undisputed evidence does not disclose that fact.

Appellants’ next assignment of error for a reversal of the judgment is the admission by the court of testimony by Sam Levins to the effect that Price Wax stated, on Monday following the alleged robbery, in the presence of Squire Hays and 'Charley 'Stepp, that the reason he (Price Wax) did not go to the 'aid of Sam when he called for help during a 'conflict in the road a short time before the robbery was that he did not have the courage to do so. This evidence was admitted as contradictory of the testimony of Price Wax, who testified that appellants did not rob Sam Levins. When Price Wax was on the witness stand, he was asked whether he made such a statement, and he denied doing so. The foundation was properly laid, therefore, for impeaching the witness, and the testimony of Sam Levins was admissible for that purpose.

Appellants’ next assignment of error for a reversal of the judgment is that the court, in reading the indictment into instruction No. 1, so as to inform the jury of the crime charged, against (appellants, supplied the word “did” between the words “intimidated” and “take” in the indictment. No prejudice resulted to appellants on this account, for the insertion of the word “did” added nothing to the meaning of the indictment. The insertion of the word amounted to nothing more than the correction of a clerical error or misprision.

Appellants’ next assignment of error for a reversal of the judgment was the giving of instructions Nos. 4, 5 and 6 to the jury by the court. It. is argued that the instructions were erroneous because not responsive to the allegations of the indictment, which alleged the taking of $150, and that Sam Levins was the owner thereof, whereas the proof tended to show that a different aim omit was taken, and also that only $89.25 of the amount belonged to Sam Levins, and that the remainder was money which he had won in the crap game.

“It is not essential that the State should prove the value of the stolen goods to be exactly that alleged in the indictment, and a conviction will be sustained, although the proved value is greater or less than the- alleged value.” 36 C. J., § 396, p. 858.

It is not necessary to determine in the instant case whether the ownership of the money won in the crap game was in those who lost it or in the winner, Sam Levins. The proof tended to show that Sam Levins had $89.25 of his own money before he won any in the crap game. If any part of the money taken, belonged to Mm, there was no variance between the allegation and the proof, except as to the amjonnt, and this variation is immaterial. 23 B. C. L., § 27, p. 1160.

The last assignment of error for a reversal of the judgment was the giving of instruction No. 11 by the court, defining reasonable doubt. . This . instruction is assailed as being argumentative. While it is unnecessarily long, we are unable to discover any argumentation therein.

No. prejudicial error appearing in the record, the judgment is affirmed. .


text:
    Davis v. Osceola Lumber Company.
    Opinion delivered April 13, 1925.
    Landlord and tenant — liability of landlord for material used in repairs. — Under a lease obligating a landlord to make certain improvements and requiring the tenant to. personally attend to repairing the buildings, the tenant was the landlord’s agent to make the improvements and purchase the materials at the landlord’s cost, and the landlord was- liable therefor, notwithstanding that cost should be deducted from the rent.
    Appeal from Pulaski Circuit Court, Second Division; Richard M. Mann, Judge;
    affirmed.

      Bruce Ivy and J. N. Thomason, for appellant.

      A. F. Barham, for appellee.
   HumphReys, J.

The only issue presented by this appeal is whether appellant is responsible for the value of building materials purchased by her tenant with which to make repairs on her plantation in Mississippi County. She. leased the lands in question to J. C. Young for the years 1920,1921 and 1922, under a written contract, which contained the following’ paragraphs relative to repairs :

“The party of the first part (appellant) agrees to have improvements'made on said place during the term of this lease to the amount of one thousand ($1,000) dollars, the same to be used in repairing houses, barns, etc., and, in addition thereto, to furnish sufficient wire, nails, and the timber to make the required posts to build a fence on the west side of said place from Brickey’s corner to the road.
“The party of the second part further agrees to give his personal attention to the repairing of said premises, also to the cutting and sawing of the timber which he gets off of said place, if any, and the total amount to be expended for repairs is not to exceed $1,000, unless specifically agreed upon by the party of the first part.”

During the year 1920 J. C. Young bought from appel-lee building materials in the total sum of $576.87, which he used in making repairs on said lands. The last item was furnished on the 30th day of November, 1920. The materials were charged on the books of appellee to J. C. Young.

J. C. Young shipped all the cotton he raised in the year 1920 to the credit of appellant, and was credited on his rent for same, and also credited for the bill of materials he had bought from appellee to make repairs, and, after receiving these credits, he still owed appellant a balance of $1,000 on his rent for that year. There was no specific authority or direction given J. C. Young to purchase the materials, and there was no direct contract or conversation between appellant and appellee with reference thereto. J. N. Thomason was appellant’s agent for renting, collecting the rents and paying the taxes on said plantation during the year 1920. At the time J. C. Young rendered his statement to J. N. Thoma-son for the transaction of the year, a notation was made thereon to the effect that the bill of materials purchased from appellee had not been paid. The year before J. C. Young paid appellee’s bill for materials to make repairs, and received credit'on his rents for same. In the year 1920 J. C. Young bought some materials from other parties to make repairs, paid for ' them himself, and received credit for same on his rents. There was an oral agreement between appellant and J. O. Young that, whatever he should pay out for repairs, not exceeding $1,000, should he credited on his rent account. When the account was not paid, Thomas Henderson, agent for appellee, went to see J. N. Thomason about it, and Thom-ason agreed to take the matter up with appellant, and, if there should be any money left in the bank belonging to her, after paying the taxes, he would get her to authorize him to pay it on the account.

Having failed ¡to receive payment on the account, this action was instituted in the common pleas court, and, on appeal to the circuit court, Osceola District, was submitted on the pleadings and testimony to a jury. At the conclusion of the testimony the court instructed the jury to return a verdict for appellee, and rendered a judgment in accordance therewith, from which is this appeal.

