text:
    Stuttgart Rice Mill Company v. Lockridge.
    Opinion delivered March 7, 1932.

      W. A. Leach, for appellant.

      Joseph Morrison, for appellee.
   Butler, J.

On the 15th day of December, 1923, Lozier Lockridge, appellee, instituted this suit against the appellant, Stuttgart Rice Mill Company. In his complaint the appellee declared on a verbal contract alleged to have been entered into between himself and the appellant, acting through its president, J. C. Lloyd, by which he was to deliver to the appellant rice grown in the year 1920, the same to be milled and sold by the appellant for his account. For this service appellant was to receive $1 per barrel and the by-products consisting of bran and polish; that appellant undertook to mill said rice immediately and to sell the milled product at once; that, as an inducement for appellee to enter into the agreement with the appellant, appellant represented that it could mill and sell the rice without delay, and that appellee would thereby be enabled to realize net more-for his product than if he should sell it in the rough; that at that time there was an active market for rough rice; that he entered into this contract on or before the 15th day of November and began to deliver the appellant rice completing delivery on or before the 29th day of November, 1920; that on the date of his agreement and during the time of the delivery of the rice and for a considerable time subsequent thereto there was an active market for clean rice of the kind and grade of that which he had delivered to the appellant, and, if the appellant had performed its agreement, it would have been able to realize for appellee’s account a net sum of $1.27 per bushel.

Appellee further alleged that, after the appellant had milled the rice, he demanded an accounting, which was not made until on or about the 29th day of March, 1921, at which time appellant accounted to appellee for $2,495.92, representing to him that this was all that appellant had realized from the sale of his product; that the appellant sold appellee’s rice at a much higher figure than the price which it rendered on an accounting and fraudulently concealed the fact that it had sold rice at a higher figure, which, after all proper charges had been deducted, would have returned to appellee a net sum of $1.27 per bushel.

Appellee further alleged that, if the rice had not been sold at a figure sufficient to yield him the return aforesaid, appellant breached its agreement in failing to market the rice with reasonable promptness after the same had been milled, to appellee’s damage in the sum of $5,000.80, the difference between what he should have received had the appellant performed its contract with him and what it actually accounted for. Appellee further alleged that, until the appellant rendered him an accounting in March, 1921, he did not know that it had not sold his rice at the time it had agreed to sell it and did not know what actual disposition was made of the rice, but alleged that the appellant either sold it at a figure to yield him $1.27 per bushel net, fraudulently accounting to him for a different lot of rice, or that appellant fraudulently failed and neglected to sell his rice with reasonable promptness after same had been milled in accordance with the agreement, to his damage in the sum aforesaid.

The first testimony taken in the case was the deposition of the appellee given on the. 19th day of May, 1927. From time to time thereafter testimony was taken in the form of depositions down to 1930 or 1931. After all the testimony was in, the appellee filed his motion to amend the complaint to conform to the proof, and on the 7th day of April, 1931, filed an amended complaint in which the allegations of the original complaint were reiterated and the further allegation was made that appellant fraudulently failed to account for 900 bushels of rice, failed to account for the complete proceeds resulting from the sale of the rice, and failed to report the correct amount of mill product, and unlawfully converted a portion of the rice delivered by the appellee to its own use; that, by reason of this unlawful misconduct and fraud, the appellant forfeited its right to compensation of $1 a barrel and the by-products for milling the rice.

To this amended complaint answer was made by the appellant and objections filed to the testimony of the deposition of witnesses B. E. Chaney, George E. Carlson, ■Oak H. Rhodes, and to parts of the testimony of the appellee. The case was thereupon submitted to the court, and a decree was rendered on May 11, 1931. The court found, first, “that the rice in controversy was of superior quality for which appellee had been offered $1.10 per bushel prior to delivery to defendant; that J. C. Lloyd was president of the Stuttgart Rice Mill Company; that, as an inducement to plaintiff to deliver rice to defendant, plaintiff was guaranteed a minimum of $1.25 per bushel, and that the president was authorized to negotiate contracts of this kind. Second, the court found that the evidence shows that irregularities and mismanagément on the part of those in charge of defendant mill amount to a fraudulent transaction against, the plaintiff; third, that the defendant received from the plaintiff 5',401 bushels of rice; that the rice was delivered upon verbal toll milling agreement with no specific milling charge agreed upon; that the customary milling! charge for milling rice was $1 per barrel and by-products; that the defendant retained the by-products and is therefore only entitled to milling charge aforesaid as a credit upon the judgment hereinbefore rendered; that plaintiff is entitled to interest from the 29th day of March, 1921, at the rate of six per cent, per annum from date until paid ; fourth, that defendant is entitled to a credit upon the amount guaranteed plaintiff of $2,495.22 for moneys paid him by defendant on or before March 29, 1931, and $1,500.50 toll milling charges on the amount of rice delivered by plaintiff to defendant.

Judgment was rendered for $2,755.53, principal, with interest from the date aforesaid, from which decree both the appellant and the appellee have appealed.

The complaint alleged, and the testimony on the part of the appellee tended to show, that he and one Finch his tenant, each owned a one-half interest in the rice delivered to appellant, the total amount of which was 11,806 bushels, half of which was appellee’s part amounting to 5,903 bushels. Both appellee and Finch testified that they weighed and loaded on the cars at Goldman this amount of rice which was shipped to appellant’s mill at Stuttgart. The original memorandum of the weights was asked for and not produced. The explanation given by the appellee for his failure to do so was that he had given them to his lawyer. It was shown on behalf of the appellant that the statement of the rice accounted for was obtained from the records made by the receiving clerk, and that the rice was weighed on the city scales. By the fourth finding of fact the chancellor found against the contention made by the appellee as to shortage in weights, finding the amount of rice received to be 5,401 bushels as shown by the books of the appellant. We are of the opinion that this finding was supported by the evidence.

The first finding of fact made by the chancellor is the one upon which the decree was based. Appellee testified to a certain conversation between himself and J. C. Lloyd, president of the appellant company, occurring 6y2 years before, and not in the presence of any other person and after Lloyd, the only one who could testify directly to the contrary, had died. That statement was that at the Arkansas County Bank in Stuttgart “he called me in at the bank and asked me what I could get for my rice, and I told him I could get $1.10 and he told me there was no use to take that. If you will deliver it to the .Stuttgart Mill, I will guarantee you $1.25 in thirty days, and it might bring $1.35.” I had been offered $1.10 per bushel for my rice by southern mill, and Mr. Lloyd held my note which he had put up with the Arkansas County Bank as collateral. I did not sign any toll milling agreement. After my conversation with Mr. Lloyd, we loaded my rice on the cars at Holdman and shipped it to the Stuttgart Mill.

Oak H. Rhodes, testifying on behalf of the appellee, said in substance that he recalled- something being said by Lloyd about Lockridge’s rice, and he gained the impression, as he then remembered, that this rice was bought and was not handled under the toll milling contract.

L. EL Harper, who was the shipping clerk in 1920, stated in effect that both he and Lloyd knew that more of appellee’s rice was received than accounted for, and that Lloyd had promised him (Harper) he would correctly settle with appellee and pay him for all his rice.

There was other testimony to the effect that rough rice was selling at the time appellee delivered his at from $1.10 to over $1.25 per bushel, and that there was then a market for rough rice, and that there was no considerable decline in the price until after January 1,1921.

Finch, the tenant of appellee and owner of one-half the rice, testified that he received $1,000 more money than Lockridge, and he and Lockridge further testified as to a conversation said to have taken place between the appellant’s bookkeeper and Lockridge in which the bookkeeper, after an examination of the books, said that he thought the rice would net Lockridge at the rate of $1.27 per bushel.

It is contended by counsel that all of this testimony tends to corroborate the contention of the appellee that the rice was delivered at a guaranteed price, and that the testimony relative to the sale of rice, the excess of amount of money paid Finch over Lockridge, and that relating to the alleged conversation with the bookkeeper, justified the chancellor in the finding that Lockridge’s rice was delivered at a guaranteed price.

It is impracticable, without unduly lengthening this opinion, to review and analyze this testimony. We have, however, examined it with care, and cannot assent to the contention made by counsel for the appellee. Clearly the overpayment made to Finch was an error of the bookkeeper in failing to take into consideration an account charged against Finch on the books of the appellant and in failing to deduct the same from the amount due him. As to all the other evidence claimed as corroborative and supporting the contention of appellee, we find the testimony vague and uncertain, general in its nature and inconclusive, as is not strange, when it is a relation from memory of the events occurring some six or seven years in the past.

There are circumstances in evidence not dependent upon human memory which tend strongly to refute the testimony of Loabridge relative to the alleg-ed guaranty of $1.25 per bushel.

He was a member of the Southern Rice Growers’ Association, and was bound by the contract of the association with rice mills, known as the ‘ ‘ Toll Milling Contract” (Joy Rice Milling Co. v. Brown, 167 Ark. 205, 268 S. W. 1), under the terms of. which the mills were to act as its agent and that of its members in milling and marketing rice, receiving a stipulated price for the milling and certain charges for selling, which charges were recognized and allowed by the chancellor.