Under the terms of the written contract the lessor, appellant herein, obligated herself to make improvements on the houses, barns, etc., located upon her plantation, not to exceed in cost $1,000, unless specifically agreed to by appellant; and the lessee obligated himself to give personal attention to repairing the buildings. The effect of this provision in the lease was to constitute the- lessee the agent of the lessor to make the improvements. The oral understanding that the cost of the improvements should be deducted from the rent did not have the effect of limiting or abridging the agency to purchase the material and make the improvements at the ultimate cost to the lessor. "While the materials were charged on the books of appellee to the lessee, they were bougth by him under authority from the lessor, to be used for making permanent improvements on her property, which had the effect of constituting him her agent in law for the purchase of the materials. The principle announced in the case of Whitcomb v. Gans, 90 Ark. 469, is applicable in the case at bar.

No error appearing, the judgment is affirmed.


author: Humphreys, J.

text:
    Murph v. Consolidated School District No. 39.
    Opinion delivered April 13, 1925.
    1. Schools and school districts — organization in .cities and TOWNS. — Crawford & Moses’ Dig. § § 8827-8, relating to the method of organizing and establishing single school districts in cities and towns, was noit repealed ¡by act 824 of 1919.
    2. Schools and school districts — consolidation op urban and rural districts. — Act 216 of 1911 (Crawford & Moses’ Dig., §§ 8843-6) and the act of February 4, 1869, as amended, (Crawford & Moses’ Dig., § 8949) are not inconsistent with each other and furnish co-ordinate methods for consolidating school districts, the former .providing a method by wbich a part or all of a rural school' district may he annexed to an urban single school district, while the latter provides for the consolidation as a whole of school districts of any character.
    Appeal from Union Chancery Court, Second Division; H. P. Smead, Special Chancellor;
    affirmed.

      G. L. Johnson., for ¡appellant.

      Mahoney, Yocum & Saye, and W. B. Scott, for appellee.
   Humphreys, J.

This suit was filed hy appellant, a resident and taxpayer in Consolidated School District No. 39 of Smackover, against appellees, in the chancery court of Union County, to enjoin them from mortgaging the real estate of said district, pledging the credit thereof, or issuing bonds as an indebtedness against said property, upon the ground that the district was not legally organized. It was alleged in the hill that the district was consolidated pursuant to and in conformity with act 116 of the Acts of the General Assembly of 1911, which act contained no authority for consolidating an urban school district with a rural school district, as was done in this instance, hut provided a method for consolidating two or more rural school districts; also that, in organizing the town of Smackover into the Smackover Special School District before it was consolidated with Common School District No. 39 adjoining it, the method followed was prescribed in act No. 312 of the Acts of the General Assembly of 1909, instead of that prescribed by act No. 234 of the Acts of the General Assembly of 1919.

A general demurrer was filed to tire 'bill by appellees, which was sustained by tbe court, and, appellant electing to stand upon Ms bill, the same was dismissed by the court for the want of equity, from which is this appeal. The demurrer concedes that an election was held by the mayor of Smackover in response to a petition lodged with him, .signed by more than twenty voters residing therein, to determine the question of whether the territory embraced within the corporate limits of said town should be organized into a special school district, and that the Smackover Special School District was organized in strict conformity to act No. 312 of the Acts of the General Assembly of 1909, but the contention is made that said act was supplanted by act No. 324 of the Acts of the General Assembly of 1919, creating county boards of education, and that the county board of education should have called the election in the place of the mayor. The later act did not repeal the first, for it has relation to the organization of rural special school districts and the former to the- organization of single or special school districts in cities and towns. This court said, in the case of Brown v. Peach Orchard, 162 Ark. 175, that “this act (referring to act No. 234 of the Acts of 1919) was passed subsequent to act 312 of the Acts of the General Assembly of 1909, and did not in express terms repeal the former act. We do not think it did so by implication. # * The purpose of the later act was to substitute county boards of education for the county court as a tribunal to form local school-districts, change district boundary lines, etc.” Act 312 of the Acts of 1909 (Crawford & Moses’ Dig., § 8827) is still in force and effect, so the town of 'Smackover was legally organized into a .special school district.

The demurrer also concedes that the Smackover Special School District was consolidated with Common School District No. 39 adjoining it, in accordance with act No. 116 of the Acts of the General Assembly of 1911, but contends that said act only applies to the consolidation of two or more rural or common school districts, and has no relation to the consolidation of a single or special school district with a common or rural school district. The first section of the act is as follows:

“Any two or more school districts in this State may be organized into and established as a single consolidated school district in a manner and with the power herein specified.” (Crawford & Moses’ Dig. § 8843.)

The language in the act is broad enough to include any kind of school districts, and should not be limited by construction to apply to any particular classes of districts. The argument is made that the act should be construed as being applicable to rural districts/only, because another modus operandi for the annexation of territory to single or special school districts was provided by § 15 of act February 4, 1869, subsequently amended and digested as § 8949 of Crawford & Moses’ Digest. It is provided in that section that the “county board shall annex contiguous territory to single school districts, under the provisions of this act, when a majority of the legal voters of said territory and the board of directors of said single school district shall ask, by petition, that the same shall be done.” We do not think the provision quoted is inconsistent with or repugnant to the provisions of act No. 116 of the General Assembly of 1911. (Crawford & Moses’ Digest §§ 8843-6). The modus operandi provided in the annexation act permits the annexation of a part of the rural district as well as fall of it to a single district, whereas, under act 116 of the General Assembly of 1911, provision is made for the consolidation of school districts in their entirety only. The two acts furnish co-ordinate methods for consolidating school districts. The annexation act does not furnish an exclusive method for uniting a rural school district to a single school district.