A large crop of rice was produced in 1920, and the price of the product broke sharply from the previous high level occasioned by various causes — the large crop, the influx of foreign rice on European markets, and the general deflation in prices in 1920, which is recent history. In order to stabilize prices, the toll milling contracts were entered into between the Rice Growers’ Association and the rice mills.

The evidence fails to show the amount of rice appellant had on hand to mill at the time it received appellee’s, or that it failed to mill and place on the market appellee’s rice as soon as possible. He received payment for his rice by checks issued to him and the Arkansas County Bank in March, 1921, the last being dated March 29, 1921. It appears from the allegations in appellee’s complaint and by his testimony that on or about that date the appellant claimed that these checks were in full settlement of all that was due him for his rice. On the reverse side of these, checks was a memorandum showing the lot number, the account sales, charges, and net amount for which the checks were drawn. These checks were accepted without protest, and, so far as the record discloses, no demand was made upon the mill for an accounting. It was apparent from the face of the checks that the rice brought far below $1.25 a bushel, and, if the guaranty was as appellee claimed, he lmewr then that it had not been complied with, and still he remained silent. He does not claim to have done anything about it for about a year, when he stated he took the matter up with his lawyer, who delayed taking action although often importuned to do so. The fact remains, however, that no action was taken until December, 1923, after Lloyd had died in November preceding, and even then no allegation was made of the guaranty of $1.25 per bushel. It was not until May, 1929, that appellee first made any such claim. We are of the opinion that appellee delivered his rice under the toll milling agreement ■to be milled and marketed in the usual course of business, and the circumstances do not support the claim of a guaranty of $1.25 per bushel, and there is no evidence of a failure by the appellant to mill and market appellee’s rice as speedily as could be done or that it accounted to appellee for a less price than it actually received. The finding of the chancellor therefore (finding No. 1 aforesaid) is against the preponderance of the testimony.

T. A. Patrick, an accountant, whose testimony is not disputed, in checking the account of Lockridge and Finch on the books of the appellant discovered some errors in bookkeeping, a part of which was in favor of the appellant and a part against it, and in the credit for the receipts of a certain grade of rice called “brewers’ rice.” He prepared a statement of his finding showing that the errors amounted to the sum of $753.68. A part appear to have been errors in extension while the credit given for the brewers’ rice was under the mistaken belief of the appellant that it had only to account for brewers’ rice at its actual market price on the date it was sold. In June of 1920, however, it seems that the appellant contracted to sell the brewers’ rice handled by it from the crop of 1920 at four cents a pound and that brewer’s rice obtained from milling the rice of appellee was a part which the appellant delivered under its' contract of June, 1920, and for which it received four cents per pound. At the time the appellant made the contract for the sale of brewers’ rice it had no rice of its own on hand with which to fill the order, and filled it in part by rice received from the appellee which it was to handle as the latter’s agent. Lockridge delivered the rice to the appellant to be milled by it and the finished product sold by it for his account, which created the relationship of principal and factor. Therefore, appellant rested under the duty, because of the confidential relationship existing, not to speculate on the product of its principal, but to account for the amount actually received by it, although this was the result of a trade made for its own benefit previous to the receipt of the rice grown in 1920. It cannot be permitted to make a profit in excess of the toll and commission allowed by the toll milling contract. 25 C. J., Factors, & 35, and cases cited in note 28.

The figures arrived at by Patrick, the accountant, are not disputed, and was the joint account of the appellee and his tenant, Finch. Appellee was therefore entitled to receive one-half of the amount found by Patrick from his examination of the books that represented the errors in bookkeeping and the contract price for the brewers’ rice sold, with interest at 6 per cent, from the 29th day of March, 1921.

The evidence indicates that about 1923 an investigation was made of the conduct of the persons in charge of the appellant’s mill, and that some of these persons were prosecuted, but with what result is not shown. The evidence raises ground for grave suspicion of fraudulent practices over a period of a number of years on the part of those persons, and would indicate that large amounts of rice were fraudulently converted by these persons to their own use, and that the growers of rice in the aggregate were defrauded of large quantities of rice. The testimony, however, as to all of these transactions is vague and uncertain, and, with the exception of the testimony of Harper, fails to establish any fraudulent diversion of the rice of appellee, to which testimony the chancellor attached no weight, as his finding as to the amount of rice accounted for was in favor of the appellant. His finding therefore “that the evidence shows that irregularities and mismanagement on the part of those in charge of the defendant mill amounted to a fraudulent transaction against the plaintiff” was without evidence to support it.

“Fraud is never presumed, but must be proved, and the burden of proving it is upon the party alleging it. It need not be shown by direct or positive evidence, but may be proved by circumstances. ‘Slight circumstances or circumstances of an equivocal tendency, or circumstances of mere suspicion, leading to no certain results,’ are not sufficient evidence. ‘They must not be, when taken together and aggregated, when interlinked and put in proper relation to each other, consistent with an honest intent. If they are, the proof of fraud is wanting.’ They may be sufficient to excite suspicion, but suspicion is not the equivalent of proof. Circumstances necessary to prove fraud must be such as naturally, logically and clearly indicate its existence.” Bank of Little Rock v. Frank, 63 Ark. 16, at page 22, 37 S. W. 400, 401; Russell v. Brooks, 92 Ark. 509, 122 S. W. 649; Dufresne v. Paul, 144 Ark. 87, 221 S. W. 485.

It is unnecessary to pass upon the question of the competency of the testimony of the appellee and other witnesses raised by appellant’s motion, for the reason that, treating this testimony as competent, we are of the opinion that, considering it in connection with the other circumstances in proof, it fails to make out appellee’s case.

The question was raised by the appellee as to certain depositions having been filed out of time.- It is quite evident that -the chancellor considered these depositions, "and had before him a copy of the same, and that the originals were filed in court before the decree was entered.

From the'views expressed, it follows that the decree of the trial court must he reversed, and the cause is remanded with directions to enter a judgment in favor of the appellee for one-half the amount of the discrepancy in the credits he should have received, as shown by the statement of the accountant Patrick.


source: Caselaw Access Project

author: Hart, C. J.

license: Public Domain

text:
    Roachell v. Gates.
    Opinion delivered March 14, 1932.

      Walter Killough, for appellant.

      David A. Gates and Ogan ■& Shaver, for appellee.
   Hart, C. J.

L. L. Boachell and B. C. Floyd have appealed from a decree of the chancery court, granting the Commissioner of Revenues judgment for motor vehicle tax and penalty due the State óf Arkansas under an act of the Legislature of 1929.

The cases were consolidated for tidal upon an agreed statement of facts in writing. The facts may he briefly summarized as follows: L. L. Roachell is a citizen and resident of Parkin, Cross County, Arkansas. He operated a truck from August 31, 1930, to May 1, 1931, hauling freight from Parkin, Arkansas, to Memphis, Tennessee, and from the latter point back to Parkin. He was a private carrier for hire, and was exclusively engaged in interstate commerce. He only operated one truck which he had purchased from the International Harvester Company, and that company had retained title until the vehicle was paid for. Roachell had agreed to pay for the truck $978 in monthly payments and had paid a total of $225 on the purchase price. R. C. Floyd is a citizen and resident of Parkin, Cross County, Arkansas, engaged in operating trucks as a private carrier since March 1, 1929. He first bought a truck on the installment plan in which the vendor retained title until the truck was paid for. The purchase price was $721, and he had paid $300 of the purchase money. From March 1, 1929', he has hauled as a private carrier, cotton from McDonald, Arkansas, to Memphis, Tennessee. He also engaged in one private contract from Memphis, Tennessee, to points in the State of Oklahoma, in which his motor truck passed across the State of Arkansas without making any stops for delivering any shipments within the State of Arkansas. It was further agreed that, if the act sought to be enforced by the State Commissioner of Revenues is constitutional, the amounts demanded are due and payable.

The record shows that appellants were private carriers engaged exclusively in interstate commerce, and this appeal involves the construction of act. 65 passed by the Legislature of 1929 for the purpose of amending and codifying the laws relating to State highways. Acts of 1929, vol. 1, p. 264.

The particular section of the act which is claimed to ■be unconstitutional, as violating’ the commerce clause of the Constitution of the United States, is § 68, which reads as follows:

“Any motor vehicle carrier of persons or freight for compensation who operates between a certain point or points without the State of Arkansas to certain point or points within the State of Arkansas, shall be subject to the same rules and regulations and shall pay the same privileges or excise tax as motor vehicle carriers operating entirely within the State; but, in computing the privilege or excise tax to be paid by such motor vehicle carriers operating partly within and partly without the State, the privilege or excise tax of four per cent, upon the gross amount of fares and charges shall be based upon the proportion that the mileage within this State over which said haul is made bears to the total mileage.”