For the reasons assigned, the decree is affirmed.


author: McCulloch, C. J.

text:
    Lewis v. State.
    Opinion delivered April 20, 1925.
    1. Rape — evidence of assault. — Evidence held to sustain a conviction of assault with intent to rape.
    2. CRIMINAL LAW — PROOF OF COLLATERAL FACT. — In a prosecution for assault with intent to rape, defendant could not prove by' another witness that the prosecutrix wias engaged in selling whiskey, though it would foe competent for him to prove that he knew that she was selling whiskey and went to her house to buy some.
    3. Witnesses — impeachment—collateral fact. — Where the State, on a trial for assault with intent to rape, proves by the prose-cutrix that she did not isell liquor and never handled whiskey in her life, though defendant could cross-examine her as to such sales, he was bound by her answers and could not prove by another witness that she had made sales of liquor.
    4. Criminal law — discretion as to re-introduction of testimony. — While the trial judge should prevent misstatements of the testimony in arguments of counsel, he has the discretion to determine whether testimony should be reintroduced to determine a controversy between counsel as to its effect, and such discretion was not abused where the testimony sought to be reintroduced was incompetent and ought not to have been admitted.
    5. Criminal law — continuance—absent witness. — A continuance for an 'absent witness was properly denied where it is not shown what the witness would have testified.
    Appeal from Greene Circuit Court; W. W. Bandy, Judge;
    affirmed.

      Jeff Bratton, for appellant.

      H. W. Applegate, Attorney General, John L. Garter, As'sistanit, for appellee.
   McCulloch, C. J.

This is an appeal from a judgment of conviction for the crime of assault with intent to commit rape. Appellant was charged with committing the assault on Mrs. Joe Howard. Appellant and the woman alleged to have 'been assaulted resided in the same neighborhood in a remote part of G-reene County. The woman and her husband lived together in a single-room log cabin. They had only been living there a very short time. Appellant lived about a quarter of a mile distant, and was one of the nearest neighbors, another family, named Bond, living about the same distance.

The crime is alleged to have been committed on August 1,1924, and the woman testified that, on that day, appellant came to the house, in the absence of her husband, shortly after the other neighbors had left for a trip to town, and that he seized her and carried her to the bed, attempted to have sexual intercourse with her, forcibly and against her will. She testified that appellant came into the house about 11:30, and that she struggled with him for nearly half an hour while he was attempting to ravish her, and that he only desisted and left the house when they heard her husband coming. The testimony of the woman was sufficient to sustain the charge in the indictment.

Appellant testified that he was called to the house by the woman, and that, after he went in, she proceeded to tell him about her troubles with her husband, as she had done on several other occasions, and pulled up her dress and .showed where her husband had beaten her. He testified further that she asked him for a dollar to pay her expenses in going away, and that he finally gave her the dollar, and she gave him a bottle of whiskey. He denied that he assaulted the woman, or that he had intercourse with her, or attempted to do so. He testified that the woman put her arms around him and kissed him, but that there were no other acts of intimacy between them.

Appellant offered to prove by a witness named McDonald that the witness went to the home of Joe Howard and his wife, a few days before the day of the alleged commission of the offense under investigation, and there purchased from Mrs. Howard, in the presence of her husband, a bottle of whiskey. The court refused to permit this testimony to be introduced, and an exception was duly saved to the ruling of the court. It is first contended on behalf of appellant that he was entitled to introduce this testimony in support of his contention that whiskey was being sold at the bouse, and that bis purpose in going to the bouse was to buy whiskey. He does not claim that be went there for that purpose, but testified that be was called into the house by the woman, and that be merely accepted the whiskey from her when offered to him, after she bad begged for the dollar with which to pay her expenses in leaving her husband. At any rate, it was not competent to prove, as a part of the defense, that whiskey was being sold in the bouse where the crime was alleged to have been committed. The purpose for which appellant went to the house was not an element of the crime, and it was not competent to prove a collateral fact for the purpose of establishing appellant’s motive in going into the house. Appellant had the right to testify himself as to his purpose in going into the house and to support that by his own statement that he knew that whiskey was being sold there, but, it being purely a collateral fact, he had no right to prove it by independent testimony.

Again, it is insisted that appellant had the right to introduce the testimony, even though it was collateral, for the reason that the State drew out testimony on the subject as a part of its case, and counsel invoke the rule announced by this court in the following eases: McArthur v. State, 59 Ark. 431; Howell v. State, 141 Ark. 487; Young v. State, 144 Ark. 71. This calls for an examination of the record to determine whether or not the State drew out from a witness the collateral fact that whiskey was not being sold at the house. On examination in chief, after the witness, Mrs. Howard, testified about appellant’s coming to her house and attempting' to ravish her, the following testimony was drawn out:

“0. Did he offer you anything? A. Yes sir, tried to make me drink some whiskey. Q*. Did you take any? A. No sir. Q. How much liquor did he have? A. Almost a pint bottle full. Q. He says he bought that liquor from you; did he? A. Absolutely not. I never in my life handled a bottle of whiskey. Q. He said that was Joe’s whiskey, and you sold it to him. A. I did not. Q. Had he been drinking? A. Yes sir, he had. Q. How did he try to make you drink? A. He held me and tried to make me put the bottle in my mouth. Q. Was any of that liquor spilled in the room there on the bed? A. Yes sir. Q. Where? A. All over the bed.”

On cross-examination appellant’s counsel asked her if she did not furnish the liquor herself in exchange for the dollar which appellant gave to her, and she testified that he did not give her a dollar and that she did not furnish him any whiskey. Appellant’s counsel also asked her about her husband being engaged in operating a still, which she denied.

This testimony does not bring the case within the rule stated in the cases cited above, holding that, where the State introduces proof of collateral facts as a part of its case, the defendant may introduce proof tending to controvert those facts. The State anticipated the claim of appellant that the woman had sold him liquor by asking her the direct question whether or not appellant had bought liquor from her. This was one of the circumstances immediately attending the commission of the crime, and the State had the right to propound that inquiry without opening up a collateral inquiry as to whether or not the woman had been engaged in selling liquor or that liquor had been previously sold at that place. This was, as before stated, a specific inquiry concerning one of the circumstances attending the crime, and it did not relate to any prior conduct on the part of the woman with reference to the sale of liquor. The defendant had the right to cross-examine her on this subiect, and even to ask her whether or not she had been selling liquor before that time, but, as to such a collateral matter as that, the cross-examiner was bound 'by her answer. He could not then introduce independent testimony to contradict the witness as to the collateral matter. It is true the witness, in response to an inquiry of the prosecuting attorney as to whether the particular liquor used on that occasion was sold by the woman to appellant, replied in the negative, and added that she had never in her life handled a bottle of whiskey. The State did not ask her whether she had ever handled liquor before, but merely inquired about that particular bottle of liquor, which both of the parties testified was present at the time of the alleged commission of the crime. The court was therefore correct in not permitting McDonald to testify concerning sales of whiskey alleged to have been made at that place on prior days.