In the absence of Federal legislation covering the subject, the.Supreme Court of the United States has repeatedly recognized that a State or one of its delegated agencies may enforce, as to the owner of vehicles using the highway exclusively in interstate commerce, regulations insuring the public safety and convenience, and impose such a license fee as will reasonably defray the expense of administering the law and be a fair contribution to the cost of constructing and maintaining the public highways and the facilities furnished by the State. The State acts under its police power, and it is recognized that the movement of motor vehicles over the public highways is a serious and constant danger to public travelers and very destructive to the highways themselves. The use of the public highways under modern conditions is exceedingly expensive because motor vehicles cannot be used except upon hard-surfaced highways, which are very costly in construction and maintenance. Hence it is held that the State may impose the tax for the purpose of constructing and maintaining the highways where there is a reasonable relation between the measure employed for that purpose, and the extent or manner of use of the motor vehicles. When that is done, the Supreme Court of the United States has held that a tax on motor vehicles used exclusively in interstate commerce as compensation for the use of the public highways which is a fair contribution to the cost of constructing and maintaining them, and regulating traffic thereon, is not unconstitutional as a burden on interstate commerce. Sprout v. South Bend, Indiana, 277 U. S. 163, 48 Sup. Ct. 502, 62 A. L. R. 45; and Interstate Transit, Inc. v. Lindsey, 283 U. S. 183, 51 S. Ct. 380. In the latter case, all the earlier cases on the subject are reviewed, and no useful purpose could be served by citing them or reviewing them here.

It is true that the court held the aot in the Lindsey case to be unconstitutional, but it recognized the principles above announced as being the doctrine of that court. In the Lindsey case, the tax levied was upon a bus carrying passengers, according to the number, of passengers carried, and provided that the tax should be in lieu of all county and municipal taxes. The court said that no sufficient relation between the measure employed and the extent or manner of use was shown to justify holding that the tax was a charge made merely as compensation for the use of the highways.

Here the facts are essentially different. The Legislature passed an act amending or codifying the laws relating to State highways at its 1929 session, and created a State Highway Commission to be composed of five members. The act was very comprehensive in its nature, and contained seventy-five sections. Section 67 provides for the levy of an excise or privilege tax upon the business of each person or corporation operating any motor vehicle for compensation. The amount to be levied was four per cent, of the gross amount received by such carrier of all fares and charges collected for the transportation of .persons and property. It also provides for the payment monthly to the Commissioner of Revenues. Section 68, which is copied above, provides in substance that any motor vehicle carrier of persons or freight for compensation which operates between a point or points within the State of Arkansas and a point or points without the State of Arkansas shall be subject to the same rules and regulations and shall pay the same privilege or excise tax as motor vehicle carriers operating- entirely within the State, but in computing the tax of those engaged in interstate commerce the four per cent, charge upon the gross amount of hauling for charges shall be based upon the proportion which the mileage in this State bear & to the total mileage. Thus, it will be seen that there is no discrimination whatever between interstate and intrastate carriers. There is no attempt in the record to show that the amount collected was arbitrary or excessive.

It is also earnestly insisted that the showing made in the record that Floyd hauled freight from a point in Tennessee to points in Oklahoma, across the State of Arkansas, without stopping or delivering- freight therein, renders the act unconstitutional as being- discriminatory. We do not think this contention is well taken when the whole scope and purpose of the act in connection with its relation to prior acts on the same subject is considered. The Legislature of 1929, by an act which was approved February 27, 1929, provided for the regulation, supervision, and control of motor vehicles used in the transportation of persons or property for hire by the Railroad Commission. Acts 1929, vol. 1, p. 137. This act contained twelve sections and § 1 (d) provides that the term, “motor vehicle carrier,” wherever used in the act, means every corporation or person owning and operating any motor-propelled vehicle used in the business of transporting persons or property for compensation over any improved public highway in this State. Section 1 (f) provides that the term, “improved public highway,” shall mean every improved public highway in this State which is or may hereafter he declared to he a part of the State highway system. Section 1 (g) provides that the term, “property and freight,” as used in the act, shall mean any kind of property transported by motor vehicle carrier for compensation over any improved public highway in the State. Act 65, relating to the amendment and codification of the State highway laws, was approved on February 28, 1929.

This court has held uniformly that acts passed upon the same subject must be taken and construed together. The intention of the Legislature should he carried into effect, where that can be done without doing violence to the language used. Another cardinal rule of construction is that this rule is especially applicable where the two acts were under consideration by the Legislature at the' same time. Merchants’ Transfer & Warehouse Company v. Gates, 180 Ark. 96, 21 S. W. (2d) 406.

This court has uniformly approved the doctrine of substitution, elimination, or supplying words in conformity to the obvious spirit and purpose of the act in attempting* to carry out the intention of the Legislature. State ex rel. Attorney General, v. Chicago Mill & Lumber Corporation, 184 Ark. 1011, 45 S. W. 2d 26, and cases cited.

After a careful consideration of the matter, in connection with the obvious purpose and intent of the Legislature to regulate all motor traffic over the improved public highways of the State, we do not think that it meant to exempt from the provisions of the act motor vehicles hauling freight from a point in another State across the State of Arkansas, to points in other States. A reasonable construction of the act would indicate that the legislative purpose and intent was to regulate all traffic over the public highways of this State; and, when all the provisions of both acts under consideration are considered together, we are of the opinion that the act applies to motor vehicles operating in the manner just described as well as to motor vehicles operated in interstate commerce from a point within the State to a point without the State. The gist of the whole matter, as we have already seen, was to regulate motor traffic for hire over the public highways of the State under the police power for the safety of the traveling public and for a reasonable proportion of the expense of constructing and maintaining the improved public highways.

Therefore, we hold the act to be constitutional, and it is conceded that the amount demanded is due under the terms of the act.

Finally it is contended that there is no authority to levy an execution on the property of appellant. Reliance is placed upon Jennings v. McIlroy, 42 Ark. 236, and later decisions of this court, where it was held that mortgaged personal property is not subject to attachment or execution for a debt of the mortgagor-. The reason for so holding was that at common law equitable interests in personalty were not liable to be taken in execution at law. The court said that, by a mortgage of personal property, the title passes, and the mortgagor has only the equitable right to reclaim it on payment.

Here the facts are different. The title to the property was in the vendor of appellants, and they stood in the relation of a conditional vendee. This court has frequently held that the vendee of an automobile, having paid part of the purchase price and having been given possession under a contract retaining title to the vendor until the payments are completed, had an interest therein which he could sell or mortgage. Loden v. Paris Auto Company, 174 Ark. 720, 296 S. W. 78.

Upon principle, it would seem that, if he had an interest which he could sell or mortgage, it would be subject to attachment under execution for his debts. Such a rule would not in any sense deprive the vendor of his right to retake the property as his own if he saw fit to do so. Upon the other hand, the vendor would have the right to elect to treat the sale as absolute and sue for the purchase price. Hence we do not consider this objection well taken.

Upon the whole case, we are of the opinion that the decision of the chancery court was correct, and the decree will therefore he affirmed.


author: Hart, C. J.,

text:
    Butterworth v. Tellier.
    Opinion delivered March 14, 1932.

      Frauenthal, Sherrill ,S Johnson, for appellant.

      June P. Wooten, for appellee.
   Hart, C. J.,

(after stating the facts). Counsel for appellee seek to uphold the construction placed upon the contract by the court under the rule that, when a man undertakes by an express contract to do a given act, he is not absolved from liability for nonperformance, even though he is prevented from doing it by an act of God or some impossibility placing it beyond his power to perform the contract. Among the many cases following this rule are Cassady v. Clarke, 7 Ark. 123; and Davis v. Bishop, 139 Ark. 273, 213 S. W. 744. In the latter case, the court also recognized certain exceptions to the general rule, and one of them is that where the subject-matter of the contract has been destroyed or the event creating the impossibility is one which could not reasonably be supposed to have been within the contemplation of the contracting parties, the promisor is discharged from the performance of the contract or the obligation to answer in damages.

Again in Holton v. Cook, 181 Ark. 806, 27 S. W. (2d) 1017, 69 A. L. R. 709, the court recognized that contracts of this character must be considered as subject to an implied condition that the parties shall be excused in case, before breach, performance becomes impossible without fault of the contractor.

Numerous other cases applying the rule and the exceptions thereto may be found in a case note to 21 A. L. E. commencing at 1274, and in 74 A. L. E., commencing at 1290. No useful purpose could be served by an extended review of the decisions because, to determine whether a case falls within the general rule or the exceptions thereto, reference must be made to the facts of each particular case.

It is earnestly insisted by counsel for appellee that in all of these cases the court has recognized that the death of the person or destruction of the subject-matter of the contract has rendered the performance of the contract a physical impossibility. We do not agree with counsel in this contention. Since the question is one as to the construction of the contract, it can make but little difference how the subject-matter of the contract went out of existence, so long as the party charged was not in any degree in fault in the premises. The minds of the parties are presumed to have contemplated the possible loss of the property. For cases illustrating the principle, see Dexter v. Norton, 47 N. Y. 62, 7 Am. Rep. 415; and Lorilbard v. Clyde, 142 N. Y. 456, 24 L. R. A. 113, 37 N. E. 489.

In the latter case, there was a guaranty of dividends of the corporation for a term of years made by the manager to persons who were formerly his competitors in business, which the corporation had been formed to continue under what was substantially a partnership arrangement, while both parties were prohibited from becoming interested in competing business during that period, which the court held implied the existence of the corporation during the time specified, capable of earning and declaring- dividends. In that case it was also held that a defense to a guaranty of corporate dividends that the corporation, had been dissolved would not be defeated on the ground that the dissolution was caused by the defendant’s own misconduct, where it was adjudged on the application of the plaintiff for technical breach of corporate duty, for some of which he was as much responsible as the defendant.