There was an objection to a statement of the prosecuting attorney as to what the testimony was of a witness introduced by the State tending to prove a contradictory statement of the prosecuting witness to the effect that her husband, Joe Howard, was jealous of appellant and another man named 'Asbury. Appellant’s counsel had stated in the argument that the witness had testified as to the contradictory statement of Mrs. Howard, and the prosecuting attorney asserted, in his closing argument, that the witness had not testified as to contradictory statements of Mrs. Howard, and appellant’s counsel asked that the stenographer be required to read his notes as to the testimony of the witness mentioned. The court denied the request, and an exception was saved. The testimony of the witness mentioned in the argument was collateral, and ought not to have been admitted. It is the duty of the trial court to prevent misstatements of the testimony in argument of counsel, but it is a matter of discretion whether or not the court will permit the testimony to be reintroduced for the purpose of determining a controversy between counsel as to its effect. The controversy between counsel related to a matter which was not of sufficient materiality to justify the court in allowing time to be taken up in reintroducing the testimony, even if it had been competent.

One of the court’s instructions to the jury is made the basis of an assignment of error, but we think it is not of sufficient importance to call for a discussion. The instruction related to rules of weighing testimony, and the objection goes merely to the form of the instruction rather than to its substance, which is not in conflict with the decisions of this court on the subject.

There was a motion for a continuance for an absent witness, one Hovis by name, but all that the motion contained with regard to the substance of the testimony of the absent witness was that he knew important evidence on behalf of the accused, “but that the defendant is not advised as to just what the evidence consists of, as he was incarcerated in jail when Hovis left the State of Arkansas. ” It is manifest that this was not a statement of sufficient grounds to justify the court in postponing the trial.

No error being found in the record, the judgment is affirmed.


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    Ozan-Graysonia Lumber Company v. Swearingen.
    Opinion delivered April 20, 1925.
    1. Logs and logging — effect of excepting timber FROM conveyance. — The exception of timber from the operation of a deed is the same in effect as a reservation, and the effect would have ¡been the same if there had been an absolute conveyance of the land without any exception or reservation and then a reconveyance of the timber.
    2. Logs and logging! — deed to standing timber — time for removal. — A deed to standing merchantable timber, which •specifies no time for its removal, conveys a terminable estate in the timber, which ends when a reasonable time for its removal has expired, after which it becomes the property of the owner of the fee as a part of the land.
    3. Logs and logging — time for removal of timber. — Where, under a deed of standing timber, which specified no time for removal, the purchaser waited more than 16 years without taking steps to remove the timber when there was no1 physical hindrance or hardship preventing its removal, a finding by the court that the purchaser had not removed the timber within a reasonable time was not against the preponderance of the evidence.

      Appeal from Montgomery Chancery Court; J. P. Henderson, Chancellor;
    affirmed.

      G. H. Herndon and Tompkins, McRae & Tompkins for appellant.
    Appellee pro se.

   McCulloch, C. J.

This action was brought by appel-lee in the chancery court of Montgomery County to cancel a deed conveying to appellant the timber on land in that county. The tract of land involved in the controversy contains forty acres, and, on May 2,1907, C. "W. Belcher conveyed to L. Sparkman, appellant’s grantor, all of the pine timber of certain dimensions growing .on the land mentioned. The deed contained the following clauses:

“It is agreed that said party of the first part shall pay all taxes and assessments levied against said lands and timber and keep the same from all alienation and incum-brance, except such as may be subordinate and subject to * * *.
“It is agreed that, unless such timber shall have been removed within a period of fifteen years from the date hereof, the grantor, his heirs and successors of assigns, shall be responsible for and pay to the first party the full amount of taxes assessed against said land and timber after the expiration of said period of fifteen years from this date until such time as said timber is removed and said possession returned to said first party. ’ ’

C. W. Belcher died, and his lieirs conveyed the land to appellee by deed dated October 1, 1919; but the deed contained an exception of “the pine timber on the north 40 in section 15, which has 'been sold.” The-evidence in ■ the case establishes the fact that the forty acres of land mentioned in the deed contained approximately 210,000 feet of pine timber, and that none of it had been removed by appellant when this actio'n was commenced on November 27, 1923.

The chancery court rendered a decree in favor of appellee, canceling the timber deed, and an appeal has been prosecuted to this court.

It is contended by counsel for appellant, in the first place, that appellee has no interest in the timber and no right to maintain the action, for the reason that the timber was expressly excepted from the operation of the deed to him from the Belcher heirs. The exception of timber was the same, in effect, as a reservation, and the effect would have been the same if there had been an absolute conveyance of the land to appellee without any exception or reservation, and then- a reconveyance of the timber. Tliis court has frequently announced the law to be that a deed to standing merchantable timber which specifies no time for its removal conveys a terminable estate in the timber, which ends when a reasonable time for the removal of such timber has expired. Liston v. Chapman & Dewey Land Co., 77 Ark. 116; Garden City Stave & Heading Co. v. Sims, 84 Ark. 603; Fletcher v. Lyon, 93 Ark. 5; Earl v. Harris, 99 Ark. 112. The real question, then, presented in the case is whether or not the timber has been removed within a reasonable time. If it has not been seasonably removed, and the time to do so has expired, it became the propei'ty of the owner of the fee as a part of the land itself.