We have set out the contract, which is the basis of this lawsuit, in our statement of facts, and need not repeat it here. Reference to it will show that Miller and Butterworth were owners of the majority of the stock in the corporation. Tellier first subscribed for $5,000 worth of the stock and then increased it to $15,000. Miller and Butterworth were original subscribers of stock for $25,000 each. The contract recites that in consideration óf the purchase of said stock by Tellier and the personal advantage accruing to Butterworth and Miller as majority stockholders, it was agreed by the parties that Tellier should receive dividends on said stock at the rate of ten per cent., and that he should continue to receive them until such time as the corporation was in a position to1 declare regular dividends out of its earnings. It then provides that said stock shall be credited with the payment of said dividends and shall draw dividends the same as all other stock at such times as regular dividends shall be declared. It then provides that Miller and Butterworth shall guaranty said ten per cent, dividends, payable as above stated, and for the further consideration enumerated. Miller, Butterworth and Tellier were all intimate friends and closely associated with each other in business. Miller and Butterworth were the managing officers of the corporation. Just what relation Dickinson had is not shown.

A reasonable construction of the contract shows that there was an implied condition that the dividends to be paid on the stock of Tellier were to be made by Miller and Butterworth as managing officers of the corporation, and were to continue only so long as the corporation continued in existence, and was not dissolved on account of the neglect or mismanagement of its affairs by Miller and Butterworth. The record does not show that any act of Miller or Butterworth caused the insolvency of the corporation. It was organized at a time when the business affairs of the country were in good condition, and it was thought in good faith by all of the parties that great profits would be made in the operation of the granite quarry. The parties had made large profits in other transactions. Like many other businesses, the corporation lost instead of making money. This resulted finally in its insolvency, and its assets were sold to pay the creditors of the corporation. As above stated, there is nothing to show that Miller and Butterworth were at fault in the management of the corporation and caused its insolvency by any act of neglect of their own in the management of the corporation.

In this connection, it may be stated that Tellier received the price of his subscription to the last stock and a little more besides. Even after the death of Miller, Butterworth continued to make payments for a time, and this was after the corporation ceased to exist. This at least showed good faith in the premises.

Upon a consideration of the whole case, we are of the opinion that there was no' liability under the contract, and the court erred in directing a verdict for the plaintiff. Inasmuch as the case seems to have been fully developed, the judgment will be reversed, and the cause of action will be dismissed here.


author: Smith, J.

text:
    St. Louis Southwestern Railway Company v. Elmore.
    Opinion delivered March 14, 1932.

      Carter, Jones $ Turney, McKay >& Smith and Lamb <& Adams, for appellant.

      W. U. Kitchens, Jr., and Wade Kitchens, for appellee.
   Smith, J.

Appellees brought this suit to enjoin the appellant railway company from obstructing a road by means of which they had ingress and egress to and from certain lots owned by them and on which they resided. These lots adjoined the railroad right-of-way, and the road in question ran from appellees’ lots, across a portion of the railroad right-of-way, to' a street in the city of Magnolia.

The court found, from testimony which fully sustains the finding, that the plaintiffs themselves, for more than seven years, and their predecessors in title, for more than forty years, had used the railroad right-of-way as a road to and from the lots on which they resided, and that there is no way of ingress or egress to and from said lots except over and along the right-of-way of the railroad, and that the railway company had, over the protest of appellees, obstructed this way so as to deprive appellees and all others of the use of this way by stretching barbed wire across it.

The finding was made that appellees, and their predecessors in title, had acquired an easement over and along said railroad right-of-way from their lots to the nearest street for purpose of ingress and egress to their property, and upon this finding the railway company was enjoined from obstructing the way in such manner as to prevent appellees from using it, and this appeal is from that decree.

Without setting out the testimony, which, as we have said, fully sustains the finding of fact made by the court below, it may be said that a continuous use of this way by all persons who had occasion to use it was shown for a period of fifty years, and it was also shown that the street commissioner of the city of Magnolia had worked and improved this way as a part of the streets of the city.

For the reversal of the decree, it is first insisted that a prescriptive right may not be established by adverse possession and use of a railroad right-of-way. Upon this question it may he said that, while there is a division in the authorities, it has been several times decided by this court that -such a prescriptive right may be acquired. Graham v. St. L. I. M. & S. R. Co., 69 Ark. 562, 65 S. W. 1048; St. Louis & S. F. R. Co. v. Ruttan, 90 Ark. 178, 118 S. W. 705; St. L. I. M. & S. R. Co. v. Martin, 104 Ark. 274, 149 S. W. 69; St. Louis, S. W. R. Co. v. Fulkerson, 177 Ark. 723, 7 S. W. (2d) 789.

It is next insisted that, even though such a right may be acquired, there was no sufficient notice to the railway company that such an adverse right was being asserted. This is, of course, a question of fact, and the court has found that there was such notice as to apprise the railway company that an adverse use was being made of the portion of its right-of-way in question. See Britt v. Berry, 133 Ark. 589, 202 S. W. 830, and cases there cited.

It is next insisted that the decree should be reversed because the court did not find that the public had acquired the right to use the road or way in question, but had found only that appellees had acquired an easement which permitted them to use the road or way.

There is no cross appeal from the failure of the court to' find that the road in question had become a public road by prescription, and we do not, therefore, decide whether that finding should or should not have been made. The court granted the plaintiffs the relief they prayed, that is, that their easement be not interfered with.

It was said in the case of Bond v. Stanton, 182 Ark. 293, 31 S. W. (2d) 409, that: “The doctrine that the owner of one lot may acquire an easement over the lot of another by the open, notorious and adverse use thereof under a claim or right for a period of seven years is well settled in this State. Such adverse user is sufficient to vest.the claimant with an easement therein.” [Citing cases].

The testimony being sufficient, as we find it to be, as did the court below also, that appellees had acquired, through long continued adverse use, an easement over the right-of-way, the railway company is in no position to complain that the decree of the court below limited its finding to the grant of the particular relief prayed in the cause, and did not enlarge its finding to include the ■general public'. If there is any error in this omission, which we do not decide, it is one of which the railway company may not be heard to complain, as an individual may acquire such a right in which the public generally is not entitled to share. The decree must therefore be affirmed, and it is so ordered.


author: Humphreys, J.

text:
    Burnett v. Seventh Street Produce Company.
    Opinion delivered March 14, 1932.

      JR. E. Rison and Lewis Rhoton, for appellant.

      Verne McMillen, for appellee.
   Humphreys, J.

This suit was brought by appellant against appellee to recover damages for injuries received to his shoulder and back through the alleged negligence of appellee’s truck driven, with whom he was riding by permission of appellee. Two separate acts of negligence were alleged as follows: That at the time of the injury the truck was being driven at a reckless, negligent and dangerous rate of speed; and that the driver failed to sound any alarm before trying to pass a truck traveling in the same direction, in violation of paragraph “B,” § 12 of act 223 of the Acts of 1927.

Each allegation of negligence was denied, and the cause was submitted upon the pleadings, testimony and instructions of the court, resulting in a dismissal of appellant’s complaint, from which is this appeal.

Appellant’s main contention for a reversal of the judgment is that the right to recover was limited by instruction No. 8, given by the court at the instance of appellee, to the sole issue whether appellee’s driver failed to blow the horn when attempting to pass the truck in front of him. Appellee admits this was the effect of the instruction, but attempts to justify it upon the ground that there was an entire failure of any substantial evidence upon which to submit the issue whether the driver was negligent in the rate of speed he was driving at the time of the injury. We cannot agree with appellee in this conclusion. When the driver passed the truck in front of him, he was traveling at a speed of thirty-five miles an hour and within a narrow space due to the load on the truck in front sticking over the left side. Appellant testified that he requested the driver not to attempt to pass the truck in front, but that, without giving any signal, he attempted to do so and was forced into the ditch, where the truck they occupied turned over several times, injuring and rendering appellant unconscious. We think these facts sufficient to warrant a submission of the issue of whether appellee’s truck was being driven at a reckless, negligent or dangerous rate of speed when attempting to pass the truck in front.

Appellant also contends for a reversal of the judgment because the court gave appellee’s requested instruction No. 10, which is as follows:

“You are instructed that, before you can find for the plaintiff in this action, you must find that the driver of defendant’s truck negligently attempted to pass the truck traveling in the same direction, and negligently failed to sound any alarm before trying to pass a truck traveling in the same direction, and, unless you so find, the court tells you that the plaintiff cannot recover, and you will find for the defendant.”

The effect of this instruction was to tell the jury to find for appellee unless appellant established by the weight of the testimony both allegations of negligence set out in the complaint, whereas it was sufficient for him to establish either by a preponderance of the testimony.

This, as well as the first instruction referred to, was inherently wrong as applied to the facts and subject to a general objection. It was not necessary to point out either defect by specific objection as contended by appellee.