It is unnecessary to determine' in this case whether the effect of the deed from Belcher to Sparkman fixed the time of removal definitely at fifteen years from the date of the deed, for that many years expired before the commencement of the present action. The acceptance by appellee of the deed containing the exception constituted a new point of time, so far as the rights of appellee are concerned, during which the timber may be removed, and, in accordance with the doctrine of the cases cited above, there must have 'been a removal within a reasonable time after that date. More than four years elapsed without any of the timber having been removed, and the chancellor found that appellant’s rights had ceased by failure to remove the timber. We are of the opinion that the chancellor was correct in this conclusion, or, at least, that the decree is not against the preponderance of the testimony. The evidence tends to show that the timber could have been removed — that there were no physical hindrances — either by hauling to Womble, a distance of about sixteen miles, or hauling it to sawmills located in the neighborhood of this particular tract.

Witnesses testified that the land was high and dry and accessible at all times of the year — that the road from the land to Womble was fairly good at all times of the year. Appellant attempted to bring itself within the doctrine announced in Burbridge v. Arkansas Lumber Co., 118 Ark. 94, by showing that it was essential in the management of its business to remove the timber by a log-road advanced from time to time from its mill out into the timber district. Appellant introduced one witness, an employee, who testified that it was not convenient to haul the timber to Womble, and that there were mountain ranges and rivers to cross, which impeded the transportation to the extent that it made it unprofitable, and that it was less expensive and more convenient to do the logging over the railroad constructed by appellant from its mill out into the timber. The testimony of this witness is contradicted more or less by the testimony of the other witnesses, and we do not think that the testimony brings the case within the operation of the Burbridge case, supra. The testimony rather brings the case within other decisions where the facts were that the timber had not been expeditiously removed. Polzin v. Beene, 126 Ark. 46; Beene v. Green, 127 Ark. 119. There is not sufficient reason, shown why the timber was not removed within the four years from the date of the deed to appellee and the commencement of this action.

Decree affirmed.

HaRt and Humphreys, JJ., dissent.


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    South Arkansas Grocery v. Lee.
    Opinion delivered April 20, 1925.
    1. Corporations — false certificate as to stock paid in — liability of OFFICERS. — Under Crawford & Moses’ Dig., § 1711, requiring the officers of private corporations to file a certificate showing the amount of stock actually paid in, and making them liable for the debts of the corporation contracted during the period of their intentional neglect or refusal to comply with sueh provision, held that a director, who knowingly filed a certificate showing that one-fourth of the capital stock had been paid in, when nothing was paid, was liable for debts of the corporation under Crawford & Moses’ Dig. § 1730.
    2. Corporations — liability of director signing false certificate. —Where a director filed a certificate stating that $10,000 of the capital stock had been paid in, when he knew that none had been paid, he cannot escape liability under § 1730, on the ground that 'he understood the language of the certificate to mean that the stock had been subscribed, as it was his duty to inform himself as to the meaning of the language of the certificate.
    3. Corporations — false certificate — liability of director.— Where the director of a corporation who filed a certificate under Crawford & Moses’ Dig., stating that $10,000 of the capital stock had been paid in by subscribers, knowing that no stock had been paid in, and no later certificate was filed under § 1715, held that the director was liable under § 1730, for debts of the corporation thereafter incurred; the liability being continuous because of failure to comply with the statute.
    4. Corporations — failure to file annual certificate — liability OF secretary. — Where the secretary of a private corporation failed to file the annual certificate required by Crawford & Moses’ Dig., § 1715, he was not liable, under § 1730, for debts incurred by the corporation after he had resigned as secretary, regardless of the fact that his resignation was not shown by the corporate records.
    5. Corporations — liability of stockholders. — Persons who were neither officers nor directors in a private corporation during the time a corporate debt was incurred cannot be held liable for its debt under Crawford & Moses’ Dig., § 1730.
    Appeal from Dallas Circuit Court; Turner Butler; Judge;
    reversed in part.

      J. W. Warren, for appellant.

      T. D. Wynne and Brmdidge £ Neelly, for appellee.
   McCulloch, C. J.

This is an action instituted by appellant as creditor of a bankrupt corporation, styled “Farmers’ Supply Company,” against appellees as former officers of the corporation, to recover debts of the' corporation, for which appellees are alleged to be responsible by having failed to perform statutory duties with respect to filing certificates. Crawford & Moses’ Digest, §§ 1711, 1715, 1730. There was a trial before a jury, but the court gave a peremptory instruction in favor of each of the appellees. The question which we have to consider is therefore whether or not there is evidence sufficient to sustain a verdict against either of the appellees.

Said corporation was organized for the purpose of conducting a'general mercantile business in Dallas County, and the articles of incorporation and certificate of the president and directors were filed on March 22, 1919. J. Q. Adams, one of the appellees, was an original stockholder, and was elected director and secretary, and served in that capacity until September, 1919, when he resigned and moved away. Adams did not participate in the affairs of the corporation from then until his return to the county on January 7, 1921. The corporation was then insolvent, and went into bankruptcy a few months later. Adams participated in the organization of the corporation, and, as director, signed the certificate filed pursuant to '§ 1711, supra. It was certified therein that the capital stock of the corporation amounted to $40,000, divided into shares of .twenty-five dollars each, and that $10,000 of the capital stock had been actually paid in by the subscribers. The evidence shows that the certificate was not correct as to the amount of capital stock paid in, and that, on the contrary, nothing had been paid on the stock. This certificate was never corrected, and no further certificate, either under § 1711 or § 1715, was filed. The other appellees were not stockholders at the time of the organization, but became stockholders later. Neither of them was an officer of the corporation during the period of time during which appellant’s debt was created. It appears from the undisputed evidence that the debt of the corporation to appellant was incurred between October, 1919, and September, 1920.