Appellant also contends that there was no evidence upon which to base instruction No. 6 given by the court at the request of appellee. The instruction objected to is as follows:

“You are instructed that it was incumbent upon the plaintiff to use reasonable care to avoid unnecessary aggravation of his injuries; and if you believe from the evidence that the plaintiff did not use reasonable care in following the advice of his physician, and if you further believe from the evidence that, because of his failure to observe such reasonable care, his collar-bone was deformed, then the court tells you that the plaintiff cannot recover in this action for such deformity.”

The evidence relied upon by appellee in support of said instruction is as follows:

“Q. At that time you informed him (appellant) that he would have to have that kind of an operation, to have a proper union? A. No, sir, I told him at the time that it would be one that I thought advisable in order to have proper position. Mr. Burnett asked me, if I thought we could get a union without an operation. I told him. I thought we could, but that we would have a deformity. Q. You told him that to start with? A. Yes, sir. Q. And he didn’t have you to perform that operation? A. No, sir, he said he would rather not have to be cut on if he didn’t have to be. Q. And he would take the chances of the deformity? A. No, he didn’t say he would take the chances of any deformity. Q. Did you tell him that he probably would have a deformity if he didn’t do it A. Yes, sir, I told him that he might have a deformity; yes, sir. Q. And he didn’t have you perform that operation? A. No, sir, he said he would rather not be cut on, if he didn’t have to be. Q. And he said he would take the chances on the deformity? A. No, he didn’t say he would take the chances of any deformity.”

This piece of evidence does not show that appellant was guilty of negligence in failing to follow the advice of his physician. The most it shows is that he did not want to submit to an operation unless it was absolutely necessary. The effect of this testimony was not as contended by appellee that appellant took the chance of a deformity rather than submit to an operation.

On account of the errors indicated, the judgment is reversed, and the cause is remanded for a new trial.


author: Kirby, J.

text:
    State use Calhoun County v. Poole.
    Opinion delivered March 14, 1932.

      Joe Joiner, for appellant.

      C. L. Poole, for appellee.
   Kirby, J.

This appeal is prosecuted from a judgment denying appellant the right to recover $300 of school funds alleged to have been wrongfully retained by appellee as an attorney’s fee for the collection of moneys for the school district.

It appears from the testimony that W. A. and Ida Tomlinson made their will in the State of Texas, county of Jeff Davis, providing that $3,000 out of their estate he paid-to the public school fund of Calhoun County.

Sikes was appointed executor of the will, and the $3,000 was collected out of the estate, but he failed to pay same to the school fund, paying it to C. L. Poole instead, who was alleged to be without authority to accept it for the* school fund, and Poole acting for Sikes, executor, did pay the school fund of said county the sum of $2,700, wrongfully retaining $300' as a fee for the collection of it, and it was alleged that both he and the executor were liable to the county school board therefor.

Poole answered denying- any indebtedness, and alleged that he had the right to and did retain the $300 out of the money collected as a fee for professional services rendered.

The testimony shows the "services necessary to be performed, which were done by Poole and an assistant employed by him in having the will, which appeared to have been lost for a time, probated in Denton County, Texas, where Ida Tomlinson died, a copy of the lost will being procured from Pilo Pinto County where it had first been probated. The necessity for procuring affidavits from the subscribing witnesses from Jeff Davis County, etc., was shown. The money was finally collected after three trips made to Texas by appellee and paid over to the public school fund, except $300 retained by Poole as his fee in accordance with what he claimed to be his contract of employment.

He testified that he had talked with the board at regular meetings two or three times about the employment and the necessity for it, and that finally the president of the board with another man came over to his office and told him to proceed with the collection; that he accordingly collected the money after three trips down into Texas at an expense of about $75 each and retained his fee agreed upon, as he had the right to do.

Several members of the board testified that Mr. Poole had come before the board and stated the necessity for having some one employed to collect the money from the estate, but that the board had never employed him; that Sikes, the executor, was Poole’s brother-in-law, his wife being a daughter of the testator, as was also Poole’s wife, and that the board thought it could collect the money without the employment of counsel.

Sometime after Poole had begun to proceed about the collection and before it was actually made, the board passed a resolution to rescind any previous action towards employing an attorney to collect the money willed to the school fund of the county by Mr. Will Tomlinson and leave it in the hands of Mr. Sikes of Monticello.

The jury under instructions not complained of returned a verdict in favor of appellee Poole, from which this appeal comes.

It is insisted for reversal that the school board was without authority to employ a lawyer to collect the money given to it under the terms of the will, that the testimony is insufficient to support the verdict, and that the court erred in not granting a new trial on account of newly discovered evidence.

The county board of education is granted certain powers by the statute, § 8873, et seq., Crawford & Moses’ Digest, in effect substituting the county boards of education for the county court in the supervision of school affairs, the duties of the board being set forth in § 8876 of the Digest. The right of the county board to bring suit for the protection of the common school fund and for the purpose of requiring the county treasurer to transfer moneys to the common school fund appears to be recognized in County Board of Education v. Austin, 169 Ark. 436, 276 S. W. 2. Although the authority is not expressly given, it would necessarily be implied from the authority conferred to manage and control school funds, etc. The jury decided the fact as to whether there was a contract between appellee “Poole and the county board of education to collect the fund, and there is sufficient evidence to support the verdict. All admitted Mr. Poole appeared before the board at one or two meetings, stated the conditions about the collection of the fund and his desire to represent the board in the collection, agreeing to do so for the amount of $300. Although several members denied that he was ever employed and stated that the minutes of the board meetings did not show any such employment, he testified that the president of the board came to his office after the last conference with them and told him to proceed with the collection, which he did. The president was not very definite in his recollection of what occurred when he spoke to Poole about it, but he admitted that he called at the office for some purpose and had a conversation with Poole. Then the resolution passed by the board after appellee was proceeding with the collection of the fund, which was afterwards paid to him, to rescind any previous action toward employing an attorney to collect the money indicates that the board thought that an attorney may have been employed for whose services it would be bound, unless it did take such action. If appellee had been employed, as some of the testimony tends to show and the resolution indicates, the board could not discharge ox-refuse to pay him a reasonable fee for the services necessarily rendered in the collection of the money to which the board was entitled. He stated what his services consisted of, the necessity of payment of expenses of three trips to Texas, the employment of a local attorney to assist, aixd it cannot be said that the fee charged for making the collection, if one had not beeix agreed upon, was more than the services rendered were worth.

Neither was error committed in refusiixg to grant the motion for a new trial oix account of newly discovered evidence. No diligence was shown to procure the testimony of'the witness, which was claimed would furnish the newly discovered evideixce, no subpoena having been issued for him, and, although he was a party to the suit, appellaxxt could not have a íxew trial because of the disappointment of its expectatioxxs that said witixess would necessarily be at the trial and could be introduced by it as a witness for appellant. The testimony claimed to be newly discovered was largely cumulative too, about the payment of the expenses of the attorney for his trips to Texas, one witxxess having- testified he had seen the account and the statement of it and its paymexit by the executor, etc.

We do not find any prejudicial error in the record, and the judgment is affirmed.


author: Mehaeey, J.

text:
    Lee v. Wagner.
    Opinion delivered March 14, 1932.

      Jas. S. McConnell, for appellant.'

      Feasel \& Steel, for appellee.
   Mehaeey, J.

This suit was begun by the appellant, Laura Lee, administratrix of the .estate of W. Ridley Lee, deceased, against the appellee, Ferris Wagner, to recover the possession of two mules, alleged to be of the value of $125. The suit was in replevin; a bond given, and order of delivery was issued, and appellant took possession of the mules and disposed of them.

The justice of the peace found in favor of appellee, and appeal was taken to the circuit court, where the case was tried and resulted in a judgment and verdict for appellee.

In the fall of 1929’, Dr. W. Ridley Lee was the owner of the two mules, and told appellee that the mules were in the pasture, and if appellee wanted them he could go and get them, and pay $125 for them. There was no time fixed for the payment, except appellee told Dr. Lee he would pay when he could.

The appellee used the mules in 1930 to cultivate his land, but there was a crop failure, and he was unable to pay. Dr. Lee did not retain title to the mules, did not take any note, but entered a charge on his books of $125 for the mules.

The appellee does not claim that he has paid for them, but he went to the appellant after Dr. Lee’s death and told her he wanted to sell the mules to a Mr. Runnels.

The appellant testifies that she told appellee that, if satisfactory with her attorney, appellee could keep the mules until fall. Appellee testified that she agreed that he could keep them until fall. She says he wanted to turn the mules over to her, but she was unable to keep them, and told him to see her attorney.'At any rate, appellee kept the mules and began to make a crop, and this suit in replevin for possession of the mules was begun as stated above.

There is no claim that title was retained to the mules, but the admitted facts show that appellee was the owner, and in possession of the mules. There was then considerable testimony about the amount of damages caused by taking the mules under order of delivery, but we do not deem it- necessary to set out this testimony.

At the close of the evidence the court instructed the jury that the plaintiff had no right to maintain the action for the recovery of the mules, and directed the jury to return a verdict for the defendant for the mules in controversy ; but the court also stated to the jury that, since the testimony showed the mules had been disposed of, and that the purchase price had not been paid, these two items would offset each other; but that, since the mules had been wrongfully taken, defendant was entitled to recover damages if he had sustained any.

The jury returned a verdict for $100 damages for the wrongful taking of the mules, and judgment was entered for this amount. Motion for a new trial was filed and overruled, and the case is here on appeal.

The evidence showed that appellee had begun the cultivation of his land, had broken his corn land, laid it off, and planted it; had row-bedded the other land, a part of it twice.

Appellee and others testified about the damage for taking the mules, and about their reasonable rental value. The evidence as to the rental value of the team, and the damages caused by the wrongful taking, was competent.

Appellant contends that she had no right to make an agreement with appellee for him to keep the mules until fall; that this agreement could not be made without specific authority from the probate court, and relies on § 122 of Crawford & Moses’ Digest, to sustain her contention. The section referred to is with reference to compromising a debt, and provides that the probate court' may authorize the administrator to compromise a debt due the estate, which cannot be realized in money.

The agreement testified to by appellee was not a compromise of the debt in any. sense. He wanted to turn the mules over to appellant, and he says she wanted him to keep them and feed them during the winter, and agreed that he might make another crop with them and pay in the fall, but there never was any agreement or suggestion about compromising the debt. Appellee did not deny that he owed the debt, and' did not make any offer of compromise except he offered to deliver the mules to her, which she declined.

Appellant also calls attention to § 213 of Crawford & Moses’ Digest, with reference to the personal liability of persons sued as executors or administrators. This section has no application to the facts in this case.

It was error for the court to set off the debt of appellee against the value of the mules. The statute provides: Where the property has been delivered to the plaintiff, and the defendant claims a return thereof, judgment for the defendant may be for the return of the property or its value, in case a return cannot be had, and damages for the taking and withholding of the property.”

It would therefore have been proper for the court to direct the jury to return a verdiot for the defendant for the return of the property or its value, and damages for the taking and withholding the property, if any had been shown by the evidence.

However, the appellee does not complain, and admits that he owes the debt, and there was no objection by appellee to this instruction of the court.

The appellant did not allege or prove either title to the property or the right to immediate possession, and, in order to maintain replevin for personal property, it is necessary to allege and prove both title and right to possession.

“Property in defendant is a good defense in an action of replevin, and this is ordinarily true, whether it be an absolute or a special or qualified property in the goods which are the subject-matter of the litigation.” 54 C. J. 456.

In this case, the undisputed proof shows that title to the property was in the appellee, and that the appellant had no title. As said in a recent case: “Appellant might have maintained an action to establish and enforce a lien on the mules under the vendor’s lien statute, after breach of the contract by appellee for the rental of the land, but the action of replevin will not lie. To maintain replevin, plaintiff must show title in the property, and a landlord’s lien is not sufficient to sustain the action.” Laughlin v. Tyler, 177 Ark. 1183, 9 S. W. (2d) 567; Security Bank & Trust Co. v. Bond, 132 Ark. 592, 201 S. W. 820; Brown & Hackney, Inc., v. Lovelace, 152 Ark. 540, 239 S. W. 21; Passwater Chevrolet Co. v. Whitten, 178 Ark. 136, 9 S. W. (2d) 1057; Reavis v. Barnes, 36 Ark. 575; Knox v. Hellums, 38 Ark. 413.

Replevin lies for the possession'of specific personal property. Where one sells property and retains title, he may bring suit in replevin for possession of the property because he has title to it; but where one sells personal property without retaining title, he cannot bring suit for the possession of the property, but his remedy is a suit against the vendee for the debt, and he may attach the property and cause it to be sold for the payment of the debt.

Suit was not brought in this case for the debt, but was brought to recover the specific property, and the trial court correctly held that the appellant had no right to recover in this action.

Appellant contends that the damages are excessive, but this question was not raised in her motion for new trial, and cannot therefore be considered by this court.

We find no error, and the judgment of the circuit court is affirmed.


text:
    Hill v. State.
    Opinion delivered March 14, 1932.

      O. Boy Taylor, for appellant.

      Hal L. Norwood, Attorney General and Robert F. Smith, Assistant, for appellee. .
   Mehaeey, J.

The appellant, Tom Hill, was indicted by the Crawford County Grand Jury, the first count In tiie indictment charging him with the crime of burglary, and it is alleged that the burglary ivas committed by breaking into and entering box car No. A. R. T. 2.1404 of the Missouri Pacific Railway Company. The second couiit charged appellant with grand larceny.

He filed a demurrer-to the indictment which was overruled, and he was tried and convicted, and his punishment fixed at three years in the penitentiary. After the verdict, appellant filed a motion in arrest of judgment, which was overruled. He then filed a motion for new trial, which was also overruled. The case is here on appeal.

The motion in arrest of judgment and the motion for new trial alleged that the indictment was faulty; that it had been changed, amended and altered. The evidence showed that the original indictment charged appellant with breaking into car No. A. R. T. 41404, and that it was changed to A. R. T. 21404, and that the indictment was also amended by adding the words “a corporation” after the Missouri Pacific Railway Company. These changes were made by the prosecuting attorney after the indictment had been filed in court.

The evidence was sufficient to support the verdict of the jury, and the only question for our consideration is whether the change in the indictment by the prosecuting attorney rendered the indictment void.

The Attorney General argues that it was not necessary to allege the car number, and therefore changing it from 41404 to 21404 did not affect the substantial rights of the appellant, and that the change was immaterial.

It was not necessary to allege the car number, but, having alleged it, it becomes descriptive of the offense, and must be proved as charged. “It has been held by this court that it is unnecessary, in an indictment of larceny for money, to describe it as money of the United States, but, having alleged that it was money of that kind, it must be proved as alleged. The same degree of certainty in the proof has been held to be necessary under indictments for embezzlement, for obtaining property under false pretenses, and for burglary.” Value v. State, 84 Ark. 285; Carleton v. State, 129 Ark. 361; Bryant v. State, 62 Ark. 459; State v. Anderson, 30 Ark. 131; Shover v. State, 10 Ark. 259; Jenks v. State, 63 Ark. 312; Lee v. State, 114 Ark. 310; Adams v. State, 64 Ark. 188.

In the last case mentioned, it was said: “A description of the house in which the liquors were kept for sale is therefore descriptive of the offense, and material, and must be proved as alleged.”

This court has uniformly held that while not necessary to describe.the house or the car by number, yet where it is alleged that the offense was committed by breaking and entering a certain described house or car, the description of the house or car is descriptive of the offense, and is material. Therefore, the car number, having been alleged in the indictment, was material, and cannot be changed by the prosecuting attorney or any other person.

The indictment, when filed in court, became a record, and could not be withdrawn for amendment or any other purpose.

“When the original indictment was returned into the court by the grand jury, and filed, it became a part of the records of that court, and thereafter could not be withdrawn for amendment or for any other purpose, either by the grand jury or the prosecuting attorney. If the indictment was supposed to be insufficient, either for uncertainty or for want of proper legal words, the proper practice was to enter a nolle prosequi and have the grand jury find a second indictment on the original evidence. But there is no such thing known to our law as the amendment of an indictment, although an error as to defendant’s name will not vitiate the proceedings, and there are some formal defects which will be cured by verdict. In fact, there are constitutional objections to such amendments.” State v. Springer, 43 Ark. 91.

Our Constitution provides: “No person shall be held to answer a criminal charge, unless on the presentment or indictment of a grand jury.” Article 2, § 8, Constitution of Arkansas.

If the prosecuting attorney or any one else could change the indictment after it had been filed in court, it would no longer be the indictment presented by the grand jury, and no person could be held to answer a criminal charge under it after it had been changed.

In a note to 7 A. L. R. 1555, it is said: “The proposition that in the courts of the United States any part of the body of an indictment can be amended after it has been found and presented by a grand jury, either by order of the court or on the request of the prosecuting attorney, without being resubmitted to them for their approval, is one requiring’ serious consideration. Whatever judicial precedence there may have been for such action in other courts, we are at once confronted with the 5th of those articles of amendment, adopted early after the Constitution itself was formed, and which were manifestly intended mainly for the security of personal rights. This article begins its enumeration of these rights by declaring that no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.”

There are many cases cited in the above note, and among others attention is called to the case of Henderson v. State, 91 Ark. 224, 120 S. W. 966, in which this court held that, to secure a conviction, the proof in a prosecution or an indictment must correspond with the allegations of the indictment, since the indictment cannot be amended to conform to the proof.

After the indictment was changed it was no longer the indictment of the grand jury which presented it, and as said in Ex parte Bain, quoted from in the above note, in 7 A. L. R.: “Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made, by the consent or order of the court, in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court in regard to the prerequisites of an indictment in reality no longer exists.”

The Wisconsin court said: “If the amendments were at all material, their allowance would he good cause for arresting the judgment. Indictments cannot he amended.” State v. McCarty, 54 Am. Dec. 150; Dickson v. State, 20 Fla. 800; Patrick v. People, 24 N. E. 619; 14 R. C. L. 192.

The motion in arrest óf judgment should have been granted.

The judgment is reversed, and the cause remanded with directions to quash the indictment.


author: McHaney, J.

text:
    Arkansas Power & Light Company v. Hilliard.
    Opinion delivered March 14, 1932.

      Robinson, House •& Moses and Harry E. Meek, for appellant.