The three sections of the statute under which liability of appellees i-s asserted read as follows:

“Section 1711. Before any corporation formed and established ¡by virtue of the provisions of this iaot shall commence business, the president and directors thereof shall file their articles of association, and also certificate, setting forth the purposes for which such corporation is formed, the amount of its capital stock, the amount actually paid in and the names of its stockholders and the number of shares by each respectively owned, with the county clerk of the county in which the corporation is to have its principal places of business; and shall file said articles and certificate, bearing the indorsement of the county clerk, in the office of the Secretary of State.” * * *
“Section 1715. The president and secretary - of every corporation organized under the provisions of this act shall annually make a certificate showing the condition of the affairs of such corporation, as nearly as the same can be ascertained, on the first day of January or of July next preceding the time of making such certificate, in the following particular, viz: The amount of capital actually paid in; the- cash value of its real estate; the cash value of its personal estate; the cash value of its credits; the amount of its debts: the name and number of shares of each stockholder; which certificate shall be deposited on or before the fifteenth day of February or of August with the county clerk of the county in which said corporation transacts its business, who shall record the same at length in a book to be kept by him for that purpose. ’ ’ Id.
“Section 1730. If the president, directors or secretary of any such corporation shall intentionally neglect or refuse to comply with the provisions of this act, -and to perform the duties therein required of them, respectively, such of them as so neglect or refuse shall be jointly and severally liable, in an action founded on this statute, for all the debts of such corporation contracted during the period of any such neglect or refusal.” Id.

The facts with reference to the relation of appel-lee Adams with the corporation are different from the facts in regard to the attitude of the other appellees, and the question of his liability will be disposed of first.

It is undisputed that Adams was one of the directors of the corporation, and, as director, joined in the original certificate made under § 1711, supra. The statute (§ 1730) makes the directors and other officers liable for debts of the corporation contracted during the period of any neglect or refusal to perform their statutory duties. The filing of a false certificate, one known to be untrue, renders the officers liable. O'Neil v. Eagle Generator Co., 92 Ark. 416. The only attempt at justification on the part of appellee Adams was that he did not understand at the time he signed the certificate that the language meant that the amount specified as capital stock had been paid in, and that he thought it merely meant that that much had been subscribed. He admits that he knew, and that all the other officers knew, that the stock had not been paid in. It was his duty to inform himself as to the meaning of the language of the certificate, and he cannot escape liability by saying that he misinterpreted the language. He was bound to know the meaning of the language used, and should have informed himself before assuming to join in the certificate. Adams is therefore responsible for the debts of the corporation thereafter incurred.

It will be observed from the sections of the statute quoted above that the only requirement placed upon the directors with respect to filing the certificate is as to the first certificate required by § 1711, and that thereafter the certificates concerning the condition of the corporation were to be filed under § 1715 by the president and secretary in annual reports. If this duty had been complied with by the officers mentioned at the end of the first annual period, correct information would have been furnished the creditors, but we need not decide whether this wonld have excluded liability thereafter incurred by the original directors who failed to file a correct certificate originally. As we have already seen, no later certificate was filed, and there was therefore a continuous liability on the part of the original directors because of their failure to comply with the statute (§ 1711).

It is also contended that Adams is liable as secretary for failure to file annual certificate under § 1715, supra. We do not think that there is any liability shown, for the undisputed evidence is that Adams resigned as secretary before the debt to appellant was incurred. The records of the corporation fail to show his resignation, but he was not bound by the omission in the record, as he proved that he had in fact resigned and ceased to discharge the duties of the office, and moved away from the county.

As to the other appellees, it is sufficient to say that there is no testimony at all that they were directors or even stockholders at the time the original certificate was filed under § 1711, supra, and neither of them occupied the position of president or secretary during the period when the debt to appellant was incurred. The court was therefore correct in giving a peremptory instruction in their favor, and the judgment as to all of the appellees, other than Adams, is affirmed, but the judgment in the latter’s favor is reversed, and the cause remanded for a new trial.


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    Fair Store No. 23 v. Denison.
    Opinion delivered April 20, 1925.
    1. Sales — sufficiency of evidence. — Evidence held to sustain a finding for plaintiff in an action for goods and merchandise alleged to have been sold and shipped to defendant.
    2. Sales — loss of goods. — Where goods are shipped by a common carrier pursuant to the buyer’s order, the sale is complete, and any subsequent loss or injury would fall on the consignee.

      3. Appeal and error — defense not raised relow. — In an action for goods sold, defendant cannot for the first time on appeal make "the defense that the purchase was within the statute of frauds.
    4. Frauds, statutes of — defense not raised by answer when.— Though a complaint for the price of goods sold, by not alleging the contract to toe in writing, in effect pleaded an oral contract, an answer which neither denied the contract nor specially-pleaded the statute of, frauds did not raise the question that the contract was within the statute.
    Appeal from Conwiay Circuit Court; J. T. Bullock, -Judge;
    affirmed.

      Strait & Strait, for appellant.

      Edward Gordon, for appellee.
   McCulloch, C. J.

This is a suit by appellee against appellant on account for goods and merchandise sold and shipped to the latter. The case was tried before a jury, and the verdict was in favor of appellee for the amount of the account.

Appellee is engaged in the wholesale mercantile business at St. Louis, and appellant is operating a store at Morrilton. The account is for the price of a case of dress-goods, known as percale. It is undisputed that appellant ordered the goods from appellee through the latter’s traveling salesman, but it does not appear that there was any written order signed by appellant. According to the testimony adduced by appellee, the case of goods wa-s shipped by common carrier, addressed to appellant at Morrilton, but there is a conflict in the testimony as to whether the goods were actually received by appellant. The testimony introduced by appellee tends to show that the case of goods was delivered to a dray-man employed by appellant and authorized to receive the same, and that the drayman paid the freight. Appellant’s manager of the -store at Morrilton testified that the case of goods was never received, and the court submitted the case to the jury on the sole issue as to whether the case of goods “was shipped to Morrilton and arrived in Morrilton,” and, as above stated, the verdict was in favor of appellee.