      O. H. Sumpter, for appellee.
   McHaney, J.

In 1926 appellant contemplated the construction of a dam across the Ouachita River near Hot Springs above Remmel Dam. It caused its engineers to determine and survey off all the land which would be flooded by the construction of said dam. It proceeded to purchase or condemn the land that was to be flooded by reason thereof. The appellee was the owner of certain land, a portion of which would be flooded, and it entered into negotiations with her for the purchase thereof, which finally resulted in a sale by her to it of such land as it contemplated flooding at a price of $40 per acre, for which she executed to its representative a general warranty deed. The deed was dated March 23, 1926, and in it she reserved the use and occupancy and the right to remove all improvements and timber thereon until December 31, 1927. This is the only reservation in the deed, but it is conceded that appellee had the right to purchase from appellant at the same price such of the land as was not flooded. There is a public road running from State highway No. 6 in a southwesterly direction to the east side of her land where it terminates at a gate in the fence around her land. A private road leads from the gate to her residence near the southeast corner of the southwest quarter of the northeast quarter of section 10. The house is located on a knoll or hill, and there is a depression between the gate and the house which has been flooded by the construction of Carpenter Dam, the lake formed thereby being • known as Lake Hamilton. The water in this depression or swale is on the land purchased by appellant from appellee and floods the roadway from the gate to appellee’s house to a depth of 10 or 12 feet and about 300 feet wide. Appellee is therefore unable to get to or from her home over this roadway.

She brought this suit to enjoin the appellant from raising its lake to such a level as would flood her roadway between the public road and her house and also asked for damages against appellant in the sum of $2,950. The evidence showed it would cost from $2,000 to $3,000 to build a dump and culvert across the flooded roadway so as to provide her a way to get in and out over the same route. On a hearing the court denied the injunction, but gave judgment in her favor against appellant in the sum of $2,000.

The court did not find that the roadway from appellee’s gate to her house, and which has been flooded, is a public road. The court did find that at the time of the grant and for more than seven years prior thereto she had been using the way over the granted land, such use being open and notorious, and that there was a way of necessity reserved in her grant by implication. Appellant does not object to her use of the way or of the water over the way, provided the facilities for its use are constructed without expense to it, and that its use does not interfere with the raising or lowering of the water level in the lake. It is undisputed that both parties knew the land purchased from appellee was to be flooded. Appellant’s agents pointed out to her what land would be flooded at the 400 foot level, and what would be flooded at the 414 foot level. The dam was constructed so as to bring the water to the 400 foot level only, but she knew that at that level the low place between her house and gate would be flooded, and of necessity knew that the road running across such low place would also be flooded. She made no reservation in her deed that it should not be flooded, nor that, if it were, appellant should construct a bridge or other way across same. Nor did she testify in positive terms that any agent of appellant agreed to provide her a way in the event her road was flooded. She testified that the road was to be taken care of: ‘ ‘ That was my understanding that they would never shut me in there”; that she talked to Mr. Longino, agent for appellant, many times and told him she didn’t want to be shut in; that she, Mr. Longino, and Mr. Belding, her lawyer, were together when the deal was finally closed in Belding-’s office, and, when asked if anything was said about keeping the roadway open at that time, she answered, “Well, I won’t say.” At no place in this record does Mrs. Hilliard say she had an agreement with Mr. Longino for appellant that it would keep her way open by building a bridge, culvert or anything else. The most she says is that she got the impression from Mr. Longino that it would give her a way. Her son, who was a joint owner at that time with appellee and who signed the deed to appellant, says: “I just took it for granted we were to have the use of the road; wasn’t anything* said against our using it.” And again he said: “No, I just took it for granted we would be able to have the use of the road. The road ends at our home.”

Conceding' without deciding that oral testimony would have been competent to show, as a part of the consideration for the deed, (the deed reciting “$1 and other good and valuable consideration”) that appellant agreed to build her a bridge or viaduct, still thu evidence of such an agreement is too indefinite, vague and uncertain to show a binding contract on appellant to do so.

What we have said makes it unnecessary to discuss other questions argued in the briefs. Other ways of ingress and egress are open to appellee, one tendered by appellant, attended with some inconvenience and expense. It cannot be said therefore that she is entitled to the way demanded as of necessity.

The decree is reversed, and the cause remanded with directions to dismiss the complaint for want of equity.

Humphreys and Mehaeez, JJ., dissent.


text:
    National Fire Insurance Company v. Kight.
    Opinion delivered March 14, 1932.

      Verne MoMillen, for appellant.

      John L. MoGlellan, for appellee.
   McHaney, J.

The only question presented for determination in this case is the liability of appellant for the payment of the statutory damages and attorney’s fee under § 6155, Crawford & Moses’ Digest. The statute provides: “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 attorney’s fee. *' * *”

There is no dispute in the facts. The case was submitted on an agreed statement of facts, substantially as follows: Appellee’s building- was insured by appellant in the sum of $3,000, and sustained a partial loss by fire while the policy was in full force and effect. Appellant did not deny liability, but admitted same, and agreed to pay whatever sum was necessary up to its liability to restore the building in good condition. The disagreement arose over the amount necessary to restore the building in as good condition as before the fire. Appellee in apt time made proof of loss in which he claimed damages to the building in the full amount of the policy $3,000. Appellant secured three estimates of reputable contractors in which they offered to restore the building for from approximately $2,100 to approximately $3,250. Appellee secured estimates from contractors ranging from $3,200 to $3,800. The parties were unable to aaree on an amount within sixty days after proof of loss, but appellant offered to pay appellee $2,122.36, which appellee refused, and made a counter offer to accept $2,800 in settlement of the loss which appellant declined to pay. Counsel for appellee wrote a letter to appellant’s adjuster under date of May 23, 1931, rejecting appellant’s offer, in which he said: “I have gone into and carefully considered all these estimates, made further investigation and have concluded the loss is practically equal to the face of the policy, but have recommended to Mr. Kig'ht, and he has agreed to accept rather than delay settlement any longer, $2,800. * * * He will not accept less, and, if your company will not accept on this basis, there is no prospect of amicable settlement.” Under date of June 1, 1931, appellant’s adjuster replied, refusing to pay the demand for $2,800, in which he said that he was not in position to exceed the estimates of two of the contractors and concluded by stating: “You may therefore take whatever action you deem advisable. ’ ’ Thereafter appellee filed suit for $2,675. Appellant answered admitting its liability for $2,675, together with interest from May 12, 1931, the date of the proof of loss, but denied that appellee was entitled to recover 12 per cent, damages or an attorney’s fee. At the same time it paid into thS registry of the court the sum demanded, together with interest and costs to that date, in full of its liability under the policy and prayed to be dismissed. The court found against appellant, and rendered judgment against it in the sum of $321 damages, being 12 per cent, of $2,675, and $250 attorney’s fee. This appeal is from that judgment.

"We think the court erred in so holding. Appellee first demanded the full amount of the policy, $3,000. Later it reduced this amount and demanded $2,800, and in this demand he stated that he would not accept less. Appellant did not deny its liability in a sum sufficient to restore the building to its former condition, and the only difference between them was the amount necessary for this purpose. Appellee for the first time demanded a less amount than $2,800 when it filed its complaint seeking to recover $2,675 -with interest, 12 per cent.- damages and a reasonable attorney’s fee. Thereupon appellant promptly paid the amount of the demand with interest and the accrued costs. This court has -several .times held that the above statute providing for 12 per cent, damages and a reasonable attorney’s fee is highly penal and should be strictly construed, and that it -should not be held to apply except in cases which come clearly within the statute. Home Life Ins. Co. v. Stancell, 94 Ark. 578, 127 S. W. 966, and National Union Life Ins. Co. v. Crabtree, 151 Ark. 561, 237 S. W. 97.

We have many times held that the above statute has no application where an excessive demand is made upon the insurance company, and that there can be no recovery for damages and attorney’s fee where the judgment is for less than the demand. Pacific Mutual Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, 124 S. W. 764; Industrial Mutual Indemnity Co. v. Armstrong, 93 Ark. 84, 124 S. W. 236; Interstate Business Men’s Accident Assn. v. Sanderson, 148 Ark. 195, 229 S. W. 714; Illinois Bankers Life Ins. Co. v. Mann, 158 Ark. 425, 250 S. W. 887; American Alliance Ins. Co. v. Paul, 173 Ark. 960, 294 S. W. 58; Mutual Relief Assn. v. Poindexter, 178 Ark. 205, 10 S. W. (2d) 17; Lincoln Reserve Life Ins. Co. v. Jones, 178 Ark. 466, 10 S. W. (2d) 910.

In Queen of Arkansas Ins. Co. v. Milham, 102 Ark. 675, 145 S. W. 545, the appellant claimed that the appellee was indebted to it on a premium note of $12, and appellee conceded that that amount should be deducted from the amount sued for in .the original complaint. In response to appellant’s contention that it was not liable under the statute for the penalty and attorney’s fee, this court said: “If appellant wished to avoid the penalty and attorney’s fee provided for in the statute, it should have offered to confess judgment for that amount, and thus have ended the suit. It did not do so, but elected to go on and contest the claim of the appellee on other grounds, and thereby became liable for the penalty and the attorney’s fee provided for in the statute when appellee recovered the amount sued for.”