The evidence was sufficient to sustain the finding of the jury on the issue submitted. If the goods were shipped by common carrier pursuant to appellant’s order, then the sale was complete, and any loss or injury to the goods would fall on the consignee. Burton & Townsend v. Baird & Bright, 44 Ark. 556. The instruction given by the court was too favorable to appellant in stating that the jury must find that the goods arrived in Morrilton. It is contended, however, that there was no evidence of a written order or other written agreement with respect to the purchase of the goods, and that the purchase falls within the statute of frauds, but that question is raised here for the first time, which is too late. There was no plea of the statute of frauds. The language of the complaint is that “the Fair Store'No. 23 of Morrilton, Arkansas, a corporation, is duly indebted to the plaintiff as consideration for goods, wares and merchandise, as shown by itemized account attached hereto, in the sum of $295.24. ’ ’ The answer of appellant (omitting caption and prayer) reads as follows: “Denies that the Fair Store No. 23 of Morrilton, Arkansas, is duly indebted to the plaintiff as consideration for goods, wares and merchandise, as shown by itemized account attached hereto, in the sum of $295.24. Denies that the said indebtedness is wholly past due and remains unpaid. Denies that said defendant has no just defense, set-off or counterclaim thereto, and denies that plaintiff is entitled to judgment for said account.”

Appellant relies on decisions holding that a denial of allegations as to the existence of a contract constitutes a sufficient plea of the statute of frauds. Stanford v. Sanger, 141 Ark. 458. It will be observed that appellant’s answer neither denies the contract of purchase nor specially pleads the statute of frauds, therefore the answer was not sufficient to raise the question of the contract being within the statute. The effect of the complaint was to plead an oral contract, there being no allegations with respect to a contract in writing. Izard v. Connecticut Fire Ins. Co., 128 Ark. 433. So, in order to plead the statute of frauds us a defense, it is essential that there either he a denial that there was a valid contract,. ór a special plea of the' statute,

Judgment affirmed.


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    Magnolia Petroleum Company v. Freudenberg.
    Opinion delivered April 20, 1925.
    1. Appeal and error — objection to instruction not raised below. — Objection to an instruction that it submitted an issue not set. forth in the complaint will not be considered on appeal where it wias not raised in the court below, and where specific objection to the instruction was taken on another ground.
    2. Appeal and- error — instruction—general objection. — A general objection to an instruction that is- substantially correct, though not well worded, will not be considered.
    3. Trial — abstract .instruction. — In an action for damages for injury to plaintiff’s engine, caused by the alleged negligence of defendant’s agent in making a test of lubricating oil in an engine, an instruction which ■submitted the question whether ' the test was made upon - condition that plaintiff’s cylinders and piston rings were in good condition was properly refused where there was no evidence that the test was miade upon -any condition.
    Appeal from Arkansas Circuit Court; George W. Clark, Judge;
    affirmed.

      Gockrill -& Armistead and Jolm W. Newman, for appellant.
   McCulloch, C. J.

Appellee instituted this action against appellant to recover damages on account of injury to an engine owned by appellee, it being alleged that the injury was caused 'by negligence of appellant’s agent in making a test of lubricating oil in the operation of the engine. Appellee alleged in his complaint that he was a rice grower, and was operating an engine in pumping water to flood the rice crop; that appellant’s agent approached him, soliciting an order for a certain kind of lubricating oil put on the market by appellant, and induced appellee to permit a test of the oil. He alleged that he permitted the agent of appellant to make the test, and that the agent was guilty of negligence in failing to give a sufficient flow of oil while the engine was running, thereby causing the cylinders and pistons to become scored. Appellee claimed damages for the cost of repairing the engine and for the usable value of the engine during the delay in making the repairs, and also claimed damages for injury to crops, the total amount of damages being the sum of $1,800. On the trial of the cause the court excluded from the consideration of the jury the element of injury to the rice crop, and submitted the cause on the question of damages for cost of repairs to the engine and the usable value of the engine during the period of delay. Appellant denied the allegations of the complaint with respect to negligence in making the test.

It is undisputed that appellee was operating his engine for the purpose of pumping water, and that appellant’s agent, Mr. Van Hutches, solicited the purchase of oil, and asked permission to make a test of appellant’s lubricating oil so as to demonstrate that the engine could be operated more economically with that oil than with any other. Appellant, through its agent, claimed that it had a very superior lubricating oil with a paraffine base, especially suitable for engines of that type, though not such as could be properly used in an ordinary automobile or tractor. Appellee agreed for the test to be made, and Mr. Van Hutches, with two other employees who accompanied him to appellee’s farm, began making observations as to the operations of the engine then being lubricated with an oil which appellee was then using — a kind different from that offered for sale by appellant. These observations continued from early in the morning to shortly after the noon hour, when the oil then in use was withdrawn and the test was begun by use of the oil furnished by appellant. Van Hutches proposed to appel-lee that the engine be shut down so that the pistons and cylinders could be examined, but appellee declined to permit that to be done, for the reason that there was an urgent need for water on his rice crop. He assured Van Hutches, however, that the pistons and cylinders and piston rings were in good condition, and, with this assurance, Van Hutches proceeded with the test. He put the new oil in and adjusted it down to the lowest estimated amount necessary to lubricate the engine as the test progressed. This was all done in the presence of appellee, but, after the new oil was put into the engine, he decided to take a walk out through his rice field to look after the ditches, and he testified that, after he had gone a short distance, he looked back and saw black smoke coming from the exhaust of the engine, and he knew that there was something wrong. He immediately returned to the scene of the operations, and found that the engine was knocking very badly. Efforts were made to correct this trouble, without avail, and appellee testified that the engine was not fit to run any more until he had it overhauled, and it was found that the piston rings were stuck and that the pistons and cylinders were badly scored. The testimony of appellee was to the effect that the engine had been thoroughly overhauled, a short, time before he began operating it for the season, and that it was in perfect condition, and ran without any apparent defects until it began knocking after Van Hutches put in the new oil. He testified that, as soon as he returned from the field and found that the engine was knocking badly, he made an examination and saw that the lubrication had been reduced after he had left the scene, and that this was done Avithout his knowledge or consent; that he removed the plates and exposed the pistons and found the pistons scored and burned a sort of bluish-yellowish tinge. He said he did not realize at the time the full extent of the injury to the engine, but afterwards! found out when he called in a repair man. He testified that, in operating the engine, he usually adjusted the oil pressure so as to give from 96 to 108 drops to each cylinder per minute, and that 52 drops per minute was too Ioav to sufficiently lubricate the cylinders and pistons.