In Life & Casualty Co. v. Sanders, 173 Ark. 362, 292 S. W. 657, we held that the plaintiff could reduce his demand by amendment to the complaint after the trial had started and still recover the penalty and attorney’s fee.. We there said: “If, instead of proceeding with the trial of the case and denying any liability whatever on the grounds here urged, it had either offered to pay the reduced amount, or had asked .to be given the time in which to pay same as provided in the policies, appellee could not have recovered the penalty and attorney’s fee, and, in addition, would have been required to pay all costs, for the reason that he demanded a sum greater than he was entitled to under the policy.” These cases settle the principle here involved. Appellee demanded a sum of appellant greater than he was entitled to receive. When he made a demand for the correct amount, appellant promptly paid it and cannot therefore be liable for the damages and fees provided for in the statute because he has not brought himself within its provisions.

The judgment of the circuit court will be reversed, and the cause dismissed.-

Kirby, J., dissents.


author: MciHaney, J.

text:
    Stone v. Stone.
    Opinion delivered March 14, 1932.

      Jas. S. MaConnell, for appellant. : . • !

      Feasel & Steel, for appellee.
   MciHaney, J.

Appellee is the widow of W. C. Stone, deceased, and appellants are his heirs at law, children by a former marriage, all adults. At the- time of her marriage to said Stone, appellee was the widow of one Joe Caldwell, deceased, from whose landed estate she claimed and was allowed a homestead which she has continued to claim, and the rents and profits from which she has continued to enjoy since Caldwell’s death, more than 25 years ago. After the death of Mr: Stone and after letters of administration had been taken .out on his estate - (he having died intestate), appellee as widow filed her petition in the probate court for the assignment to her of her homestead rights in said estate. Appellants contested her right to a homestead out of said estate on the ground that she already had a homestead in her own right, which had been assigned to her out' of the estate of Joe Caldwell, her former husband, and which was ¡still in her possession, and from which she was still enjoying the rents and profits. The probate court denied her claim on this ground, and she appealed to- the circuit' court. Appellants then sought to have dower assigned to her by petition to the probate court which included the land claimed by her as homestead, which she opposed because it included the homestehd claim, but the court assigned dower as petitioned by appellants. She appealed from this order. Both cases were consolidated in the circuit court by consent, heard together, and the court rendered judgment allowing appellee her homestead right in said estate as claimed by her, and also assigned dower to her in the whole estate after carving out the 80 acres allowed as homestead. This appeal is from that judgment.

The Constitution, article 9, § 6, which is § 5523, Crawford & Moses’ Digest, provides: “If the owner of a homestead die, leaving a widow, but no children, and said widow has no separate homestead in her own right, the same shall be exempt, and the rents and profits thereof shall vest in her during her natural life. Provided, that if the owner leaves children, one or more, said child or children shall share with said widow, and be entitled to half the rents and profits till each of them arrives at twenty-one years of age; each child’s rights to cease at twenty-one years of age, and the shares to go to the younger children, and then all to go to the widow; and provided that said widow or children may reside on the homestead or not. And, in case of the death of the widow, all of said homestead shall be vested in the minor children of the testator or intestate.”

Counsel for both parties agree that a proper decision of the case depends upon what is meant by the clause in the above section of the Constitution which says, “and said widow has no separate homestead in her own right. ’ ’ It is well settled in this State that the homestead acquired by a former marriage is not forfeited or abandoned by a subsequent marriage and removal to the homestead of the second husband. Davis v. Neal, 100 Ark. 399, 140 S. W. 278, L. R. A. 1916A, 999; Colum v. Thornton, 122 Ark. 287, 183 S. W. 205. In the latter case we said: “The general rule is that a remarriage by a widow will not operate to destroy the homestead character of a home left to- her and her children by a former husband. Our Constitution does not require a widow to occupy the homestead. There is nothing in it to indicate that the framers intended that the marriage of a widow and her going to her second husband’s homestead and occupying it with him. should work a forfeiture of her previously existing legal rights.”

The phrase above quoted, “has no separate homestead in her own right,” has been frequently defined by this court. It means “the separate homestead of the widow established by her as a widow; that is, after, and not before the death of her husband.” Davenport v. Devereaux, 45 Ark. 341. It “is not the separate homestead of the wife, but of the widow; that is, the separate homestead of the widow, selected by her on her own lands after the death of her husband (for she is not his widow until then).” Willmoth v. Gossett, 71 Ark. 594, 76 S. W. 1073. And in Bruce v. Bruce, 176 Ark. 442, 3 S. W. (2d) 6, it is said the widow becomes entitled to the homestead on her husband’s death, “and unless, after his death, the widow selects some other homestead,” she is entitled to the one occupied as such at the time of his death.

We are of the opinion therefore that appellee had the undoubted right to select as a homestead the home she had occupied for mauy years with her husband, Mr. Stone, and that the homestead acquired from her former husband, Caldwell, was not abandoned during the lifetime of Mr. Stone. Whether the selection of the Stone homestead as his widow constitutes an abandonment of the Caldwell homestead, we do not decide as appellants cannot raise that question, they having no interest in the Caldwell estate.

We find no error, and the .judgment is accordingly affirmed.


author: Butler., J.,

text:
    Jolley v. Meek.
    Opinion delivered March 14, 1932.

      H. L. Veazey, for appellant.

      'Aubert Martm, for appellee.
   Butler., J.,

(after stating the facts). The appellee insists that, because of the failure of the appellant tu abstract certain instruments, exhibits to the pleadings and testimony, there has been a failure to comply with rule-9 of this court. "We are Of the opinion that this cohtem tion cannot be sustained because the pleadings’and téstimony abstracted are sufficient to give us an understanding of the issues involved.

We pretermit the second question raised by the appellee, i. e., that the record is insufficient in that the oral testimony taken was not properly preserved by a bill Of exceptions, for the reason that treating the testimony as properly preserved and brought forward in the record, it is insufficient to overturn the finding and decree of the chancellor. ■ .

The appellant, having denied that she signed the notes and deeds of trust or that she acknowledged the same, the burden of proof was upon her to show by preponderance of the evidence that her signature, was a forgery, and that she had not in fact- acknowledged the instruments. Thompson v. Kinard, 168 Ark. 1057, 272 S. W. 668; Hildebrand v. Graves, 169 Ark. 210, 275 S. W. 524. The chancellor found that the appellant had not sustained this burden of proof, and under the well-settled rule his decision must be upheld unless it is against the preponderance .of the- testimony.

The appellant testified that she did not sign the notes and deeds of trust, and that she did not acknowledge the same, but her testimony cannot be regarded as undisputed if, from all the facts in proof and from an examination of her testimony itself, any reasonable inference can be drawn contrary to her statement. Harris v. Bush, 129 Ark. 369, 196 S. W. 471; Interstate Business Mens’ Acc. Assn. v. Sanderson, 144 Ark. 271, 222 S. W. 51. There is some corroboration of appellant’s testimony to be found in the testimony of her brother and sister, who stated that they were familiar with appellant’s handwriting, and that in their opinion the signatures to the instruments involved were not written by the appellant. There is evidence, however, in direct conflict with this. The appellant, in open court, wrote her signature three times; We are unable to say whether or not there was an attempt upon her part to disguise her handwriting, but the chancellor had it before him at the time and doubtless compared it with the signatures on the instruments and considered it in the light of the attendant, circumstances.

J. O. Jolley, the husband of the appellant and the signer with her of the instruments, testified that his wife, to whom the property mortgaged had been conveyed about five years previously by her father, knew of the purpose for which the mortgages were executed and stated that she had acknowledged the same before a notary and had signed the instruments.

The notary whose name appeared as the officer taking the acknowledgments was not able to testify in specific terms regarding the time and place and the incidents surrounding the taking of the acknowledgments, but this is not surprising as he was testifying about five years after the date of the acknowledgments. He did testify, however, that he took the acknowledgments, and that he had never taken the acknowledgment of a woman unless she was present. The officer had no interest in the result of the suit, and the chancellor doubtless attached more weight to his testimony than to that of the appellant, in view of the latter’s interest and her denial, not only to the signatures on the instruments, but to her acknowledgment of the same. If the appellant did not in fact sign the deeds of trust, this would be of no importance if she acknowledged their execution before a notary. There is no evidence, nor is there any contention made, that the appellee colluded in any way with J. O. Jolley, who admitted signing the instruments and getting the money, to deceive the appellant. On the contrary, it is apparent that he was entirely innocent of any fraud. Therefore as to him, the appellant’s acknowledgment of the instruments would be effective to bind her, although the signatures might not have been her own and were unauthorized. Ward v. Stark, 91 Ark. 268, 121 S. W. 382; Goodman v. Pareira, 70 Ark. 49, 66 S. W. 147; O’Neal v. Judsonia State Bank, 111 Ark. 589, 164 S. W. 295; Clifford v. Federal Bank & Trust Co., 179 Ark. 948, 19 S. W. (2d) 1026; Abernathy v. Harris, 183 Ark. 22, 34 S. W. (2d) 765.

We are unable to say that the finding of the chancellor was against the preponderance of the testimony, and the decree is therefore affirmed.