Van Hutches and other Avitnesses for appellant testified substantially the same as appellee with respect to the preliminary negotiations between the parties and the progress of tlie test. There was no substantial conflict in the testimony of appellee and Van Hutches as to what occurred between them. Van Hutches testified that he requested appellee to shut down the engine so that the condition of the pistons and cylinders could be examined, and that appellee assured him that the engine was absolutely clean and “in good mechanical condition, the rings not stuck, and free of carbon.” He testified further that he would not have made a demonstration on an engine that wasi not clean and in good running order. He also testified that he reduced the lubrication down to 52 drops to each of the cylinders. Other witnesses testified that, with the use of that oil, an engine of that kind in good running order could be sufficiently lubricated with as low a pressure as 42 drops to the cylinder.

The testimony introduced by appellee showed that it cost $700 to replace the damaged cylinders and pistons. The jury awarded damages to appellee in the sum of $567.

Error of the court is assigned in giving an instruction submitting to the jury the issue of ¡alleged negligence on the part of appellant’s agent in improperly making the test and in using unsuitable oil. It is contended that the question of suitability of the oil should not have been submitted. It is true that there was no direct testimony to the effect that the oil was unsuitable, and there was no allegation in the complaint as to negligence in that regard, but the instruction was to some extent ambiguous as to the submission of that issue — it being merely parenthetically inserted in the instruction — and there was no specific objection on that ground. There was, however, a specific objection on another ground. We think that appellant is not in an attitude to complain now of the instruction on that ground. That instruction was given orally, and, if it was thought at the time that it submitted an issue not set forth in the complaint, there should have been a specific objection calling the court’s attention to it.

It is also claimed that the language of the instruction assumed that the agent of appellant was negligent and that unsuitable oil was used, but we do not think that the language is open to that criticism.

The next assignment of error relates to the giving of instruction No. 4, which reads as follows:

“There is some testimony here, gentlemen of the jury, relative to the representations claimed to have been made by the plaintiff to the agents of the defendant company as to the condition of the engine just prior to the test. It is admitted, as I recall the testimony, that the plaintiff, Freudenberg, represented that the engine was in proper mechanical condition and free of carbon, and the agent of defendant company relied upon these representations, and made the test without making the necessary examination to ascertain the truthfulness of such representations. If you find that such representations were made, and, whether believed in or not upon the part of the defendant, and if the evidence discloses that the engine was not in proper mechanical condition, that it was not free of carbon and other injurious substances, that would not relieve the defendant of liability in this case, if liability has been established, unless such representations were the cause of the defendant assuming to make this test, and, relying upon the representations, caused the injuries complained of, if any, to the engine of the plaintiff.”

The objection to this instruction was general, and no defects in form or phraseology were specifically pointed out. The substance of the criticism of the instruction now is that it submitted the issue whether or not appellant’s agent relied on the representations made to the agent concerning the condition of the engine, whereas it is claimed that the testimony is undisputed that the agent did so rely. Counsel are in error as to the substance of the instruction, for it did not in fact submit the issue whether or not such representations were relied on. The effect of this instruction was merely to tell the jury that, even if misrepresentations were made and relied on, it would not be a defense unless the representations were the canse of defendant assuming to make the test, and the reliance upon those representations caused the injury complained of. This was just another way of saying that the representations as to the condition of the engine were not material unless they induced the test, which would not otherwise have been made, and that the misrepresented mechanical condition of the engine was the cause of the injury. The instruction is not well worded so as to accurately express the idea which the trial court appears to have intended to convey to the jury, but there should have been a specific objection»

It is next contended that the court erred in refusing to give the following instruction requested by appellant:

“No. 6. If you find from the evidence that the defendant consented to make the test or demonstration of its oil in plaintiff’s engine only upon the condition that the plaintiff’s cylinders and piston rings should be in good condition, and that plaintiff knew such conditions upon which defendant only would make such test or demonstration, and if you further find that the defendant asked permission of the plaintiff, before such test or demonstration, to make internal examination of the engine to ascertain whether such conditions existed, and if you find that the plaintiff forbade such internal examination, and if you find that plaintiff assured defendant that he knew of the internal conditions of his engine, and if you find that plaintiff assured defendant that the engine was in condition specified in the conditions aforesaid, and that plaintiff so represented, for the purpose of inducing defendant to make such test, then you are instructed that the defendant was justified in relying upon such representation of plaintiff, if plaintiff did so represent and if defendant did rely thereon; and if you further find that the engine was not in the condition specified above, and 'that if the engine had been in such condition, the oil of the grade and quantity used by the defendant would not Pave injured the engine, then you will find for the defendant.”

Appellant would have been entitled to an instruction stating the converse of the principles of law announced in appellee’s instruction No. 4, but the trouble with instruction No. 6, requested by appellant, is that it incorrectly submits the question whether or not appellant’s agent “consented to make the test or demonstration of its oil in plaintiff’s engine only upon the condition that the plaintiff’s cylinders and piston rings should be in good condition.” Now, there is no testimony that the test was made upon any condition at all. There is testimony that appellee made representations^ concerning the mechanical condition of the engine, and the jury might have found that the injury resulted from the poor condition of the engine rather than from the quality or quantity of the oil used. But neither of the witnesses who testified on this subject stated that the test was made upon express condition as to the condition of the engine. The jury would not have been warranted in finding that there was a condition expressed in the agreement between the parties concerning the test, though the undisputed evidence shows that there were representations made on that subject, and the jury might have found that the representations were not true. Of course, the testimony adduced by appellee tended to show that the engine was in good condition up to the time appellee’s agent put the new oil in, and we must treat the verdict as a finding in the affirmative on that question.

The assignments of error argued in the brief are not well talcen, and it follows that the judgment must be affirmed, and it is so ordered.